Smt. Sonal Nitin Shah, Baroda V. The Income Tax Officer, Ward-2(5), Baroda

ITA 2834/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7937 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 21-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SMT. SONAL NITIN SHAH, 1, VENKATGIRI, NEAR ANANDVAN COMPLEX, OPP. INDRA COMPLEX, MANJALPUR, BARODA - 390011 PAN:AJEPS3002P (APPELLANT) VS THE IT O , WARD - 2(5) , BARODA (RESPONDENT) REVENUE BY : S H RI MUDIT NAGPAL , SR. D . R. ASSESSEE BY: S H RI MANISH SHAH , A.R. DATE OF HEARING : 24 - 11 - 2 017 DATE OF PRONOUNCEMENT : 19 - 12 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUN TANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2006 - 07 , ARIS ES FROM ORDER OF THE CIT(A) - V, BARODA DATED 18 - 02 - 2014 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: - 1. THE C.I.T.(APPEALS) ERRED IN UPHOLDING AN ADDITION OF RS.3,78,994/ - U/S.68OFTHEI.T. ACT, 1961. 2. THE C.I.T.(APPEALS) FURTHER ERRED IN CONFIRMING AN ADDITION OF RS.1,77,201/ - U/S.68 OF THE I.T. ACT, 1961. I T A NO . 2834 / A HD/20 14 A SSESSMENT YEAR 2006 - 07 I.T.A NO. 2834 /AHD/20 14 A.Y. 2006 - 07 PAGE NO SMT. SONAL NITIN SHAH VS. IT O 2 3. THE C.I.T.(APPEALS) ERRED IN UPHOLDING THE DISALLOWANCE OF RS. 1,03,800/ - BEING 20% OF THE TOTAL INDIRECT EXPENSES OF RS.5,18,998/ - . 4. THE C.I.T.(APPEALS) OUGHT NOT TO HAVE UPHELD THE ADDITION OF RS.63,081/ - BEING DEEMED INTEREST DISALLOWANCE MADE BY THE ASSESSING OFFICER. 3 . IN THIS CASE, RETURN OF INCOME DECLARING INCOME OF RS. 1 , 38 , 470/ - WAS FILED ON 30 TH DECEMBER, 2006. SUBSEQUENTLY, THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S. 143(2) OF THE ACT ON 28 TH JUNE, 2007. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE ASSESSING OFFICER HAS MADE FOLLOWING DISALLOWANCES. DISALLOWANCE OF RS. 3 , 78 , 994/ - AS UNSECURED LOAN 4. THE ASSESSING OFFICER HAS MADE THIS DISALLOWANCE ON THE GROUND THAT ASSESSEE HAS NOT FURNISHED ANY CONFIRMATION AND EVIDENCES TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE PERSON FROM WHOM THE LOANS WERE RECEIVED. DISALLOWANCE OF CREDITORS OF RS . 1 , 77 , 201/ - 5. THE ASSESSING OFFICER HA S MADE THIS DISALLOWANCE ON THE GROUND THAT ASSESSEE HAS NOT FURNISHED ANY CONFIRMATION AND EVIDENCES T O PROVE THE IDENTITY AND GENUINENESS OF T HE TRANSACTION. DISALLOWANCE OF INDIRECT EXPENSES OF RS. 1 , 03 , 800/ - 6. THE ASSESSING OFFICER HAS DISALLOWED THIS EXPENDITURE BY STATING THAT ASSESSEE HAS NOT PRODUCED THE SUPPORTING BILL AND VOUCHER, THEREFORE, HE HAD DISALLOWED 20% OF THE INDIRECT EXPENSES OF RS. 815998/ - WHICH COMES TO RS. 1 , 03 ,8 00/ - DISALLOWANCE OF INTEREST FREE LOAN AND ADVANCES OF RS . 63 , 081/ - I.T.A NO. 2834 /AHD/20 14 A.Y. 2006 - 07 PAGE NO SMT. SONAL NITIN SHAH VS. IT O 3 7. THE ASSESSING OFFICER HAS MADE THIS DISALLOWANCE ON THE GROUND THAT ASSESSEE HAS MADE INTEREST FR EE LOAN TO HIS RELATIVES WITHOUT CHARGING ANY INTEREST , THEREFORE, THE ASSESSING OFFICER HAS WORKED OUT INTEREST @ 12% ON THE LOAN AND ADVANCES OF RS. 5 , 25 , 677/ - TO THE AMOUNT OF RS. 63 , 081/ - . 8. AGGRIEVED ASSESSEE FILED APPEAL BEFORE HE LD. CIT(A) .THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. THERE WAS DELAY IN FILING THIS APPEAL BEFORE THE ITAT BY 147 DAY. DURING THE COURS E OF APPELLATE PROCEEDINGS BEFORE US, LD. COUNSEL HAS CONTENDED THAT DURING THE COURS E OF ASSESSMENT PROCEEDINGS MOTHE R IN LAW OF THE ASSESSEE WAS SUFFERING FROM CANCER AND A SSESSEE WAS BUSY IN MEDICAL TREATMENT OF HER MOTHER IN LAW. . IN THIS RESPECT , THE LD. COUNSEL HAS FILED AFFIDAVIT OF THE ASSESSEE ALONG W ITH COPY OF DEATH CERTIFICATE OF HER MOTHER IN LAW. IT WAS S TA TED IN THE AFFIDAVIT THAT MOTHE R IN LAW OF THE ASSESSEE WAS SUFFERING FROM CANCER AND WAS EXPIRED ON 18 TH FEB, 2014. IT WAS FURTHER STATED THAT COPY OF ORDER OF LD. CIT(A) WAS RECEIVED BY HIS FATHER IN LAW ON 28 TH MARCH, 2014 AFTER SOME DAYS OF THE DEATH OF HER MOTHER IN LAW BECAUSE OF BEING REMAINED BUSY IN POST DEA TH RITUALS OF HER MOTHER IN LAW, H IS FATHER IN LAW FORGET TO SUBMIT THE APPEAL PAPER TO HER AUTHORIZED REPRESENTATIVE FOR F I LING THE APPEAL WHICH RESULTED DELAY IN FILING THIS APPEAL . AFTER CO NSIDERING THE SUBMISSION OF THE ASSESSEE ALONG WITH SUPPORTING EVIDENCES , WE CONDONE THE DELAY IN FILING THIS APPEAL. THE LD. COUNSEL HAS FURTHER SUBMITTED TH A T THE CASE OF THE ASSESSEE COULD NOT BE PRESENTED BEFORE THE LD. CIT(A) PROPER LY BECAUSE OF IL L HEA L TH OF THE MOT HE R IN LAW OF THE ASSESEE AS T HE ASSESEE WAS REMAINED BUSY IN TAKING CARE OF THE SICK MOTHER IN LAW AS A RESULT PROPER INFORMATION COULD NOT BE MADE AVAILABLE DURING THE APPELLATE PROCEEDINGS. LOOKING TO THESE CIRCUMSTANCES, LD. COUNS EL HAS SUBMITTED THAT CASE OF THE ASSESSEE BE DECIDED ON MERIT AFTER CONSIDERING THE ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A). ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE LD. CIT(A). I.T.A NO. 2834 /AHD/20 14 A.Y. 2006 - 07 PAGE NO SMT. SONAL NITIN SHAH VS. IT O 4 9. WE HAVE HEARD BOTH THE SIDE S AND PERUSED THE MATERIAL ON RECORD C AREFULLY. WE OBSERVED THAT MOTHE R IN LAW OF THE ASSESSEE WAS SUFFERING FROM CANCER AND WAS EXPIRED ON 18 TH FEB, 2014. THE LD. CIT(A) HAS NOT ADMITTED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ON THE GROUND THAT INFORMATION WAS NOT SUBMITTED BEFO RE THE ASSESSING OFFICER IN SPITE OF GRANTING SEVERAL OPPORTUNITIES. WE HAVE CONSIDERED THE SUBMISSION OF THE ASSESSEE THAT THE NECESSARY COMPLIANCE COULD NOT BE MADE DURING THE APPE LL ATE PROCEEDINGS BECAUSE THE ASSESSEE WAS REMAINED BUSY IN TAKING CARE OF HER MOTHER IN LAW WHO WAS SUFFERING FROM CANCER AND EXPIRED ON 18 TH DECEMBER 2014 AS PER THE COPY OF THE DEATH CERTIFICATE SUBMITTED IN THE APPELLATE PROCEEDING BEFORE US. WE HAVE PERUSED THE ORDER OF THE LD. CIT(A) AND FIND NO BODY ON BEHALF OF ASSESSEE HAS ATTENDED THE APPELLATE PROCEEDING. IN VIEW OF THE ABOVE REASONS WE OBSERVED THAT THE ASSESSEE COULD NOT MAKE PROPER COMPLIANCE DURING THE APPELLATE PROCEEDINGS. AFTER CONSIDERING THE ABOVE FACTS W E OBSERVED THAT IT WILL BE APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING A FRESH INSTEAD OF RESTORING TO LD. CIT(A) TO AVOID MULTIPL E OF LITIGATION FIRST AT THE LEVEL OF LD. CIT(A) AND THEN FOR REMAND REPORT AT THE LEVEL OF ASSESSING O FFICER. THEREFORE, WE RESTORE THIS FILE TO THE ASSESSING OFFICER TO DECIDE IT ON MERIT AFTER CONSIDERING THE EVIDENCES FILED BY THE ASSESSE E AND AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 19 - 12 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 19 /12 /2017 / COPY OF ORDER FORWARDED TO: - I.T.A NO. 2834 /AHD/20 14 A.Y. 2006 - 07 PAGE NO SMT. SONAL NITIN SHAH VS. IT O 5 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,