Shri Jitendra Manilal Amin, Gandhinagar V. The Income Tax Officer, Ward-2, Gandhinagar

ITA 3377/AHD/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3927 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUDIT NAGPAL SRDR
• Assessee Lawyers: P B PARMAR
• Keywords: Unexplained investment; Principle of natural justice; Additional evidence
• Section: 40A(3)

Judgement Text

, C CC CH HH H IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD OLHE VGEN] YS[KK OLHE VGEN] YS[KK OLHE VGEN] YS[KK OLHE VGEN] YS[KK LNL; LNL; LNL; LNL; , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER I.T.A. NO. 3377/AHD/2016 ( / ASSESSMENT YEAR : 2012-13) SHRI JITENDRA MANILAL AMIN, 12, SARDAR PATEL COLONY, NR. G.E.B., DEHGAM, DIST. GANDHINAGAR. / VS. ITO, WARD 2, GANDHINAGAR. ./ ./ PAN/GIR NO. : AVUPA 3963 D ( / APPELLANT ) .. ( !' / RESPONDENT ) # / APPELLANT BY : SHRI TUSHAR HEMANI & P.B. PARMAR, AR. !' $ # / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. % &' $ () / DATE OF HEARING 01/08/2018 *+,- $ () / DATE OF PRONOUNCEMENT 03/10/2018 . / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)- GANDHINAGAR, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)/GNR/38/2015-16 DATED 26/09/2016 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 30/03/2015 RELEVAN T TO ASSESSMENT YEAR (AY) 2012-13. ITA NO.3377/AHD/2016 SHRI JITENDRA M ANILAL AMIN VS. ITO ASST.YEAR 2012-13 - 2 - 2. THE GROUNDS RAISED BY THE ASSESSEE PER ITS APPEA L ARE AS UNDER: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING A N AMOUNT OF RS.16,87,403/- U/S. 40A(3) OF THE I.T. ACT BY TREAT ING THE SAME AS CASH PURCHASES MADE IN EXCESS OF RS.20,000/-. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ACTION OF AO IN DISALLOWING AN AMOUNT OF RS.8,9 5,800/- AFTER HOLDING THAT THE APPELLANT HAS FAILED TO PROVE HIS CLAIM OF MATERIAL PURCHASED FOR CONSTRUCTION FOR THE YEAR UN DER CONSIDERATION. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN ADDING AN AMOUNT OF RS.32,26,60 0/- BEING 1/10 TH SHARE IN THE PROPERTY TO THE TOTAL INCOME OF THE AP PELLANT BY TREATING IT AS UNEXPLAINED INVESTMENT U/S.69 OF THE I.T. ACT MADE IN PURCHASE OF IMMOVABLE PROPERTY. 4. BOTH THE POWER AUTHORITIES HAVE PASSED THE O RDERS WITHOUT PROPERLY APPRECIATING THE FACTS AND THAT THEY FURTH ER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSION, EXPLANATIONS A ND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IM PUGNED ORDER. THE ACTION OF THE LOWER AUTHORITIES IS CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DES ERVES TO BE QUASHED. 5. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS OF THE CASE IN CONFIRMING ACTION OF LD. AO IN LEVYING INTEREST U/S 234A/B/C/D OF THE ACT. 6. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN CONFIRMING THE ACTION OF LD. AO IN INITIATING PENALTY U/S 271( 1)(C) OF THE ACT. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. 3. AT THE OUTSET, LEARNED AR BEFORE US SUBMITTED TH AT THE ASSESSEE HAS FILED ADDITIONAL EVIDENCES BEFORE THE LD CIT (A ) WHICH ARE PLACED ON PAGES 96-114 OF THE PAPER BOOK. THE LD AR FURTHER S UBMITTED THAT THESE ITA NO.3377/AHD/2016 SHRI JITENDRA M ANILAL AMIN VS. ITO ASST.YEAR 2012-13 - 3 - ADDITIONAL DOCUMENTS WERE IN THE FORM OF WRITTEN SU BMISSION AND AFFIDAVIT WHICH WERE FILED BEFORE THE LD CIT(A) AS PER THE PROVISION OF 46A OF THE I. T. RULE. ACCORDINGLY, THE LEARNED CIT (A) ALSO CALLED FOR REMAND REPORT FROM THE AO BUT THE AO IN THE REMAND PROCEEDING WITHOUT COMMENTING ON THE ADDITIONAL EVIDENCES REITERATED T HE OBSERVATIONS AS MADE DURING THE ASSESSMENT PROCEEDINGS. THUS, THE L D AR BEFORE US SUBMITTED THAT THE MATTER CAN BE RESTORED BACK TO T HE AO WITH THE DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCES FILE D BEFORE THE LEARNED CIT(A) IN PURSUANCE TO THE PROVISION OF RULE 46A OF I. T. RULE AND ADJUDICATE THE ISSUE AFRESH AS PER THE PROVISION OF LAW. THE LD DR RAISED NO OBJECTION IF THE MATTER IS REST ORED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER THE PROVISION OF L AW. 4. HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATE RIALS AVAILABLE ON RECORD. ON PERUSAL OF THE REMAND REPORT PLACED O N PAGES 115-119 OF THE PAPER BOOK, WE NOTE THAT THERE WAS NO COMMENT O N THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. RATHER THE AO DENI ED THAT THE ADDITIONAL DOCUMENTS DO NOT FALL UNDER ANY OF THE CLAUSE UNDER RULE 46A OF INCOME TAX RULE. HOWEVER, IN THE INTEREST OF JUSTICE AND F AIR PLAY, WE ARE INCLINED TO DIRECT THE AO TO CONSIDER THE ADDITIONA L EVIDENCES FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A). ACCORDINGLY, WE RESTORE THE IMPUGNED ISSUE TO THE FILE OF AO FOR FRESH ADJUDICA TION AS PER THE PROVISION OF LAW. THUS THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.3377/AHD/2016 SHRI JITENDRA M ANILAL AMIN VS. ITO ASST.YEAR 2012-13 - 4 - 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 03/10/2018 SD/- SD/- JKTIKY ;KNO JKTIKY ;KNO JKTIKY ;KNO JKTIKY ;KNO OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 03/10/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. /01( % 2( / CONCERNED CIT 4. % 2( ( ) / THE CIT(A)-GANDHINAGAR, AHMEDABAD. 5. 567 !(&01 , ) 01- , 8 / / DR, ITAT, AHMEDABAD 6. 79 :' / GUARD FILE. % & / BY ORDER, ' 5( !( //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD