Shriraj Pankaj Shah, Ahmedabad V. The Jt.CIT.,Range-10, Ahmedabad

ITA 2729/AHD/2012

• Counselvise Citation: 272920514 RSA 2012
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 05-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: CHAAJED
• Keywords: Additional evidence

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD . , ! ' ' ' ' # $%, ! BEFORE SHRI A.MOHAN ALANKAMONY,ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2729/AHD/2012 ( ' '(' ' '(' ' '(' ' '(' / / / / ASSESSMENT YEAR : 2008-09) SHRI SHRIRAJ PANKAJ SHAH 506, SEARDS TOWER GULBAI TEKRA AHMEAEBAD-380 006 / VS. JT.CIT RANGE-10 AHMEDABAD !) ./*+ ./ PAN/GIR NO. : ACJPS 9266 K ( ), / // / APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY : SHRI M.S. CHAAJED A.R. -.), 0 / / RESPONDENT BY : SHRI O.P.BATHEJA, SR.DR #'1 0 %2 / / / / DATE OF HEARING : 31/07/2013 3( 0 %2 / DATE OF PRONOUNCEMENT : 14/08/2013 4 / 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)-XVI, AHMEDAB AD (CIT(A) FOR SHORT) DATED 01/06/2012 PERTAINING TO ASSESSME NT YEAR (AY) 2008- 09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1) THE ORDER PASSED BY THE LEARNED C.I.T.(A) IS AGAINS T LAW, EQUITY & JUSTICE. ITA NO.2729/AHD /2012 SHRI SHRIRAJ PANKAJ SHAH VS. JT.CIT ASST.YEAR 2008-09 - 2 - 2) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN U PHOLDING ADDITION MADE BY THE LD.A.O. OF RS.7,24,159/- ON ACCOUNT OF LABOUR EXPENSES IGNORING THE SUBMISSION MADE BY THE APPELL ANT. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED FOR AY 2008- 09 VIDE ORDER DATED 23/12/2010. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER(AO) DISALLOWED THE CLAIM OF EXPEN DITURE OF RS.7,24,159/- CLAIMED TO HAVE BEEN PAID TO SMT.USHA CHAUHAN AND SHRI SAGAR CHAUHAN. AGAINST THIS, ASSESSEE FILED AN APP EAL BEFORE THE CIT(A). LD.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DISMISSED THE APPEAL. 3. THE LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED TH AT THE AO MADE DISALLOWANCE OF RS.7,24,159/- CLAIMED AS LABOUR EXP ENDITURE. HE SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSIN ESS OF CONSULTING AND DEALING IN ELECTRIC CONSUMABLES. HE FURTHER SUBMIT TED THAT THE BASIS OF ADDITION IS MADE AS PER THE STATEMENT(S) OF SMT.USH A CHAUHAN AND SHRI SAGAR CHAUHAN IN WHOSE NAMES SHRI HARISH CHAUHAN (T O WHOM THE ASSESSEE HAD GIVEN THE CONTRACT-WORK) HAD ISSUED BI LLS. HE SUBMITTED THAT NO OPPORTUNITY OF CROSS-EXAMINATION TO THE ASSESSEE HAS BEEN GIVEN. HE ALSO SUBMITTED THAT THE FINDING OF LD.CIT(A) IS INC ORRECT THAT THE AMOUNT WAS NOT CREDITED INTO THE ACCOUNT OF SMT.USHA CHAUH AN. HE, DURING THE COURSE OF HEARING, SUBMITTED THE ADDITIONAL EVIDENC ES IN THE FORM OF BANKERS STATEMENT AND PHOTOCOPIES OF CHEQUES ISSUE D IN FAVOUR OF SMT.USHA CHAUHAN. HE SUBMITTED THAT THESE ADDITION AL EVIDENCES ARE MATERIAL AND CAUSE TO THE ROOT OF THE CASE AND, THE REFORE, THE SAME MAY BE ADMITTED IN THE INTEREST OF JUSTICE. HE SUBMITTE D THAT EVEN THE ITA NO.2729/AHD /2012 SHRI SHRIRAJ PANKAJ SHAH VS. JT.CIT ASST.YEAR 2008-09 - 3 - STATEMENTS OF SMT.USHA CHAUHAN AND SHRI SAGAR CHAUH AN ARE MISINTERPRETED AND READ IN PART ONLY TO SUIT THE AO . HE SUBMITTED THAT THE LD.CIT(A) HOWEVER HAS RECORDED THE FACT THAT THE AO IS DUTY BOUND TO OFFER OPPORTUNITY OF CROSS-EXAMINATION TO THE ASSES SEE, BUT HE DID NOT THINK IT NECESSARY TO AFFORD OPPORTUNITY OF CROSS-E XAMINATION TO THE ASSESSEE. ON THE CONTRARY, LD.SR.DR OPPOSED THE SU BMISSIONS OF THE LD.COUNSEL FOR THE ASSESSEE AND HE RELIED ON THE OR DERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE UNDISPUTED FACT IS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS C LAIMED LABOUR EXPENSES OF RS.11,68,775/-. SO FAR AS THE BILL PER TAINING TO SHRI UTKARSH ENTERPRISE IS CONCERNED, IT WAS FOUND TO BE GENUINE , HOWEVER, THE BILLS PERTAINING TO SMT.USHA CHAUHAN AND SHRI SAGAR CHAUH AN, THE SAME WERE FOUND NOT TO BE GENUINE. THE AO DISBELIEVED THE BI LLS ON THE BASIS OF THE STATEMENT OF SMT.USHA CHAUHAN WHO HAD STATED IN HE R STATEMENT THAT SHE IS HOUSE-WIFE AND SHE HAS NO KNOWLEDGE OF ANY BILLS AND IN THE STATEMENT OF SHRI SAGAR CHAUHAN STATED THAT HE WAS ONLY HELP ING HIS FATHER SHRI HARISH O CHAUHAN. BOTH THE AUTHORITIES DID NOT ACC EPT THE EXPLANATION GIVEN BY THE ASSESSEE. WE FIND THAT THE AO HAS CON SIDERED ONLY THE PART STATEMENT OF SMT.USHA CHAUHAN. HE HAS NOT CONSIDER ED THE STATEMENT OF SMT.USHA CHAUHAN STATING THAT HER HUSBAND HAS BEEN DOING BUSINESS IN HER NAME RELATING TO ELECTRIC WORKS. IT IS ALSO ST ATED THAT, SMT.USHA CHAUHAN IN HER STATEMENT, THE CHEQUES ARE RECEIVED IN HER NAME AND ARE ITA NO.2729/AHD /2012 SHRI SHRIRAJ PANKAJ SHAH VS. JT.CIT ASST.YEAR 2008-09 - 4 - DEPOSITED IN HER BANK ACCOUNT. HOWEVER, WE FIND TH AT THE LD.CIT(A) DISBELIEVED THE SUBMISSIONS ON THE GROUND THAT THE PAYMENTS MADE IN THE NAME OF SMT.USHA CHAUHAN. IT IS SEEN FROM THE STAT EMENT OF BANK ACCOUNT THAT THE PAYMENTS MADE BY THE ASSESSEE TO S MT.USHA CHAUHAN DURING THE FINANCIAL YEAR(FY) 2007-08, I.E. RELEVAN T TO ASST.YEAR 2008- 09 WERE CREDITED INTO THE ACCOUNT NO.0061000137246 MAINTAINED WITH HDFC BANK LTD., NAVRANGPURA, AHMEDABAD. THIS ACCOU NT WAS APPEARING IN THE NAME OF SHRI HARISH O.CHAUHAN AS A SINGLE ACCOUNT HOLDER. THERE IS NO DIFFERENCE OR INDICATION ON TH IS BANK ACCOUNT THAT THIS ACCOUNT WAS A JOINT-ACCOUNT AND JUST ONLY FOR THE F.Y.2007-08 CONCERNED. 5. DURING THE COURSE OF HEARING OF THE PRESENT APPE AL, THE ASSESSEE HAS FILED CERTIFICATES FROM BANK OF INDIA DATED 22/05/2 013, PHOTOCOPIES OF CHEQUES DATED 12/09/07, 18/7/2007,18/10/2007, 5/7 /2007, 5/7/2007, 5/7/2007, 5/7/2007, 5/7/2007,2/7/2007 & 15/3/2008. SINCE THESE EVIDENCES WERE NOT BEFORE THE LD.CIT(A), HOWEVER IN THE INTEREST OF JUSTICE, THE SAME ARE ADMITTED. IN VIEW OF THESE A DDITIONAL EVIDENCES, WE FEEL THAT IN THE INTEREST OF JUSTICE, THIS ISSUE SH OULD BE REMITTED BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE SAME AFRESH AFTER A FFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE , THE ORDER OF THE LD.CIT(A) IS HEREBY SET ASIDE. THE MATTER IS REMIT TED BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE SAME AFRESH AFTER GETTING R EMAND REPORT FROM THE CONCERNED AO ON THE ADDITIONAL EVIDENCES FILED BY T HE ASSESSEE. THEREFORE, GROUND IS ALLOWED FOR STATISTICAL PURPOS ES ONLY. ITA NO.2729/AHD /2012 SHRI SHRIRAJ PANKAJ SHAH VS. JT.CIT ASST.YEAR 2008-09 - 5 - 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- (. ) (# $%) ! ! ( A. MOHAN ALANKAMONY ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14/ 08 /2013 72.., '.../ T.C. NAIR, SR. PS 4 0 -%8 98(% 4 0 -%8 98(% 4 0 -%8 98(% 4 0 -%8 98(%/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. % #: / CONCERNED CIT 4. #:() / THE CIT(A)-XVI, AHMEDABAD 5. 8'$; -% , , / DR, ITAT, AHMEDABAD 6. ;<' =1 / GUARD FILE. 4# 4# 4# 4# / BY ORDER, .8% -% //TRUE COPY// > >> >/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 28.13 (DICTATION-PAD PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2.8.13 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.14.8.13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.8.13 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