Shri Popatlal L Haripara, Ahmedabad V. The A C I T Inv Cir-5(1), Ahmedabad

ITA 3591/AHD/2002

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9053 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2009
• Assessment Year: 1995-1996
• Appeal Filed On: 28-11-2002
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P M SHUKLA
• Keywords: Principle of natural justice; Set aside
• Section: 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.3591/AHD/2002 ASSESSMENT YEA:1995-96 DATE OF HEARING:12.8.09 DRAFTED:20.8.09 POPATLAL L HARIPARA, OPP. SHITAL CINEMA, RAKHIAL, AHMEDABAD PAN NO. AASPH6266M V/S . ACIT, INV. CIRCLE-5[1], AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- NONE RESPONDENT BY:- SHRI P.M. SHUKLA, SR. DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XVIII, AHMEDABAD IN APPEAL NO. 0068/97-98 DATED 11-09- 2002. THE ASSESSMENT WAS FRAMED BY THE ACIT, INV. CIRCLE (1), AHMEDABAD U/S. 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT) VIDE HIS ORDER DATED 18-02-1998 FOR THE ASSESSMENT YEAR 1995-96. 2. THE FIRST ISSUE IN THIS APPEAL OF THE ASSESSEE I S AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF RS.20,000/- MADE OUT OF CASH FOUND AT THE RESIDENCE OF THE ASSESSEE DURING THE COURSE OF SEAR CH. 3. THE BRIEF FACTS ARE THAT DURING THE COURSE OF SE ARCH, A CASH OF RS.27,640/- WAS FOUND, OUT OF WHICH A CASH OF RS.20,000/- WAS SEIZE D. THE ASSESSEE ADMITTED THAT A SUM OF RS.20,000/- WAS EXCESS CASH AND DISCLOSED TH E SAME AS ADDITIONAL INCOME ITA NO.3591/AHD.2002 A.Y. 1995-96 POPATLAL L HARIPARA V. ACIT INV. CIR-5[1] ABD PAGE 2 U/S.132(4) OF THE ACT. BEFORE THE LOWER AUTHORITIE S NO EVIDENCE WERE PRODUCED IN RESPECT OF THIS SEIZED CASH AND IT IS REVEALED THAT NO BOOKS OF ACCOUNT WERE FOUND MAINTAINED DURING THE SEARCH ACTION. IN ABSENCE OF ANY EXPLANATION BEFORE LOWER AUTHORITIES, THE ASSESSING OFFICER MADE ADDITION OF RS.27,640/- OUT OF WHICH THE CIT(A) CONFIRMED THE ADDITION OF RS.20,000/-. AGGRI EVED, THE ASSESSEE PREFERRED APPEAL BEFORE US. NONE IS PRESENT FROM THE ASSESSE ES SIDE. 4. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIV E, WE ARE OF THE VIEW THAT IN CASE THE ASSESSEE IS ABLE TO PRODUCE ANY CREDIBLE E VIDENCE THAT THE ASSESSEE WAS HAVING CASH-IN-HAND OF RS.20,000/-, THE ASSESSING O FFICER CAN DELETE THE ADDITION AND IN CASE HE IS UNABLE TO EXPLAIN THE SOURCE, AO WILL CONFIRM THE ADDITION. IN VIEW OF THESE AND IN THE INTEREST OF NATURAL JUSTICE, WE SET ASIDE THIS ISSUE TO THE FILE OF AO AND THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5. THE NEXT ISSUE IN THIS APPEAL OF THE ASSESSEE IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF RS.11,000/- OUT O F TOTAL ADDITION MADE BY THE ASSESSING OFFICER AT RS.21,000/- ON ACCOUNT OF HOUS EHOLD EXPENSES. 6. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIV E, WE FIND THAT THE ASSESSING OFFICER ESTIMATED THE HOUSEHOLD EXPENSES AMOUNTING TO RS.60,000/- AND THE SAME WAS REDUCED BY THE CIT(A) AT RS.50,000/-. THE ASSES SEE HAS NOT FILED ANY EVIDENCE BEFORE THE LOWER AUTHORITIES AND MADE MERELY SUBMIS SION THAT THEY HAVE A LOW OF COST LIVING BUT THE SAME DID NOT FIND FAVOUR WITH E ITHER OF THE LOWER AUTHORITIES. WE FURTHER FIND THAT ASSESSING OFFICER HAS STATED THAT IN STATEMENTS RECORDED SMT. NARMADABEN AND SHRI ARVIND PATEL, THE ASSESSEES WI FE AND SON RESPECTIVELY ADMITTED THAT THE HOUSEHOLD EXPENSES WAS ABOUT RS.5 ,000/- PER MONTH AND TOTAL AMOUNT OF EXPENSE WAS AT RS.60,000/- PER ANNUM. AS AGAINST THIS, TOTAL WITHDRAWAL WAS RS.39,000/- INCLUDING RS.13,500/- WITHDRAWN BY THE ASSESSEE AND RS.25,500/- BY HIS SON. THE AO ADDED THE DIFFERENCE OF RS.21,00 0/- THOUGH THE ADDITION IS DISPUTED AND NO MATERIAL HAS BEEN BROUGHT TO SHOW T HAT THE RECORDED WITHDRAWALS WERE ADEQUATE TO MEET THE HOUSEHOLD EXPENSES. IT IS ALSO OBSERVED THAT THE ASSESSEES FAMILY HAD DEPOSITED RS.9,000/- WITH THE KHODIAR BACHAT MITRA MANDAL ITA NO.3591/AHD.2002 A.Y. 1995-96 POPATLAL L HARIPARA V. ACIT INV. CIR-5[1] ABD PAGE 3 AND MOREOVER, THERE WERE TEN MEMBERS IN THE ASSESSE ES FAMILY. IT IS OBVIOUS THAT NET HOUSEHOLD EXPENSE OF THE ASSESSEE WAS RS.30,000 /- FOR TEN MEMBERS AND THIS AMOUNT APPEARS INSUFFICIENT. IN VIEW OF THE ABOVE WE ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY ESTIMATED THE FAMILY EXPENSES AT RS.50,000 /- PER ANNUM FOR THE YEAR UNDER CONSIDERATION AND REDUCED THE ADDITION TO RS.11,000 /- AS AGAINST RS.21,000/- AND THIS ISSUE OF THE ASSESSEES APPEAL IS DISMISSED. 7. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11/09/2009 SD/- SD/- (P.K.BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED:11/09/2009 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-XVIII, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD