The ITO, Ward-9(1), Ahmedabad V. Shri Rajesh Chunilal Patel, Ahmedabad

ITA 2699/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1881 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: A C SHAH
• Keywords: Unexplained cash credit; Additional evidence; Reasonable cause
• Section: 143(3); 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 2699/AHD/2012 / ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER, WARD 9(1), AHMEDABAD VS. SHRI RAJESH CHUNILAL PATEL, 109, SHANKAR NIVAS, USMANPURA, AHMEDABAD PAN : AERPP 0105 J / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR. DR. ASSESSEE BY : SHRI A.C. SHAH, AR !'#$ / DATE OF HEARING : 28/03/2016 / DATE OF PRONOUNCEMENT: 07/04/2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LEARNED CIT(A)-XV, AHMEDABAD IN APPEAL NO.CIT(A)-XV/9(1)/24 6/10-11 DATED 25.09.2012 , PASSED FOR ASSESSMENT YEAR 2008-09. A SSESSMENT U/S 143(3) OF THE INCOME-TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 WAS FRAMED ON 26.11.2010 BY INCOME-TAX OFFICER, WARD 9(1), AHMEDABAD. THE REVENUE HAS RAISED FOLLOWING GROUND S OF APPEAL:- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.30,01,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . COMMISSIONER OF INCOME- TAX (APPEALS)-XV, AHMEDABAD MAY BE SET ASIDE AND THA T OF THE ASSESSING OFFICER BE RESTORED. ITA NO. 2699/AHD/2012 ITO VS. SHRI RAJESH CHUNILAL PATEL FOR AY: 2008-09 2 2. BRIEFLY STATED FACTS, AS CULLED OUT FROM THE REC ORDS, ARE THAT THE ASSESSEE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS AS A CONTRACTOR. HE FILED HIS RETURN OF INCOME ON 23.12.2008 DECLARING TOTAL INCOME AT RS.2,12,411/-. THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND N OTICE U/S 143(2) OF THE ACT WAS ISSUED ON 26.08.2009 WHICH WAS DULY SERVED UPON THE ASSESSEE. A DETAILED QUESTIONNAIRE WAS GIVEN TO THE ASSESSEE AN D NECESSARY DETAILS WERE SUBMITTED. THE LD. ASSESSING OFFICER, ON THE BASIS OF AIR INFORMATION, RAISED QUERY TO THE ASSESSEE ABOUT THE CASH DEPOSIT OF RS.18,25,000/- AND THE CHEQUE DEPOSIT OF RS.30,00,000/- IN VIJAYA BANK, AM BAWADI BRANCH, AHMEDABAD. NO REPLY WAS RECEIVED FROM THE ASSESSEE AND THEREFORE, LD. ASSESSING OFFICER WENT AHEAD TO MAKE ADDITION OF R S.30,01,000/- BY CALCULATING THE PEAK AMOUNT APPEARING IN THE VIJAYA BANK ACCOUNT AS ON 19.03.2008 AND ADDITION WAS MADE U/S 68 OF THE ACT FOR UNDISCLOSED INCOME. INCOME WAS ASSESSED AT RS.32,13,411/-. 3. AGGRIEVED THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A), WHO CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFF ICER IN RELATION TO VARIOUS ENTRIES CREDITED IN THE IMPUGNED BANK ACCOU NT HELD WITH VIJAYA BANK, AMBAWADI BRANCH, AHMEDABAD FOR ASSESSMENT YEA R 2008-09. ON THE BASIS OF THE REMAND REPORT AND SUBMISSIONS MADE BY THE ASSESSEE, LD. CIT(A) WAS CONVINCED ABOUT THE SOURCE OF THE CREDIT S MADE IN THE IMPUGNED BANK ACCOUNT AND ACCORDINGLY DELETED THE ADDITION M ADE BY THE LD. ASSESSING OFFICER AND ALLOWED ASSESSEES APPEAL. A GGRIEVED THE REVENUE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 4. LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE OR DER OF THE LD. ASSESSING OFFICER. ON THE OTHER HAND, LD. AUTHORIZ ED REPRESENTATIVE SUBMITTED THAT IN THE IMPUGNED BANK ACCOUNT HELD WI TH VIJAYA BANK, AMBAWADI BRANCH, AHMEDABAD, THERE WERE TWO CREDITS OF RS.15,00,000/- ITA NO. 2699/AHD/2012 ITO VS. SHRI RAJESH CHUNILAL PATEL FOR AY: 2008-09 3 EACH ON 19.03.2008 AND THESE WERE RELATED TO ADVAN CE OUT OF THE TOTAL SALE CONSIDERATION FOR THE IMMOVABLE PROPERTY SOLD BY TH E ASSESSEE DURING FINANCIAL YEAR 2008-09, RELEVANT TO ASSESSMENT YEAR 2009-10. TO SUPPORT THIS SUBMISSION, LD. AUTHORIZED REPRESENTATIVE PLAC ED ON RECORD THE COPY OF SALE DEED REGISTERED ON 23.05.2008. AS REGARDS CASH DEPOSIT OF RS.18,25,000/- MADE BY THE ASSESSEE IN TWO PARTS, VIZ., RS.14,65,0 00/- ON 29.03.2008 AND RS.3,60,000/- ON 31.03.2008, THE LD. AUTHORIZED REP RESENTATIVE SUBMITTED THAT THE ASSESSEE HAS WITHDRAWN CASH FROM BANK AMOU NTING TO RS.20,00,000/- ON 28.03.2008 THROUGH CHEQUE NO.2223 37 AND OUT OF THIS CASH WITHDRAWAL OF RS.20,00,000/-, THE ASSESSEE HAS DEPO SITED RS.18,25,000/- IN THE BANK ACCOUNT. THE LD. AUTHORIZED REPRESENTATIV E FURTHER SUBMITTED THAT AS THE NECESSARY DETAILS WERE AVAILABLE ON RECORD T O PROVE THE SOURCE OF CHEQUE AND CASH DEPOSITS IN THE IMPUGNED BANK ACCOU NT, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE LD. ASSESS ING OFFICER. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLITARY GRIEVANCE OF THE REVENUE IN T HIS APPEAL IS AGAINST THE ORDER OF THE LD. CIT(A) WHEREIN THE ADDITION OF RS. 30,01,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE AC T HAS BEEN DELETED. FROM GOING THROUGH THE RECORDS, WE OBSERVE THAT THE IMPU GNED BANK ACCOUNT HELD WITH VIJAYA BANK, AMBAWADI BRANCH, AHMEDABAD W AS NOT DISCLOSED BY THE ASSESSEE IN HIS REGULAR RETURN OF INCOME AND ON THE BASIS OF AIR INFORMATION, THE DETAILS WERE CALLED FOR FROM THE A SSESSEE. NO SATISFACTORY REPLY WAS GIVEN BY THE ASSESSEE DURING THE COURSE O F ASSESSMENT PROCEEDINGS BEFORE THE LD. ASSESSING OFFICER. HOWE VER, DURING THE APPELLATE PROCEEDINGS BEFORE LD. CIT(A), DETAILS/SUBMISSIONS WERE MADE BY THE ASSESSEE AND THE LD. CIT(A) ALSO TOOK THE REMAND RE PORT FROM THE ASSESSING OFFICER. ON GOING THROUGH THE AVAILABLE RECORDS, W E ARE ABLE TO FIND THAT, THE ASSESSEE HAS ENTERED INTO TRANSACTION OF SALE OF LA ND WHICH WAS REGISTERED IN ITA NO. 2699/AHD/2012 ITO VS. SHRI RAJESH CHUNILAL PATEL FOR AY: 2008-09 4 THE OFFICE OF SUB-REGISTRAR ON 23.05.2008. THIS TR ANSACTION OF SALE OF LAND WAS ENTERED INTO AT RS.68,79,900/-. HOWEVER, DURIN G THE YEAR UNDER APPEAL THE ASSESSEE RECEIVED TWO CHEQUES OF RS.15,00,000/- EACH ON 19.03.2008 IN THE SHAPE OF ADVANCE AGAINST THE SALE CONSIDERATION WHICH MATERIALIZED IN ASSESSMENT YEAR 2009-10. THE LD. CIT(A), AFTER GOI NG THROUGH THE REMAND REPORT OF LD. ASSESSING OFFICER DATED 22.06.2011 AN D SUBMISSIONS MADE BY THE ASSESSEE, WAS OF THE VIEW THAT NECESSARY SOURCE OF CREDITS IN THE IMPUGNED BANK ACCOUNT HAS BEEN DULY PROVED BY THE A SSESSEE. WHILE ALLOWING THE APPEAL OF THE ASSESSEE, THE LD. CIT(A) OBSERVED AS UNDER:- 8. I HAVE CONSIDERED VARIOUS SUBMISSIONS OF THE AP PELLANT AND PERUSED THE EVIDENCE SO FILED. I HAVE ALSO CONSIDERED THE REMAN D REPORT SUBMITTED BY THE A.O. THE FIRST ISSUE IS IN RESPECT OF ACCEPTANCE OF ADDITIONAL EVIDENCES IN THE FORM OF SALE DEED. AS ALREADY DECIDED BY THE THEN LD . CIT(A) XV BY CALLING A REMAND REPORT ON SUCH MATERIAL FROM A.O, I AM ALSO I NCLINED TO ADMIT SUCH EVIDENCES WHICH WERE NOT PRODUCED BY THE APPELLANT BEFORE THE A.O. ON ACCOUNT OF REASONABLE CAUSE. THESE EVIDENCES ARE AL SO IMPORTANT TO APPRECIATE THE FACT OF THE CASE IN PROPER PROSPECTIVE. NOW COM ING TO THE MERIT PART, AS PER THE REMAND REPORT OF THE A.O., THE APPELLANT'S S UBMISSION IN THE FORM OF SALE DEED OF IMMOVABLE PROPERTY HAS DETAILS ABOUT T OTAL SALE CONSIDERATION AT RS. 68,79,900. IT HAS DETAILS ABOUT RECEIPT OF CONS IDERATION WHICH INCLUDE RECEIPT OF RS. 15 LAC EACH THROUGH CHEQUE FROM SH. VISHNUBHAI PUNJABHAI PATEL AND SH. KANUBHAI BABALDAS PATEL RESPECTIVELY. IT IS THEREFORE I AM INCLINED TO ACCEPT THE CONTENTIONS OF THE APPELLANT THAT SOURCE OF DEPOSIT IN HIS BANK ACCOUNT AT VIJAYA BANK IS OUT OF SUCH RECE IPT AND CASH WITHDRAWAL FROM SAME ACCOUNT IS BEING REDEPOSITED. THE CHEQUE DETAILS I.E. CHEQUE NO. 853855 DT. 14/03/08 OF S.B.I, FROM SH. VISHNUBHAI P UNJABHAI PATEL AND CHEQUE NO. 027815 DT. 14/03/08 OF VIJAYA BANK FROM SH. KANUBHAI BABALDAS PATEL IS MATCHING WITH THE CHEQUE DEPOSITED IN VIJA YA BANK A/C OF APPELLANT WHERE SUCH DEPOSITED CHEQUES WERE CLEARED ON 19/03/ 08 WITH RESPECTIVE NUMBER OF CHEQUES. IT IS THEREFORE, THE SOURCE OF D EPOSIT OF CHEQUES IN THIS BANK ACCOUNT STANDS EXPLAINED. IN REFERENCE TO CASH DEPOSIT OF RS. 14,65,000/- ON 29/03/08 AND RS. 3,60,000/- ON 31/03/08, THE APP ELLANT'S EXPLANATION THAT THE SAME WAS DEPOSITED OUT OF THE CASH WITHDRAWAL O F RS. 20,00,000/-ON 28/03/08 FROM THE SAME BANK ACCOUNT IS VERIFIABLE F OR DATE, TRANSACTION AND ALSO FOR THE SOURCE OF SUCH ACCOUNT. HENCE, THESE D EPOSITS ARE ALSO DULY EXPLAINED. THE A.O. HAS CORRECTLY COMPUTED THE PEAK AMOUNT OF RS.30,01,000 AS ON 19/03/08 IN THIS ACCOUNT FOR THE ADDITION BUT , ON ACCOUNT OF ABOVE DISCUSSED PROPOSITION THE SOURCE OF THIS AMOUNT IS DULY EXPLAINED HENCE THE ITA NO. 2699/AHD/2012 ITO VS. SHRI RAJESH CHUNILAL PATEL FOR AY: 2008-09 5 ADDITION SO MADE BY A.O. IS NOT JUSTIFIED. HE IS DIR ECTED TO DELETE THE ADDITION SO MADE. THE APPELLANT GETS RELIEF ACCORDINGLY. IN REFERENCE TO A.O'S OBJECTION THAT APPELLANT HAS NOT FILED RETURN OF IN COME FOR A.Y. 09-10, THE SAME WON'T HAVE ANY FACTUAL OR LEGAL BEARING ON THE FACTS AS DISCUSSED ABOVE AS FAR AS SOURCE OF SUCH DEPOSITS IN THE BANK ARE C ONCERNED. THE A.O. IN HIS OWN RIGHT CAN START PROCEEDINGS AGAINST APPELLANT F OR A.Y. 09-10 IF REGAINED FOR ANY FURTHER ACTION. FROM GOING THROUGH THE OBSERVATIONS MADE BY THE LD. CIT(A) AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT AS THE ASSESSEE HAS PROVED THE SOURCE OF THE CHEQUES D EPOSIT OF RS.15,00,000/- EACH ON 19.03.2008 AS WELL AS CASH DEPOSIT AT RS.18 ,25,000/- THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION AND WE FIND NO REA SON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). THUS, THIS GROUND OF THE REVENUE IS DISMISSED. 6. GROUND NOS.2 & 3 ARE GENERAL IN NATURE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- (SHAILENDRA K. YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED 07/04/2016 **BT ''#()*)+# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # ( ) / THE CIT(A) 5. &'( ! , ! , / DR, ITAT, AHMEDABAD 6. (- ./ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD