Rajvi Natoobhai Patel, Anand V. The Income tax Officer,Ward-2, Anand

ITA 3031/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80333 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 04-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA SR DR
• Section: 147; 69

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.3031/AHD/2010 [ASSTT.YEAR : 2007-2008] RAJVI NATOOBHAI PATEL PROP. NAVIN ENGINEERING PLOT NO.1910, GIDC PHASE-IV VITHAL UDYOGNAGAR 388 021. PAN : ANFPP 9881 P /VS. ITO, WARD-2 ANAND. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI MUKUND BAKSHI + 2 3 )/ REVENUE BY : SHRI B. KULSHRESTHA, SR.DR 5 2 &(*/ DATE OF HEARING : 25 TH AUGUST, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 05/09/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2007-2008 IS DIRECTED AGAINST THE OR DER OF THE CIT(A). 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV , BARODA HAS ERRED IN LAW AND IN FACTS IN CONFIRMING AN ADDI TION OF RS.1,00,000/- OUT OF AN ADDITION OF RS.1,21,30,345/ - MADE BY THE LD. A.O. U/S. 69 OF THE IT. ACT BEING THE AMOUNT DEPOSI TED BY THE ITA NO.3031/AHD/2010 -2- APPELLANT IN HIS NON-RESIDENT EXTERNAL (NRE) ACCOUN T WITH BANK OF BARODA, ANAND. THE ENTIRE AMOUNT INCLUDING RS.1,00, 000/- IS REMITTED BY THE APPELLANT OUT OF HIS ACCOUNT WITH B ANK OF BARODA, ABU DHABI, U.A.E. AND, THUS THE AMOUNT OF RS.1,00,0 00/-CANNOT BE HELD TO BE UNEXPLAINED AND IT IS PRAYED TO HOLD ME SAME TO BE EXPLAINED AND DIRECT THE DELETION OF THE AMOUNT OF RS.1,00,000/- 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, BARODA HAS FURTHER ERRED IN LAW AND IN FACTS IN ENHANCING THE ASSESSMENT BY AN AMOUNT OF RS.93,86,330/- ( BEING THE SUM OF RS.88,6 6,300/- AND RS.5,20,030/- DEPOSITED IN THE ACCOUNT WITH BANK OF BARODA, ABU DHABI, U.A.E. IN VIOLATION OF THE PROVISIONS CONTAI NED IN SEC. 251(2) AND OTHER APPLICABLE PROVISIONS. THE ADDITION OF RS .93,86,330/- SO MADE BEING WITHOUT CONSIDERATION OF THE FACTS AND I N VIOLATION OF LAW DESERVES TO BE DELETED. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, BARODA HAS FURTHER ERRED IN LAW AND IN FACTS IN ENHANCING THE ADDITION TO THE EXTENT OF RS. 88,66,300/- INCLUDED IN THE AMOUNT OF RS.93,86,330/- CHALLENGED IN GROUND NO.2 ABOVE IN CONTRADICTION OF THE FINDINGS OF THE LD. A.O. AS FURNISHED IN THE REMAND REPORT THE ADDITION OF RS.88,66,300/- BEING ERRONEOUS IN FACTS AND IN LAW IS PRAYED TO BE DELETED. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, BARODA HAS FURTHER ERRED IN LAW AND M FACTS IN MAKING THE ADDITION OF RS.5,20,030/- CHALLENGED IN GROUND NO. 2 ABOVE IN C ONTRADICTION OF THE FACTS AND THE LAW. THE ADDITION OF RS.5,20,030/ - BEING ERRONEOUS IN FACTS AND IN LAW IS PRAYED TO BE DELETED. 5. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, BARODA HAS FURTHER ERRED IN LAW AND IN FACTS IN HOLDING TH AT THE AMOUNT OF RS.29,11,500/- DEPOSITED BY THE APPELLANT IN HIS AC COUNT WITH BANK OF BARODA, ANAND ON 21.03.2006 WAS UNEXPLAINED AND THAT THE SAID AMOUNT OF RS.29,11,500/- WOULD BE TAXED IN THE A.Y. 2006-07 IN TERMS OF THE PROVISIONS OF SEC. 147 OR OTHERWISE. THE DIR ECTION OF THE LD. CIT(A)-IV, BARODA IN CONSIDERING THE TAXATION OF TH E SAID AMOUNT OF RS.29,11,500/- IN THE A.Y.2006-07 IS CONTRARY TO TH E FACTS AND IN VIOLATION OF THE PROVISIONS OF LAW AND HENCE THE SA ID DIRECTIONS DESERVE TO BE CANCELLED. ITA NO.3031/AHD/2010 -3- 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE WAS RESIDING ABROAD FOR A LONG PERIOD OF 28 YEARS AND C AME BACK TO INDIA ON 18.10.2005 AND THE ADDITIONS OF REMITTANCES FROM AB ROAD TO THE INDIAN BANK ACCOUNTS OF THE ASSESSEE WERE THROUGH BANKING CHANNELS ONLY, AND THEREFORE, NO ADDITION SHOULD HAVE BEEN MADE BY THE REVENUE. HOWEVER, HE SUBMITTED THAT THE ADDITION OF RS.70,65,145/-, 2 0,53,700/- AND RS.29,11,500/- WERE DELETED BY THE CIT(A), AND IT W AS DIRECTED TO THE AO TO CONSIDER THE SAME IN THE ASSESSMENT OF THE IMMED IATE PRECEDING ASSTT.YEAR 2006-2007. HE SUBMITTED THAT IN THE ASS ESSMENT FRAMED FOR THE ASSTT.YEAR 2006-07, THE AO HAS ACCEPTED THAT ASSESS EE WAS A NON- RESIDENT DURING THE ASSTT.YEAR 2006-07, AND THEREF ORE, NO ADDITION COULD BE MADE WITH RESPECT TO THESE THREE AMOUNTS DETAILE D ABOVE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSE E WAS NOT ORDINARY RESIDENT DURING THE PERIOD RELEVANT TO THE ASSTT.Y EAR 2007-08, AND THEREFORE, NO ADDITION SHOULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE REFERRED TO THE RELEVANT PORT IONS OF THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER PASSED BY THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE. HE RELIED ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN AIYUB UMARJI PATEL VS. ITO, (2014) 42 TAXMANN.COM 471 (GUJ) WHEREIN IN SIMILAR FACTS, THE ADDITION MADE W AS CONFIRMED BY THE HONBLE HIGH COURT. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AS WELL AS THE DECISION OF THE HO NBLE JURISDICTIONAL HIGH COURT RELIED UPON BY THE LEARNED DR. WE FIND THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAVE BEEN GIV EN IN THE FACTS OF A PARTICULAR CASE, AND IT DOES NOT HELP THE CASE OF T HE REVENUE. HOWEVER, WE ITA NO.3031/AHD/2010 -4- FIND THAT THE CIT(A) WAS NOT HAVING THE BENEFIT OF ASSESSMENT ORDER FRAMED IN THE IMMEDIATE PRECEDING ASSTT.YEAR 2006-0 7, AT THE TIME OF PASSING OF THE APPELLATE ORDER, IN WHICH THE ASSESS EE HAS BEEN HELD AS NON-RESIDENT AND NO ADDITION WITH RESPECT TO THE THREE ACCOUNTS WERE MADE BY THE AO. IN THE FACTS OF THE CASE, WE ARE O F THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ORDER OF THE CIT(A) TO HIS FILE WITH DIRECTION TO PASS DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES, AND THE CIT(A) IS DIRECTED TO CONSIDER THE ASSESSMENT ORDER IN THE IMMEDIATE PRECEDING ASSTT.YEAR 2006-07 ALSO. THE CIT(A) IS D IRECTED TO DECIDE WHETHER THE ASSESSEE WAS NOT ORDINARY RESIDENT DU RING THE RELEVANT ASSTT.YEAR 2007-08 AND TO DECIDE THE ISSUE BEFORE H IM IN ACCORDANCE WITH LAW. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD