Kamleshbhai Ramjibhai Desai, Ahmedabad V. The ITO,Ward-2(2)(2), Ahmedabad

ITA 353/AHD/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3631 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 22-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Assessee Lawyers: VIJAY PATEL
• Keywords: Additional evidence
• Section: 69; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & Ms. MADHUMITA ROY, JUDICIAL MEMBER I .T .A . N o . 3 5 3/ A h d /2 0 2 0 ( A s s e s s me nt Y ea r : 20 1 1- 12 ) Ka mle s h bh ai R a mj i bh a i D e s a i 49 9 /1 , R a b a r i V as , B / J a nt a n a g a r, Nr . G ya n Sa ga r So c iet y, C h an dk h ed a, A h m e d ab a d - 3 8 2 42 4 V s . I T O War d - 2 ( 2) ( 2 ) , A h me da ba d [ P AN N o. A WV P D 1 89 6J ] (Appellant) .. (Respondent) Assessee by : Shri Vijay Patel, A.R. Revenue by : Shri S. S. Shukla, Sr. DR D a t e of H ea r i ng 25.04.2022 D a t e of P r o no u n ce me nt 27.04.2022 O R D E R PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 19.02.2020 passed by the Commissioner of Income Tax (Appeals)-10, Ahmedabad arising out of the order dated 15.12.2018 passed by the ITO, Ward-2(2)(2), Ahmedabad under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for A.Y. 2011-12. 2. The assessee along with his wife Kantaben Ramjibhai Desai, joingly purchased a property being Bungalow No. 16 lying and situated at Madhav Bungalows-2, New Ashokvihar Cooperative Housing Society Ltd., Motera, Ahmedabad for a consideration of Rs. 40,00,000/-; the transfer was registered by a deed of sale with the Office of the SRO, Ahmedabad-6, Naroda, Ahmedabad on 21.10.2010. The assessee has stated to have taken loan of Rs. 25,00,000/- out of the total amount of Rs. 40,00,000/- from the Vijay ITA No. 353/Ahd/2020 Kemleshbhai Ramjibhai Desai vs. ITO Asst.Year –2011-12 - 2 - Cooperative Bank Ltd. to purchase the said property. As per the Ld. AO rest of the amount invested in the property since remained unanswered notice under Section 142(1) dated 21.11.2018 was issued asking the assessee to provide certain details. In reply thereto the assessee stated that loan of Rs. 25,00,000/- was availed from bank and loan of Rs. 15,00,000/- was received from friends and relatives, however, no other details were submitted before the Ld. AO. Show-cause notice proposing addition of Rs. 20,98,000/- for ½ of sale consideration and stamp duty paid was issued to the assessee. In response thereto the assessee submitted that he has received loan of Rs. 5,00,000/- from Jayantibhai Prajapati and Rs. 10,00,000/- from Mahendrabhai Manilal Patel. Details of account of the assessee Kamleshbhai Ramjibhai Desai from Jayantilal Chelabhai Prajapati and copy of Aadhar Card of the same person were duly submitted. It was further submitted that out of the stamp duty and registration charges of Rs. 2,36,240/-, a sum of Rs. 1,00,000/- was met by his wife Kantaben Desai. However, the Ld. AO was not found those details sufficient to prove the identity and creditworthiness of the creditors and genuineness of the transaction and the investment made to the tune of Rs. 15,00,000/- for the purchase of the property remained unexplained and hence added to the total income of the assessee under Section 69 of the Act. 3. In appeal further evidences were submitted before the Ld. CIT(A) by the assessee. It was the case of the assessee that the appellant and his wife had borrowed unsecured loan of Rs. 5,00,000/- from Jayantibhai Prajapati and Rs. 10,00,000/- from Maheshbhai H Patel holding a joint bank account. A remand report was sought for from the Ld. AO on the basis of the additional evidences under Section 46A of the IT Rules, 1962 before the CIT(A). However, objection was raised by the Ld. AO for admission of those additional evidences ITA No. 353/Ahd/2020 Kemleshbhai Ramjibhai Desai vs. ITO Asst.Year –2011-12 - 3 - as sufficient opportunities were stated to be provided to the appellant to furnish such details during the assessment proceeding. The Ld. CIT(A) ultimately restricted the addition of Rs. 5,00,000/- in respect of the unsecured loan taken by the assessee from Mahendrabhai Patel since the copy of the Bank Statement of the assessee for prior period has not been submitted. Hence, the appeal before us. 4. We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on record. 5. In fact, the assessee has taken unsecured loan of Rs. 5,00,000/- from Shri Mahendrabhai Manilal Patel in his name and Rs. 5,00,000/- in the name of his wife and furnished copy of confirmation and relevant copy of bank account. On the other hand, he has taken unsecured loan of Rs. 5,00,000/- from Jayantibhai Prajapati and duly submitted the copy of confirmation and acknowledgment of return of income. Only the copy of the relevant bank statement reflected the transaction between the assessee and lender party were not filed. In fact, we find that the bank statement of Shri Jayantibhai Chelabhai Prajapati and Shri Mahendrabhai Manilal Patel were duly submitted by the appellant before the First Appellate Authority including confirmations. Furthermore, the ledger of the appellant in the books of Jayantibhai Prajapati were also submitted before the Ld. CIT(A). The assessee in our considered opinion has discharged its onus in order to prove the genuineness of the transaction i.e. the unsecured loan taken from Mahendrabhai Manilal Patel by adducing sufficient evidence. The same has also been duly submitted before us being part of the records of the Paper Book. When the assessee has discharged his onus by filing sufficient evidences to prove the identity, creditworthiness of the creditors and genuineness of the transaction, ITA No. 353/Ahd/2020 Kemleshbhai Ramjibhai Desai vs. ITO Asst.Year –2011-12 - 4 - confirmation of addition of Rs. 5,00,000/- in respect of the unsecured loan taken by the assessee is not called for. Thus, the same is hereby deleted. Assessee’s appeal is hereby allowed. 6. In the result, the appeal preferred by the assessee is allowed. This Order pronounced in Open Court on 27/04/2022 Sd/- Sd/- (WASEEM AHMED) (Ms. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 27/04/2022 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 25.04.2022 2. Date on which the typed draft is placed before the Dictating Member 26.04.2022 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S 26 .04.2022 5. Date on which the fair order is placed before the Dictating Member for pronouncement .04.2022 6. Date on which the fair order comes back to the Sr.P.S./P.S 27 .04.2022 7. Date on which the file goes to the Bench Clerk 27 .04.2022 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................