The DCIT, Circle-9, Ahmedabad V. Dr. Bharatbhai J.Patel, Ahmedabad

ITA 3032/AHD/2009

• Counselvise Citation: 303220514 RSA 2009
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P TALATI
• Assessee Lawyers: H K SHAH
• Keywords: Unexplained cash credit; Business income
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI T.K. SHARMA, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 3032/ AHD/2009 (ASSESSMENT YEAR 2006-07) DCIT, CIRCLE 9, AHMEDABAD VS. DR. BHARATBHAI J PATEL, SAMVED HOSPITAL, NAVRANGPURA, AHMEDABAD C.O. NO.278/AHD/2009 DR. BHARATBHAI J PATEL, VS. DCIT, CIRCLE 9, SAMVED HOSPITAL, AHMEDABAD NAVRANGPURA, AHMEDABAD PAN/GIR NO. : ABCPP3038J (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S.P. TALATI, SR. DR RESPONDENT BY: SHRI H K SHAH, AR DATE OF HEARING: 29.09.2011 DATE OF PRONOUNCEMENT: _________________ O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL FIELD BY THE REVENUE AND C.O. FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT (A) XV, AHMED ABAD DATED 17.09.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. GROUND NO.1 OF THE APPEAL OF THE REVENUE AND GRO UND NO.1 OF THE C.O. OF THE ASSESSEE ARE INTERCONNECTED WHICH READ AS UNDER: GROUND NO.1 OF REVENUES APPEAL: LD. CIT (A) HAS ERRED IN LAW AND ON FACT IN ALLOWI NG RS. 3,83,537/- OUT OF MEDICAL EXPENSES. I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 2 GROUND NO.1 OF C.O. OF THE ASSESSEE: LD. CIT (A) HAS ERRED IN CONFIRMING 2% OF THE MEDI CAL EXPENDITURE AS DISALLOWED BY THE A.O. AMOUNTING TO RS. 6,39,227/-. IT IS PRAYED THAT THE DISALLOWANCE CON FIRMED BEING 2% OF RS.1,27,84,541/- COMES TO RS.2,55,690/- IS REQUIRED TO BE DELETED, MORE PARTICULARLY THE ASSES SEE HAD MADE OUT TO THE EFFECT THAT THE MEDICAL EXPENDITURE HAS DIRECT RELATION TO THE OPERATION CONDUCTED DURING THE YEAR AND FURTHER NO SUCH DISALLOWANCE WAS MADE IN PAST AND N O SUCH BOOKS OF ACCOUNTS HAVE BEEN REJECTED AND AS SUCH, T HE DISALLOWANCE MADE IS BASICALLY NOT WARRANTED AND LI ABLE TO BE DELETED. 3. THE BRIEF FACTS ARE NOTED BY THE A.O. IN PARA 3 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SHOWN RETURNED INCOME O F RS.37,11,150/- AS TOTAL INCOME, OUT OF WHICH, THE PROFESSIONAL INCOME CONSTITUTES ONLY RS.27,67,851/- AGAINST PROFESSIONAL RECEIPTS OF RS .251.45 LACS AS SHOWN IN THE P & L ACCOUNT FOR THE PRESENT YEAR. THE A.O . HAS STATED THAT THE PERCENTAGE OF INCOME TO GROSS RECEIPT WORKS OUT TO 11%. THEREAFTER, THE A.O. HAS NOTED THAT THE ASSESSEE HAS CLAIMED RS.127 .84 LACS AS MEDICAL EXPENSE, WHICH IS MORE THAN 50% OF THE PROFESSIONAL RECEIPT AND IN ADDITION TO THIS, EXPENSES LIKE SALARY, CONFERENCE AND HOSPITAL EXPENSES ETC ARE ALSO CLAIMED. THE A.O. HAS COMPARED THE ME DICAL EXPENDITURE FOR THE PRESENT YEAR WITH SUCH EXPENSES IN THE PRECEDIN G YEAR. THEREAFTER, THE A.O. HAS WORKED OUT ON PAGE 3 OF THE ASSESSMENT ORD ER THAT OUT OF ADDITIONAL RECEIPTS OF THE PRESENT YEAR IN EXCESS O F RECEIPT IN THE PRECEDING YEAR, THE ASSESSEE IS CLAIMING 85% EXPENSES TOWARDS MEDICAL EXPENSES WHICH IS EXCESSIVE. THE A.O. HELD THAT 5% OF THE M EDICAL EXPENSES CLAIMED BY THE ASSESSEE DESERVES TO BE DISALLOWED O N ESTIMATE BASIS IN THE ABSENCE OF COMPLETE DETAILS. THE A.O. WORKED OUT T HE DISALLOWANCE AT RS.6,39,227/-. BEING AGGRIEVED, THE ASSESSEE CARRI ED THE MATTER IN APPEAL BEFORE CIT (A). LD. CIT (A) HELD THAT DISALLOWANCE OF 2% IS JUSTIFIED AND I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 3 HE CONFIRMED THE DISALLOWANCE OF RS. 2,55,690/- AND DELETED THE BALANCE DISALLOWANCE OF RS.3,83,537/-. NOW, THE REVENUE IS IN APPEAL BEFORE US FOR RELIEF ALLOWED BY THE CIT (A) WHERE AS THE ASSE SSEE HAS RAISED THIS GROUND IN C.O. FOR DISALLOWANCE CONFIRMED BY THE LD . CIT(A). 4. LD. D.R. SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LD. A.R. SUBMITTED THAT NO DISALLOWANCE IS CALLED FOR OUT OF MEDICAL EXPENSES BECAUSE THE SAME WAS MADE ON AD-HOC BASIS. HE HAS SUBMITTED THAT THE MAIN INCOME OF THE ASSESSEE IS ON ACCOUNT OF OPERAT ION OF KNEE REPLACEMENT AND ON MAJOR PART OF MEDICAL EXPENDITUR E IS ON ACCOUNT OF ARTIFICIAL LIMB BEING IMPLANTED. AT THIS JUNCTURE, A QUERY WAS RAISED AS TO WHETHER THE ASSESSEE CAN FURNISH THE COMPLETE DETAI LS OF TOTAL SUCH KNEE REPLACEMENT OPERATIONS PERFORMED BY THE ASSESSEE IN THIS YEAR AND HOW MUCH SUCH ARTIFICIAL KNEES WERE PURCHASED AND DEBIT ED TO THE P & L ACCOUNT AND WHETHER THE NUMBERS ARE TALLYING. IT W AS THE SUBMISSION BY THE LD. A.R. THAT SUCH RECONCILIATION IS NOT READIL Y AVAILABLE AND HE IS NOT AWARE AS TO WHETHER SUCH QUANTITATIVE RECORDS ARE B EING MAINTAINED OR NOT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHO RITIES BELOW. WHEN WE EXAMINE THE FACTS OF THE PRESENT CASE AND THE AR GUMENTS OF THE LD. A.R., WE FIND THAT IT IS THE MAIN ARGUMENT OF THE L D. A.R. THAT MAJOR PART OF THE MEDICAL EXPENDITURE INCLUDES THE COST OF ART IFICIAL LIMBS PURCHASED BY THE ASSESSEE FOR PERFORMING KNEE REPLACEMENT OPE RATIONS AND THE MAJOR RECEIPTS OF THE ASSESSEE IS ON ACCOUNT OF SUCH KNEE REPLACEMENT OPERATIONS. IF THIS BE SO, IT WAS THE DUTY OF THE ASSESSEE TO MAKE RECONCILIATION OF THE PROFESSIONAL RECEIPTS DECLARE D BY THE ASSESSEE WITH REGARD TO SUCH OPERATIONS WITH NUMBERS OF SUCH OPER ATIONS AND THE COST INCURRED BY THE ASSESSEE ON ACCOUNT OF PURCHASE OF ARTIFICIAL LIMBS ALONG I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 4 WITH ITS NUMBERS. IN THE ABSENCE OF SUCH RECONCILI ATION, WE FEEL THAT SOME DISALLOWANCE IS NOT UNJUSTIFIED. THE A.O. HAS MADE DISALLOWANCE OF 5% OF SUCH EXPENSES WHEREAS LD. CIT (A) REDUCED THE DI SALLOWANCE TO THE EXTENT OF 2% ONLY OF SUCH MEDICAL EXPENDITURE. CON SIDERING THE FACTS OF THE PRESENT CASE, WE FEEL THAT THE DISALLOWANCE CON FIRMED BY THE LD. CIT (A) IS REASONABLE AND HENCE, NO INTERFERENCE IS CAL LED FOR IN THE ORDER OF LD. CIT (A) ON THIS ISSUE. ACCORDINGLY, GROUND NO.1 OF THE REVENUE AS WELL AS GROUND NO.1 OF THE CROSS OBJECTIONS ARE REJ ECTED. 6. GROUND NO.2 OF THE C.O. IS AS UNDER: IN TREATING THE SHORT TERM CAPITAL GAIN OF RS.10,4 7,051/- AS PER A.O.S ORDER PARA 6 AND CIT(A) ORDER PAGE 6 PARA 8. IT IS PRAYED THAT THE ASSESSEE HAS RIGHTLY TREATED THE AFORESAID INCOME AS SHORT TERM CAPITAL GAIN SINCE THE ASSESSEE IS BEING A REN OWNED ORTHOPEDIC SURGEON AND DOING BUSINESS INDEPENDENTLY THERE IS N O REASON TO TREAT THE AFORESAID PROFIT AS BUSINESS INCOME. IT IS PRAYED THAT THE ASSESSEE HAS RIGHTLY TREATED THE AFORESAID INCOME A S SHORT TERM GAIN. 7. THE BRIEF FACTS OF THIS ISSUE ARE NOTED BY THE A .O. IN PARA 6 OF THE ASSESSMENT ORDER. DURING THIS YEAR, THE ASSESSEE H AS SHOWN A LOSS OF SHARE TRADING (FUTURE & OPTION) AND THE SAME WAS CL AIMED IN P & L ACCOUNT. THE A.O. FURTHER NOTED THAT IN COMPUTATIO N, RS.1,67,713/-WAS REDUCED FROM SHORT TERM CAPITAL GAIN ON SALE OF SHA RES OF RS.12,14,754/- THE A.O. FURTHER NOTED HAT THE ASSESSEE HAS CONSIDE RED RS.12,14,754/- BEING PROFIT ON SALE OF SHARES AS BUSINESS INCOME B ECAUSE LOSS OF RS.1,67,713/- FROM FUTURE & OPTION WAS REDUCED AND THE FINAL SURPLUS WAS CALCULATED AT RS.10,47,041/-. THE A.O. FURTHER NOT ED THAT THE ASSESSEE HAD COMPUTED TAX ON THIS INCOME @ 10% CONSIDERING THIS INCOME AS SHORT TERM CAPITAL GAIN WHEREAS THE SAME IS TO BE TAXED A S BUSINESS INCOME AT NORMAL RATE. THE A.O. FURTHER NOTED THAT THE ISSUE WAS DISCUSSED WITH THE AR OF THE ASSESSEE AND SOUGHT OBJECTION, IF ANY, FO R THE ABOVE TREATMENT I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 5 BUT NO REPLY/OBJECTION WAS SUBMITTED BY THE LD. A.R . THE A.O. TREATED THIS NET INCOME OF RS.10,47,041/- AS BUSINESS INCOM E AND TAXED THE SAME AT NORMAL RATE AS AGAINST 10% TAX OFFERED BY THE AS SESSEE. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATER IN APPEAL BEFORE CIT (A) BUT WITHOUT SUCCESS AND NOW, THE ASSESSEE RAISED THIS I SSUE IN CROSS OBJECTION BY WAY OF GROUND NO.2. 8. THE LD. A.R. SUBMITTED THAT THE ASSESSEE IS A DO CTOR AND HE WAS NOT ENGAGED IN THE BUSINESS OF DEALING IN SHARES AND TH IS GAIN IS TAXABLE AS SHORT TERM CAPITAL GAIN AS OFFERED BY THE ASSESSEE. AS AGAINST THIS, LD. D.R. OF THE REVENUE SUPPORTED THE ORDER OF LD. CIT (A). IT IS ALSO SUBMITTED BY HIM THAT LD. CIT (A) HAS DECIDED THIS ISSUE BY FOLLOWING THE JUDGMENT O HONBLE GUJARAT HIGH COURT RENDERED IN T HE CASE OF CIT VS REWASHANKER A. KOTHARI 283 ITR 338 (GUJ.) AND THE F ACTS OF THAT CASE ARE SIMILAR TO THE FACTS OF THE PRESENT CASE AND HENCE, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT (A) ON THIS ISSUE. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHO RITIES BELOW. WE FIND THAT IT IS NOTED BY THE A.O. IN THE ASSESSMENT ORDE R THAT THIS ISSUE WAS DISCUSSED BY HIM WITH LD. A.R. AND HE WAS ASKED TO FILE OBJECTION, IF ANY, REGARDING THIS TREATMENT PROPOSED BY THE A.O. BEFOR E HIM BUT NO OBJECTION WAS RAISED BEFORE THE A.O. IN THIS REGARD . THIS ISSUE HAS BEEN DECIDED BY THE LD. CIT (A) BY FOLLOWING THE JUDGMEN T OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS R EWASHANKER A. KOTHARI (SUPRA). RELEVANT PORTION OF THIS JUDGEMEN T HAD BEEN REPRODUCED BY THE LD. CIT (A) IN PARA 8 OF HIS ORDER WHICH IS REPRODUCED BELOW ALSO FOR READY REFERENCE: .(F) THE MOST IMPORTANT TEST IS S TO THE VOLUME, FREQUENCY, CONTINUITY AND REGULARITY OF TRANSACTIONS OF PURCHA SE AND SALE OF THE GOODS CONCERNED. IN A CASE WHERE THERE IS REPETITI ON AND I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 6 CONTINUITY, COUPLED WITH THE MAGNITUDE OF THE TRANS ACTION, BEARING REASONABLE PROPORTION TO THE STRENGTH OF HOLDING, A N INFERENCE CAN READILY BE DRAWN THAT THE ACTIVITY IS IN THE NATURE OF BUSINESS. 10. THE LD. CIT (A) HAS ENCLOSED THE DETAILS OF PRO FIT/LOSS ON SALE OF SHARES DURING THE PRESENT YEAR AND WE FIND THAT IN MOST OF THE CASES, THE SHARES WERE FREQUENTLY PURCHASED AND SOLD E.G. SHA RES OF BFUTI WERE PURCHASED ON 18.1.2006 AND SOLD ON 24.1.2006 AND 25 .1.2006. THE SAME SHARES WERE AGAIN PURCHASED ON 30.1.2006 AND SOLD O N 6.2.2006, AGAIN, THE SAME SHARES WERE PURCHASED ON 7.2.2006 AND SOLD ON 22.2.2006, AGAIN ON 23.2.2006, THE SHARES OF THE SAME COMPANY WERE P URCHASED AND SOLD ON THE SAME DATE. SIMILARLY, SHARES OF ENERGY SHAR ES WERE PURCHASED ON 15.6.2005 AND SOLD ON 29.6.2005, AGAIN PURCHASED ON 30.6.2005 AND SOLD ON 6.7.2005, AGAIN PURCHASED ON 16.11.2005 AND SOLD ON 6.12.2005. SHARES OF HFCL WERE PURCHASED ON 8.8.2005 AND SOLD ON 24.8.2005, AGAIN PURCHASED ON 14.11.2005 AND SOLD ON 29.11.200 5, AGAIN PURCHASED ON 25.11.2005 AND SOLD ON 29.11.2005, AGAIN PURCHAS ED ON 8.12.2005 AND SOLD ON 30.12.2005, AGAIN PURCHASED ON 1.2.2006 AND SOLD ON THE SAME DATE. SHARES OF TOTAL 32 COMPANIES WERE PURCHASED A ND SOLD BY THE ASSESSEE AND FOR EACH SUCH COMPANY, THERE ARE SEVER AL TRANSACTIONS. ALL THESE FACTS SUPPORT THE CASE OF THE REVENUE THAT TH ESE ARE NOT IN THE NATURE OF INVESTMENT BUT IN THE NATURE OF TRADE AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT (A) ON THIS ISSUE ALSO BY R ESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT CITED AB OVE. THIS GROUND OF THE CROSS OBJECTION OF THE ASSESSEE IS ALSO REJECTE D. 11. IN THE RESULT, C.O. OF THE ASSESSEE STANDS DISM ISSED. 12. THE 2 ND GROUND OF THE REVENUES APPEAL IS AS UNDER: THE LD. CIT(A) HA ERRED IN LAW AND ON FACT IN DEL ETING H ENTIRE ADDITION OF RS.11,10,965/- MADE ON ACCOUNT OF HUGE INCREASE OF ADVERTISEMENT EXPENSES. I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 7 13. THE BRIEF FACTS ARE THAT IT IS NOTED IN PARA 4 OF THE ASSESSMENT ORDER BY THE A.O. THAT THE ASSESSEE HAS CLAIMED RS.30.78 LACS TOWARDS ADVERTISEMENT EXPENSES. HE FURTHER NOTED THAT THERE IS SUBSTANTIAL INCREASE UNDER THIS HEAD COMPARED TO LAST YEAR. HE NOTED TH AT IN THE LAST YEAR, SUCH EXPENDITURE WAS ONLY RS.1.92 LACS AND HENCE, IN THE PRESENT YEAR, THE CLAIM HAS INCREASED BY ALMOST 15 TIMES. HE FURTHE R NOTED THAT ASSESSEE HAS PRODUCED DETAILS OF EXPENDITURE TO THE EXTENT O F RS.14,67,096/- ONLY OUT OF TOTAL EXPENDITURE OF RS.30.78 LACS. HE DISA LLOWED BALANCE AMOUNT OF EXPENDITURE OF RS.11,10,965/-. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT (A). LD. CIT (A) D ELETED THE SAME AFTER OBTAINING REMAND REPORT FROM THE A.O. AND NOW, THE REVENUE IS IN APPEAL BEFORE US. 14. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMEN T ORDER WHEREAS LD. A.R. SUPPORTED THE ORDER OF LD. CIT (A). HE HA S SUBMITTED THAT THE DETAILS OF ADVERTISEMENT EXPENDITURE ARE AVAILABLE ON PAGES 99-101 OF THE PAPER BOOK AND BILLS THEREOF ARE ON PAGES 102-140 O F PAPER BOOK. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT IT IS NOTED BY THE LD. CIT (A) THAT IT WAS SUB MITTED BEFORE HIM THAT LEDGER ACCOUNT COPY OF ADVERTISEMENT EXPENSES WAS S UBMITTED BEFORE THE A.O. AS WELL AS BEFORE HIM ALONG WITH THE RELEVANT BILLS AND IT WAS SUBMITTED THAT THE BILLS OF ONLY THREE CONCERNS MEN TIONED IN THE ASSESSMENT ORDER WERE FURNISHED TO THE AO FOR THIS REASON THAT BILLS OF ONLY THREE CONCERNS WERE ASKED BY THE A.O. AND BALA NCE BILLS WERE NOT ASKED. THERE IS NO MENTION IN THE ASSESSMENT ORDER HAT THE BILLS REGARDING OTHER PATTIES WERE ASKED BY HIM AND WERE NOT SUBMIT TED. IN THE PAPER BOOK, ON PAGE 102-140 ARE THE BILLS OF REMAINING PA RTIES I.E. VISHWA SAMVAD KENDRA PAGE 102-RS.60,000/-, RAJASTHAN PATRI KA, PAGE 103 - I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 8 RS.22,765/-, TIMES OF INDIA PAGE 105 RS.70,840/-, ASHVIN & CO. PAGE 106 RS.97,439/-ETC. SINCE THE DISALLOWANCE WAS D ELETED BY LD. CIT (A) BY EXAMINING ALL THE RELEVANT BILLS, COPIES OF WHIC H ARE ALSO AVAILABLE IN THE PAPER BOOK ON PAGES 102 TO 140 OF THE PAPER BOO K, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED F OR IN THE ORDER OF LD. CIT (A). WE, THEREFORE, CONFIRM THE SAME. GROUND NO.2 OF THE REVENUE IS REJECTED. 16. GROUND NO.3 OF THE REVENUE IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF RS.28,83,000/-. 17. THE BRIEF FACTS ARE THAT IT IS NOTED BY THE A.O . IN PARA 5 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAD SHOWN RECEIP T OF UNSECURED LOANS FROM THREE PERSONS TOTALING RS.28.83 LACS. HE FURT HER STATED THAT COMPARATIVE STATEMENT SHOWED THAT THE UNSECURED LOA NS HAVE INCREASED FROM RS.34,98,306/- TO RS.93,09,431/-. HE FURTHER NOTED THAT THE LD. A.R. HAS FURNISHED CONFIRMATION IN RESPECT OF TWO CASES ONLY I.E. BHARAT J PATEL HUF AND DARSHANABEN B PATEL, WIFE OF THE ASSESSEE. HE FURTHER NOTED THAT THE LD. A.R. WAS ASKED TO FURNISH SIMILAR CONF IRMATION FORM OTHER PERSONS BUT THE SAME WERE NOT PRODUCED AND ON THIS BASIS, HE MADE ADDITION OF RS.28.83 LACS BEING THE LOAN FROM 3 PER SONS, NAMES AND AMOUNT OF WHOM ARE NOTED BY THE A.O. IN PARA 5 OF T HE ASSESSMENT ORDER. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT (A). HE DELETED THE ENTIRE ADDITION ON THIS BASIS THAT F ROM THE FIRST CREDITOR I.E. VINOD DAHYABHAI PATEL, ASSESSEE HAS FURNISHED AFFID AVIT AND THEREFORE, AMOUNT WAS EXTENDED THROUGH CHEQUE DRAWN ON KALUPUR COMMERCIAL COOP BANK. HE FURTHER NOTED THAT LOAN CREDITOR IS ASSESSED AT ITO CIRCLE 9(1) AND COPY OF RETURN OF INCOME FILED BY HIM FOR THIS VERY YEAR WAS ALSO FURNISHED. REGARDING 2 ND CREDITOR I.E. HIMALAYA DASHAN COOP SOCIETY, IT I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 9 IS NOTED BY THE LD. CIT(A) THAT HIS CONFIRMATION WA S ALSO SUBMITTED ALONG WITH HIS PAN AND HE HAS ALSO GIVEN LOAN BY A/C PAYE E CHEQUE DRAWN ON BANK OF INDIA AND HENCE, PRIMARY ONUS HAS BEEN DISC HARGED BY THE ASSESSEE. REGARDING 3 RD PERSON, ZENET SOFTWARE, IT WAS SUBMITTED BY THE ASSESSEE BEFORE HIM THAT NO LOAN WAS TAKEN BY THE A SSESSEE FROM THIS PARTY AND IN FACT, AMOUNT FORS.30 LACS WAS GIVEN BY THE A SSESSEE TO THAT PARTY AND CERTIFICATE FORM SBI USMANPURA BRANCH AHMEDABAD WAS SUBMITTED. LEDGER ACCOUNT OF THE ASSESSEE MAINTAINED IN THE BO OKS OF ZENET SOFTWARE DULY CERTIFIED BY THE PARTY WAS ALSO SUBMITTED WHIC H SHOWED THAT RS.30 LACS WAS GIVEN BY THE ASSESSEE TO THAT PARTY AND TH AT CONCERN RETURNED BACK RS.4.45 LACS ON 14.7.2005, RS.15 LACS ON 1.10. 05 AND RS.10 LACS ON 20.10.2005. PAN OF THIS PARTY ALONG WITH A.O. DETA ILS WERE ALSO MADE AVAILABLE. CIT(A) HAS NOTED THAT IN THE REMAND REP ORT, A.O. HAS NOT COUNTERED THE SUBMISSION OF THE ASSESSEE WHICH WERE SENT TO THE A.O. ON THIS BASIS, LD . CIT(A) HAS DELETED THE ADDITION BY FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF ROHINI BUILDERS AS REPORTED IN 256 ITR 360 (GUJ.). NOW, THE REVENUE I S IN APPEAL BEFORE US. 18. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMEN T ORDER WHEREAS THE LD. A.R. SUPPORTED THE ORDER OF LD. CIT (A). 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT OUT OF THREE PARTIES, IT IS A FINDING GIVEN BY THE LD. CIT(A) THAT NO LOAN HAS BEEN RECEIVED BY THE ASSESSEE FROM ONE PAR TY I.E. ZENET SOFTWARE OF RS.5.75 LACS AND IN FACT, THE ASSESSEE HAS GIVEN LOAN OF RS.30 LACS TO THAT PARTY. THIS HAS BEEN CONFIRMED BY THIS PARTY ALONG WITH PAN AND THE REPAYMENT DETAILS. REGARDING REMAINING TWO PARTIES, CONFIRMATION/AFFIDAVITS WERE MADE AVAILABLE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS OBTAINED THE REMAND REPORT FORM THE A.O. IN WHICH I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 10 THE A.O. HAS NOT COUNTERED THE SUBMISSION OF THE AS SESSEE. THE ADDITION WAS MADE BY THE A.O. ONLY FOR THIS REASON THAT CONF IRMATION WAS NOT SUBMITTED BEFORE HIM. SINCE, THE CONFIRMATIONS WER E SUBMITTED BEFORE THE LD. CIT (A) AND REMAND REPORT WAS OBTAINED BY H IM IN WHICH, THE AO HAS NOT COUNTERED THE SUBMISSIONS OF THE ASSESSEE, WE FEEL THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT (A) ON THIS ISSUE ALSO. ACCORDINGLY, GROUND 3 IS ALSO REJECTED. 20. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 21. IN THE COMBINED RESULT, APPEAL OF THE REVENUE A ND THE C.O. OF THE ASSESSEE ARE DISMISSED. 22. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2011. SD/- SD/- (T.K. SHARMA) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 30-09-2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) XV,AHMEDABAD. 5. THE DR, AHMEDABAD 6. THE GUARD FILE BY ORDER AR,ITAT,AHMEDABAD I.T.A.NO.3032 /AHD/2009 C.O.NO.278/AHD/2009 11 1. DATE OF DICTATION. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..