Appeal Details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 1860 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
15-04-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
08-04-2016
Assessment Year
2008-2009
Appeal Filed On
11-12-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER ALKABEN TEJPAL PATWA, C/O. KETAN H. SHAH, ADVOCATE, 903, S APPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN: AMDPP1251F (APPELLANT) VS THE ITO, WARD 2, PATAN (RESPONDENT) SHRI INDRAVADAN RATILAL PATWA , C/O. KETAN H. SHAH, ADVOCATE, 903, S APPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN: ABYPP9346D (APPELLANT) VS THE ITO, WARD 2, PATAN (RESPONDENT) I T A NO . 3486 / A HD/20 15 A SSESSMENT YEAR 200 8 - 09 ITA NO S . 3513 & 3514 /AHD/20 15 AS SESSMENT YEAR 200 8 - 09 I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 2 MANUBHAI R. PATWA HUF, C/O. KETAN H. SHAH, ADVOCATE, 903, S APPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN: AACHP1857Q (APPELLANT) VS THE ITO, WARD 2, PATAN (RESPONDENT) SMT. GRISHMA MANISHKUMAR PATWA , C/O. KETAN H. SHAH, ADVOCATE, 903, SAPPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN: ABYPP9682J (APPELLANT) VS THE ITO, WARD 2, PATAN (RESPONDENT) ITA NO. 3515 /AHD/20 15 ASSESSMENT YEAR 200 8 - 09 ITA NO. 3516 /AHD/20 15 ASS ESSMENT YEAR 200 8 - 09 ITA NO. 3518 /AHD/20 15 ASSESSMENT YEAR 200 8 - 09 I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 3 TEJPAL H. PATWA HUF , C/O. KETAN H. SHAH, ADVOCATE, 903, S APPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN: AACHP1860M (APPELLANT) VS THE ITO, WARD 2, PATAN (RESPONDENT) REVENUE BY : S H RI R.K. GUPTA , SR. D . R. ASSESSEE BY: S H RI KETAN H. SHAH , A.R. DATE OF HEARING : 08 - 04 - 2 016 DATE OF PRONOUNCEMENT : 15 - 04 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THESE SIX ASSESSEES HAVE FILED THE INSTANT AS MANY APPEALS FOR ASSESSMENT YEAR 2008 - 09 AGAINST SEPARATE ORDERS OF THE CIT(A), GANDHINAGAR; ALL DATED 18 - 08 - 2015 THEREBY UPHOLDING ASSESSING OFFICER S ACTIONS IN ADDING IDENTICAL SUM OF RS. 7 LACS IN ALL C ASES AS UNEXPLAINED CASH CREDITS U/S. 68, IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 254 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. BOTH THE LD. REPRESENTATIVES STATE AT THE OUTSET THAT THE RELEVANT FACTS AND CIRCUMSTANCES LEADING TO THE IMPUGNED ADDITIONS IN ALL CASES OF RS. 7 LACS EACH ARE IDENTICAL. WE TAKE UP ITA I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 4 3486/AHD/2015 FILED IN CASE OF SMT. ALKABEN TEJPAL PATWA AS THE LEAD CASE FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THIS ASSESSEE - INDIVIDUAL DERIVES INCOME FROM SHORT TERM CAPIT AL GAINS, SALARY AND INTEREST. SHE FILED HER RETURN ON 30 - 03 - 2009 STATING INCOME OF RS. 2,54,810/ - . THE ASSESSING OFFICER TOOK UP SCRUTINY. HE NOTICED FROM ASSESSEE S HDFC BANK ACCOUNT THAT THE SAME INVOLVED 1 5 CREDIT ENTRIES. FOURTEEN HAD CREDIT IN IN STANT C A SES OF RS. 49,000/ - EACH. ONE SUCH ENTRY COMPRISED OF A SUM OF RS. 14,000// - . THE SAME TOTALED TO RS. 7 LACS. ALL THESE DEPOSIT ENTRIES WERE OF 06 - 09 - 2007. THE ASSESSEE RECOVERED THESE CREDIT INSTANCES AS LOANS AND ADVANCES (RELATIVES) . THE ASSESSING OFFICER SOUGHT FOR DETAILS OF PARTIES ACCOUNTS, ADDRESSES ETC. HE QUOTED ASSESSEE S FAILURE IN ENSURING COMPLIANCE THEREOF. THIS MADE HIM TO ASK FOR COPIES OF THE RELEVANT APPLICATION FORMS FILLED UP FOR PREPARATION OF DEMAND DRAFTS IN QUESTIO N. THE SAME STOOD RECEIVED FROM M/S. UNAVA NAGRIK SAHKARI BANK LTD AND M/S. SARDAR VALLABH BHAI SAHKARI BANK LTD. NAMES OF DEMAND DRAFT APPLICANTS WERE FOUND TO BE S/SH MANISHBHAI AMRITLAL, MAHENDRA MAFATLAL, JASSUBHAI AMR ITLAL, NAVGANBHAI BABUBHAI, AMRI TLAL BABU LAL, SAMSUBHAI B ABUBHAI, AMBALAL MADHAVLAL, RUP ESH SUMITBHAI, RAJESHKUMAR A. SHAH, RAJESHPRAVINBHAI SHAH, RAKESHKUMAR S. JAIN, RAMESHBHAI G. PATEL, RAMANLAXMANBHAI AND RAMJINARAYANBHAI RELEVANT TO CREDIT INSTANCES OF RS. 49,000/ - FOLLOWED SHRI PAT EL NARSINH DEVCHAND QUA THE REMAINING FIGURE OF RS. 14,000/ - . THE ASSESSING OFFICER OBSERVED IN ASSESSING OFFICER DATED 28 - 12 - 2010 INTER ALIA THAT ALL DD IN QUESTION WERE OF THE SAME DATE, I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 5 PREPARED BY VARIOUS PERSONS BUT CONTAINED ONLY ONE SIGNATURE, RELE VANT DD FORMS COMPRISED OF THE SAME WRITING AND AMOUNTS IN ALL BANKS H AVE BEEN RECEIVED IN CASH. HE ACCORDINGLY OPINED THAT ALL THESE TRANSACTIONS WERE OF DUBIOUS NATURE SINCE THE ASSESSEE HAD NOT ESTABLISHED IDENTITY OF HER CREDITORS. THIS MADE THE ASSE SSING OFFICER TO TREAT THE IMPUGNED FIGURE OF RS. 7 LACS AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. THE CIT(A) CONFIRMED THE SAME IN HIS ORDER DATED 22 - 11 - 2012. THE ASSESSEE FILED ITA 494/AHD/2013 BEFORE THE TRIBUNAL. A CO - ORDINATE BENCH IN ITS ORDE R DATED 21 - 06 - 2013 REMITTED THE ISSUE BACK TO THE ASSESSING OFFICER AS UNDER: - 6. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT CERTAIN FACTS HAVE YET TO BE ASCERTAINED IN RESPECT OF ALL THESE APPEALS. PRIMA FACIE ONE OF THE PLEA OF THE ASSESSEE THAT IT IS NOT A CASE OF FRESH LOAN TAKEN FOR THE YEAR UNDER CONSIDERATION, BUT IT WAS SIMPLY A RETURN OF OLD ADVANCES, WHICH HAD NOT BEEN VERI FIE D BY THE AO. NOW, THE ASSESSEE IS PLACING RELIANCE ON CERTAIN COMPUTER GENERA TED ACCOUNTS, BUT THE APPARENT FACTUAL POSITION IS THAT NO INVESTIGATION WAS CARRIED OUT BY THE AO TO VERIFY THE CORRECTNESS, AS ALSO THE TRUTHFULNESS OF THESE ACCOUNTS. FOR THIS PURPOSE AND VERIFICATION OF THESE ACCOUNTS, NATURAL JUSTICE DEMANDS TO RESTOR E THIS ISSUE BACK TO THE STAGE OF THE AO SO THAT THE VERACITY CAN BE PROVED. ALTHOUGH THE LEARNED DR HAS PLEADED THAT EVEN THE OPENING BALANCE CAN BE ADDED IN THE HANDS OF THE ASSESSEE BY PLACING RELIANCE ON THE DECISION OF MANJIT SINGH KALRA VS. ITO, ITA NO.3553/DEL/2011 DATED 26.10.2012, AND A DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF C. PACKIRISAMY VS. ACIT, 315 ITR 293, BUT THE NATURAL JUSTICE DEMANDS THAT A CLEAR FINDING SHOULD FIRST BE ON FACTS THAT WHETHER THERE WAS RETURN OF LOAN IN RESPE CT OF IMPUGNED ENTRIES. FOR THAT PURPOSE, THE ASSESSEE IS DUTY BOUND TO DISCHARGE THE PRIMARY ONUS AS PRESCRIBED UNDER LAW. WHILE RESTORING BACK THIS ISSUE TO THE STAGE OF THE ASSESSMENT, WE HEREBY SPECIFICALLY DIRECT THESE APPELLANTS TO SUO MOTTO APPEAR B EFORE THE AO WITHIN 30 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL ALONGWITH REQUISITE INFORMATION WITHOUT W AITING FOR ANY NOTICE OF HEARING FROM THE SIDE OF THE REVENUE DEPARTMENT. HOWEVER, THE AO IS AT LIBERTY TO I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 6 PROCEED WITH THE ASSESSMENT PROCEEDINGS AS PER LAW. WITH THESE DIRECTIONS, THIS GROUND MAY BE TREATED AS AL LOWED FOR STATISTICAL PURPOSE. 4. THE ASSESSING OFFICER TOOK UP CONSEQUENTIAL PROCEEDINGS. THE ASSESSEE REITERATED HER PLEA SEEKING TO TREAT THE IMPUGNED AMOUNTS CREDITED AS LOANS AND A DVANCES CARRIED FORWARD FROM PAST YEARS AND RE - PAID IN THE IMPUGNED ASSESSMENT YEAR. SHE PLACED ON RECORD HER RETURNS FOR ASSESSMENT YEAR 2006 - 07 AND 2007 - 08, RESPECTIVE ACCOUNTS COPIES, BANK ACCOUNTS, BALANCE SHEET OF ASSESSMENT YEAR 2004 - 05 AND LEDGERS MAINTAINED IN SUPPORT OF THE REPAYMENT PLEA . THE ASSESSING OFFICER OBSERVED IN CONSEQUENTIAL ORDER DATED 30 - 06 - 2014 THAT PENDENCY OF THESE ADVANCES COULD NOT BE VERIFIED IN ASSESSMENT YEAR S 2006 - 07 AND 2007 - 08. HE THEREAFTER CAME TO ASSESSEE S BALANCE SH EET FOR A SSESSMENT YEAR 2004 - 05 STATING ASSET SIDE LOANS AND ADVANCES TOTALING TO RS. 13,56,402/ - IN CASE OF 18 PARTIES INCLUDING THE VERY 15 CREDITORS NARRATED HEREINABOVE. THE ASSESSING OFFICER AGAIN SOUGHT FOR DETAILS OF AD V ANCES. THE ASSESSEE AT TH IS STAGE FILED HER VISANAGAR NAGRIK SAKARI BANK ACCOUNT STATEMENT FOR FINANCIAL YEAR 2003 - 04 DEMONSTRATING CHEQUES TRANSFER IN ALL 15 CASES IN QUESTION. THIS MADE THE ASSESSING OFFICER TO OBSERVE THAT SHE HAD NOT EXPLAINED CASH DEPOSIT IN HER BANK ACCOUNT BEFORE THE ABOVE STATED CHEQUE TRANSFER. HE REITERATED EARLIER CHRONOLOGY OF EVENTS THEREBY EXPRESSING DOUBTS OVER AS S ESSEE S EXPLANATION FORMED ON THE BASIS OF REPAYMENT PLEA. HE AGAIN MADE THE IMPUGNED ADDITION OF UNEXPLAINED CASH CREDIT I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 7 AMOUNTING TO RS. 7 LACS. THE CIT(A) UPHOLDS THIS ADDITION IN THE LOWER APPELLATE ORDER UNDER CHALLENGE LEAVING ASSESSEE AGGRIEVED. 5. HEARD BOTH SIDES. CASE FILED PERUSED. RELEVANT FACTS NARRATED IN THE PRECEDING PARAGRAPHS ARE NOT REPEATED FOR THE SAKE OF BREVITY . THIS ONE IS SECOND ROUND OF LITIGATION BEFORE THE PARTIES BEFORE THE TRIBUNAL (SUPRA). THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE S HDFC BANK ACCOUNT STANDS CREDITED WITH 14 PAYMENTS OF RS. 49,000/ - EACH FOLLOWED BY ANOTHER ONE INVOLVING RS. 14,000/ - . THIS GROSS FIGURE OF RS. 7 LACS FORMS SUBJECT MATTER OF SECTION 68 ADDITION . THE ASSESSEE S ENDEAVOUR SEEKS TO TREAT THE SAME AS REPAYMENT OF LOANS/OLD ADVANCES. A CO - ORDINATE BENCH HAS ALREADY DIRECTED THE ASSESSING OFFICER TO VERIFY THE SAME FROM THE MATERIAL ON RECORD. THE ASSESSEE FILES BEFORE US HER LEDGER ACCOUNT MAINTAINED IN CA SE OF ABOVE STATED 15 PARTIES RIGHT FROM 01 - 04 - 2003 TO 31 - 03 - 2008 STATING OUTSTANDING CLOSING BALANCES OF RS. 49,000/ - AND RS. 14,000/ - . THIS IS NOT THE REVENUE S CASE THAT THESE ACCOUNTS ARE NOT GENUINE OR IMPROPER MAINTAINED. THERE IS HARDLY ANY DISPUTE THAT THE SAME STANDS ACCEPTED AS CORRECT IN THE RELEVANT INTERVENING ASSESSMENT YEAR. LD. DR FAILS TO REBUT THIS FACTUAL POSITION. WE DO NOT FIND ANY OBSERVA TION IN ASSESSING OFFICER S CONSEQUENTIAL ORDER ALLEGING THAT HE EVER SUMMONED THESE CREDITORS FOR THE PURPOSE OF CONDUCTING VERIFICATION AND THEY DID NOT TURN UP TO CONFIRM ASSESSEE S STAND. WE TAKE INTO ACCOUNT TOTALITY OF ALL THESE FACTS AND CIRCUMSTAN CES TO HOLD THAT THE ASSESSEE HAS SUCCESSFULLY PROVED HER CASE OF HAVING RECEIVED REPAYMENT OF EARLIER LOANS AND ADVANCES I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 8 GIVEN TO THE ABOVE STATED 15 CREDITORS IN FINANCIAL YEAR 2003 - 04. THE REVENUE S ARGUMENTS STRONGLY SUPPORTING ASSESSING OFFICER S ACT ION MAKING THE IMPUGNED ADD IT ION STAND REJECTED. WE ACCORDINGLY DELETE THE IMPUGNED SECTION 68 ADDITION OF RS. 7 LACS IN QUESTION. ITA 3486/AHD/2015 SUCCEEDS. 6. WE COME TO THE REMAINING FIVE APPEALS NOW. BOTH THE PARTIES INDICATE VERY FAIRLY THAT ALL THESE APPEALS INVOLVE IDENTICAL SECTION 68 ADDITION OF RS. 7 LACS EACH AND THE RELEVANT FACTUAL BACKDROP RAISING REPAYMENT OF LOANS PLEA IS IDENTICAL AS TAKEN IN CASE OF SMT. ALKABEN T . PATWA ADJUDICATED HEREINABOVE. WE DRAW SUPPORT FROM OUR DISCUSSION HE REINABOVE AND DELETE THE IMPUGNED ADDITIONS OF UNEXPLAINED CASH CREDITS IN QUESTION FORMING SUBJECT MATTER OF OUR ADJUDICATION IN ALL THESE FIVE APPEALS. 7. THESE SIX ASSESSEE S SUCCEED IN THEIR RESPECTIVE APPEALS. THE SAME ARE ACCORDINGLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 15 - 04 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 15 /04 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE I.T.A NO. 3486,3513,3514 ,3515,3516 & 3518 /AHD/20 15 A.Y. 2008 - 09 PAGE NO FIVE DIFFERENT ASSESSEES (SIX CASES) VS. ITO 9 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,
