Shri Arvind M. Makwana, Ahmedabad V. The Income Tax Officer, Ward-7(3), Ahmedabad

ITA 2976/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9526 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ASSESSEE BY : SHRI VINIT MOONDRA, AR REVENUE BY : SHRI RAJESH MEENA, DR DATE OF HEARING : 1 1/01/2017 DATE OF PRONOUNCEMENT IN COURT : 11/01/2017 / O R D E R THESE FOUR APPEALS BY DIFFERENT ASSESSEES ARE DIREC TED AGAINST THE RESPECTIVE ORDERS OF LD. CIT(A)-XIV, AHMEDABAD FOR ASSESSMENT YEAR 2007- 08. THE GROUND BEING COMMON, THESE APPEALS WERE H EARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE COMMON GROUND RAISED IS AS UNDER:- THE LD. AO/CIT(A) ERRED IN LAW AND ON FACTS IN MAKI NG/CONFIRMING ADDITION OF RS.8 LACS EACH U/S 69 OF THE ACT, IN THE HANDS O F (I) DIPIKA G. PATEL, (II) RAJESH M. MAKWANA, (III) RAJESH M. MAKWANA-HUF AND (IV) ARVIND M. MAKWANA. SN ITA NO. AY APPELLANT RESPONDENT 1 2973/AHD/2013 2007-08 DIPIKA GANESHBHAI PATEL, C/O. VINIT MOONDRA, CA, 201, SARAP, OPP. NAVJIVAN PRESS, ASHRAM ROAD, AHMEDABAD PAN : AGWPP 2622 F ITO, WARD 7 (4), AHMEDABAD 2 2974/AHD/2013 2007-08 RAJESH M. MAKWANA, C/O. VINIT MOONDRA, CA, 201, SARAP, OPP. NAVJIVAN PRESS, ASHRAM ROAD, AHMEDABAD PAN : AJPPM 9595 G ITO, WARD 7 (3), AHMEDABAD 3 2975/AHD/2013 2007-08 RAJESH M. MAKWANA-HUF, C/O. VINIT MOONDRA, CA, 201, SARAP, OPP. NAVJIVAN PRESS, ASHRAM ROAD, AHMEDABAD PAN : AAKHR 1360 Q ITO, WARD 7 (3), AHMEDABAD 4 2976/AHD/2013 2007-08 ARVIND M. MAKWANA, C/O. VINIT MOONDRA, CA, 201, SARAP, OPP. NAVJIVAN PRESS, ASHRAM ROAD, AHMEDABAD PAN : AMGPM 4493 D ITO, WARD 7 (3), AHMEDABAD SMC-ITA NOS. 2973 TO 2976/AHD/2013 DIPIKA GANESHBHAI PATEL+3 OTHERS VS. ITO AY : 2007-08 2 3. LD. COUNSEL FOR THE ASSESSEE(S), AT THE OUTSET, CONTENDS THAT THE ISSUE IN QUESTION IS COVERED BY A CONSOLIDATED ORDER OF I TAT IN ITA NOS. 2485 & 2486/AHD/2011 FOR AY 2007-08 DATED 07.09.2016, WHER EIN THE ISSUE HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFF ICER TO VERIFY THE FINALITY OF ADDITIONS IN RESPECT OF SHARE CAPITAL IN THE HANDS OF THE MAIN BENEFICIARY BY FOLLOWING OBSERVATIONS:- 3. BRIEF FACTS ARE BOTH THE ASSESSEES ALLEGEDLY MADE ABOVE INVESTMENTS IN ONE COMPANY M/S ADARSH ENGITECH PROJECTS PVT LTD , UDAIPUR. ON THE BASIS OF AIR INFORMATION, IT WAS FOUND THAT SHRI SH ANTILAL JAIN, THE DIRECTOR OF M/S ADARSH ENGITECH PROJECTS PVT LTD HAS BUILT-U P SOME CAPITAL WITH THE HELP OF THE NAME-LENDERS INCLUDING THESE TWO ASSESS EES. 3.1. LD. COUNSEL FOR THE ASSESSEES STATES THAT THE SAID SHRI SHANTILAL JAIN HAS ACCEPTED ALL THESE AMOUNTS AS HIS MONEY AND THE ASSESSEES ARE AS NAME- LENDERS. LD. COUNSEL FOR THE ASSESSEES, HOWEVER, C OULD NOT GIVE THE LATEST STATUS OF THE FATE OF SUBSTANTIVE ADDITIONS IN THE HANDS OF THE SHRI SHANTILAL JAIN, DIRECTOR OF M/S. ADARSH ENGITECH PROJECT PVT LTD. LD. COUNSEL FOR THE ASSESSEES FURTHER CONTENDS THAT SINCE SHRI SHANTILA L JAIN IN SUBSTANTIVE CAPACITY HAS ACCEPTED THE ADDITION, THE IMPUGNED AS SESSMENT BEING PROTECTIVE IN NATURE, THIS ADDITION SHOULD BE DELETED. 3.2 LD. DR, ON THE OTHER HAND, VEHEMENTLY CONTENDS THAT LD. COUNSEL HAS NOT LAID ANY EVIDENCE TO SUGGEST THAT THE ADDITIONS IN QUESTION HAVE BECOME SUBSTANTIVE IN THE HANDS OF SHRI SHANTILAL JAIN AND THE RELEVANT INCOME-TAXES HAVE BEEN PAID. THEREFORE, THE ADDITIONS SHOULD BE CONFIRMED IN THE HANDS OF THESE ASSESSEES. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. FROM THE RECORD, IT EMERGES THAT THE ADDITIONS HAVE BEEN MADE IN THE HANDS OF SHRI SHANTILAL JAIN; HOWEVER, WHETHER THE APPEALS HAVE BEEN FILED AND THE AMOUNTS HAVE BEEN DISPUTED BY SHRI SHANTILAL JAIN HAS NOT BEEN B ROUGHT ON RECORD. THE SUBSTANTIVE ASSESSMENT IS IN THE HANDS OF SHRI SHAN TILAL JAIN AND PROTECTIVE ASSESSMENT IS IN THE HANDS OF THESE TWO ASSESSEES. CONSIDERING ALL THESE FACTS AND CIRCUMSTANCES, I FIND IT FIT TO SET ASIDE THESE ASSESSMENTS BACK TO THE FILE OF THE LD. AO AND DIRECT HIM TO DECIDE THE SAME AFR ESH AFTER EXAMINING THE FINALITY OF THE ADDITIONS IN THE HANDS OF SHRI SHA NTILAL JAIN. 5. SINCE THE ONLY ISSUE BEING RESTORED BACK TO THE FILE OF THE LD. AO, THE LIMITATION WILL NOT APPLY TILL THE VERIFICATION IN THE CASE OF SHRI SHANTILAL JAIN IS DONE. 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. SMC-ITA NOS. 2973 TO 2976/AHD/2013 DIPIKA GANESHBHAI PATEL+3 OTHERS VS. ITO AY : 2007-08 3 4. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, CONTENDS THAT THERE SHOULD BE CORRECTION IN THE FACTS INASMUCH AS THE ADDITIONS WERE MADE IN THE HANDS OF ADARSH ENGITECH PROJECTS PVT LTD, U DAIPUR VIDE ASSESSMENT ORDER DATED 31.12.2009 FOR AY 2007-08. THEREFORE, THE VERIFICATION OF RETAINING OF SUBSTANTIVE ADDITION SHOULD BE CONSIDE RED IN THE HANDS OF ADARSH ENGITECH PROJECTS PVT LTD, UDAIPUR AS WELL A S THE SAID SHRI SHANTILAL JAIN. LD. DEPARTMENTAL REPRESENTATIVE FURTHER POIN TS OUT THAT AS PER THE PAPERS FILED BY THE ASSESSEE, THE DEPARTMENT HAS PR EFERRED APPEAL NO.343/JODH-2010 AGAINST ADARSH ENGITECH PROJECTS P VT LTD, UDAIPUR FOR AY 2007-08. IT MEANS THAT BEFORE THE CIT(A) THE AD DITIONS MADE BY THE ASSESSING OFFICER HAVE BEEN DELETED. IF IT IS SO, THEN THE ADDITIONS NEED TO BE RETAINED IN THE HANDS OF THESE ASSESSEES. THEREFOR E, THE SETTING ASIDE SHOULD BE MADE WITH THESE DIRECTIONS. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN VIEW OF THE FOREGOING, IT IS MADE CLEAR THAT THE SETTING ASIDE IS MADE WITH FURTHER OBSERVATION THAT THE RELATIONSHIP OF ADARSH ENGITEC H PROJECTS PVT LTD AND SHRI SHANTILAL JAIN. THEIR APPEALS AND FINALITY OF ADDITIONS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT OF ADARSH ENGIT ECH PROJECTS PVT LTD SHOULD ALSO BE CONSIDERED WHILE DECIDING THE APPEAL S. IN VIEW OF THESE OBSERVATIONS, THESE APPEALS OF THE ASSESSEE(S) ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE(S) ARE ALLOWED FOR STATISTICAL PURPOSES. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 11/01/2017 *BIJU T., SR. PS SMC-ITA NOS. 2973 TO 2976/AHD/2013 DIPIKA GANESHBHAI PATEL+3 OTHERS VS. ITO AY : 2007-08 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD