Shri Tulsidharan Bhaskaran, Surat V. The Addl.CIT.,Range-3, Surat

ITA 2765/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6718 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-04-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 08-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Keywords: Unexplained cash credit; Gift
• Section: 147; 68

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI M.K. SHRAWAT, JM AND D.C.AGRAWAL, AM TULSIDHARAN BHASKARAN, PROP. METAL CRAFT, 15, HARISHNAGAR, ADAJAN, SURAT. VS. ASSTT. CIT, CIRCLE-3, SURAT. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI HARDIK VORA, AR RESPONDENT BY:- SHRI R. K. DHANESTA, AR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- (1) ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN FRAMING ASSESSMENT BY ISSUING NOTICE U/S 147 OF THE ACT. (2) ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN MAKING DISALLOWANCE OF EMPLOYERS CONTRIB UTION TO PROVIDENT FUND AS WELL AS EMPLOYEES CONTRIBUTION T O PROVIDENT FUND OF RS.7,51,803/- & RS.6,62,859/- RESPECTIVELY, AGGREGATING TO RS.14,14,662/- UNDER THE PROVISIONS OF SEC.36(1) (VA) R.W.S. 2(24) (X) OF THE IT ACT. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF RS.63,000/- BY TREATING GI FTS AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. ITA NO.2765/AHD/2009 ASST. YEAR 2003-04 ITA NO.2765/AHD/2009 ASST. YEAR 2003-04 2 2. GROUND NO.1 IS NOT PRESSED BY THE LD. AR AND HEN CE IT IS DISMISSED. IN OTHER WORDS REOPENING OF THE ASSESSMENT BY THE A O STANDS JUSTIFIED. 3. GROUND NO. 2 RELATES TO EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION TO THE PF FOR A SUM OF RS.7,51,803/- A ND RS.6,62,859/- RESPECTIVELY. 4. WE HAVE HEARD THE PARTIES. ON PERUSAL OF THE ASS ESSMENT ORDER, WE FIND THAT PAYMENT IN RESPECT OF BOTH THE CONTRIBUTI ONS HAS BEEN MADE BY THE ASSESSEE BY 29.6.2003 AS PER CHART ANNEXED IN P ARA 5 & 5.1 OF ASST. ORDER. SINCE ALL THESE PAYMENTS HAVE BEEN MADE BEFO RE THE DUE DATE OF FILING OF RETURN THEN FOLLOWING THE DECISION OF HON . SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC), WE DELETE THE ADDITION. THIS GROUND OF ASSESSEE IS ACC ORDINGLY ALLOWED. 5. GROUND NO.3 RELATES TO ADDITION IN RESPECT OF GI FT OF RS.63,000/-. IT WAS SUBMITTED BY THE LD. AR THAT RETURN OF INCOME H AS BEEN FILED DECLARING RS.25,86,038/- AND IT IS NOT POSSIBLE FO R HIM TO INTRODUCE HIS OWN CASH IN THE FORM OF GIFT WHEN SUCH GIFT HAS BEE N RECEIVED THROUGH ACCOUNT PAYEE CHEQUE FROM A DONOR SITUATED IN FOREI GN COUNTRY. THE ASSESSEE WAS NOT ABLE TO PRODUCE EVIDENCE BECAUSE O F NON-AVAILABILITY OF DONOR AT THE RELEVANT TIME BUT ONCE MONEY HAS COME THROUGH CHEQUE FROM NRI THEN GIFT CANNOT BE NON-GENUINE. 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT ASS ESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE IN RESPECT OF THE CLAIM OF THE GIFT. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE REST ORE THE MATTER TO THE FILE OF AO FOR GIVING AN OPPORTUNITY TO THE ASS ESSEE FOR PRODUCING ITA NO.2765/AHD/2009 ASST. YEAR 2003-04 3 NECESSARY EVIDENCE IN SUPPORT OF THE CLAIM OF GIFT. WE ARE PERSUADED BY THE ARGUMENTS OF LD. AR THAT PERSONS HAVING SUBSTAN TIAL INCOME OF ABOVE RS.25 LACS IS NOT LIKELY TO INTRODUCE HIS OWN CASH IN THE FORM OF GIFT OF RS.63,000/- ONLY. THERE SEEMS TO BE A GENUINE DIFFI CULTY IN PRODUCING EVIDENCE BEFORE THE AO AND ACCORDINGLY IN THE INTER EST OF JUSTICE, WE ALLOW ANOTHER OPPORTUNITY TO THE ASSESSEE TO PRODUC E THE SAME BEFORE AO. AS A RESULT, THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 29/04/11. SD/- SD/- (M. K. SHRAWAT) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD, DATED : 29/04/11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD ITA NO.2765/AHD/2009 ASST. YEAR 2003-04 4 1.DATE OF DICTATION 20/4/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 21/4/ 2011 MEMBER.OTHER MEMBER. 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 DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..