Milan Intermidiate (P) Ltd., Ahmedabad V. The Income tax Officer,Ward-4(4), Ahmedabad

ITA 3358/AHD/2009

• Counselvise Citation: 335820514 RSA 2009
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 21-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAUMIL JAIN
• Keywords: Opportunity of being heard
• Section: 143(3); 234B; 68

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , , , , !' !' !' !', , , , #$ #$ #$ #$ % % % %. .. .& && & . .. .' ' ' ', , , , ( ( ( ( & ' & ' & ' & ' BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA , JUDICIAL MEMBER) ITA NO.3358/AHD/2009 [ASSTT.YEAR : 2006-2007] MILAN INTERMEDIATE P. LTD. BASEMENT, JASMIT DUPLEX 22/2, PATEL SOCIETY GULBAI TEKRA, ELLISBRIDGE AHMEDABAD 380 006. PAN : AACCM 0999 H /VS. ITO, WARD-4(4) AHMEDABAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : SHRI SAUMIL JAIN ( 0 1 &/ REVENUE BY : SHRI SAMIR TEKRIWAL 34 0 /5/ DATE OF HEARING : 13 TH OCTOBER, 2011 678 0 /5/ DATE OF PRONOUNCEMENT : 14 TH OCTOBER, 2011 &' / O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THIS IS ASSESSEES APPEAL AGAINST ORDER OF THE COMMISSIONER OF INCOME-TAX (AP PEALS)-VIII, AHMEDABAD DATED 26.08.2009 ARISING OUT OF THE ORDER OF THE AS SESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961. 2. IN THE MEMO OF GROUNDS OF APPEAL, THE ASSESSEE R AISED ONLY TWO GROUNDS VIZ. FOR THE DELETION OF ADDITION MADE UNDER SECTIO N 68 AND CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234C OF THE ACT. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED COUNSEL THAT THE AO HAS MADE ADDITION OF RS.95,00,000/- AS UNEXP LAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. HE HAS STATED THAT IN FACT THE ASSESSEE HAS NOT BORROWED ANY MONEY, ON THE OTHER HAND, THE ASSESSEE HAD TAKE N LOAN FROM THE ITA NO.3358/AHD/2009 -2- MADHAVPURA MERCANTILE CO-OP. BANK (MMCB FOR SHORT ) AND MANIBHAI PUNJABHAI PATEL WAS GUARANTOR FOR THE SAID LOAN. S HRI PATEL HAD KEPT HIS LAND WITH THE BANK AS COLLATERAL SECURITY. SINCE THE AS SESSEE FAILED TO REPAY THE BANK LOAN, THE BANK PUT THE LAND FOR AUCTION AND A SUM O F RS.95,00,000/- WAS RECEIVED BY THE BANK ON THE AUCTION OF THE LAND WHI CH WAS CREDITED TO THE ASSESSEES BANK ACCOUNT ON 6-6-2005. IN SUPPORT OF THIS CONTENTION, HE PRODUCED BEFORE US THE COPY OF THE ASSESSEES ACCOU NT WITH MMCB AND ALSO LETTER FROM THE BANK CERTIFYING THAT THE SUM OF RS. 95,00,000/- CREDITED TO THE ASSESSEES ACCOUNT ON 6-6-2005 REPRESENTED THE SALE PROCEEDS OF THE PLOT OF THE LAND. THAT BY MISTAKE THE ASSESSEE CREDITED THE AM OUNT IN THE NAMES OF THREE BUYERS AS UNDER: I) SMT. DHARMISHTA B. PATEL : RS.30,00,000/- II) SHRI GIMMY JAYANTILAL B. PATEL : RS.30,00,000/- III) SHRI JAYANTIBHAI B. PATEL : RS.35,00,000/- THAT IN FACT THE ASSESSEE SHOULD HAVE CREDITED THE AMOUNT OF RS.95,00,000/- IN THE NAME OF SHRI MANIBHAI PUNJABHAI PATEL TO WHOM T HE LAND BELONGS. THIS, MISTAKE WAS RECTIFIED IN THE SUBSEQUENT YEAR. THAT THE DEPARTMENT VERIFIED FROM SMT.DHARMISHTA B. PATEL, SHRI GIMMY JAYANTILAL B. PATEL AND SHRI JAYANTIBHAI B. PATEL, WHETHER THEY HAVE GIVEN ANY L OAN TO THE ASSESSEE ? THEY RIGHTLY REFUSED HAVING GIVEN ANY LOAN TO THE ASSESS EE BECAUSE THEY HAD PURCHASED THE PLOT OF LAND AUCTIONED BY THE MMCB AND HAD NOT GIVEN ANY LOAN TO THE ASSESSEE. THAT THE ENTIRE CONFUSION AR OSE BECAUSE OF THE MISTAKE MADE BY THE ASSESSEES ACCOUNTANT WHILE CREDITING T HE SUM OF RS.95 LAKHS IN THE NAMES OF THE ABOVE THREE BUYERS. HE STATED THAT IN FACT THERE WAS NO CASH CREDIT AND THEREFORE THE ADDITION UNDER SECTION 68 MADE IN THE CASE OF THE ASSESSEE SHOULD BE DELETED. 4. THE LEARNED DR, ON THE OTHER HAND, POINTED OUT T HAT THE ASSESSEE DID NOT PRODUCE ANY PROPER EXPLANATION OR THE EVIDENCE BEFO RE THE AO. IN FACT THE CERTIFICATE OF THE BANK WHICH IS SUBMITTED BY THE A SSESSEE STATING THAT THE ITA NO.3358/AHD/2009 -3- AMOUNT WAS CREDITED AGAINST THE SALE PROCEEDINGS OF THE LAND WAS NOT SUBMITTED BEFORE THE AO. HE HAS STATED THAT THE AO EXAMINED THE ISSUE IN RESPECT OF THE CREDIT IN THE NAME OF SMT.DHARMISHTA B. PATEL, SHRI GIMMY JAYANTILAL B. PATEL AND SHRI JAYANTIBHAI B. PATEL. HE THEREFORE SUBMIT TED THAT IN ALL FAIRNESS THE MATTER NEEDS TO BE EXAMINED AFRESH AT THE END OF TH E AO AND IN LIGHT OF THE EXPLANATION NOW BEING GIVEN BY THE ASSESSEE. 5. IN THE REJOINDER, THE LEARNED COUNSEL ALSO FAIRL Y AGREED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO. 5. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDE S AND THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT THE MATTER NEEDS R E-EXAMINATION AT THE END OF THE AO. WE THEREFORE SET ASIDE THE ORDERS OF THE A UTHORITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF THE AO. WE DIRECT T HE ASSESSEE TO PRODUCE ALL THE EVIDENCE INCLUDING THE CERTIFICATE FROM THE BANK, T HE RECTIFICATION ENTRIES MADE IN THE SUBSEQUENT YEAR SHOWING THE CREDIT IN THE NA ME OF MANIBHAI PUNJABHAI PATEL AS AGAINST THE CREDIT IN THE NAMES OF SMT.DHA RMISHTA B. PATEL, SHRI GIMMY JAYANTILAL B. PATEL AND SHRI JAYANTIBHAI B. P ATEL. WE ALSO DIRECT THE AO TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND RE- ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW AFTER C ONSIDERING THE ASSESSEES EVIDENCE/EXPLANATION AS MAY BE FURNISHED BY THE ASS ESSEE IN SET ASIDE PROCEEDINGS. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DEEMED T O BE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( % %% %. .. .& && & . .. .' ' ' ' /T.K. SHARMA ) ( ( ( ( /JUDICIAL MEMBER ( . .. . . .. . G.D. AGARWAL) !' !' !' !' /VICE-PRESIDENT