The ITO, Ward-14(3), Ahmedabad V. Smt. Raxa Mayur Parikh, Ahmedabad

ITA 2741/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6285 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 05-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S SOURYAWANSHI
• Keywords: Unexplained investment; Additional evidence
• Section: 143(3); 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : AH MEDABAD ( BEFORE HONBLE SHRI T.K.SHARMA, J.M. & HONBLE SHRI A.N.PAHUJA, A.M.) I.T.A.NO. 2741/AHD./2009 : ASSESSMENT YEAR 200 6-07 I.T.O., WARD-14(3), AHMEDABAD VS- S MT. RAXA MAYUR PARIKH, AHMEDABAD (PAN : AKYPP 2362C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.S.SOURYAWANSHI, SR.D.R. RESPONDENT BY: NONE (ACKNOWLEDGEMENT ON RECORD) O R D E R PER SHRI T.K.SHARMA, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF LD. CIT(A)-XXI, AHMEDABAD DATED 17.08.2009 FOR THE ASSESSMENT YEAR 2006-2007. 2. IN THIS CASE, NOTICE OF HEARING WAS SENT THROUGH RPAD. ACKNOWLEDGEMENT INDICATING SERVICE OF NOTICE IS RECEIVED AND THE SA ME IS PLACED ON RECORD. AT THE TIME OF HEARING NONE WAS PRESENT FROM THE SIDE OF THE AS SESSEE. WE, THEREFORE, PROCEED TO DECIDE THIS APPEAL ON THE BASIS OF THE SUBMISSIONS MADE BY THE LD. D.R. AND THE MATERIALS AVAILABLE ON RECORD. 3. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, SHE FILED THE RETURN OF INCOME ON 31.07.2006 DECLARING TOTAL INCOME AT RS.94,494/-. THE AO FRAMED THE ASS ESSMENT ON 24.12.2006 UNDER SECTION 143(3) READ WITH SECTION 144 AT A TOTAL INC OME OF RS. 35,51,685/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO FURNISH THE DETAILS OF INVESTMENT MADE DURING THE YEAR BECAUSE IT WAS GATH ERED BY THE DEPARTMENT THAT THE ASSESSEE HAS APPLIED FOR ACQUIRING THE SHARES OF IN OX LEISURE LTD. AMOUNTING TO RS.9,60,000/-. SINCE NO DETAILS WERE FURNISHED, THE AO CONDUCTED THE ENQUIRY TO GET 2 ITA NO.2741/AHD./2009 DETAILS OF DEMAT ACCOUNT FROM UNION BANK OF INDIA. FROM DEMAT ACCOUNT, IT WAS GATHERED THAT AS ON 31.03.2006, THE ASSESSEE WAS HO LDING THE FOLLOWING SCRIPTS: NAME OF COMPANY BALANCE SHARES. B L KASHYAP - EQ 44 CORE HEALTH EQTY 200 INOX LEISURE EQ 87 MINAL ENGINEERING 400 NTPC LTD 214 PARAMOUNT COMM 1000 RELIANCE INFRASTREQ 25 SADBHAV ENGG LTD EQ 70 SBI EQUITY SHARES 25 TATA CONSULTANCY - 1/ - 200 TORRENT GUJ BIOTECH 50 SINCE THE ASSESSEE HAS NOT FURNISHING ANY EVIDENCE WITH REGARD TO SOURCE OF INVESTMENTS IN THE AFORESAID SHARES, THE AO TOOK TH E VIEW THAT THE ASSESSEE HAS MADE INVESTMENT IN SHARES OF RS.44,06,751/-. OUT OF THIS , HE DEDUCTED RS.13,94,560/- AND MADE ADDITION OF RS.30,12,191/- UNDER SECTION 69 OF THE ACT. 3.1 APART FROM THIS, IN THE ASSESSMENT ORDER, THE A O MADE ADDITION OF RS.4,45,000/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN RESPECT OF TWO CREDIT ENTRIES IN BANK ACCOUNT OF THE ASSESSEE WITH THE UNION BANK OF INDIA. 4. ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE FU RNISHED THE DETAILS INCLUDING COPY OF BANK ACCOUNT, SOURCE, ETC. SINCE THESE WERE FRESH EVIDENCE, THE LD. CIT(A) CALLED THE REMAND REPORT FROM THE AO. IN REPLY, THE AO EXPLAINED THAT WHY EX PARTE ORDER WAS PASSED. THE AO FURTHER REQUESTED THAT FRE SH EVIDENCES NOW FURNISHED BEFORE THE LD. CIT(A) MAY NOT BE ENTERTAINED. THEREAFTER, THE LD. CIT(A) CONSIDERED THE EVIDENCES FURNISHED. AFTER CONSIDERING EVIDENCES FU RNISHED, THE LD. CIT DELETED THE ADDITION. 5. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: 3 ITA NO.2741/AHD./2009 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.30,12,191/- BEING UNACCOUNTED INVESTMENT. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION TO RS.3,45,000/- OUT OF ADDITION OF RS.4,45,000/- B EING UNEXPLAINED INVESTMENT IN SHARES. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN ENTERTAINING ADDITIONAL EVIDENCES REGARDING UNACCOUNTED INVESTMENT AND UNEX PLAINED CASH CREDITS WITHOUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER , THUS VIOLATING RULE 46A OF THE INCOME-TAX RULES. 6. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF T HE REVENUE, SHRI G.S.SOURYAWANSHI, SR.D.R. APPEARED AND POINTED OUT THAT IN THIS CASE THE LD. CIT(A) CALLED THE COMMENTS OF THE AO ON ADDITIONAL EVIDENC ES FURNISHED. THE AO OBJECTED FOR ADMISSION OF ADDITIONAL EVIDENCES BECAUSE AMPLE OPPORTUNITY WAS ALLOWED TO THE ASSESSEE BUT THE EVIDENCES WERE NOT FURNISHED BEFOR E HIM. IN THESE CIRCUMSTANCES, THE LD. CIT(A) CLEARLY ERRED IN ADMITTING THE ADDITIONA L EVIDENCES. WITHOUT PREJUDICE TO THIS, THE LD. D.R. POINTED OUT THAT AFTER ADMITTING THE ADDITIONAL EVIDENCES, THE LD. CIT(A) SHOULD HAVE FORWARDED ALL THE ADDITIONAL EVI DENCES TO THE AO WITH THE DIRECTION THAT HE SHOULD CONDUCT THE ENQUIRY/ NECES SARY VERIFICATION AND THEN SEND HIS REPORT. ADMITTEDLY, THIS WAS NOT DONE. THE D.R. ACC ORDINGLY, SUGGESTED THAT EITHER BOTH THE ADDITIONS MADE BY THE AO BE RESTORED OR TH E ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE REMANDED TO THE FILE OF THE AO WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH ALL THE EVIDENCES WHICH WER E FILED BEFORE THE LD. CIT(A). THE AO WILL EXAMINE THE SAME, CONDUCT NECESSARY ENQUIRY WHICH HE DEEMS FIT AND READJUDICATE BOTH THE ADDITIONS AFRESH. 7. AFTER HEARING THE LD. D.R. AND HAVING GONE THROU GH THE MATERIALS AVAILABLE ON RECORD, WE FIND CONSIDERABLE FORCE IN THE SUBMISSIO NS MADE BY THE LD. D.R. AFTER ADMITTING THE ADDITIONAL EVIDENCES, THE LD. CIT(A) HAS NEVER ASKED THE AO TO CONDUCT THE ENQUIRY. IN OUR CONSIDERED OPINION, WHENEVER AD DITIONAL EVIDENCES WERE FURNISHED BEFORE THE LD. CIT(A), IT IS HIS DUTY TO FIRST PASS AN ORDER, AS REQUIRED UNDER RULE 46A INDICATING WHY HE IS ADMITTING THE ADDITIONAL EVIDE NCES. THEREAFTER, HE SHOULD CONFRONT THE AO WITH THE ADDITIONAL EVIDENCES. ADMI TTEDLY, THIS HAS NOT BEEN DONE. 4 ITA NO.2741/AHD./2009 WE, THEREFORE, IN THE INTEREST OF JUSTICE, SET ASID E THE ORDER OF THE LD. CIT(A) AND REMAND BOTH THE ADDITIONS TO THE FILE OF THE AO WIT H THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH ALL THE EVIDENCES, WHICH, HE FURNISH ED BEFORE THE LD. CIT(A). THE AO WILL VERIFY THE SAME AND HE WILL CONDUCT THE ENQUIR Y, AS REQUIRED UNDER SECTION 69 OF THE I.T. ACT AND RE-ADJUDICATE BOTH THE ADDITIONS A FRESH, IN ACCORDANCE WITH LAW. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE REVENUE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.201 1 SD/- SD/- (A.N.PAHUJA) (T.K.SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30/06/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT 3) CIT(A) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, AHMEDABAD TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.