The ITO, Ward-1(3), RAJKOT-GUJARAT V. Smt. Nirmalaben D. Gandhi, RAJKOT-GUJARAT

ITA 398/RJT/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8868 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 18-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT , ! '# $ , % ! & ' BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER #./ I.T.A. NO.398/RJT/2014 ( / ASSESSMENT YEAR : 2005-06) INCOME TAX OFFICER WARD 1(3), RAJKOT. / VS. SMT. NIRMALABEN D. G ANDHI, 302, RAMKRISHNA APARTMENT, B/H. SISTER NIVEDITA SCHOOL, UNIVERSITY ROAD, RAJKOT. !* # ./ + # ./ PAN/GIR NO. : ALZPG 5860 G ( *, / APPELLANT ) .. ( -*, / RESPONDENT ) *, . / APPELLANT BY : SHRI RAVI PRAKASH, D.R. -*, / . / RESPONDENT BY : -- NONE -- 0 1 / 2 / DATE OF HEARING 1 5 /03/2018 34 / 2 / DATE OF PRONOUNCEMENT 21 / 0 3 /201 8 5 / O R D E R PER MAHAVIR PRASAD JUDICIAL MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE REVENUE AGAINST THE APPELLATE ORDER OF THE COMMISSI ONER OF INCOME TAX(APPEALS)-XX, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-I/110/08-09 DATED 28/03/2014 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.144 R.W.S. 147 OF T HE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') D ATED 30/10/2008 RELEVANT TO ASSESSMENT YEAR (AY) 2005-06. ITA NO.398/RJT/ 2014 ITO VS. SMT. NIRMALABEN D. GANDHI ASSESSMENT YEAR 2005-06 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE REA D AS UNDER:- 1. THE DIRECTION OF THE LD. CIT(A)-XX, AHMEDABAD T O VERIFY THE CREDIT ENTRY IN BANK ACCOUNTS AMOUNTS TO SETTING AS IDE THE ASSESSMENT ORDER WHICH IS NOT WITHIN THE JURISDICTI ON OF THE LD. CIT(A). 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-XX, AHMEDABAD HAS ERRED IN LAW AND ON FACT OF THE CASE IN DIRECTING TO DELETE THE ADDITION OF RS.35,00,000/- ON ACCOUNT OF DEPOSIT IN BANK SUBJECT TO VERIFICATION OF WITH REG ARD TO CREDIT ENTRY OF DEMAND LOAN IN THE BANK ACCOUNT OF THE A SSESSEE. 3. ON THE FACTS OF THE CASE THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. IT IS FURTHER PRAYED THAT THE ORDER OF THE LD. C IT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT U/S.144 R.W.S. 147 WAS FINALIZED ON 30/10/2008 DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS.36,99,666/-. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THE ASSESSEE DEPOS ITED RS.35,00,000/- IN ACCOUNT NO.66000142966, STATE BAN K OF SAURASHTRA, GUNDAWADI BRANCH, RAJKOT. AS THE ASSESS EE FAILED TO FURNISH ANY EVIDENCE REGARDING ITS SOURCE THE AO AD DED IT TO THE TOTAL INCOME OF THE ASSESSEE. 4. THEREAFTER, ASSESSEE PREFERRED FIRST STATUTORY A PPEAL BEFORE THE LD. CIT(A) BUT LD. AO DELETED THE ADDITION OF RS.35 ,00,000/- WITH THE FOLLOWING OBSERVATION THAT DURING THE COURSE OF APP ELLATE PROCEEDINGS ON VERIFICATION OF THE BANK STATEMENT I T WAS FOUND THAT THIS CREDIT WAS ON ACCOUNT OF THE DEMAND LOAN TAKEN BY THE APPELLANT IN A SEPARATE DEMAND LOAN ACCOUNT NO.66000143812 BE ING APPELLANTS OWN NAME ON 28/03/2005. THE SAID DEMAND LOAN WAS ON THE SAME DAY TRANSFERRED TO THE APPELLANTS OWN AFO RESAID ACCOUNT NO.66000142966. SINCE THE SOURCE OF AFORESAID SUM O F ITA NO.398/RJT/ 2014 ITO VS. SMT. NIRMALABEN D. GANDHI ASSESSMENT YEAR 2005-06 - 3 - RS.35,00,000/- IS NOTHING BUT THE DEMAND LOAN TAKEN BY THE APPELLANT FROM THE SAME BANK, THERE IS NO QUESTION OF MAKING ANY ADDITION ON THIS ACCOUNT TOWARDS UNACCOUNTED CREDIT S. HENCE, THE ADDITION MADE BY THE AO IS DELETED SUBJECT TO THE V ERIFICATION OF THE AO WITH REGARD TO THE CREDIT ENTRY OF THE AFORESAID DEMAND LOAN IN THE AFORESAID BANK ACCOUNT. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. IN THIS CASE, LD. CIT(A) OUGHT TO HAVE ASKED FOR THE REMAND REPORT FROM THE AO AND AS PER THE LANGUAGE OF THIS ORDER IT APPEARS THAT LD. CIT(A) HAS SET ASIDE THE ORDER OF THE AO. 6. IN OUR CONSIDERED OPINION, U/S.251(1)(A) OF THE INCOME TAX ACT LD. CIT(A) IN HIS APPEAL AGAINST THE ORDER OF ASSE SSMENT, HE MAY CONFIRM, REDUCE, ENHANCE, OR ANNUAL ASSESSMENT, NOW HERE, IN THE SECTION IT IS MENTIONED THAT HE CAN SET ASIDE THE O RDER OF THE AO. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THIS MATTER BACK TO THE FILE OF THE CIT(A) TO PASS DETAI LED AND REASONED ORDER AS PER SECTION 251(1)(A) OF THE INCOME TAX AC T. 7. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 21/03/2018 SD/- SD/- ( ) ($ ) ! % ! ( PRADIP KUMAR KEDIA ) ( MAHAVIR PRASAD ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 21/03/2018 PRITI YADAV, SR. PS ITA NO.398/RJT/ 2014 ITO VS. SMT. NIRMALABEN D. GANDHI ASSESSMENT YEAR 2005-06 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -*, / THE RESPONDENT. 3. #8# 2 92 / CONCERNED CIT 4. 92 () / THE CIT(A)-XX, AHMEDABAD. 5. :; < %2%0 , , /DR,ITAT, RAJKOT 6. < = 1 / GUARD FILE. / BY ORDER, - :2 %2 //TRUE COPY// / ! '#$ ( DY./ASSTT.REGISTRAR) ! $%! &, / ITAT, RAJKOT 1. DATE OF DICTATION 19/03/2018(DICTATION-PAD 3 PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 20/03/2018 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