Jay Kishore Chaturvedi, Baroda V. The Dy.CIT.,Circle-2(1), Baroda

ITA 2705/AHD/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85548 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-01-2015
• Assessment Year: 1996-1997
• Appeal Filed On: 17-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Gift; Additional evidence; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2705/AHD/2010 ( / ASSESSMENT YEAR : 1996-97) JAY KISHOR CHATURVEDI 204, STERLING CENTER 2 ND FLOOR R C DUTT ROAD ALKAPURI BARODA 390 007 / VS. THE DY.COMMISSIONER CIRCLE-2(1) BAORDA ' ./ ./ PAN/GIR NO. : ABKPC 6672 R ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : SHRI M.K. PATEL, AR &''%)( / RESPONDENT BY : SMT. SONIA KUMAR, SR.DR *) / DATE OF HEARING 08/01/2015 +,-.) / DATE OF PRONOUNCEMENT 09/01/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, BARODA (CIT(A) IN SHORT) DATED 18/05/2010 PERTAINING TO ASSESSMENT YEAR (AY) 1996-97. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L:- ITA NO.2705/AHD /2010 JAY KISHOR CHATURVEDI VS. DCIT ASST.YEAR 1996-97 - 2 - 1) THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT SOU RCES OF CREDIT OF RS.3,00,000/- WHICH WAS RECEIVED FROM SHRI V.H. DES AI IS UNEXPLAINED AND FURTHER ERRED IN CONFIRMING THE ADD ITION OF RS.3,00,000/- U/S.68 OF THE ACT. 2) THE LEARNED CIT (APPEALS ERRED IN HOLDING THAT GIFT RECEIVED BY YOUR APPELLANT OF RS.1,92,000/- FROM SHRI SHASHANG SAPRE WAS NOT GENUINE AND FURTHER ERRED IN HOLDING IT AS UNEXPLAI NED CREDIT IN THE ACCOUNT OF YOUR APPELLANT AND CONSEQUENTLY ERRED IN CONFIRMING THE ADDITION OF RS.1,92,000/- TO THE TOTAL INCOME OF YO UR APPELLANT. 3) YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS MENTIONED ABOVE, EITHER AT OR BEFORE THE TI ME OF HEARING. 2. THE APPEAL IS TIME-BARRED BY 4 DAYS. AN APPLICA TION FOR CONDONATION OF DELAY IS FILED. THE REASON FOR DELA Y IS NOT BEING IN POSITION TO PAY THE APPEAL FEES THE ASSESSEE SUBMI TTED THAT HE BARELY MANAGED TO ARRANGE FOR FUNDS AND HAVE PAID THE APPE AL FILING FEES ON 15/09/2010. THE DELAY IN FILING THE APPEAL IS REPO RTED FOR FOUR DAYS. 2.1. THE LD.SR.DR OPPOSED THE CONDONATION OF DELAY. HOWEVER, AFTER CONSIDERING THE EXPLANATION FOR NON-FILING OF THE A PPEAL, THE DELAY IS CONDONED AND APPEAL IS TAKEN UP FOR HEARING. 2.2. THIS IS SECOND ROUND OF LITIGATION. IN THE EA RLIER ROUND, THE MATTER WAS RESTORED TO THE AO BY THIS TRIBUNAL FOR DECISIO N AFRESH. BEFORE THE AO, THE ASSESSEE COULD NOT PRODUCE THE RELEVANT EVI DENCES, THEREFORE THE ADDITIONS MADE IN ORIGINAL ASSESSMENT WERE SUSTAINE D. THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A). BEFORE THE LD.CIT( A), THE ASSESSEE COULD NOT PLACE EVIDENCE IN SUPPORT OF ITS CLAIM OF THE A MOUNTS RECEIVED FROM ITA NO.2705/AHD /2010 JAY KISHOR CHATURVEDI VS. DCIT ASST.YEAR 1996-97 - 3 - SHRI V.H.DESAI AND SHRI SHASHANG SAPARE. THE ADDIT IONS WERE CONFIRMED BY THE LD.CIT(A). AGAINST THIS, THE ASSE SSEE FILED THE PRESENT APPEAL. 3. DURING THE PENDENCY OF THE PRESENT APPEAL, THE ASSESSEE HAS FILED CERTAIN DOCUMENTS; NAMELY, A COPY OF THE ASSESSEES LETTER DATED 22/07/2010 TO HIS CHARTERED ACCOUNTANT ALONG WITH D EATH CERTIFICATE OF SHRI V.H.DESAI. THE ASSESSEE HAS ALSO FILED A COPY OF CONFIRMATION LETTER OF SHRI SHASHANG SAPRE ALONGWITH COPY OF PASSPORT. THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EV IDENCES IN THE FORM OF ASSESSEES LETTER TO HIS C.A. AND THAT CERTIFICATE OF SHRI SHRI V.H. DESAI. THE EVIDENCE SOUGHT TO BE ADMITTED IS RELATED TO T HE ADDITIONS WHICH THE AO IN ORIGINAL ASSESSMENT MADE I.E.OF RS.3 LACS AND RS.1,92,000/- RESPECTIVELY AS UNEXPLAINED LOANS FROM SHRI V.H. DE SAI AND UNEXPLAINED GIFT RECEIVED FROM SHRI SHASHANK SAPRE. THE ASSESS EE PREFERRED AN APPEAL BEFORE THE LD.CIT(A) WHO HAS CONFIRMED THE A DDITION ON THE BASIS THAT THE ASSESSEE FAILED TO ESTABLISH THE CREDITWOR THINESS OF THE DEPOSITOR AND GENUINENESS OF THE TRANSACTIONS. IN THE ABSENC E OF THE EVIDENCE THAT THE LOAN TAKEN BY THE ASSESSEE AND THE GIFT RECEIVE D BY HIM WERE GENUINE TRANSACTIONS. THE LD.COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE EVIDENCES COULD NOT BE FIELD BEFORE THE LD.CIT(A). HE SUBMI TTD THAT THE ASSESSEE MAY BE GIVEN LAST OPPORTUNITY IN THE INTEREST OF JU STICE TO PROVE THE GENUINENESS OF THE TRANSACTIONS. ITA NO.2705/AHD /2010 JAY KISHOR CHATURVEDI VS. DCIT ASST.YEAR 1996-97 - 4 - 4. ON THE CONTRARY, LD.SR.DR SMT. SONIA KUMAR VEHEM ENTLY OPPOSED THE ADMISSION OF THE ADDITIONAL EVIDENCES AND SUBMI TTED THAT THE ASSESSEE OUGHT TO HAVE FURNISHED THE EVIDENCES BEFORE THE AU THORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD.CIT(A) SUSTAINED THE ADDITION BY OBSERVING A S UNDER:- 2.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTH ORIZED REPRESENT6ATIVE AND THE ORDER OF THE ASSESSING OFFI CER. THE HONBLE ITAT SET ASIDE THE ADDITION MADE BY THE ASS ESSING OFFICER, SINCE THE COUNSEL FOR THE ASSESSEE MADE A STATEMENT BEFORE THE ITAT THAT THE REQUIRED DOCUMENTS CAN BE SUBMITTED I F OPPORTUNITY IS GRANTED TO THE ASSESSEE. OPPORTUNITY WAS GRANTE D TO THE ASSESSEE BY THE ASSESSING OFFICER, AS WELL AS BEFOR E ME. HOWEVER, THE APPELLANT FAILED TO ESTABLISH THE CREDITWORTHIN ESS OF THE DEPOSITOR AND THE GENUINENESS OF THE TRANSACTIONS. IN THE ABSENCE OF EVIDENCE THAT THE LOAN TAKEN BY THE APPELLANT AN D THE GIFT RECEIVED BY HIM WERE GENUINE TRANSACTIONS, THE ADDI TION MADE BY THE ASSESSING OFFICER U/S.68 OF THE INCOME-TAX ACT IS CONFIRMED. 5.1. IT IS NOT IN DISPUTE THAT ONUS IS ON THE ASSES SEE TO PROVE THE GENUINENESS OF THE TRANSACTION, IDENTITY OF THE CRE DITORS AND CREDITWORTHINESS OF THE CREDITORS. IN THE PRESENT CASE, THE ASSESSEE HAS FILED THE EVIDENCES TO PROVE THE IDENTITY OF THE PE RSONS. THE EVIDENCES SO FILED REQUIRES VERIFICATION AT THE END OF THE AO, T HEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD.CIT(A) IS HEREBY SE T ASIDE AND THE ISSUES ARE ITA NO.2705/AHD /2010 JAY KISHOR CHATURVEDI VS. DCIT ASST.YEAR 1996-97 - 5 - RESTORED TO THE FILE OF AO FOR DECIDING THE ISSUE O F ADDITIONS RELATED TO LOAN TAKEN FROM SHRI V.H.DESAI AND GIFT RECEIVED FR OM SHRI SHASHANK SAPRE AMOUNTING TO RS.3 LACS AND RS.1,92,000/- RESP ECTIVELY. THE AO IS AT LIBERTY TO MAKE FURTHER ENQUIRIES, IF NEEDED. T HE ASSESSEE IS HEREBY DIRECTED TO CO-OPERATE IN THE ASSESSMENT PROCEEDING S BY FURNISHING REQUISITE DETAILS AS AND WHEN CALLED FOR BY THE AO TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 09 TH DAY OF JANUARY, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 09/ 01 /2015 2..,.../ T.C. NAIR, SR. PS ITA NO.2705/AHD /2010 JAY KISHOR CHATURVEDI VS. DCIT ASST.YEAR 1996-97 - 6 - !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 345 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-II, BARODA 5. 78& 45 , 45. , 3 / DR, ITAT, AHMEDABAD 6. 8:;<* / GUARD FILE. ! / BY ORDER, '7 & //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 8.1.15 (DICTATION-PAD 9- PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 8.1.15 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.9.1.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9.1.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER