Shri Vipulkumar Vasantray Shah, Botad V. The Income Tax Officer,Ward-1(3), Bhavnagar

ITA 3386/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8299 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 17-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO.3386/AHD/2014 ( / ASSESSMENT YEAR :2008-09) SHRI VIPULKUMAR VASANTRAY SHAH 34, ARIHANT JANTA SOCIETY, BOTAD 364 710 # VS. ITO, WARD 1(3) AAYAKAR BHAVAN, NR. JASONATH CHOWK, NAKU BAG, BHAVNAGAR 364 001 $ # % & # PAN/GIR NO. : AHUPS 1067 L ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : SHRI IRA KAPOOR, A.R. ($'*) / RESPONDENT BY : SHRI PRASOON KABRA, SR.D.R. + ,*-. / DATE OF HEARING 12/10/2017 /012*-. / DATE OF PRONOUNCEMENT 31/10/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XX, AHMEDABAD, DATED 26/09/2014 FOR THE ASSESSMENT YEAR (AY) 2008-09, ON THE FOLLOWING GROUNDS: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN UPHOLDING THE LEGALITY OF THE ASSES SING OFFICER'S ORDER PASSED U/S.271(1)(C) OF THE I.T. ACT LEVYING PENALTY OF RS.3,42,560/-. II. WITHOUT PREJUDICE TO THE AFORESAID GROUND, ON THE F ACTS AND IN THE CIRCUMSTANCE OF THE CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING ITA NO. 3386/AH D/2014 SHRI VIPULKUMAR VASANTRAY SHAH VS. ITO ASST.YEAR 2008-09 - 2 - PENALTY LEVIED BY THE ASSESSING OFFICER U/S.271(1)( C) OF THE I.T. ACT WITH REFERENCE TO THE ADDITION CONFIRMED BY THE CIT(A) IN QUANTUM APPEAL. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, THE ASSESSEE SHRI VIPULKUMAR VASANTBH AI SHAH IS ASSESSED TO TAX IN THE STATUS OF INDIVIDUAL. HE IS EMPLOYEE OF STATE GOVT. HE IS RENDERING HIS SERVICES IN RTO OFFICE, NAVSARI . HIS SOURCE OF INCOME IS SALARY, BANK INTEREST AND CAPITAL GAIN. 2.2 PENALTY WAS LEVIED U/S.271(1)(C) OF THE ACT OF RS.3,42,560/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 OF RS.6,9 0,000/- AND CASH CREDIT TREATED AS SHORT TERM CAPITAL GAIN OF RS.10, 27,680/- TOTALING TO RS.17,61,940/-. 3. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO REFUSED TO GIVE ANY RELIE F TO THE ASSESSEE. 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. SO FAR ADDITION OF RS.3,55,000/- FOR CASH IN HAND OF M OTHER-IN-LAW IS CONCERNED. IN ITA NO.771/AHD/2012 VIDE PARA 13, PAG E NO.7 OUR BENCH RESTORED BACK TO LD. AO IN APPELLANTS QUANTUM PROC EEDINGS. 4.2 SO FAR ADDITION ON ACCOUNT OF NEGATIVE CASH BAL ANCE OF RS.3,35,000/- IS CONCERNED. ISSUE RESTORED BACK TO LD. AO BY THE HONBLE ITA NO. 3386/AH D/2014 SHRI VIPULKUMAR VASANTRAY SHAH VS. ITO ASST.YEAR 2008-09 - 3 - ITAT IN APPELLANTS QUANTUM PROCEEDINGS BEARING ITA NO.771/AHD/2012 VIDE PARA 13, PAGE NO.7. 4.3 SO FAR ADDITION OF RS.10,71,940/- FOR SHORT TER M CAPITAL GAIN IN CASE FAMILY MEMBERS OF APPELLANT IS CONCERNED. ISSUE RES TORED BACK TO THE LD. AO BY THE HONBLE ITAT IN APPELLANTS QUANTUM PROCE EDINGS BEARING ITA NO.771/AHD/2012 VIDE PARA 13, PAGE NO.7. 5. WE HAVE OBSERVED THAT IN QUANTUM APPEAL IN ITA NO.771/AHD/2012 OUR BENCH HAS ALREADY RESTORED THE MATTER BACK TO THE FILE OF THE AO WHO DECIDE THIS MATTER DENOVO AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THEREFORE, WE SET ASI DE THE ORDER OF THE CIT AND RESTORED THIS MATTER BACK TO THE FILE OF THE AO WHO WILL DECIDE THIS MATTER ALONG WITH QUANTUM APPEAL. 6. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 31/10/2017 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/10/2017 PRITI YADAV, SR.PS ITA NO. 3386/AH D/2014 SHRI VIPULKUMAR VASANTRAY SHAH VS. ITO ASST.YEAR 2008-09 - 4 - !'#$ %$' # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-XX, AHMEDABAD. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. & / BY ORDER, (9-- //TRUE COPY// '/ () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 25/10/2017 (DICTATION-PAD 3 PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31/10/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER