Mrs. (Dr.) Samiraben Nayanbhai Parikh, Ahmedabad V. ITO, Ward-7(1)(5), Ahmedabad

ITA 406/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8778 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM S SHARMA
• Keywords: Principle of natural justice
• Section: 133(6); 201; 143(2); 69A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MRS. (DR.) SAMIRABEN NAYANBHAI PARIKH, 7, KRISHNAKUNJ APARTMENT RAMBAG MANINAGAR, AHMEDABAD PAN: AFFPP0711F (APPELLANT) VS THE IT O , WARD - 7 ( 1 )(5 ) , NATUREVIEW BUILDING, AHMEDABAD (RESPONDENT) REVENUE BY : S H RI VIKRAM S. SHARMA , SR. D . R. ASSESSEE BY: SHRI GAURAV NAHTA , A.R. DATE OF HEARING : 26 - 07 - 2 019 DATE OF PRONOUNCEMENT : 16 - 09 - 2 019 / ORDER P ER : AMARJI T SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2014 - 15 , ARI SES FROM ORDER OF THE CIT(A) - 7, AHMEDABAD DATED 20 - 11 - 2 017 , IN PROCEEDINGS UNDER SECTION 1 4 3(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOW ING GROUNDS OF APPEAL: - 1.1 THE ORDER PASSED U/S.250 ON 20 - 11 - 2017 FOR A.Y.2014 - 15 BY CIT(A) - 7, ABAD UPHOLD ING THE ADDITION OF RS.8,84,000/ - TOWARDS CASH DEPOSITS IN BANK ACCOUNT WITH KCCB AS UNEXPLAINED MONEYS U/S.69A MADE BY AO IS WHOLLY ILLEGAL, UNL AWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. I T A NO . 406 / A HD/20 1 8 A SS ESSMENT YEAR 2014 - 15 I.T.A NO. 406 /AHD/20 18 A.Y. 2014 - 15 PAGE NO MRS. (DR.) SAMIRABEN NAYANBHAI PARIKH VS. IT O 2 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENCE PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNE D ADDITION. IN ANY CASE, THE LD. CIT(A) OUGHT TO HAVE ALLOWED OPPORTUNITY TO THE APPELLANT TO PRODUCE THE DETAILS RELATING TO HUSBAND WHICH HER AR HAD FAILED TO PRODUCE. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.8 ,84,000/ - TOWARDS CASH DEPOSITS IN BANK ACCOUNT WITH KCCB AS UNEXPLAINED MONEYS U/S.69A. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) OUGHT NOT TO HAVE UPHELD THE THE ADDITION OF RS.8,84,000/ - TOWARDS CASH DEPOS ITS IN BANK ACCOUNT WITH KCCB AS UNEXPLAINED MONEYS U/S.69A. 3.1 WITHOUT PREJUDICE TO THE ABOVE AND IN ALTERNATIVE BOTH THE LOWER AUTHORITIES OUGHT TO HAVE ALLOWED CREDIT FOR THE WITHDRAWALS MADE IN PAST I.E REDEPOSIT OUT OF PREVIOUS WITHDRAWAL AND PA ST SAVINGS. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS. 8,84,000/ - UPHELD BY THE CIT(A) MAY KINDLY BE DELETED. 3. THE ASSESSEE HAS ALSO RAISED FOLLOWING ADDITIONAL GROUNDS OF APPEAL: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN TREATING SHORT TERM CAPITAL GAIN AT RS. 3,10,993/ - WHEREAS IN ACTUAL THERE IS A SHORT TERM CAPITAL LOSS OF RS. 18,49,798/ - . 4 . IN THE GROUND OF APPEAL 1.1 TO 3.1 , THE ASSESSE HAS MAINLY CONTESTED THE ADDITION OF RS. 8,84,000/ - TOWARDS CASH DEPOSI T FOUND IN HER BANK ACCOUNT MAINTAINED W ITH KALUPUR COMMERCIAL BANK. T HE ADDITIONAL GROUND OF APPEAL HAS BEEN FILED AGAINST THE DECISION OF LD. CIT(A) IN TREATING SHORT TERM CAPITAL GAIN AT RS. 3,10,993/ - WHEREAS I N ACTUAL THERE WAS A SHORT TERM CAPIT AL GAIN OF RS. 18,49,798/ - . 5. THE FACT IN BRIEF IS THAT ASSESSEE HAS FILED RETURN OF INCOME ON 26 TH JULY, 2014 DECLARING TOTAL INCOME AT RS. 19 , 51 , 470/ - . THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S. 143(2) OF THE ACT ON 3TH SEP, 20 16. THE AS SESSEE WAS EMPLOYED AS DOCTOR WITH B.J. MEDICAL COLLEGE, AHMEDABAD. DURING THE COURSE OF ASSESSMENT, THE AUTHORIZED RE PRESENTATIVE OF THE ASSESSEE SUBMITTED THE COPY OF RETURN OF INCOME, COPY OF 26AS AND COPY OF BANK STATEMENT ETC. ON THE BAS IS OF AIR INFORMA TION, THE ASSESSING OFFICER NOTICED THAT THERE WAS HIGH VALUME OF EQUITY SHARES TRANSACTION REPORTED IN I.T.A NO. 406 /AHD/20 18 A.Y. 2014 - 15 PAGE NO MRS. (DR.) SAMIRABEN NAYANBHAI PARIKH VS. IT O 3 THE IT RETURN AND NO CAPITAL GAIN WAS OFFERED BY THE ASSESSEE IN THE INCOME TAX RETURN. THE ASSESSING OFFICER HAS COLLECTED INFORMATION U/S. 133(6) FROM THE BROKER OF THE ASSESSEE NAME LY, KOTAK SECURITY PVT. LTD. AND FOUND THAT ASSESSEE HAS MADE PROFIT OF R S. 10 , 62 ,962/ - F R O M TRADING IN SHARES IN F.Y. 2013 - 14. ON FURTHER VERIFICATION OF STATEMENT OF SAVING BANK ACCOUN T OF THE ASSESSEE MAINTAI NED AT KALUMPUR COMMERCIAL CO - OPERATIVE BANK AND AXIS BANK, I T WAS NOTICED THAT A SSESSEE HAS MADE CASH DEPOSIT IN THE KALUP U R COMMERCIAL CO - OPERATIVE BANK AND THERE WAS SHARE TRANSACTION IN AXIS BANK ACCOUNT. THEREAFTER, THE ASSESSING OFFICER HAS ISSUED S HOW CAUSE TO THE ASSESSEE STATING THAT SHE HAS EARNED PROFIT OF RS. 10 , 62 , 962/ - FROM TRADING IN SHARE WHICH WAS NOT REPORTED IN THE RETURN OF INCOME AND THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE SAME SHOULD NOT BE ADDED TO HER TOTAL IN COME. O N VERIFICATIO N OF TRANSACTION IN THE SAVING BANK ACCOUNT MAINTAINED WITH KALUPUR COMMERCIAL CO - OPERATIVE BANK LTD, THE ASSESSING OFFICER ALSO NOTICED THAT THERE WAS CASH DEPOSIT OF R S. 8,84,000/ - . THE ASSESSEE EXPLAINED THAT SHE HAS EARNED LONG TERM CAPITAL GAIN ON T HE SHARES PURCHASED IN EARLIER YEARS AND CLAIMED THAT SAME WAS EXEMPT FROM INCOME TAX AND THERE WAS SHORT TERM CAPITAL GAIN OF R S. 3 , 10 , 993/ - FROM SHARE TRADING. THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 3 , 10 , 993/ - TREATING THE SAME AS PROFIT FROM S HARE TRADING. REGARDING UNEXPLAINED CASH OF RS. 8,84,000/ - , THE ASSESSEE EXPLAINED THAT THE AMOUNT WAS DEPOSITED IN HER ACCOUNT BY HER HUSBAND WHO WAS JOINT ACCOUNT HOLDER OF THE SAVING BANK ACCOUNT MAINTAINED WITH KALUPUR COMMERCIAL CO - OPERATIVE BANK LTD . DURING THE COURSE OF ASSESSMENT, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WAS ASKED TO FURNISH THE COPY OF INCOME TAX RETURN OF THE HUSBAND OF THE ASSESSEE WHO WAS ALSO EMPLOYED AS DOCTOR IN THE CIVIL HOSPITAL AS DOCTOR, H OWEVER, I.T.A NO. 406 /AHD/20 18 A.Y. 2014 - 15 PAGE NO MRS. (DR.) SAMIRABEN NAYANBHAI PARIKH VS. IT O 4 HE HAS FAILED TO MAKE NECESSARY COMPLIANCE , THEREFORE , THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 8 , 84 , 000/ - U/S. 69A OF THE ACT. 6. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 8,84,000/ - AS UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE U/S. 69 A OF THE ACT AND TREATED THE PROFIT FROM SHAR E TRANSACTION AS PROFIT EARNED FROM SHARE TRADING . THE ASSESSEE HAS FAILED TO FURNISH THE COPY OF RETURN, COMPUTATION OF TOTAL INCOME AND PAN NO. OF ASSESSEE S HUSBAND SHRI NAYANBHAI PARIK H WHO WAS EMPLOYED IN THE CI VIL HOSPITAL AS DOCTOR. CONSIDERING THE ABOVE CIRCUMSTANCES, THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITIONS AS THE GENUINENESS OF TRANSACTIONS COULD NOT BE VERIFIED ON ACCOUNT OF NON - FURNISHING OF THE REQUIRED DETAILS BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, IT IS OBSERVED THAT THE ASSESSING OFFICER HAS NOT ISSUED ANY SHOW CAUSE TO THE ASSESSEE WITH DETAILED REASON FOR MAKING THE DISALLOWANCES , THEREFORE , WE ARE OF THE VIEW THAT IT WILL BE APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF ASSESSING OFFICER FOR DECIDING AFRESH INCLUDING ADDITIONAL GROUND OF APPEAL FILED BY THE ASSESSEE AFTER VERIFICATION AND EXAMINATION OF THE RELEVANT MATERIAL TO BE FURNISHED BY THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE DETAIL PERT AINING TO THE INCOME TAX RETURN, PAN ETC. OF HER HUSBAND DURING THE COURSE OF SET A SIDE ASSESSMENT PROCEEDINGS WITHOUT ANY FAILURE. ACCORDINGLY, THE CASE IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR DECIDING I.T.A NO. 406 /AHD/20 18 A.Y. 2014 - 15 PAGE NO MRS. (DR.) SAMIRABEN NAYANBHAI PARIKH VS. IT O 5 AFRESH AS DIRECTED ABOVE AFTER AFFORDING AD EQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 16 - 09 - 201 9 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 16 /09 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,