The ACIT, Circle-2, Bhavnagar V. Shri Bhavinkumar M.Dagali, Dist.Bhavnagar

ITA 3262/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6816 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 25-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 19.4.2011 DRAFTED ON: 19 .4.2011 ITA NO.3262/AHD/2008 ASSESSMENT YEAR : 2005-06 THE ACIT CIRCLE-2 BHAVNAGAR VS. SHRI BHAVINKUMAR M.DAGLI 509, KAHAN JYOT OPP.DIGAMBAR JAIN MANDIR SONGADH (DIST.BHAVNAGAR) PAN/GIR NO. : ADYPD 0074 C ( APPELLANT ) .. ( RESPONDENT ) AND CO NO.281/AHD/2008 FOR A.Y. 2005-06 (ARISING OUT OF ITA NO.3262/AHD/2008) SHRI BHAVINKUMAR M.DAGLI THE ACIT, CIR-2, SONGADH, BHAVNAGAR VS. BHAVNAGAR (CROSS OBJECTOR) (RESPONDENT) REVENUE BY : SHRI R.K.DHANESTA, SR.D.R. ASSESSEE BY: SHRI P.M. MEHTA, A.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : REVENUE IS IN APPEAL AND THE ASSESSEE IS IN CROSS OBJECTION ARISING FROM THE ORDER OF THE LEARNED CIT(APPEALS)-XX AHMED ABAD DATED 13/06/2008. REVENUES ONLY GROUND IS AS FOLLOWS:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE AMOUNT OF RS.10,55,120/- FROM THE PEAK ITA NO.3262/AHD/2008(BY REVENUE) & CO NO.281/AHD/2008 (BY ASSESSEE) ACIT VS. SHRI BHAVINKUMAR M. DAGLI ASST.YEAR 2005-06 - 2 - CALCULATED BY THE A.O., HOLDING THAT THE AMOUNT WAS ADDED TWICE. 2. THE FIRST APPELLATE AUTHORITY HAS HELD THAT THE IMPUGNED AMOUNT OF RS.10,55,120/- WAS CONSIDERED TWICE, THEREFORE, DIR ECTED TO DELETE THE SAID AMOUNT FROM THE PEAK WORKED OUT BY THE ASSESSI NG OFFICER; RELEVANT PORTION IS EXTRACTED BELOW:- 7.2. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND THE ABOVE SUBMISSIONS OF THE LD. A.R. OF THE APPELLANT. ON CONSIDERATION OF THE FACTS I FIND THAT THE APPELLAN T HAS NOT EXPLAINED AS TO WHY THE CREDIT IN THE ACCOUNT WITH FEDERAL BANK AFTER THE DATE OF 11-7-2004 WERE NOT TO BE CONSIDER ED. SIMILARLY THE APPELLANT HAS NOT BEEN ABLE TO CLARIFY THAT THE ACCOUNT IN THE NAME OF NEHAL DAGLI WITH HDFC BANK WAS IN ANY WAY E XPLAINED OR THAT THE DEPOSITS IN THAT ACCOUNT WERE CONSIDERE D FOR WORKING OUT TOTAL INCOME. THE APPELLANTS CLAIM THAT ACCOU NT NO.459 WITH FEDERAL BANK WAS ALSO REFLECTED IN THE RETURN IS NO T SUPPORTED BY THE FACTUAL EVIDENCES. IN THE CIRCUMSTANCES THE A .O. WAS JUSTIFIED IN WORKING OUT THE PEAK AS ABOVE. HOWEVER, I APPR ECIATE THE APPELLANTS EXPLANATION THAT THE AMOUNT OF RS.10,55 ,120/- BEING THE BALANCE AFTER 11 TH JULY IS FORMING PART OF FURTHER ADDITION OF RS.1,70,25,146/-, AND THUS THIS AMOUNT IS FORMING P ART OF THE PEAK WORKED OUT BY THE A.O. TWICE. FROM THE DETAILS AND WORKING OF THE PEAK THIS FACT HAS BEEN CLARIFIED BY THE LD. A.R. O F THE APPELLANT WHICH I FIND TO BE CORRECT. ACCORDINGLY, THE A.O. IS DIRECTED TO DELETE THE AMOUNT OF RS.10,55,120/- FROM THE PEAK C ALCULATED BY HIM. THE APPELLANT GETS RELIEF TO THIS EXTENT. TH E ADDITION OF BALANCE PEAK OF RS.4,14,11,511/- (42466631 105512 0) OUT OF PEAK COMPUTED BY THE A.O. IS CONFIRMED. THIS GROUN D IS THEREFORE, PARTLY ALLOWED. 2.1. HOWEVER, LATER ON, THE SAID RELIEF WAS FOUND T O BE A MISTAKE APPARENT FROM RECORD AND THE MISTAKE WAS RECTIFIED U/S.154 BY THE ITA NO.3262/AHD/2008(BY REVENUE) & CO NO.281/AHD/2008 (BY ASSESSEE) ACIT VS. SHRI BHAVINKUMAR M. DAGLI ASST.YEAR 2005-06 - 3 - LD.CIT(A) VIDE AN ORDER DATED 12/03/2009 AND RELEVA NT PARAS ARE REPRODUCED BELOW:- 3. IN CONNECTION WITH THE ABOVE, A NOTICE U/S.154 WAS ISSUED TO THE APPELLANT FIXING THE DATE OF HEARING ON 04 TH MARCH, 2009. THE AO WAS ALSO INFORMED ABOUT THE PROCEEDINGS AND WAS ASKED TO ATTEND THE PROCEEDINGS. THE LEARNED COUNSEL OF THE APPELLANT, SHRI NITIN PARIKH, C.A. AND THE AO, SHRI SUNNY ABRAHAM, ACIT, CIRCLE- 2, BHAVNAGAR ATTENDED THE PROCEEDINGS. FROM THE CA REFULLY SCRUTINY AND THE DISCUSSION MADE WITH THEM, IT IS A SCERTAINED THAT THE CONTENTION OF THE AO SEEMS TO BE CORRECT. THIS SHOWS THAT THE AMOUNT OF RS.10,55,120/- HAS NOT BEEN INCLUDED TWIC E WHILE ARRIVING AT THE FIGURE OF PEAK CREDIT OF RS.1,70,25 ,146/- WHICH HAS ALSO BEEN AGREED BY THE LEARNED COUNSEL FOR THE APP ELLANT. 4. THE MISTAKE BEING APPARENT FROM THE RECORD IS H EREBY RECTIFIED U/S.154 ACCORDINGLY AND THE ORDER PASSED TO THIS EX TENT STANDS RECTIFIED THE ADDITION MADE BY THE AO IN THE ASSES SMENT ORDER U/S.143(3) IS HELD TO BE JUSTIFIED AND CONFIRMED SO FAR AS THE AMOUNT OF RS.10,55,120/- IS CONCERNED. THE AO IS D IRECTED TO ADOPT THE CORRECT FIGURE AS RECTIFICATION EFFECTED BY THIS ORDER AND GIVE THE APPEAL EFFECT ACCORDINGLY. CONSEQUENTLY, THE APPEAL DECIDED BY ME VIDE APPEAL NO.CIT(A)-XX/197/2007-08 DATED 13.06.2008 STANDS DISMISSED. 3. ON HEARING BOTH THE SIDES AND ON CAREFUL PERUSAL OF THE FINDINGS OF LEARNED CIT(APPEALS) ONCE THE RELIEF EARLIER GRANTE D STOOD WITHDRAWN BY AN ORDER U/S.154 SUPRA, THEREFORE, THE CONSEQUENCE IS THAT NO GRIEVANCE OF THE REVENUE ANY MORE EXISTED. ONCE THE IMPUGNED AD DITION GOT CONFIRMED BY AN ORDER U/S.154, THEREFORE, THE ISSUE RAISED BY THE REVENUE AS PER THE ABOVE GROUND HAS BECOME REDUNDANT. 4. THIS APPEAL OF THE REVENUE IS DISMISSED BEING IN FRUCTUOUS. ITA NO.3262/AHD/2008(BY REVENUE) & CO NO.281/AHD/2008 (BY ASSESSEE) ACIT VS. SHRI BHAVINKUMAR M. DAGLI ASST.YEAR 2005-06 - 4 - 5. FROM THE SIDE OF THE ASSESSEE THROUGH WRITTEN SUBMISSION THE CROSS OBJECTION HAS BEEN WITHDRAWN, THEREFORE, THE GROUNDS RAISED THEREIN ARE DISMISSED. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED BEI NG INFRUCTUOUS AND ASSESSEES CROSS OBJECTION IS DISMISSED BEING W ITHDRAWN. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 21 ST APRIL, 2011. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL KR. SH RAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 21 / 04 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEP ARTMENT. 3. THE CIT CONCERNED. 4. THE LD. CIT(A PPEALS)-XX, AHMEDABAD 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..19.4.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.04.2011 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 21.4.2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.4.2011 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