The ITO, Ward-9(2), Ahmedabad V. Shri Ashish Amratlal Patel, Ahmedabad

ITA 2703/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2115 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 22-05-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 03-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Keywords: Unexplained cash credit; Unexplained investment
• Section: 143(3)

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH , , , , , , , , !' !' !' !', , , , #$ # #$ # #$ # #$ # % % % % BEFORE S/SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AN D ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2703/AHD/2012 [ASSTT.YEAR : 2009-2010] ITO, WARD-9(2) AHMEDABAD. /VS. ASHISH AMRATLAL PATEL 1, RAJAT KAMAL SOCIETY PART-1 132 FT. RING ROAD JIVRAJPARK, AHMEDABAD PIN : 380 051. PAN: AFKPP 5098 N ITA NO.2701/AHD/2012 [ASSTT.YEAR : 2009-2010] ITO, WARD-9(2) AHMEDABAD. /VS. JAYDEEP AMRATLAL PATEL 1, RAJAT KAMAL SOCIETY PART-1 132 FT. RING ROAD JIVRAJPARK, AHMEDABAD PIN : 380 051. PAN: AAWFS 8809 H ( (( ('( '( '( '( / APPELLANT) ( (( ()*'( )*'( )*'( )*'( / RESPONDENT) + , - #/ REVENUE BY : SHRI D.K. SINGH, SR.DR / , - #/ ASSESSEE BY : SHRI PRITESH SHAH 0 , '$/ DATE OF HEARING : 22 ND MAY, 2013 123 , '$/ DATE OF PRONOUNCEMENT : 24 TH MAY, 2013 ITA NO.2703 AND 2701/AHD/2012 -2- #4 / O R D E R PER MUKUL KR. SHRAWAT, JUDICIAL MEMBER : BOTH THESE APPEALS FILED BY THE REVENUE AGAINST THE ASSE SSEES HAVE IDENTICAL FACTS AND ARISEN FROM THE ORDERS OF THE C IT(A)-XV, AHMEDABAD DATED 18 TH /19 TH SEPTEMBER, 2012. DUE TO THIS REASON, THESE APPEALS ARE CONSOLIDATED AND HEREBY DECIDED B Y THIS COMMON ORDER. 2. THE GROUNDS RAISED IN THE CASE OF SHRI ASHISH AM RATLAL PATEL ARE HEREBY DECIDED AS FOLLOWS. THE GROUND NO .1 READS AS UNDER: 1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.9,97,900/- MADE ON ACCO UNT OF UNEXPLAINED CASH CREDIT. 3. THE FACTS IN BRIEF, AS EMERGED FROM THE CORRESPO NDING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT DATED 13.12.2011 WERE THAT THE AO ON VERIFICATI ON OF BANK STATEMENTS OF UCO BANK NOTICED THAT ON SEVERAL DATE S, THERE WERE CASH DEPOSITS TOTALING TO RS.9,97,000/-. FOR THE S AKE OF BREVITY, THE DATES AND THE AMOUNT OF DEPOSITS ARE NOT REPROD UCED BY US, AS IS AVAILABLE ON THE BODY OF THE ASSESSMENT ORDER AT PAGE NO.2. THE ASSESSEE WAS, THEREFORE, REQUESTED TO EXPLAIN T HE SOURCE OF CASH DEPOSIT IN THE SAID BANK. IN SHORT, THE EXPLA NATION OF THE ASSESSEE WAS THAT ON SEVERAL OCCASION, THE ASSESSEE HAD WITHDRAWN THE CASH FROM THAT VERY BANK, WHICH WAS R E-DEPOSITED. THE DATE ON WHICH THE CASH WAS STATED TO BE WITHDRA WN FROM THE SAID BANK WAS AS UNDER: ITA NO.2703 AND 2701/AHD/2012 -3- ON DATED 10/04/2008 RS.10,000/ ON DATED 08/08/2008 RS.3,05,000/ ON DATED 13/08/2008 RS.15,000/- ON DATED 18/08/2008 RS.25,000/ ON DATED 19/08/2008 RS.25,000/ ON DATED 25/08/2008 RS.35,000/ ON DATED 27/08/2008 RS.30,000/ ON DATED 25/09/2008 RS.2,50,000/ APART FROM THE ABOVE SOURCE OF DEPOSITS, IT WAS ALS O EXPLAINED THAT THERE WAS AN OPENING CASH BALANCE OF RS.2,50,0 00/- AS ON 1.4.2008, WHICH WAS ALSO UTILIZED FOR THE IMPUGNED DEPOSITS. HOWEVER, THE AO WAS NOT CONVINCED AND HELD THAT IT WAS VERY DIFFICULT TO UNDERSTAND THAT WHY THE ASSESSEE HAD R E-DEPOSITED THE CASH IN THE SAME BANK. THE AO HAS ALSO RAISED A QU ESTION THAT WHY THE CASH WAS WITHDRAWN FROM THE BANK. IN HIS O PINION, IN NORMAL COURSE, WHENEVER A PERSON MAKES A WITHDRAWAL FROM THE BANK, THEN HE NEVER RE-DEPOSITS THE SAME CASH IN TH E BANK. ACCORDING TO HIM, THE ASSESSEE HAS NOT PROVED THAT THE SAME CASH WHICH WAS WITHDRAWN EARLIER WAS DEPOSITED IN THE BA NK. AFTER ASSIGNING THESE REASONS, THE AO HAD TAXED AN AMOUNT OF RS.9,97,000/- AS UNEXPLAINED CASH DEPOSITS IN THE H ANDS OF THE ASSESSEE. BEING AGGRIEVED, THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. 4. BEFORE THE LEARNED CIT(A), THE ASSESSEES EXPLAN ATION WAS THAT THE CASH WITHDRAWN ON SEVERAL DATES FROM THE S AID BANK WAS THE CASH IN HAND, AS IS EVIDENT FROM THE BOOKS OF A CCOUNTS, ESPECIALLY, THE CASH BOOK, HENCE, THE REDEPOSIT WAS FULLY ITA NO.2703 AND 2701/AHD/2012 -4- EXPLAINED. ON DUE CONSIDERATION OF THE EXPLANATION OF THE ASSESSEE, THE LEARNED CIT(A) HAS DECIDED THE ISSUE IN ASSESSEES FAVOUR IN THE FOLLOWING MANNER: 5. I HAVE PERUSED THE FACTS OF THE CASE. I HAVE AL SO PERUSED THE CASE LAWS RELIED ON BY A.O. AS WELL AS APPELLAN T. AFTER CAREFUL CONSIDERATION OF FACTS, SUBMISSION AND CONT ENTION OF BOTH A.O. AS WELL AS OF APPELLANT, GROUND WISE ADJU DICATION IS AS FOLLOWS: IN RESPECT OF ADDITION OF RS.9,97,000 BEING CASH DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT, I A M INCLINED TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE SAME IS DEPOSITED OUT OF OPENING CASH IN HAND AND O UT OF WITHDRAWALS FROM BANK. THE CASH FLOW SO PREPARED OF CASH BY THE APPELLANT DULY REFLECT THAT HE WAS HAVING SU FFICIENT CASH BALANCE ON THE DATES WHEN SUCH AMOUNT WAS DEPO SITED IN THE BANK ACCOUNT. I AM NOT INCLINED TO ACCEPT TH E REASONING GIVEN BY A.O. THAT THE ASSESSEE WILL BEHA VE FOR CASH WITHDRAWAL FROM BANK AND DEPOSIT IN THE BANK A S MENTIONED BY THE A O. THE A.O. CANNOT DICTATE THE W AY HOW A BUSINESSMAN BEHAVES FOR HIS SUCH TRANSACTIONS REL ATED TO WITHDRAWALS AND DEPOSIT. THE A.O. CANNOT SAY THAT W HEN APPELLANT IS REQUIRED TO WITHDRAW OR-TO DEPOSIT. IT IS NOT ALWAYS THAT CASH WITHDRAWN FROM BANK IS UTILIZED, I T IS BECAUSE OF THIS REASON THERE IS ALWAYS CASH IN HAND DEPENDING UPON A PERSON NEED AND FACTS KNOWN TO HIM . IT IS ALSO DIFFICULT TO PROVE BY A PERSON THAT SAME CASH DEPOSITED WHICH WAS EARLIER WITHDRAWN THROUGH EVIDENCES EXCEP T TO SHOW THE CASH FLOW CHART AND RELEVANT ACCOUNTS. THE A.O.'S CONTENTION THAT ASSESSEE HAS NOT FURNISHED BANK BOO K AND CASH BOOK IS NOT CORRECT BECAUSE APPELLANT FILED TH E EXPLANATION AND DETAILS AND BECAUSE OF THESE DETAIL S THE ISSUE HAS CROPPED UP. IT IS RATHER FAILURE ON THE P ART OF THE A.O. TO ADDUCE ANY CREDIBLE EVIDENCE THROUGH INQUIR Y TO SUBSTANTIATE THE CONTENTION. THE A O. SIMPLY MENTIO NED THE GENERAL PLAUSIBLE REASONS WHICH CAN BE TERMED AS GU ESS WORK. IT IS THEREFORE THE ADDITION SO MADE IS NOT J USTIFIED. THE A.O. IS DIRECTED TO DELETE THE ADDITION SO MADE . THE APPELLANT GETS RELIEF ACCORDINGLY. ITA NO.2703 AND 2701/AHD/2012 -5- 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, AND AFTER THOROUGH PERUSAL OF THE COMPILATION BEFORE US, WE A RE OF THE CONSIDERED VIEW THAT THE LEARNED CIT(A) HAS CORRECT LY APPRECIATED THE FACTS OF THE CASE. RATHER, WE MAY LIKE TO EXPRESS OUR OPINION THAT, THE IMPUGNED ADDITION WAS MADE BY THE AO MERELY ON CERTAIN SURMISES AND APPREHENSIONS. THE AO HAS IGNORED THE ENTRIES WHICH WERE MADE IN THE CASH BOO K MAINTAINED BY THE ASSESSEE. RATHER, HE HAS PROCEEDED ON THE P REMISE THAT IT WAS NOT NORMAL FOR THE ASSESSEE TO REDEPOSIT THE CA SH WHICH WAS EARLIER WITHDRAWN FROM THE SAME BANK. HOWEVER, HE HAS NOT GIVEN ANY REASON THAT WHY IT WAS ABNORMAL. IT IS N OT THE CASE OF THE REVENUE THAT THE CASH, WHICH WAS TIME AND AGAIN , WITHDRAWN BY THE ASSESSEE FROM THE BANK WAS OTHERWISE UTILIZE D FOR SOME OTHER PURPOSES, THEREFORE, THE CASH WAS NOT AVAILAB LE WITH THE ASSESSEE. IN THE ABSENCE OF ANY SUCH ALLEGATIONS, IT WAS NOT JUSTIFIED ON THE PART OF THE AO TO PRESUME THAT THE CASH, WHICH WAS WITHDRAWN EARLIER WAS NOT THE SAME CASH, WHICH WAS RE- DEPOSITED BY THE ASSESSEE. ESPECIALLY WHEN THE ASS ESSEE HAS MAINTAINED DAY-TO-DAY CASH BOOK, WHICH WAS, RATHER, A SELF- EXPLANATORY EVIDENCE IN SUPPORT OF THE ASSESSEE. T HEREFORE, UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANCES O F THE CASE, WE FIND NO FORCE IN THIS GROUND OF THE REVENUE, HENCE DISMISSED. 6. THE GROUND NO.2 READS AS UNDER: ITA NO.2703 AND 2701/AHD/2012 -6- 2. THE LD.CIT(A) AHS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,65,000/- MADE ON ACCO UNT O F UNEXPLAINED INVESTMENT. 7. IT WAS NOTED BY THE AO THAT THE ASSESSEE HAD INT RODUCED CAPITAL IN THE PARTNERSHIP FIRM, M/S.AMARDEEP ASSOC IATES, THROUGH CASH AS UNDER: DATE AMOUNT MODE 16/06/2008 RS.1,15,000/- CASH 07/07/2008 RS.1,25,000/- CHEQUE 06/09/2008 RS.25,000/- CHEQUE TOTAL RS.2,65,000/- THE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF CAP ITAL CONTRIBUTION. FURTHER, IT HAS BEEN NOTED BY THE AO THAT THE CHEQUE AMOUNT, WHICH WAS MENTIONED IN THE CAPITAL A CCOUNT DO NOT TALLY WITH THE BANK STATEMENT OF THE ASSESSEE W ITH UCO BANK. IN THE ABSENCE OF SATISFACTORY EXPLANATION, THE SAI D AMOUNT OF RS.2,65,000/- WAS ADDED IN THE INCOME OF THE ASSESS EE. 8. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, THE EXPLANATION OF THE ASSESSEE WAS THAT INADVERTENTLY THE AMOUNT, WHICH WAS RECEIVED BY THE FIRM, WAS SHO WN AS CAPITAL INTRODUCED BY THE PARTNERS. THE AMOUNT-WIS E EXPLANATION OF THE ASSESSEE BEFORE THE LEARNED CIT(A) IS AS UND ER: THE AO HAS ADDED (1) RS.1,15,000/- ON DATED 16/06/2 008 CASH FROM PERSONAL (2) RS.1,25,000/- ON DATED 07/07/2008 FROM HITESH PATEL, MEMBER OF THE SCHEME OF FIRM, WHICH W AS WRONGLY CREDITED IN CAPITAL A/C. OF THE APPELLANT. ITA NO.2703 AND 2701/AHD/2012 -7- (3) RS.25,000/- ON DATED 06/09/2008 CHEQUE NO.697 ADC BANK FROM HITESH PATEL, MEMBER OF THE SCHEME OF FIRM, WHICH WAS WRONGLY CREDITED IN CAPITAL ACCOUNT OF APPELLANT. AFTER EXAMINING THESE FACTS, THE LEARNED CIT(A) HAS DELETED THE ADDITION IN THE FOLLOWING MANNER: IN RESPECT OF GROUND RELATED TO ADDITION OF RS.2,65,000 BEING INTRODUCED AS CAPITAL IN FIRM M/S.AMARDEEP ASSOCIATES, THE APPELLANT HAS CLEARLY DEMONSTRATED THE SOURCE OF SUCH ADDITION. THE A.O. HAS NOT APPRECIATED THE REASONS OF THE APPELLANT IT IS THER EFORE, AS DISCUSSED IN GROUND NO.1 , I AM INCLINED TO ACCEPT THE CONTENTION OF THE APPELLANT THAT IN THE ABSENCE OF ANY CREDIBLE ADVERSE FINDING, SUCH DEPOSIT IN THE CAPIT AL ACCOUNT CANNOT BE TREATED AS UNEXPLAINED. THIS IS SUPPORTED BY FACT THAT OUT OF RS.2,65,000 TOTAL INT RODUCTION / DEPOSIT OF CAPITAL A MAJOR AMOUNT OF RS.1,50,000 IS THROUGH CHEQUES FOR WHICH NO INQUIRY WAS MADE BY A. O. THE A.O. IS THEREFORE DIRECTED TO DELETE ENTIRE ADD ITION OF RS.2,65,000. THE APPELLANT GETS RELIEF ACCORDINGLY. 9. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE ALSO PERUSED THE COMPILATION FILED BEFORE US. THE EXPLA NATION OF THE ASSESSEE WAS THAT INADVERTENTLY A SUM OF RS.1,25,00 0/- ON 7.7.2008 WAS WRONGLY CREDITED IN CAPITAL ACCOUNT OF THE ASSESSEE IN THE BOOKS OF THE FIRM. LIKEWISE A SUM OF RS.25, 000/- ON 6.9.2008 WAS ALSO WRONGLY CREDITED IN THE CAPITAL A CCOUNT. THE LEARNED AR, MR.PRITESH SHAH, HAS ALSO INFORMED THAT IN THE SUBSEQUENT YEAR, IT WAS NOTICED THAT AFORESAID TWO AMOUNTS WERE WRONGLY CREDITED, THEREFORE, A REVERSAL ENTRY WAS P ASSED IN THE BOOKS OF THE FIRM. FURTHER, IN RESPECT OF THE AMOU NT OF RS.1,15,000/- WHICH WAS FOUND DEPOSITED ON 16.6.200 8, THE ITA NO.2703 AND 2701/AHD/2012 -8- EXPLANATION OF THE LEARNED AR IS THAT SAID AMOUNT W AS OUT OF PERSONAL CASH OF THE ASSESSEE. FROM THE SIDE OF THE REVENUE, THE LEARNED DR HAS VEHEMENTLY OBJECTED THAT IN THE ABSE NCE OF ANY EVIDENCE ABOUT THE FATE OF THE FINAL OUTCOME OF THE ALLEGED REVERSAL ENTRY BY THE FIRM, IT WAS NOT PROPER FOR T HE LEARNED CIT(A) TO GIVE RELIEF. WE HAVE ALSO NOTED THAT NO COGENT OR SATISFACTORY REASON HAS BEEN GIVEN BY THE LEARNED C IT(A) WHILE GRANTING RELIEF TO THE ASSESSEE. IN FACT THERE WAS AN ADVERSE NOTING BY THE AO THAT THE CAPITAL INTRODUCED IN THE CAPITAL ACCOUNT OF THE ASSESSEE IN THE BOOKS OF THE FIRM, SOURCE OF WHICH WAS NOT EXPLAINED BY THE ASSESSEE, THEREFORE, THE I MPUGNED ADDITION WAS MADE. NOW, A SHORT QUESTION IS THAT I N CASE PART OF THE DEPOSITS BELONGED TO THE FIRM, THEN IT IS EXPEC TED FROM THE ASSESSEE TO PLACE ON RECORD THE FINAL OUTCOME OF TH OSE AMOUNTS IN THE HANDS OF THE FIRM, WHETHER DULY DISCLOSED OR NO T. IT IS ALSO EXPECTED FROM THE ASSESSEE TO EXPLAIN TO THE AO THE AVAILABILITY OF CASH OF RS.1,15,000/- STATED TO BE DEPOSITED OUT OF THE PERSONAL CASH. BECAUSE OF THESE TWO REASONS, WE DEEM IT PRO PER TO RESTORE THIS GROUND BACK TO THE STAGE OF THE AO TO BE DECID ED DE NOVO, NEEDLESS TO SAY, AFTER PROVIDING ADEQUATE OPPORTUNI TY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO PLACE ON RECORD THE CONNECTED EVIDENCES TO CORROBORATE THE EXPLANAT ION. THIS GROUND OF THE REVENUE MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 10. THE GROUND NO.3 READS AS UNDER: ITA NO.2703 AND 2701/AHD/2012 -9- 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.16,75,000/-MADE ON ACCO UNT OF PROFIT FROM SALE OF TERRACE ON PROTECTIVE BASIS. 11. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A COPY OF THE SALE DEED FOR SALE OF TERRACE OF RAJ MANDIR COMPLEX WAS FURNISHED, AND IT WAS FOUND THAT THE TERRACE WAS SO LD FOR A SUM OF RS.33,50,000/-. ACCORDING TO THE AO, THE PARTNERSH IP FIRM HAD NOT FILED THE RETURN OF INCOME. IN THE ABSENCE OF ANY REASONABLE EXPLANATION, THE AO HAD TREATED THE ENTIRE AMOUNT A S INCOME. THE ASSESSEES EXPLANATION WAS THAT THE SALE DEED W AS EXECUTED BY M/S.AMARDEEP ASSOCIATES, AND THE ASSESSEE HAD NO RIGHT OVER THE SAID PROPERTY. THE SALE OF THE TERRACE WAS THE INCOME OF THE FIRM, HENCE NOT TO BE TREATED AS THE INCOME OF THE ASSESSEE. THE AO HAS REJECTED THAT EXPLANATION, AND HAS HELD THAT , EVEN IF THE TERRACE WAS SOLD BY THE FIRM, BUT IN THE ABSENCE OF ANY RETURN FILED BY THE SAID FIRM, THE SALE CONSIDERATION WAS NOT TA XED IN THE HANDS OF THE FIRM. RESULTANTLY, HE HAS HELD THAT THE PROF IT ON SALE OF THE PROPERTY, BEING NOT OFFERED IN THE HANDS OF THE FIR M, THEREFORE REQUIRED TO BE TAXED ON PROTECTIVE BASIS IN THE HAN DS OF THE ASSESSEE. RESULTANTLY, A SUM OF RS.16,75,000/-, BE ING ONE-HALF OF THE AMOUNT WAS TAXED IN THE HANDS OF THE ASSESSEE. 12. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY. BEFORE THE LEARNED CIT(A), IT WAS EXPLA INED THAT THE OWNERSHIP OF THE PROPERTY WAS WITH M/S.AMARDEEP ASS OCIATES. THE SALE PROCEEDS HAVE ALSO BEEN CREDITED IN THE BA NK ACCOUNT OF THE FIRM. IT WAS ALSO INFORMED THAT FOR A.Y.2009-2 010, AN ITA NO.2703 AND 2701/AHD/2012 -10- INCOME TAX RETURN OF THE FIRM HAS ALSO BEEN FILED. COPY OF THE BALANCE SHEET, PROFIT & LOSS ACCOUNT AND RELEVANT D OCUMENTS OF THE FIRM, HAVE ALSO BEEN FURNISHED BEFORE THE LEARN ED CIT(A). IT WAS ALSO INFORMED THAT THE SAID FIRM HAD PURCHASED THE LAND AND IN SUPPORT THEREOF, A COPY OF THE PURCHASE DEED WAS FURNISHED. THE ASSESSEE HAS ALSO FURNISHED CONSTRUCTION PLAN A PPROVED BY THE AUDA AUTHORITY, AS ALSO, THE DETAILS OF THE CON STRUCTION OF THE PROPERTY BY THE FIRM. AFTER CONSIDERING THESE EVID ENCES, THE LEARNED CIT(A) HAS HELD AS UNDER: IN REFERENCE TO GROUND RELATED TO ADDITION OF RS.1 6,75,000 BEING 50% CONSIDERATION OF SALE OF TERRACE ON THE PROTECTIVE BASIS, I AM NOT INCLINED TO ACCEPT THE C ONTENTION OF THE A.O. THE APPELLANT HAS CLEARLY DEMONSTRATED THAT THE FIRM M/S.AMARDEEP ASSOCIATES IS THE OWNER OF SAID T ERRACE, THE AMOUNT OF SALE CONSIDERATION IS CREDITED IN THE BANK ACCOUNT OF SAID FIRM AND THE FIRM HAD FILED RETURN OF INCOME FOR THE SAID PERIOD I.E. FOR A.Y. 2009-10 WITH ITO. WD.9(2), AHMEDABAD I.E. A.O. ON 02.12.2011 WHEREIN SUCH TRANSACTIONS ARE DULY REFLECTED. THE A.O. HAS PASSE D THIS ORDER ON 13.12.2011 I.E. AFTER THE RECEIPT OF SUCH RETURN OF INCOME. AS PER APPELLANT THE ASSTT. IS PENDING IN T HIS CASE OF FIRM. IT IS THEREFORE, THE PROTECTIVE ADDITION IN T HE CASE OF APPELLANT IS NOT JUSTIFIED BY THE A.O. ON THE GROUN D THAT NO RETURN OF INCOME WAS FILED BY THE FIRM. THE A.O. NO W VERY WELL CONSIDERS THE TRANSACTION AND ISSUE IN THE CAS E OF FIRM. AS FAR AS OWNERSHIP OF THE TERRACE, THERE IS NO DIS PUTE THAT THE SAME BELONGS TO THE FIRM M/S.AMARDEEP ASSOCIATE S AND FIRM IS STILL IN CONTINUATION (NOT DISSOLVED) THERE FORE THE RESPECTIVE SALE DEED WAS DULY SIGNED BY THE PARTNER S OF THE FIRM AND ONE OF THE PARTNERS IS APPELLANT. THE PROT ECTIVE ADDITION SO MADE BY A.O. IS DIRECTED TO BE DELETED. THE APPELLANT GETS RELIEF ACCORDINGLY. ITA NO.2703 AND 2701/AHD/2012 -11- 13. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES AND ON DUE CONSIDERATION OF THE EVIDENCES PLACED ON RECORD, IN THE FORM OF COMPILATION, WE ARE OF THE VIEW THAT THE LEARNED CI T(A) HAS JUDICIOUSLY APPRECIATED ALL THESE EVIDENCES, THROUG H WHICH IT WAS ESTABLISHED THAT THE AMOUNT IN QUESTION WAS IN FACT BELONGED TO THE FIRM, M/S. AMARDEEP ASSOCIATES. IT COULD BE PO SSIBLE THAT WHILE COMPLETING THE ASSESSMENT OF THE ASSESSEE, TH E RETURN OF THE FIRM WAS NOT MADE AVAILABLE TO THE AO, BUT ESTABLIS HED FACTUAL POSITION WAS THAT A RETURN OF INCOME WAS FILED, AND IN THE RETURN THE ASSESSEE HAS FURNISHED THE DETAILS OF THE SALE OF THE TERRACE AND ALSO FURNISHED THE CONNECTED ACCOUNTS. PRESUMABLY, THAT WAS THE REASON THAT THE AO HAS ALSO NOT MADE A SUBSTANTIVE ADDITION IN THE HANDS OF THE ASSESSEE, MERELY TO SAFEGUARD THE INTE REST OF THE REVENUE, IT MIGHT HAVE BEEN THOUGHT, PROPER TO ASSE SS THE IMPUGNED AMOUNT ONLY ON PROTECTIVE BASIS. ON ACCOU NT OF THESE REASONS, WE HEREBY HOLD THAT THE LEARNED CIT(A) HAS RIGHTLY DELETED THE ADDITION. ACCORDINGLY, THIS GROUND OF THE REVENUE IS HEREBY DISMISSED. 14. THE GROUNDS IN THE CASE OF SHRI JAYDEEP AMARTLA L PATEL ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,69,900/- MADE ON ACCO UNT OF UNEXPLAINED CASH CREDIT. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.3,20,000/- MADE ON ACCO UNT OF UNEXPLAINED INVESTMENT. ITA NO.2703 AND 2701/AHD/2012 -12- 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.16,75,000/- MADE ON ACC OUNT OF PROFIT FROM SALE OF TERRACE ON PROTECTIVE BASIS. 15. APROPOS GROUND NO.1, FACTS ARE IDENTICAL, AS DI SCUSSED IN HEREINABOVE. THEREFORE, ON THE SAME LINE AND FOR TH E REASONS RECORDED THEREIN, THIS GROUND OF THE REVENUE IS HER EBY DISMISSED. 16. APROPOS GROUND NO.2, THE ISSUE OF INTRODUCTION OF CAPITAL IN THE PARTNERSHIP FIRM IS HEREBY RESTORED BACK FOR RE -INVESTIGATION, AS ALSO RE-ADJUDICATION BY THE AO ON THE SAME LINE, AS DIRECTED HEREINABOVE. THEREFORE, THIS GROUND OF THE REVENUE MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 17. APROPOS GROUND NO.3, A VIEW HAS ALREADY BEEN TA KEN, SUPRA, IN FAVOUR OF THE ASSESSEE ON THIS ISSUE. HE NCE, WE HEREBY ASSIGNING THOSE VERY REASONS, REJECT THIS GROUND OF THE REVENUE. 18. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE HEREBY PARTLY ALLOWED, THAT TOO FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( ! ! ! !' '' ' / ANIL CHATURVEDI) #$ #$ #$ #$ /ACCOUNTANT MEMBER ( /MUKUL KR. SHRAWAT) /JUDICIAL MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD