The ITO, Ward-1(2), JUNAGADH V. M/s. Ajay Oil Agency, Mangrol

ITA 40/RJT/2011

• Counselvise Citation: 4024914 RSA 2011
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-03-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 11-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: SAMIR JANI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM ITA NO. 40/RJT/2011 / ASSESSMENT YEAR 2005-06 I.T. O., WARD-1(2), JUNAGADH. M/S.AJAY OIL AGENCY, OLD BUS STATION,MANDIR ROAD,MANGROL. ) / REVENUE BY SHRI M.K. SINGH, DR +) ASSESSEE BY SHRI SAMIR JANI, CA. ) / DATE OF HEARING 27-03-2012. ) /DATE OF PRONOUNCEMENT 27 -04-2012. / / / / ORDER . .. . . . . . / D. K. SRIVASTAVA: THE APPEAL FILED BY THE DEPARTMEN T IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 23-12-2010 ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10 LAKHS MADE BY THE A.O. ON ACCOUNT OF UNEXPLAI NED CASH CREDIT REFLECTED IN THE BOOKS OF THE ASSESSEE. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE A.O. 3. ON THE FACTS OF THE CASE AND IN LAW THE LD. CIT( A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 4. ANY OTHER GROUND THAT THE REVENUE MAY RAISE BEFO RE OR DURING HEARING PROCEEDINGS BEFORE THE HON;BLE I.T.A.T. 5. IT IS THEREFORE PRAYED THAT THE ORDER OF CIT(A)- IV, RAJKOT MAY KINDLY BE SET-ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED . 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED ITS RETURN OF INCOME ON 27-09-2005 DECLARING ITS TOTAL INCOME AT NIL. AFTER PROCESSING, THE RETURN WAS TAKEN UP FOR SCRUTINY. IT WAS FOUND BY AO THAT THE ASSESSEE HAD RECORDED CASH CREDITS AGGREGATING TO RS.10 LAKHS IN THE YEAR UNDE R CONSIDERATION WHICH WERE SQUARED-UP WITHIN THE YEAR ITSELF. ON BEING ASKED B Y THE A.O. TO EXPLAIN THE NATURE AND SOURCE OF THE AFORESAID CASH CREDITS, THE ASSES SEE DID NOT FILE ANY EVIDENCE TO ESTABLISH THEIR GENUINENESS. RELUCTANTLY, THE AO TR EATED THEM AS UNEXPLAINED AND ITA 40/RJT/2011 2 CONSEQUENTLY TAXED THE SAME. ON APPEAL, THE LD. CIT (A) HAS DELETED THE ADDITION WITH THE FOLLOWING OBSERVATIONS:- 10. I HAVE CAREFULLY CONSIDERED THE WRITTEN SUBMI SSION OF THE LEARNED A. R. IN REGARDS MADE U/S.68 OF THE ACT OF RS.10,00,000/-. IT IS OBSERVED THAT SINCE ALL FORMALITIES LIKE AFFIDAVIT OF THE DEPOSITOR, SOURCE AND CAPACITY OF THE DEPOSITOR, AS LAID DOWN U/S.68 OF T HE ACT HAVE BEEN FILED AND THE IDENTITY, CAPACITY AND GENUINENESS OF THE DEPOS ITOR ARE PROVED BEYOND DOUBT I AM INCLINED TO ACCEPT THE CONTENTION OF THE A. R. AND DELETE THE ADDITION MADE OF RS.10,00,000/- U/S.68 OF THE ACT. 3. IN SUPPORT OF APPEAL, THE LEARNED DEPARTMENTAL R EPRESENTATIVE SUBMITTED THAT NO EVIDENCE TO EXPLAIN THE NATURE AND SOURCE O F CASH CREDITS WAS FILED BEFORE THE ASSESSING OFFICER AND THEREFORE THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE IMPUGNED ADDITION. HIS SECOND SUBMISSION WAS THAT THE CIT(A) WAS NOT JUSTIFIED IN ACCEPTING THE EVIDENCE LIKE AFFIDAVIT OF CREDITORS, THEIR CONFIRMATIONS ETC., ON THE BACK OF THE AO WITHOUT GIVING ANY OPPORTUNITY TO TH E AO TO REBUT THEM. 4. IN REPLY, THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUPPORTED THE ORDER PASSED BY THE CIT(A). HE SUBMITTED THAT THE E VIDENCES FURNISHED BY HIM BEFORE THE CIT(A) WERE ALSO FURNISHED BEFORE THE AO AFTER COMPLETION OF ASSESSMENT ON 04-12-2007. 5. WE HAVE HEARD BOTH THE PARTIES. IT IS QUITE APPA RENT ON BARE PERUSAL OF THE ORDER PASSED BY THE AO AND CIT(A) THAT THE RELEVANT INFORMATION/EVIDENCE TO ESTABLISH THE GENUINENESS OF THE CASH CREDITS WAS N OT FILED BEFORE THE AO BEFORE COMPLETION OF ASSESSMENT. THEY WERE HOWEVER FILED B EFORE THE CIT(A). THE ASSESSING OFFICER DID NOT HAVE ANY OPPORTUNITY TO E XAMINE THEM. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE CIT(A) IN THIS REGA RD IS SET-ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO FOR A FRESH DECISION IN CONFORMITY WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE APPEAL FILED BY THE DEPARTMENT IS TREATED AS ALLOWED FOR STATISTICAL PU RPOSES. ) 2 27/04/2012 4 ) THIS ORDER PRONOUNCED IN OPEN COURT ON 27-04-2012. SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER 2/ DATE 27/ 04/2012. /RAJKOT ITA 40/RJT/2011 3 ) )) ) 67 67 67 67 87 87 87 87 / COPY OF ORDER FORWARDED TO:- 1. ; / APPELLANT 2. 6=; / RESPONDENT 3. @ / CONCERNED CIT 4. @- / CIT (A) 5. 7 6, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.