Komil Yogeshbhai Gandhi, Sabarkantha V. The Income Tax Officer, S.K.Ward-2, Himatnagar

ITA 288/AHD/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5081 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 09-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: A C SHAH
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

SMC-ITA NO. 288/AHD/2015 KOMIL YOGESHBHAI GANDHI VS. ITO AY : 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO. 288/AHD/2015 ASSESSMENT YEAR : 2011-12 KOMIL YOGESHBHAI GANDHI ............APPELLA NT AT & POST : SONASAN, TAL : PRANTIJ, DIST : SABARKANTHA [PAN : AMAPG 1799 G] VS. INCOME TAX OFFICER .......................RESPONDENT SK WARD-2, HIMATNAGAR APPEARANCES BY: AC SHAH, FOR THE APPELLANT SONIA KUMAR, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 12.10.2018 DATE OF PRONOUNCING THE ORDER : 15.10.2018 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF LEARNED CIT(A)S ORDER DATED 19 TH DECEMBER 2014 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE IN COME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2011-12. 2. GRIEVANCES OF THE APPELLANT ARE AS FOLLOWS:- 1. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE CASH CREDIT OF RS.5,00,00/- IN THE NAME OF SHRI LAXMICHAND A. GAND HI ON THE GROUND THAT THE CREDITWORTHINESS IS NOT PROVED INASMUCH AS THE ASSESSEE HAS FURNISHED THE EVIDENCES REGARDING THE CREDITWORTHINESS WITH P AN. 2. THE LEARNED CIT(A) HAS ERRED IN NOT ADMITTING TH E ADDITIONAL EVIDENCE IN RESPECT OF CASH CREDIT OF RS.5,00,000 IN THE NAME O F LAXMICHAND A GANDHI INASMUCH AS CIT(A) SHOULD HAVE CALLED FOR THE REMAN D REPORT OR HE SHOULD HAVE ACCEPTED THE EVIDENCE SUBMITTED AS GENUINE. 3. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE A SSESSEE HAS SHOWN AN UNSECURED LOAN OF RS.5,00,000/- FROM ONE LAXMICHAND A. GANDHI BUT THEN THIS PERSON APPARENTLY DID NOT HAVE ANY MEANS TO GIVE RS .5,00,000/- TO THE ASSESSEE SINCE THERE WAS A DEPOSIT OF RS.5,00,000/- SHORTLY BEFORE THE ISSUANCE OF THIS CHEQUE ON 06.12.2010. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE SMC-ITA NO. 288/AHD/2015 KOMIL YOGESHBHAI GANDHI VS. ITO AY : 2011-12 PAGE 2 OF 3 THE CIT(A) BUT WITHOUT ANY SUCCESS. LEARNED CIT(A) NOTED THAT THE EXPLANATION ABOUT SOURCE OF THIS DEPOSIT AS OUT OF SALE OF PROP ERTY WAS REJECTED ON THE GROUND THAT ON EXAMINATION OF DETAILS GIVEN SHOWS THAT THE SALE DEED DOES NOT SHOW ANY DETAILS OF ADVANCES PAID BY THE BUYERS OF THE LAND TO SHRI GANDHI AND THAT THE DEED RECORDS THAT THE SALE CONSIDERATION HAS BEEN P AID ON THE DATE OF TRANSFER AND IT DOES NOT MENTION ANY ADVANCE HAS BEEN GIVEN . THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE ME. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 5. I FIND THAT THERE IS NO DISPUTE THAT SHRI L.A. G ANDHI SOLD HIS PROPERTY FOR RS.8,40,000/- WHICH WAS CONCLUDED, BY REGISTRATION OF SALE DEED, ON 25 TH MARCH 2011. THE EXPLANATION OF SHRI GANDHI IS THAT IT WA S OUT OF ADVANCE FOR THIS PROPERTY TRANSACTION THAT DEPOSIT OF RS.5,00,000/- WAS MADE. IT IS A NORMAL PRACTICE THAT ENTIRE SALE CONSIDERATION IS NOT RECEIVED ON T HE DATE OF REGISTRATION ITSELF BUT PARTLY IN ADVANCE. THE EXPLANATION OF THE LENDER C ANNOT, THEREFORE, BE REJECTED AS IMPROBABLE. IN ANY CASE, IT IS NOT THE AVERMENT IN THE SALE DEED THAT ENTIRE CONSIDERATION WAS PAID ON 25.03.2011 ITSELF. KEEPI NG ALL THESE FACTORS IN MIND, I AM INCLINED NOT TO DOUBT MEANS OF THE LENDER IN DEP OSITING RS.5,00,000/- ON 06.12.2010. 6. KEEPING ALL THESE DISCUSSIONS IN MIND, AND BEARI NG IN MIND ENTIRETY OF THE CASE, I UPHOLD THE PLEA OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITION OF RS.5,00,000/- AS UNEXPLAIN ED CREDIT. 7. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF OCTOBER, 2018. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) AHMEDABAD, THE 15 TH DAY OF OCTOBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD SMC-ITA NO. 288/AHD/2015 KOMIL YOGESHBHAI GANDHI VS. ITO AY : 2011-12 PAGE 3 OF 3 1. DATE OF DICTATION: ... ORDER PREPARED AS PER 2 PAGES MANUSCRIPTS OF HONBLE AM, WHICH ARE ATTACHED HEREWITH-15.10.18 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 15.10.2018...... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .... 15.10.2018.... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: ... 15.10.2018. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 8. DATE OF DESPATCH OF THE ORDER: ......