Shri Kasambhai K. Vohra, Kheda V. The Income Tax Officer, Ward-3, Nadiad

ITA 411/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6592 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 17-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: BALKRISHNA THAKKAR
• Keywords: Additional evidence
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, SURAT BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.411/AHD/2017 (ASSESSMENT YEAR : 2012-13) SHRI KASAMBHAI K. VOHRA, 12, NATIONAL PARK SOCIETY, MEHEMDABAD, DISTT: KHEDA - 387 411. VS. INCOME TAX OFFICER, WARD-3, NADIAD. [PAN NO. ABBPV 3770 E] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI BALKRISHNA THAKKAR, A.R. RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. DATE OF HEARING 07/01/2019 DATE OF PRONOUNCEMENT 22/01/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 22.11.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 2, VADODARA ARISING OUT OF THE ASSESSMENT ORDER DATED 20.03.2015 FOR THE ASSESSMEN T YEAR 2012-13 PASSED BY THE ITO, WARD-3, NADIAD UNDER SECTION 143(3) OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) WITH THE FOLLOWING GROUNDS: THE LEARNED CIT-APPEALS HAS ERRED IN LAW AND FACTS IN CONFIRMING THE UNSECURED LOAN AS UNDISCLOSED INCOME OF RS.39,89,378/-. THE S AME BEING BAD IN LAW AND BE DELETED NOW. 2. THE ASSESSEE BEING AN INDIVIDUAL FILED HIS RETUR N OF INCOME ON 21.09.2012 DECLARING TOTAL INCOME AT RS.6,07,099/-. UPON SCRUT INY A NOTICE U/S 143(2) OF THE ACT WAS ISSUED UPON THE ASSESSEE ON 08.08.2013 FOLLOWED BY AN ANOTHER NOTICE DATED 27.08.2014 U/S 139D(C) R.W.S. 142(1), IN RESPONSE WHEREOF THE ASSESSEE FURNISHED HIS REPLY ON - 2 - ITA NO.411/A/17 KASAMBHAI K. VOHRA VS. ITO ASST.YEAR 2012-13 05.09.2014. A DETAILED QUESTIONNAIRE ISSUED ON 19.0 9.2014 ALONG WITH A NOTICE U/S 142(1) R.W.S. 129 WAS ALSO SERVED UPON THE ASSESSEE. DURIN G THE ASSESSMENT PROCEEDING UPON VERIFICATION OF THE PROFIT AND LOSS ACCOUNT IN TAX AUDIT REPORTED SO SUBMITTED BY THE ASSESSEE, IT APPEARED THAT THE ASSESSEE HAS TAKEN U NSECURED LOAN FROM GULAMNABIBHAI YAKUBBHAI VOHRA TO THE TUNE OF RS.32,00,000/- ON 29 .08.2011 AND RS.39,38,378/- ON 21.10.2011. IN SPITE OF REPEATED OPPORTUNITIES GIVE N BY THE ASSESSEE, THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE TRANSACTION IN RES PECT OF THE UNSECURED LOAN TAKEN ON 21.10.2011 TO THE TUNE OF RS.39,38,378/-. SINCE THE SAID SHRI VOHRA WAS RESIDING IN USA, THE DETAILS WHEREOF SO ASKED BY THE ASSESSING OFFICER RELATING TO THE TRANSACTION WAS NOT AVAILABLE WITH THE ASSESSEE. ULTIMATELY, TH E LEARNED ASSESSING OFFICER TREATED SUCH DEPOSITS AS BOGUS AND CONFIRMED THE SAME IN TH E HANDS OF THE ASSESSEE. SUCH ADDITION U/S 68 WAS CHALLENGED BY THE ASSESSEE WITH THE ARGUMENT THAT THE AO HAS ACCEPTED RS.32,00,000/- AND REJECTED RS.39,38,378/- RECEIVED DIRECTLY CREDITED IN ASSESSEES BANK ACCOUNT ON 21.10.2011. THE BANK CER TIFICATE FOR THE BANK OF INDIA DATED 19.01.2016 REGARDING THE CREDIT OF BILL ID NO. 2000 IRT11002938, COPY OF TAX RETURN OF THE SHRI GULAMNABI YAKUBBHAI VOHRA AS PROOF OF INCO ME ALONG WITH THE USA PASSPORT WERE ALSO FILED. HOWEVER, THE BANK STATEMENT OF THE DEPOSITORS WHEREFROM LOAN OF RS.39,38,378/- HAS BEEN RECEIVED BY THE ASSESSEE WA S NOT FURNISHED AS DESIRED BY THE LEARNED AO, NEITHER PLACED BEFORE THE FIRST APPELLA TE AUTHORITY; CONSIDERING THIS ASPECT OF THE MATTER, ORDER PASSED BY LEARNED AO WAS CONFI RMED AND HENCE THE APPEAL BEFORE US. 3. AT THE TIME OF HEARING OF THE MATTER THE LEARNED ADVOCATE APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE DOCUMENTS WHI CH WAS DIRECTED TO BE FURNISHED BY THE LEARNED AO WAS NOT AVAILABLE WITH THE ASSESSEE AT THAT MATERIAL POINT OF TIME. THE ASSESSEE WAS UNABLE TO OBTAIN THE DOCUMENTS LYING W ITH THE SAID NRI RESIDING AT USA. HOWEVER, THE AFFIDAVIT FILED BY THE ASSESSEE RELATI NG TO THE DETAILS OF THE TRANSACTION, FOREIGN REMITTANCE ADVICE/CERTIFICATE, AFFIDAVIT AF FIRMED BY GULAMNABI YAKUBBHAI - 3 - ITA NO.411/A/17 KASAMBHAI K. VOHRA VS. ITO ASST.YEAR 2012-13 VOHRA, PASSPORT, BANK STATEMENT AS WELL AS US TAX R ETURN OF THE SAID GULAMNABI VOHRA ALONG WITH FURTHER DOCUMENTS WERE PLACED BEFORE US. IT WAS FURTHER SUBMITTED BY THE LEARNED AR BEFORE US THAT SINCE THOSE DOCUMENTS WER E NOT AVAILABLE WITH THE ASSESSEE DURING THE ASSESSMENT PROCEEDING OR IN THE APPELLAT E STAGE THE SAME COULD NOT BE PLACED BEFORE THE AUTHORITIES BELOW AND HENCE THE ADDITION AL DOCUMENTS ARE TO BE CONSIDERED BY US. THE LEARNED REPRESENTATIVE APPEARING FOR THE RE VENUE, HOWEVER, DID NOT RAISE ANY SERIOUS OBJECTION TO THE FAIR SUBMISSION MADE BY TH E LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD THE RESPECTIVE PARTIES, PERUSED TH E MATERIALS AVAILABLE ON RECORD INCLUDING THE DOCUMENTS SO PLACED BEFORE US BY THE ASSESSEE AS THE ADDITIONAL EVIDENCES FOR PROPER ADJUDICATION OF THE MATTER. THE REASONS SO ASSIGNED BY THE LEARNED COUNSEL FOR THE ASSESSEE FOR NOT FURNISHING THOSE DOCUMENTS BEF ORE THE AUTHORITIES BELOW SEEMS TO BE JUSTIFIED. TAKING INTO CONSIDERATION THE ENTIRE ASP ECT OF THE MATTER, WE DEEM IT FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF THE LEARNE D AO FOR FRESH ADJUDICATION OF THE SAME. WHILE DOING SO, WE FURTHER DIRECT THE LEARNED AO TO GIVE A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND ALSO TO TAKE INTO CONSI DERATION EVIDENCES SO PLACED BEFORE US OR ANY FURTHER EVIDENCE WHICH THE ASSESSEE MAY CHOO SE TO FILE AT THE TIME OF THE HEARING OF THE ASSESSMENT PROCEEDING AND TO PASS A REASONED ORDER THEREOF. THUS, ASSESSEES GROUND OF APPEAL IS THUS ALLOWED FOR STATISTICAL PU RPOSES. 5. IN THE RESULT, ASSESSEES APPEAL IS THUS PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22/01/2019 SD/- SD/- ( AMARJIT SINGH ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22/01/2019 PRITI YADAV, SR.PS - 4 - ITA NO.411/A/17 KASAMBHAI K. VOHRA VS. ITO ASST.YEAR 2012-13 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-2, VADODARA. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 07/01/2019 (DICTATION PAGE 5) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 08/01/2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 10/01/2019 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