Abhishek Estate Limited, Surat V. The Income tax Officer, Ward-1(1), Surat

ITA 3559/AHD/2008

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85573 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-01-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 27-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: J P SHAH
• Keywords: Unexplained cash credit; Condonation of delay
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ITA NO . 3559 /AHD/20 08 A. Y. 2002 - 03 ABHISHEK ESTATE LIMITED, 9 AMBA NAGAR, UDHNA MAGDALLA ROAD, SURAT. PAN: AABCA 9744K VS ITO, WARD 1(4), SURAT . (APPELLANT) (RESPONDENT) REVENUE BY : SMT. SONIA KUMAR, SR. D.R. ASSESSEE(S) BY : SHRI J.P. SHAH , A.R. / DATE OF HEARING : 2 9 / 01 /201 5 / DATE OF PRONOUNCEMENT: 6 / 0 2 /201 5 / O R D E R PER MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN A PPEAL FILED BY THE ASSESSEE ARISING FROM AN ORDER OF THE LEA RNED CIT(A) - I, SURAT DATED 17 TH JUNE, 2008. THE APPELLANT IS AGGRIEVED BY THE CONFIRMATION OF ADDITION OF RS.26,54,922/ - MADE U/S.68 OF IT ACT. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 OF IT ACT DA TED 31.12.2007 WERE THAT A RETURN OF INCOME DECLARING LOSS OF RS.8250/ - WAS FILED WHICH WAS PROCESSED U/S.143(3) OF IT ACT, BUT THEREAFTER CASE WAS REOPENED U/S.147 OF IT ACT. IT WAS NOTED BY THE AO THAT THE ASSESSEE IS ENGAGED IN REAL ESTATE BUSINESS. ON VERIFICATION OF LEDGER ACCOUNT OF M/S. BHARAT JARI ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 2 - WORKS IT WAS NOTICED THAT AN AMOUNT OF RS.44,29,835/ - WAS TRANSFERRED ON 12 TH OF JUNE, 2002. AGAINST THAT ADVANCE THE ASSESSEE HAS RECEIVED BACK RS.22 LACS ON 26 TH MARCH, 2002 BY CHEQUE. IT WAS ALSO NOTED THAT THERE WERE FURTHER AMOUNT RECEIVED TOTALING RS.2,25,052/ - ON VARIOUS DATES IN THE FINANCIAL YEAR 2001 - 02 IN CASH. THE BALANCE AMOUNT OF RS.20,04,783/ - WAS SHOWN A OUTSTANDING AS ON 31.03.2002. IT HAS ALSO BEEN NOTED BY THE AO THAT SUBSEQUENTLY THAT AM OUNT WAS ALSO RECEIVED. THE RELEVANT OBSERVATION OF THE AO IS AS UNDER: 3. THE BALANCE AMOUNT OF RS.20,04,783/ - WAS SHOWN AS OUTSTANDING AND OUT OF IT, RS. 19,99,913/ - WAS RECEIVED BY THE ASSESSEE THROUGH DIFFERENT CHEQUES OF RS.6360/ - , RS.4,80,000/ - , RS. 56,128/ - RS. 1 3,39,425/ - RS.1,18,000/ - DEPOSITED IN ITS ACCOUNT ON 28/3/2002, BY CREDITING ACCOUNT OF SHRI SULTAN VIRANI. THEREAFTER, THE AMOUNT WAS TRANSFERRED BY JOURNAL ENTRY IN THE ACCOUNT OF SHRI C.R. PATIL, PROP, OF SHRI C.R.PATIL ESTATE AND ULTIMATEL Y IN THE F.Y. 2003 - 04 AMOUNT OF RS.17,44,913/ - WAS TRANSFERRED THROUGH JOURNAL ENTRY BY DEBITING SHRI C.R. PATEIL'S ACCOUNT AND CREDITING BHARAT JARI WORKS O N 1.4.2003 3.1 DURING THE ASSESSMENT PROCEEDINGS FOR A.Y. 2004 - 05, THE ASSESSEE HAD FAILED TO ESTAB LISH THE PURPOSE AS WELL AS NATURE OF TRANSACTION RELATING TO CHEQUES OF RS. 19,99,913/ - RECEIVED BY IT AS ABOVE AND ALSO FAILED TO ESTABLISH THE GENUINENESS OF THE TRANSACTION I.E. CLOSER OF CURRENT BANK ACCOUNT OF BHARAT JARI WORKS AFTER THE DEATH OF BOT H THE KEY PERSONS OF BHARAT JARI WORKS. THE ASSESSEE HAD ALSO FAILED TO ESTABLISH THE SOU R CE OF FIVE CHEQUES WORTH RS.6360/ - , RS.4,80,000/ - , RS.56,128/ - , RS.13,39,425/ - AND RS.1,18,000/ - TOTALING TO RS.19,99,913/ - . OUT OF WHICH RS.17,74,913/ - HAS BEEN TAXED IN A.Y. 2004 - 05. 2.1 THE AO HAS DISCUSSED THE PROCEEDINGS CARRIED OUT IN A.YS.2004 - 05 . I N THAT YEAR ACCORDING TO AO THE ASSESSEE WAS NOT ABLE TO ESTABLISH THE SOURCE OF DEPOSIT OF FEW CHEQUES THEREFORE OUT OF THE SAID AMOUNT A SUM OF RS.17,74,913/ - WAS T AXED. IN THE LIGHT OF THE BACKGROUND OF A.Y.2004 - 05 , THE AO HAS ISSUED A SHOW CAUSE AS TO WHY THE BALANCE AMOUNT OF RS.26,54,922/ - (RS.44,29,835 ( - ) RS.17,74,913/ - ) CREDITED TO THE ACCOUNT OF M/S. BHARAT JARI WORKS SHOULD BE NOT TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF IT ACT. THE ALLEGATION OF THE AO WAS ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 3 - THAT EVEN IN A.Y.2004 - 05 , THE ASSESSEE HAS FAILED TO ESTABLISH THE PURPOSE AND THE GENUINENESS OF THE TRANSACTION WITH BHARAT JARI WORKS. THERE WERE FEW POINTS RAISED IN A.Y.2004 - 05 WHICH WERE REITERAT ED IN THE IMPUGNED ASSESSMENT ORDER . I N COMPLIANCE , THE ASSESSEE HAS SUBMITTED AS UNDER: WE ARE IN RESPECT OF YOUR GOOD SELF S ABOVE REFERRED SHOW CAUSE NOTICE, WHEREIN, YOUR GOOD SELF HAS SHOWN THE INTENSION OF MAKING AN ADDITION OF RS.26,54,922/ - RECEIV ED FORM M/S. BHARAT JARI WORKDS, AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX ACT. ON THE BASIS OF ADDITION MADE OF RS.17,74,913/ - BY THE THEN INCOME TAX OFFICER IN THE ASSESSMENT YEAR 2004 - 2005. WE WOULD LIKE TO BRING TO YOUR KIND NOTICE THE FOLLO WING FACTS WITH REGARD TO PROPOSED ADDITION OF RS.26,54,922/ - IN RESPECT OF CREDIT ENTRY OF RS. 24,25,052/ - IN THE ACCOUNT OF M/S. BHARAT JARI WORKS AND BALANCE AMOUNT OF RS. 2,29,870/ - PAYABLE TO US BY BHARAT JARI WORKS. (1)(A) SMT. KAILASHBEN WAS A PROPR IETOR OF M/S. BHARAT JARI WORKS. (B) SMT. KAILASHBEN KAPADIA BEING A PARALYTIC PATIENT HAD GIVEN THE GENERAL POWER OF ATTORNEY TO HER ELDER SON SHRI RAJESHKUMAR M. KAPADIA FOR CARRYING OUT THE DAY - TO - DAY BUSINESS ACTIVITY. (C) GPA HOLDER SHRI RA JESHKUMAR M. KAPADIA EXPIRED ON 16.08.2001. (D) PROPRIETOR AND OWNER OF M/S. BHARAT JARI WORKS, SMT. KAILASHBEN KAPADIA ALSO EXPIRED ON 08.05.2002. THE ABOVE FACTS WERE VERIFIED BY THE THEN AO WHILE PASSING THE ASSESSMENT ORDER FOR A.Y. 2004 - 2005. THE D EATH CERTIFICATES OF THE ABOVE TWO PERSONS WERE ALSO PLACED ON RECORD OF THEN AO. (2)(A) AS OBSERVED BY THEN LAO, WE HAD ISSUED CHEQUE NO. M004308 OF RS. 44,29,835/ - ON 12.01.2002 IN FAVOUR OF M/S. BHARAT JARI WORKS. THE SAID CHEQUE WAS DEPOSITED IN THE ACCOUNT OF M/S. BHARAT JARI WORKS. THIS FACT HAD BEEN VERIFIED BY THEN AO FROM THE BANK ACCOUNT STATEMENT OF M/S. BHARAT JARI WORKS OBTAINED BY THEN AO DIRECTLY FROM THE DIAMOND JUBILEE BANK. (B) THUS, THIS FACT PROVES THAT WE HAVE ISSUED THE CHE QUE OF RS.44,29,835/ - TO M/S. BHARAT JARI WORKS AS TRADE ADVANCE AND EVEN FOR SAKE OF ARGUMENT IT IS ACCEPTED THAT SAME IS NOT A TRADE ADVANCE THEN ALSO IT IS PROVED FROM THE RECORD AVAILABLE THAT SUBJECT PAYMENT WAS MADE TO BHARAT JARI WORKS AND SAME WERE RECEIVABLE BY US FROM BHARAT JARI WORKS. PLEASE FURTHER NOTE THAT THE CHEQUES/PAYMENT RECEIVED FROM M/S. BHARAT JARI WORKS, REPRESENT THE AMOUNTS RECEIVED BACK FROM M/S. BHARAT JARI BHARAT JARI WORKS TOWARDS THE (TRADE) ADVANCE MADE TO THEM. THIS WILL SHO W THE FACT THAT THE TRANSACTION HAS ORIGINATED FROM THE AMOUNT ADVANCED TO THE M/S. BHARAT JARI WORKS AND WE HAVE NOT TAKEN ANY LOAN FROM M/S. BHARAT JARI WORKS. IN FACT M/S. BHARAT JARI WORKS HAS SUBSEQUENTLY REFUNDED THE (TRADE) ADVANCE TAKEN BY THEM. ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 4 - 2.3 BEFORE THE AO, IT HAS ALSO BEEN INFORMED THAT THERE WERE SOME PROCEEDINGS BEFORE HON BLE GUJARAT HIGH COURT AND IN THAT CONNECTION THE DIRECTOR OF THE ASSESSEE - COMPANY , MR. CR PATIL HAS MENTIONED THAT THE ASSESSEE - COMPANY HAD BUSINESS RELATIONSHIP WITH M/S. BHARAT JARI WORKS. DUE TO THAT REASON , A CHEQUE OF RS.4 4 ,4 0 ,000/ - IN FAVOUR OF M/S. BHARAT JARI WORKS WAS ISSUED. THE AO WAS NOT CONVINCED AND FOLLOWING THE VIEW ALREADY TAKEN IN A.Y.2004 - 05. HE HAS HELD THAT SUM OF RS.26,54,922/ - (RS.22 LACS RECEIVE D BY CHEQUE (+) RS.2,29,922/ - SHOWN AS RECEIVABLE) WERE TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF IT ACT. BEING AGGRIEVED THE MATTER WAS CARRIED BEFORE THE APPELLATE AUTHORITY. 3. LEARNED CIT(A) HAS NOTED IN PARAGRAPH 4 THAT FACTS WERE SIMILAR WITH THE FACTS AS DISCUSSED IN A.Y.2004 - 05. IN THAT ASSESSMENT YEAR , THE ASSESSEE HAS FAILED TO ESTABLISH THE IDENTITY OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACTION , THEREFORE , ON THE SAME LINES FOR THIS YEAR AS WELL ACTION OF THE AO WAS REQUIRED TO BE CO NFIRMED. LEARNED CIT(A) HAS COMMENTED THAT THE CONTENTION OF THE ASSESSEE THAT A CHEQUE OF RS.44,29,835/ - WAS ISSUED IN FAVOUR OF M/S. BHARAT JARI WORKS HAS NO RELEVANCE BECAUSE THE ASSESSEE HAD FAILED TO GIVE ANY REASON AS TO WHY SUCH HUGE CHEQUE OF AN OD D AMOUNT WAS ISSUED, ESPECIALLY, AFTER CLOSURE OF THE A CC OUNT OF BHARAT JARI WORKS . THE ACTION OF THE AO WAS CONFIRMED IN THE FOLLOWING MANNER: THE ASSESSEE FAILED TO ESTABLISH THE PURPOSE AS WELL AS NATURE OF ADVANCE AND ALSO GENUINENESS OF TRANSACTION ES PECIALLY IN VIEW OF CLOSURE OF CURRENT ACCOUNT OF BHARAT JARI WORKS AFTER THE DEATH OF BOTH KEY PERSONS NAMELY HUSBAND OF THE PARALYTIC LADY PROPRIETOR AND SON WHO WAS THE POWER OF ATTORNEY HOLDER, AND, THEREFORE THERE WAS NO QUESTION OF ALLOWING BAD DEBT OF BALANCE AMOUNT OF RS.2,29,870/ - . WHILE SCRUTINIZING THE FACTS RELATED TO FIVE CHEQUES DATED 28.03.2002 CLAIMED TO HAVE BEEN ISSUED BY BHARAT JARI WORKS DURING THE ASSESSMENT PROCEEDINGS FOR A.Y.2004 - 05, THE THEN A.O. ASCERTAINED FORM VIKAS CO.OP. BANK L TD., SALABATPURA BRANCH THAT OUT OF FIVE CHEQUES, THE ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 5 - CHEQUE BEARING NO.820410 DATED 28.03.2006 AMOUNTING TO RS.1,18,000/ - WAS ISSUED BY BHARAT CORPORATION, PROP. B.J. SHAH, GOPIPURA, SURAT FROM CURRENT ACCOUNT NO.162 WHO HAD NO CONNECTION WITH M/S. BHARAT JARI WORKS. ALL THE CHEQUES CLAIMED TO HAVE BEEN RECEIVED FROM M/S. BHARAT JARI WORKS, INCLUDING CHEQUE OF RS.22,00,000/ - , HAVE BEEN RECEIVED BY THE ASSESSEE ON 26.03.2002 AND 28.03.2002, I.E. AFTER THE DEATHS OF SHRI MAHENDRA KAPADIA HUSBAND OF THE PROPR IETOR SMT. KAILASHBEN AND POWER OF ATTORNEY HOLDER SHRI RAJESH KAPADIA, BUT BEFORE THE DEATH OF SMT. KAILASHBEN WHO WAS A PARALYTIC PARTIENT AND WAS UNABLE TO WRITE OR TO WALK I.E. INCAPABLE TO SIGN THE DOCUMENTS. MOREOVER, DURING THE INTERROGATION BY TH E THEN A.O. SHRI NILESH KAPADIA, SON OF THE PROPRIETOR STATED THAT HE HAD NOT KNOWN ABOUT THE TRANSACTIONS WITH THE ASSESSEE AND THE BUSINESS OF M/S. BHARAT JARI WORKS WAS CLOSED AFTER THE DEATH OF HIS FATHER. HENCE, THE QUESTION ARISES AS TO WHO ISSUED CH EQUES IN FAVOUR OF THE ASSESSEE FOR REPAYMENT OF SO CALLED TRADE ADVANCE OF RS.44,29,835/ - . THEREFORE, THE CREDIT BALANCE IS RIGHTLY ADDED BY THE AO U/S 68 AS PER THE SETTLED POSITION OF LAW WITH REGARD TO THE CASH CREDITS BECAUSE THE APPELLANT HAS FAILED TO ESTABLISH THE IDENTITY OF THE CREDITOR AS WELL AS GENUINENESS OF TRANSACTIONS AND CAPACITY OF THE CREDITOR. IN VIEW OF THESE REASON THE GROUNDS OF APPEAL ARE DISMISSED. 4. FROM THE SIDE OF THE APPELLANT, LEARNED AR, MR. J.P. SHAH A PPEARED . A T THE OUTSE T , HE HAS INFORMED THAT THE QUESTION OF CONDONATION OF DELAY IN FILING OF THIS APPEAL HAS ALREADY BEEN DECIDED IN ASSESSEE S FAVOUR BY HON BLE GUJARAT HIGH COURT VIDE TAX APPEAL NO.328 OF 2012 ORDER DATED 18.12.2012. SINCE, THE DELAY STOOD CONDONED , THEREFO RE , THIS APPEAL IS TO BE DECIDED ON MERITS. AT THE OUTSET, HE HAS PLACED STRONG RELIANCE ON THE ORDER OF ITAT D BENCH AHMEDABAD BEARING ITA NO.1585/AHD/2007 FOR A.Y.2004 - 05 DECIDED IN ASSESSEE S OWN CASE VIDE ORDER DATED 9 TH JULY, 2010 WHEREIN IT WAS HEL D AS UNDER: 4. WE HAVE CAREFULLY CONSIDERED ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IN OUR OPINION, SECTION 68 CAN BE APPLIED IF THERE IS AN ACTUAL RECEIPT OF MONEY BY THE ASSESSEE, WHETHER BY CASH OR CHEQUE, DURING THE ACCO UNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. ADMITTEDLY, DURING THE ACCOUNTING YEAR, RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, NO AMOUNT WAS RECEIVED FROM 'BJW'. IN FACT THE TRANSACTION BETWEEN THE ASSESSEE AND 'EJW' WAS DURI NG THE FINANCIAL YEAR 20001 2002. EVEN IN THAT YEAR FIRST THE AMOUNT WAS ADVANCED BY THE ASSESSEE AND THEN THERE WAS REPAYMENT OF SUCH ADVANCES BY 'BJW'. IF BY MISTAKE PART OF THE REPAYMENT WAS CREDITED TO THE ACCOUNT OF SOME OTHER PARTY AND A JOURNAL ENTR Y WAS MADE DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 6 - CONSIDERATION TO RECTIFY SUCH MISTAKE, IN OUR OPINION, SECTION 68 CANNOT BE APPLIED. WE THEREFORE DELETE THE ADDITION OF RS. 17,74,913/ - MADE BY THE AO. 5. HE HAS ALSO DRAWN OUR ATTE NTION ON THE LEDGER ACCOUNT OF M/S. BHARAT JARI WORKS TO ESTABLISH THAT A CHEQUE WAS ISSUED BY THE ASSESSEE ON 12 TH OF JANUARY, 2002 OF RS.44,29,833/ - AND THAT AMOUNT WAS RECEIVED BACK BY THE ASSESSEE FROM BHARAT JARI WORKS THEREFORE IT WAS WRONG ON THE PA RT OF THE AO TO HOLD THAT THE ASSESSEE HAD FAILED TO ESTABLISH THE GENUINENESS OF THE TRANSACTION. LEARNED AR HAS PLACED RELIANCE ON THE ORDER OF BOMIN P. LTD. VS. CIT (GUJ.), 160 ITR 477. 6. FROM THE SIDE OF THE REVENUE, LEARNED SR.D.R. , SMT. SONIA KUMAR HAS REITERATED THE FACTS AS MENTIONED BY THE AO AND LEARNED CIT(A). LEARNED SR.D.R. HAS PLEADED THAT IN A SITUATION WHEN THE CHEQUE ISSUED BY THE ASSESSEE ITSELF WAS UNDOUBTED THEN THE SUBSEQUENT REPAYMENT OF THE SAID ADVANCE BY THAT PARTY SHOULD NOT BE CONSIDERED AS A GENUINE REPAYMENT. LEARNED SR.D.R. HAS ALSO PLEADED THAT THE BANK TRANSACTION WAS CARRIED OUT AFTER THE CLOSURE OF THE SAID ACCOUNT; HENCE, THE REVENUE AUTHORITIES HAVE RIGHTLY REJECTED THE EXPLANATION OF THE ASSESSEE. 7. WE HAVE HEARD BOT H THE SIDES AT SOME LENGTH. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. AT THE OUTSET, IT IS WORTH TO MENTION THAT ALMOST ON IDENTICAL FACTS IN THE PAST FOR A.Y.2004 - 05 THE AO HAD RAISED DOUBTS IN RESPECT OF THE RETURN OF ADVANCE AND IN IDENTICAL MANNER INVOKED THE PROVISIONS OF SECTION 68 OF IT ACT. ON THAT BASIS FOR A.Y.2002 - 03, THE YEAR UNDER CONSIDERATION ; DURING RE - OPENED PROCEEDINGS THE RETURN OF ADVANCE WAS DOUBTED AND TAXED IN THE HANDS OF THE ASSESSEE. IT IS WORTH TO MENTION THAT THE AO AS WELL AS LEARNED CIT(A) ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 7 - HAVE REFERRED ON NUMBER OF OCCASION THE ACTION OF TAKEN AGAINST THE ASSESSEE FOR A.Y.2004 - 05. THEREFORE, THE VEHEMENT CONTENTION OF LEARNED AR BEFORE US IS THAT IN A SITUATION WHEN THE IMPUGNED ADDITION WAS BASED UPON THE ACTION TAKE N IN A.Y. 2004 - 05, HOWEVER, THAT NOW STOOD DELETED BY THE TRIBUNAL IN ORDER DATED 9 TH OF JULY, 2010 (SUPRA) THEN THIS APPEAL SHOULD ALSO BE DECIDED ON THE SAME LINES. WE FIND FORCE IN THIS SUBMISSION OF LEARNED AR ; PRIMARILY BECAUSE OF THE REASON THAT ONE BENCH OF THE TRIBUNAL SHOULD RESPECTFULLY FOLLOW THE DECISION OF AN ANOTHER CO - ORDINATE BENCH PRONOUNCED ON IDENTICAL FACTS. IN ADDITION TO THE VIEW TAKEN BY ITAT AHMEDABAD IN ASSESSEE S OWN CASE WE HAVE ALSO NOTED THAT THE FACT ABOUT THE ISSUANCE OF CHEQU E BY THE ASSESSEE IN FAVOUR OF M/S. BHARAT JARI WORKS HAS NOT BEEN DENIED. THE DOUBT WAS THAT THE POWER OF ATTORNEY HOLDER SRI RAJESH KAPADIA HAS EXPIRED ON 16 TH OF AUGUST, 2001 AND PROPRIETOR OF BHARAT JARI WORKS SMT. KAILASHBEN EXPIRED ON 8 TH MAY, 2002 T HEN HOW THE BANK TRANSACTION WAS CARRIED OUT. THE EXPLANATION OF THE ASSESSEE BEFORE THE AO WAS THAT THROUGH CHEQUE NO.M004308 THE IMPUGNED AMOUNT WAS TRANSACTED IN FAVOUR OF M/S. BHARAT JARI WORK ON 12 TH OF JANUARY, 2002 AND ON THAT THE PROPRIETOR SMT. KA ILASHBANK WAS ALIVE. THEREFORE IT IS RELEVANT TO COMMENT THAT ALTHOUGH SOME DOUBTS WERE RAISED BY THE REVENUE DEPARTMENT ABOUT THE SAID TRANSACTION BUT THE DIRECT EVIDENCE OF THE EXECUTION OF TRANSACTION THROUGH BANK CANNOT BE ALTOGETHER BRUSHED ASIDE. A S USPICION OR DOUBT HOWSOEVER STRONG CANNOT REPLACE THE EVIDENCE. THERE WAS ALSO A DOUBT IN RESPECT OF AN AFFIDAVIT OF A THIRD PARTY, NAMELY, CHANDRAKANT RAGHUNATH PATIL, BUT THAT AFFIDAVIT WAS IN RESPECT OF CRIMINAL PROCEEDINGS AND THEREIN HE HAS MENTIONED THE FIGURES OF ADVANCE AS WELL AS THE DATE WHICH HAVE NOT TALLIED WITH THE ACTUAL FIGURE AND THE DATE AS MENTIONED IN THE LEDGER ACCOUNT. BUT THE PURPOSE OF THAT AFFIDAVIT WAS NOT TO ESTABLISH THE ITA NO. 3559 /AHD/20 08 ABHISHEK ESTATE LTD. VS. ITO WARD - 1(4) SURAT . A.Y. 2002 - 03 - 8 - CORRECTNESS OF THIS TRANSACTION BUT THE PURPOSE OF THE SAID AFFIDAVIT WAS IN RESPECT OF SOME BAIL APPLICATION PERTAINING TO A CRIMINAL CASE WHERE THE BANK WAS THE COMPLAINANT AGAINST SOME BANK OFFICER. IT TRANSPIRES FORM THE SAID AFFIDAVIT THAT THE PROCEEDINGS W ERE CARRIED OUT AGAINST THE ALLEGED FRAUD STATED TO B E COMMITTED BY A PUBLIC SERVANT, I.E., AN OFFICER OF THE BANK. WE, THEREFORE, HOLD THAT SUCH THIRD PARTY MISTAKES SHOULD NOT ADVERSELY AFFECT THE FACTS AS STATED BY THE ASSESSEE, THEREFORE, TO CONCLUDE WE HEREBY HOLD THAT IN A SITUATION WHEN ON IDENTICAL F ACTS IN THE PAST A VIEW HAS BEEN TAKEN BY RESPECTED CO - ORDINATE BENCH IN A.Y.2004 - 05 IN ASSESSEE S OWN CASE, THEREFORE, WE HAVE NO REASON TO TAKE ANY OTHER VIEW BUT TO FOLLOW THE VIEW ALREADY TAKEN; HENCE IN THE RESULT WE HEREBY REVERSE THE FINDINGS OF THE AUTHORITIES BELOW AND DIRECT TO DELETE THE ADDITION. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. SD/ - SD/ - (ANIL CHATURVEDI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 06 / 0 2 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.R EGISTRAR) , / ITAT, AHMEDABAD