The ITO, Ward-7(2)(4), Ahmedabad V. Shri Pareshkumar K. Shah, Ahmedabad

ITA 2777/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8031 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 05-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Additional evidence; Corroborative evidences
• Section: 68; 148

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA NO.2777/AHD/2015 / ASSTT. YEAR: 2010-2011 ITO, WARD-7(2)(4) AHMEDABAD. VS. SHRI PARESHKUMAR K. SHAH 24, JAYANAND SOC., NR. PRIYA TALKIES KRISHNAGAR, SAIJPUR BHOGHA AHMEDABAD 382 345. PAN : AJYPS 8846 D / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : NONE ! / DATE OF HEARING : 04/12/2017 '#$ ! / DATE OF PRONOUNCEMENT: 05 /12/2017 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL AGAINST ORDER OF LD.CIT(A)7, AHMEDABAD DATED 14.7.2014 PASSED FOR THE ASSTT.YEAR 2010-11. 2. GROUNDS TAKEN BY THE REVENUE READ AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMI TTING FRESH EVIDENCES IN CONTRAVENTION OF RULE 46A IGNORING THE FACT THAT TH E APPELLANT WAS PROVIDED SUFFICIENT AND REASONABLE OPPORTUNITY FOR FURNISHIN G DETAILS AND FOR EXPLAINING TRANSACTIONS. ITA NO.2777/AHD/2015 2 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF RS.4 LAKHS MADE U/S. 68 OF THE ACT IGNORING THE FACT THA T TRANSACTIONS OF RS. 4 LAKHS BEING CASH DEPOSITED ON 16.7.2009 WAS NOT PRO PERLY EXPLAINED. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF RS.58,52,999/- OUT OF TOTAL ADDITION OF RS. 63,07,9 99/- THEREBY RESTRICTING THE ADDITION UP TO RS. 4,55,0007- ONLY IGNORING THE FAC TS OF THE CASE THAT DEPOSITS ON VARIOUS DATES IN ASSESSEE'S BANK ACCOUNT WERE NO T PROPERLY EXPLAINED. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 3. IN RESPONSE TO THE NOTICE OF HEARING, NONE COME PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING. WIT H THE ASSISTANCE OF THE LD.DR, WE PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE, AFTER HEARING THE LD.DR AND CONSIDERING T HE MATERIAL AVAILABLE ON RECORD. 4. SO FAR AS FIRST GROUND OF APPEAL IS CONCERNED, I T IS PERTINENT TO OBSERVE THAT THE LD.CIT(A) HAS RECORDED A FINDIN G THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT REASONS FOR NO T PRODUCING EVIDENCE BEFORE THE AO. THE LD.FIRST APPELLATE AUT HORITY HAS ADMITTED ADDITIONAL EVIDENCE AND CALLED FOR REMAND REPORT FROM THE AO. THE AO DID NOT DISPUTE FOR PRODUCTION OF A DDITIONAL EVIDENCE BY THE ASSESSEE. THUS, CONSIDERING FINDIN G OF THE LD.CIT(A) RECORDED IN PARA 4.12 WE ARE SATISFIED TH AT THE LD.CIT(A) HAS FOLLOWED PROCEDURE CONTEMPLATED IN RULE 46A OF THE INCOME TAX RULE AND NO INTERFERENCE IS CALLED IN THE ORDER OF THE LD.CIT(A) ON THIS ISSUE. 5. AS REGARDS GROUNDS NO.2 AND 3 ARE CONCERNED, BRI EF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 16.3.2011 DECLARING TOTAL INCOME AT RS.2,15,506/-. THE AO HAS RECEIVED AN INFORMATION FROM SUB-REGISTRAR REGARDIN G SALE OF IMMOVABLE PROPERTY AT R.24 LAKHS. HE REOPENED ASSE SSMENT BY ITA NO.2777/AHD/2015 3 RECORDING REASONS AND ISSUED NOTICE UNDER SECTION 1 48 OF THE INCOME TAX ACT. THE LD.AO HAS MADE ADDITION OF RS. 5,44,600/- AND RS.64,07,999/- WITH THE AID OF SECTION 68 OF TH E ACT. THE AO DID NOT MAKE ELABORATE DISCUSSION. THE FINDING REC ORDED BY HIM READS AS UNDER: 4.2 CASH CREDIT U/S 68 OF THE ACT. THE ASSESSEE COULD NOT EXPLAINED, THE SOURCE OF CAS H DEPOSITED IN TO SAVING BANK ACCOUNT. THEREFORE, THE CASH AMOUNT DEPOSITED IN TO SAVING BANK ACCOUNT OF RS.5, 44,600/- IS TREATED AS CASH CREDIT U/S 68 OF THE ACT AND SAM E IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE PENALTY PR OCEEDINGS U/S 271(L)(C) OF THE ACT IS BEING SEPARATELY INITIA TED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. ADDITION: RS.5,44,600/- 4.3 UNEXPLAINED INVESTMENT U/S 68 OF THE ACT: SINCE, THE ASSESSEE COULD NOT EXPLAINED, THE SOURCE OF INVESTMENT IN TO SAVING BANK ACCOUNT. THEREFORE, TH E AMOUNT DEPOSITED IN TO SAVING BANK ACCOUNT OF RS.63,07,999 /- IS TREATED AS UNEXPLAINED INVESTMENT U/S 68 OF THE ACT AND SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IS BEI NG SEPARATELY INITIATED FOR FURNISHING OF INACCURATE P ARTICULARS OF INCOME AND CONCEALMENT OF INCOME. ADDITION: RS.63,07,999/- 6. ON APPEAL, THE LD.CIT(A) HAS OBSERVED THAT IN TH E REMAND PROCEEDINGS THE AO WAS SATISFIED WITH EXPLANATION O F THE ASSESSEE WITH REGARD TO DEPOSIT OF RS.52,58,800/-. SIMILARL Y, THE LD.CIT(A) WAS SATISFIED WITH REGARD TO THE EXPLANATION GIVEN BY THE ASSESSEE FOR DEPOSITS OF RS.6,40,000/-. FINDING RECORDED BY THE LD.CIT(A) IS WORTH TO NOTE. IT READS AS UNDER: 9.2 I HAVE CONSIDERED THE ASSESSMENT ORDER AND TH E SUBMISSIONS MADE BY THE APPELLANT. THE ASSESSING OF FICER ITA NO.2777/AHD/2015 4 HAS MADE THE ADDITION OF RS.63,07,999/- ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN THE FORM OF DEPOSITS IN THE APPELLANT'S BANK ACCOUNT. THE MATTER WAS SENT BACK TO THE AO FOR VERIFICATION DURING REMAND PROCEEDINGS AND V IDE HIS LETTER DATED 30.09,2014, THE AO SUBMITTED HIS REMAN D REPORT AFTER VERIFICATION OF EVIDENCES PRODUCED BY THE APP ELLANT. A PERUSAL OF THE SAME SHOWS THAT THE A.O HAS VERIFIED THE TRANSACTIONS AND IS SATISFIED ABOUT THE GENUINENESS OF DEPOSITS AGGREGATING RS.52,58,800/-OUT OF THE TOTAL AMOUNT OF RS.63,07,999/-. IN RESPECT OF THE BALANCE AMOUNT OF RS.10,59,199/- WHICH WAS NOT CONSIDERED BY THE AO D URING REMAND PROCEEDINGS, THE APPELLANT SUBMITTED DETAILS OF ENTRIES INTO HIS BANK ACCOUNT. IT IS SEEN THAT AN A MOUNT OF RS.6,40,000/- CREDITED TO THE BANK ACCOUNT BY CHEQU E IS EXPLAINED BY THE APPELLANT ALONG WITH EVIDENCES. TH US, THE AMOUNT OF RS.58,98,800/- (RS.52,58,800/- VERIFIED B Y THE AO PLUS RS.6,40,000/- VERIFIED DURING APPELLATE PRO CEEDINGS) STANDS EXPLAINED. THE APPELLANT, HOWEVER, HAS NOT B EEN ABLE TO GIVE ANY CONFIRMATION OR SUPPORTING EVIDENCES IN RESPECT OF THE REMAINING AMOUNT OF RS.4,55,000/- OUT OF THE TOTAL AMOUNT OF RS.63,07,999/-. IN VIEW OF THE SAME AND CONSIDERING THE DISCUSSION ABOVE, THE ADDITION IS R ESTRICTED TO RS.4,55,000/-. THIS GROUND OF APPEAL IS PARTLY ALLO WED. 7. ON DUE CONSIDERATION OF THE ABOVE FINDING, WE AR E OF THE OPINION THAT THE LD.CIT(A) HAS BASED HER FINDING WI TH REGARD TO DELETION OF RS.52,58,800/- ON THE REMAND REPORT SUB MITTED BY THE AO. IN OTHER WORDS, THE LD.FIRST APPELLATE AUTHORI TY HAS OBSERVED THAT THE AO HAS VERIFIED THE NATURE OF EVIDENCE PRO DUCED BY THE ASSESSEE, AND WAS SATISFIED WITH THE SOURCE OF DEPO SITS REPRESENTING RS.52,58,800/-. SIMILARLY, THE LD.CIT (A) HAS PERUSED DETAILS OF BALANCE AMOUNT WHICH WAS NOT CONSIDERED BY THE AO IN THE REMAND REPORT AND WAS SATISFIED WITH THE REGARD TO EXPLANATION OF THE ASSESSEE FOR DEPOSITS OF RS.6,40 ,000/-. CONTRARY TO THIS FACTUAL FINDING OF THE LD.CIT(A) D EPARTMENT HAS NOT PRODUCED ANY EVIDENCE. THERE IS NO PLEADING ON RECORD WHICH CAN DEMONSTRATE THAT THE LD.CIT(A) HAS COMMITTED AN Y FACTUAL ITA NO.2777/AHD/2015 5 ERROR WHILE PLACING HER IMPLICIT RELIANCE ON THE RE MAND REPORT OF THE AO. THUS, CONSIDERING FINDING OF THE LD.CIT(A) , WE DO NOT SEE ANY INFIRMITY IN THE IMPUGNED, AND ACCORDINGLY, GRO UND NOS.2 AND 3 ARE REJECTED. 8. GROUND NO.4 IS GENERAL IN NATURE. IT DOES NOT C ALL FOR RECORDING OF ANY FINDING. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH DECEMBER, 2017. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER