The ITO,Vapi Ward-3, Vapi V. Saubhagya Inn Pvt.Ltd.,

ITA 2822/AHD/2008

• Counselvise Citation: 282220514 RSA 2008
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 07-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M K PATEL
• Keywords: Depreciation; Corroborative evidences
• Section: 133A

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI G C GUPTA VICE-PRESIDENT & SHRI B P JAIN ACCOUNTANT MEMBER ITA NO.2822/AHD/2008 (ASSESSMENT YEAR:-2005-06) THE INCOME-TAX OFFICER, VAPI WARD-3, VAPI V/S SAUBHAGYA INN PVT. LTD., BAVISA FALIA, UMARKUI ROAD, SILVASSA, U.T. OF D & D.H. PAN: AAFCS 9976 F [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI B L YADAV, SR. DR ASSESSEE BY:- SHRI M K PATEL, AR DATE OF HEARING:- 27-12-2011 DATE OF PRONOUNCEMENT:- 30-12-2011 O R D E R PER B P JAIN (AM) :- THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF LEARNED CIT(A), VALSAD DATED 30-04-2008 FO R THE ASSESSMENT YEAR 2005-06. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- [1] ON THE FACTS AND IN LAW, THE ID. CIT (A) ERRED IN ACCEPTING NEW EVIDENCES, IN VIOLATION OF RULE 46A OF THE IT RULES 1962. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ID. CIT (A) ERRED IN CONCLUDING THAT ASSESSEE HAS SUBMITTED, BE FORE THE AO, THE STATEMENT OF INCOME, WHERE IN, INCOME DISCLOSED BY THE ASSESSEE, DURING THE COURSE OF SURVEY U/S. 133A OF THE IT ACT WAS INCLUDED AND ACCORDINGLY, THE ID CIT(A) DELETED THE ADDITION MADE BY THE AO, STATING THAT ANY ADDITION WILL TANTAMOUNT TO DOUBLE ADDITION. 2 [3] ON THE FACTS AND IN LAW THE ID. CIT(A) ERRED IN DELETING THE ADDITION OF RS.14,85,000/- MADE BY THE AO, ON THE B ASIS OF STATEMENT RECORDED, DURING THE COURSE OF SURVEY U/S . 133A AFTER REJECTING THE BONAFIDE OF THE STATEMENT OF THE ASSE SSEE, EVEN THOUGH THE ID. CIT(A) ACCEPTED THE BONAFIDE OF THE SAME STATEMENT, IN CASE OF ONE OF THE SISTER CONCERN OF THE ASSESSEE. [4] ON THE FACTS AND IN LAW THE ID. CIT(A) ERRED IN DELETING THE ADDITION OF RS.8,75,339/- BEING THE UNEXPLAINED LIA BILITIES, AFTER ACCEPTING NEW EVIDENCES, IN VIOLATION OF RULE 46A O F THE IT RULES 1962. [5] THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIF Y OR ALTER THE ABOVE GROUNDS OF APPEAL TO ANY STAGE OF APPELLATE P ROCEEDINGS. [6] THE APPELLANT PRAYS THAT, THE ORDER OF THE ID. CIT(A) BE SET ASIDE AS IT IS ERRONEOUS AND NOT AS PER LAW AND THAT THE ASSESSMENT ORDER DATED 28-12-2007 PASSED BY THE AO, BE RESTORE D. 2 AS REGARDS GROUND NO.1, THE LEARNED DR ARGUED THA T THE LEARNED CIT(A) CAN NOT ACCEPT NEW EVIDENCE SINCE TH E SAME IS IN VIOLATION OF RULE 46A OF THE INCOME-TAX RULES, 1962 . 3 THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE LEARNED CIT(A) HAS TAKEN THE REMAND REPORT WHICH IS DATED 02- 04-2008. THIS FACT IS APPEARING AT PAGE-1 OF THE LE ARNED CIT(A)S ORDER. THEREFORE, THERE IS NO VIOLATION OF RULE 46A OF THE INCOME-TAX RULES. 4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. ON PERUSAL OF PAGE-1 OF THE LEARNED CI T(A)S ORDER, IT IS CLEAR THAT THE REMAND REPORT DATED 02-04-2088 BY THE AO, VAPI WARD-3, VAPI WAS ON RECORD AND THEREFORE IT CA NNOT BE SAID THAT THERE IS A VIOLATION OF RULE 46A. THE LEARNED DR COULD NOT 3 POINT OUT ANY SUCH VIOLATION. THUS, GROUND NO.1 OF THE REVENUES APPEAL IS DISMISSED. 5 AS REGARDS GROUND NO.2 WITH REGARD TO DOUBLE ADDI TION, THE BRIEF FACTS ARE THAT AS PER THE STATEMENT RECORDED ON OATH DURING THE COURSE OF SURVEY OF SHRI SATTARBHAI S SARVAIYA, ONE OF THE DIRECTORS OF THE COMPANY, WHO ADMITTED RS.42,17,987 /- AS ADDITIONAL INCOME AND OUT OF WHICH RS.27,32,989/- P ERTAINS TO THE INVESTMENT BY THE ASSESSEE COMPANY AND RS.14,85,000 /- BY WAY OF LOAN FROM SHRI SATTARBHAI S SARVAIYA, DIRECTOR I N HIS INDIVIDUAL CAPACITY. 6 THE ASSESSEE AGITATED BEFORE LEARNED CIT(A) THAT AS PER THE STATEMENT OF TOTAL INCOME, THE ASSESSEE COMPANY HAS TREATED RS.27,20,987/- AS INCOME EARNED FROM HOTEL BUSINESS DISCLOSED DURING THE COURSE OF SURVEY. THE ASSESSEE COMPANY H AS BROUGHT FORWARD DEPRECIATION WHICH HAS BEEN SET OFF DURING THE YEAR UNDER APPEAL TO THE EXTENT OF RS.17,11,240/- AND BA LANCE AMOUNT HAS BEEN CARRIED FORWARD IN THE FOLLOWING YEAR. THE LEARNED CIT(A) ACCEPTED THE EXPLANATION OF THE ASSESSEE THA T IT IS A DOUBLE ADDITION AND DELETED THE ADDITION MADE BY TH E AO. 7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. THE LEARNED COUNSEL FOR THE ASSESSEE I NVITED OUR ATTENTION AT PAGE 14 WHICH IS A STATEMENT OF TOTAL INCOME AND PAGES 42 & 45 BEING THE BALANCE-SHEET AND P&L ACCOU NT THAT THERE IS A DOUBLE ADDITION. ON PERUSAL OF THE SAME WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A). THUS, GROUND NO.2 OF THE REVENUES APPEAL IS DISMISSED. 4 8 AS REGARDS GROUND NO.3, THE BRIEF FACTS ARE THAT ONE OF THE DIRECTORS SHRI SATTARBHAI S SARVAIYA MADE A DISCLOS URE OF RS.14,85,000/- IN THE CASE OF HIS PROPRIETARY CONCE RN BOMBAY BUILDERS. THE AO MADE THE ADDITION SINCE THE ASSESS EE HAS NOT PRODUCED THE DETAILS THAT THE SAID LOANS ARE EXISTI NG IN THE NAME OF BOMBAY BUILDERS. 9 BEFORE THE LEARNED CIT(A), THE ASSESSEE MADE CERT AIN SUBMISSIONS WHICH WERE FORWARDED TO THE AO AND ON R ECEIPT OF THE REMAND REPORT, THE LEARNED CIT(A) VIDE PARA 10. 5 OF HIS ORDER, OBSERVED THAT THE AO HAS NOT BROUGHT OUT ANY INDEPENDENT EVIDENCE OR CORROBORATIVE FACTS TO PROVE THAT SUCH LOAN HAS ACTUALLY BEEN GIVEN BY BOMBAY BUILDERS, PROPRIETARY CONCERN OF THE ASSESSEE COMPANY. THE SAID SUM HAS BEEN ADDED B OTH IN THE ASSESSEE COMPANY AND ITS DIRECTOR IN HIS INDIVIDUAL CAPACITY. THE ASSESSEE COMPANY HAS NOT ADMITTED HAVING TAKEN ANY SUCH LOAN. THIS ADDITION HAS BEEN CONFIRMED BY THE LEARNED CIT (A) IN THE HANDS OF SHRI SATTARBHAI S SARVAIYA. THEREFORE, THE LEARNED CIT(A) DELETED THE ADDITION MADE BY THE AO. 10 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LEARNE D CIT(A) THAT THERE IS NO INDEPENDENT EVIDENCE OR CORROBORATIVE F ACTS TO PROVE THAT THE ASSESSEE COMPANY HAS ACTUALLY TAKEN THE LO AN FROM BOMBAY BUILDERS. THE SAID LOAN IS ALSO A SUBJECT MA TTER OF ADDITION IN THE HANDS OF SHRI SATTARBHAI S SARVAIYA , DIRECTOR OF THE ASSESSEE COMPANY WHERE THE ADDITION MADE BY THE AO HAS BEEN CONFIRMED. IN THE CIRCUMSTANCES AND FACTS OF T HE CASE, WE 5 FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A ) WHO HAS RIGHTLY DELETED THE ADDITION. THUS, GROUND NO.3 OF THE REVENUES APPEAL IS DISMISSED. 11 AS REGARDS GROUND NO.4, THE BRIEF FACTS ARE THAT THE AO HAS TREATED THE LIABILITIES TO THE TUNE OF RS.8,75,339/ - AS NOT IN EXISTENCE AND ASSUMED TO HAVE BEEN PAID FROM UNDISC LOSED SOURCES. 12 BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTE D THAT AS A MATTER OF FACT, THESE ARE LIABILITIES OUTSTANDING A S AT 31-03-2005 AS IS EVIDENT FROM PARA 13.2 OF THE ORDER OF THE LE ARNED CIT(A). THE LEARNED CIT(A) FORWARDED THE SUBMISSIONS BEFORE THE AO FOR TAKING COMMENTS. AFTER TAKING THE COMMENTS AND REJO INDER FROM THE ASSESSEE, THE LEARNED CIT(A) VIDE PARA 13.5 OF HIS ORDER OBSERVED THAT THE AO HAS ADMITTED IN THE REMAND REP ORT THAT HE HAS VERIFIED THE BOOKS OF ACCOUNT AND SUPPORTING EV IDENCE AND THERE ARE NO ADVERSE COMMENTS BY THE AO. THEREFORE, HE DELETED THE ADDITION MADE BY THE AO. 13 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE AO IN THE REMAND REPORT HAS VERIFI ED THE BOOKS OF ACCOUNT AND SUPPORTING EVIDENCE IN SUPPORT OF TH E EXPENSES INCURRED BY THE ASSESSEE AND THE LIABILITIES. THERE IS NO ADVERSE COMMENT WITH REGARD TO THE GENUINENESS OF THE EXPEN SES AND LIABILITIES. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) WHO HA S RIGHTLY DELETED THE ADDITION. THUS, GROUND NO.4 OF THE REVE NUES APPEAL IS DISMISSED. 6 14 GROUND NOS.5 AND 6 IN THE REVENUES APPEAL ARE G ENERAL AND THEY DO NOT REQUIRE ANY ADJUDICATION. 15 IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 30-12-2011 SD/- SD/- (G C GUPTA) VICE-PRESIDENT (B P JAIN) ACCOUNTNT MEMBER DATE : 30-12-2011 COPY OF THE ORDER FORWARDED TO: 1. SAUBHAGYA INN PVT. LTD., BAVISA FALIA, UMARKUI R OAD, SILVASSA, U.T. OF D & D.H. 2. THE INCOME-TAX OFFICER, VAPI WARD-3, VAPI 3. CIT CONCERNED 4. CIT(A), VALSAD 5. DR, ITAT, AHMEDABAD BENCH-D, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD