Smt. Anjuben M. Vaghaisiya, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(4), RAJKOT-GUJARAT

ITA 418/RJT/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5278 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 02-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: MJ RANPURA
• Keywords: Gift; Principle of natural justice; Additional evidence
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.418/RJT/2014 (ASSESSMENT YEAR : 2009-10) SMT. ANJUBEN M. VAGHASIYA ISHWAR, 9-INDRAPRASHANAGAR OPP. PANCHVATI SOCIETY AKSHAR MARG, RAJKOT VS. THE INCOME TAX OFFICER WARD-1(4) RAJKOT [PAN NO.AEVPV 5296 G] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI M.J. RANPURA, AR RESPONDENT BY : SHRI LALIT P. JAIN, SR.DR DATE OF HEARING 05/07/2018 DATE OF PRONOUNCEMENT 11/ 07 /2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN BEFORE US BY THE ASSE SSEE AGAINST THE ORDER DATED 28.04.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-I, RAJKOT [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2009-10 ARISING OUT OF THE ORDER DATED 09.12.2011 PASSED BY THE ITO, WARD-1(4), RAJKOT CHALLENGING T HE CORRECTNESS OF THE ORDER PASSED BY THE LD. CIT(A) IN REJECTING THE ADDITIONAL EVIDENCE S FILED IN THE FORM OF GIFT DEEDS AND COPY OF REVENUE RECORD IN FORM NO.7/12 IN CASE OF D ONOR SHRI AMRUTLAL RAKHOLIYA TO PROVE THE GENUINENESS OF GIFTS ALLEGEDLY APPLYING T HE PROVISIONS OF LAW UNDER RULE 46A OF THE INCOME TAX RULES, 1962 AND FURTHER IN MAKING ADDITION OF THE GIFT AMOUNT OF RS.17,30,000/- TREATING IT UNEXPLAINED CASH DEPOSIT S IN BANK ACCOUNT WITH IDBI. - 2 - ITA NO.418/RJT/2014 SMT. ANJUBEN M. VAGHASIYA VS. ITO ASST.YEAR 2009-10 2. THE FACTS OF THE CASE LEADING TO THE ISSUE IS T HIS THAT THE ASSESSEE BEING AN INDIVIDUAL RUNNING PROPRIETARY BUSINESS OF COACHING CLASS AND ALSO A PARTNER OF THE FIRM NAMELY M/S.ISHWAR DEVELOPERS. THE ASSESSEE FILED HER RETU RN OF INCOME DECLARING TOTAL INCOME OF RS.1,77,697/- AND AGRICULTURAL INCOME OF RS.79,180/ - ON 22.03.2010. DURING SCRUTINY, THE ASSESSEE WAS SERVED WITH THE NOTICE U/S.143(2) AND 142(1) OF THE INCOME TAX ACT.1961 UPON WHICH RELEVANT DOCUMENTS INCLUDING THE BOOKS O F ACCOUNTS WERE SUBMITTED AND THE SAME WAS DULY EXAMINED ON TEST CHECK BASIS BY THE A O. SUBSEQUENTLY, THE ASSESSEE WAS ASKED TO FURNISH COMPLETE DETAILS OF CASH DEPOSITS MADE IN THE BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION ALONG WITH BANK STATEMENT AND THE SOURCE OF SUCH CASH DEPOSITS ALONG WITH DOCUMENTARY EVIDENCES. DURING THE ASSESSMENT PROCEEDING, IT REVEALED THAT THE ASSESSEE APART FROM THE ACCOUNT WITH THE UNION BANK OF INDIA MAINTAINING AN ACCOUNT WITH IDBI BANK, STATEMENT WHEREOF SHOWS CREDITS IN CASH ON VARIOUS DATES AND ON SUBSEQUENT DATES BY CLEARING THE AMOUNT IS DEBITED TO MARWADI SHARE ACCOUNT. THE ASSESSEE WAS THEN ASKED TO FURNISH RELEVANT DOCUMENTS IN REGARD TO TH E TRANSACTION MADE WITH THE SAID IDBI BANK. THEREAFTER, THE ASSESSEE APPRISED THE ASSES SING OFFICER OF RECEIVING GIFT FROM HER RELATIVES AND ASSESSEE FURTHER ADDED THAT INHERITA NCE OF CERTAIN AMOUNTS ON THE DEATH OF HER FATHER-IN-LAW TOTALLING TO RS.17,50,000/-. H OWEVER, ULTIMATELY THE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT ACCEPTED BY THE AO AND ADDE D THE SAID AMOUNT RS.17,50,000/- TO THE TOTAL INCOME OF THE ASSESSEE TOWARDS THE CASH D EPOSIT IN THE BANK ACCOUNT AS CLAIMED TO BE THE GIFT AND OTHER RECEIPTS AS UNEXPLAINED AND U NRECORDED INVESTMENT U/S.69 OF THE ACT. 3. IN APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE SU BMITTED THE COPIES OF GIFT DEEDS AND THE COPY OF REVENUE RECORD IN FORM NO.7/12 IN REGAR D TO THE DONOR NAMELY SHRI AMRUTILAL RAKHOLIYA TO PROVE THE GENUINENESS OF GIFTS. HOWEV ER, THE SAME WAS REJECTED BY THE LD. CIT(A) APPLYING THE PROVISIONS OF RULE 46A OF THE I .T.RULES. THE LD. CIT(A) DELETED AN AMOUNT OF RS.20,000/- AS EXPLAINED BY WAY OF STREED HAN AND CONFIRMED THE REST AMOUNT OF RS.17,30,000/- AS UNEXPLAINED AND HENCE THE INSTANT APPEAL. - 3 - ITA NO.418/RJT/2014 SMT. ANJUBEN M. VAGHASIYA VS. ITO ASST.YEAR 2009-10 4.. AT THE TIME OF HEARING OF THE INSTANT APPEAL, T HE LD. AR CONTENDED BEFORE US THAT THE ADDITIONAL EVIDENCES AS MENTIONED HEREINABOVE WERE SUBMITTED DURING THE APPELLATE PROCEEDING WITH THE COGENT PLEA THAT THE ASSESSEE W AS NOT GIVEN REASONABLE OPPORTUNITY TO SUBMIT THIS ADDITIONAL EVIDENCES BEFORE THE LD. AO WHICH IS ALSO REFLECTED IN THE OBSERVATION MADE BY THE LD. CIT(A). HE THUS PRAYE D BEFORE US FOR A DIRECTION UPON THE LD.CIT(A) TO ACCEPT THE ADDITIONAL EVIDENCES FOR CO NSIDERATION OF THE MATTER AFRESH. 5. THE LD. DR DID NOT MAKE ANY OBJECTION TO THE CON TENTION MADE BY THE LD. AR. 6. HAVING HEARD THE LD. REPRESENTATIVES APPEARING F OR THE PARTIES AND HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULAR LY THE ORDER PASSED BY THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) OUGHT O HAVE GIVEN AN OPPO RTUNITY TO THE ASSESSEE TO ADDUCE ADDITIONAL EVIDENCES IN SUPPORT OF HIS CLAIM TO ADH ERE TO THE PRINCIPLE OF NATURAL JUSTICE AND THUS IN THE LARGER INTEREST OF JUSTICE THE MATTER BE REMANDED TO THE FILE OF LD. CIT(A). WE THEREFORE CONSIDER IT FAIR AND PROPER AND IN THE IN TEREST OF JUSTICE TO SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THE ISSUE IN DISPUTE AND R ESTORE THE MATTER TO THE FILE OF THE LD.CIT(A) TO DECIDE THE SAME AFRESH UPON GIVING THE ASSESSEE PROPER OPPORTUNITY OF HEARING AND TAKING INTO CONSIDERATION OF THE ENTIRE EVIDENCE ALREADY AVAILABLE ON RECORD AND THE EVIDENCES WHICH THE ASSESSEE MAY CHOOSE TO REL Y UPON INCLUDING THE ADDITIONAL EVIDENCES AS DISCUSSED ABOVE. 7. IN THE RESULT, THE APPEAL PREFERRED BY THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 11 / 0 7 /201 8 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/ 07 /2018 .., . ../ T.C. NAIR, SR. PS - 4 - ITA NO.418/RJT/2014 SMT. ANJUBEN M. VAGHASIYA VS. ITO ASST.YEAR 2009-10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-I, RAJKOT 5. '#$ , % , /DR,ITAT, RAJKOT 6. $23 45 / GUARD FILE. / BY ORDER, ' //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, RAJKOT 1. DATE OF DICTATION .. 5.7.2018 (DICTATION-PAD 11 - PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.7.2018 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.11.7.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.7.18 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