The ITO, Ward-1(2), JUNAGADH V. Shri Abdul Kadir Ibrahim Udia, Mangrol

ITA 439/RJT/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67266 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-04-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: SAMIR S JANI
• Keywords: Unexplained investment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH BEFORE: SHRI D.K. TYAGI , JUDICIAL MEMBER AND SHR I A. MOHAN ALANKAMONY , ACCOUNTANT MEMBER INCOME TAX OFFICER, WARD 1(2 ), JUNAGADH (APPELLANT) VS SRI ABDUL KADIR IBRAHIM UDIA, MANGROL (RESPONDENT) REVENUE BY : SRI AVINASH KUMAR , D . R. ASSESSEE BY: SRI SAMIR S. JANI , A.R. DATE OF HEARING : 25 - 04 - 2013 DATE OF PRONOUNCEMENT : 06 - 0 6 - 2013 / ORDER P ER : D.K. TYAGI , JUDICIAL MEMBER : - THIS IS THE REVENUE S APPEAL AG AINST THE ORDER OF LD. CIT(A) - IV RAJKOT DATED 30 - 08 - 2 011 . 2. THE REVENUE HAS TAKEN FOLLOWING THREE GROUNDS: - 1. LD.CIT(A) - IV, RAJKOT HAS ERRED IN LAW AND ON FACT IN DELETIN G THE ADDITION BY THE AO OF RS. 16 , 50,000/ - ON ACCOUNT OF UNSECURED LOAN I T A NO . 439 / RJT /20 11 A SSESSMENT YEAR 2008 - 09 I.T.A NO. 439/RJT/2011 A.Y. 2008 - 09 PAGE NO ITO VS. ABDUL KADIR IBRAHIM UDIA 2 TAKEN BY THE ASSESSEE FROM HIS RELATIVES, WITHOUT APPRECIATING THE FACTS BROUGHT OF RECORD BY A.O. 2. THE LD.CIT(A) - IV, RAJKOT HAS ERRED IN LAW AND ON FACT IN DELETING THE ADDITION MADE BY THE AO OF RS. 9,8L,700/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTIES, WITHOUT APPRECIATING THE FACTS BROUGHT OF RECORD BY THE AO. 3. THE LD.CIT(A) - IV, RAJKOT HAS ERRED IN LAW AND ON FACT IN DELETING THE ADDITION MADE BY THE AO OF RS. 17 , 97,577/ - ON ACCOUNT OF UNEXPLAINED CASH INVESTMENT, WITHOUT APPRECIATING THE FACTS BROUGHT OF RE CORD BY THE AO. 3. FIRST GR OUND RELATES TO ADDITION OF RS. 16,50,000/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LOANS TAKEN BY THE ASSESSEE FROM HIS RELATIVES. THE ASSESSEE S EXPLANATION BEFORE THE LOWER AUTHORITIES HAS BEEN THAT THESE LOANS WERE TAK EN BY THE ASSESSEE FROM HIS RELATIVES EITHER IN EARLIER FINANCIAL YEAR OR SUBSEQUENT FINANCIAL YEARS. LD. CIT(A) ACCEPTING THIS SUBMISSION OF THE ASSESSEE AND IN VIEW OF THE FACT THAT ASSESSING OFFICER HAS ALREADY REOPENED THE ASSESSMENT U/S 148 FOR EARLI ER YEAR ASSESSMENT YEAR S AS WELL AS SUBSEQUENT ASSESSMENT YEARS DELETED THESE ADDITIONS. SINCE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE IN THE LIGHT OF RE - OPENED ASSESSMENT FOR ASSESSMENT YEAR 2007 - 08 AND 2009 - 10 WE DEEM IT PROPER TO RESTORE THE MAT T ER BACK TO THE FILE OF A.O. FOR FRESH ADJUDICATION IN THE LIGHT OF HIS FINDING FOR ASSESSMENT YEAR 2007 - 08 AND 2009 - 10 IN RESPECT OF THESE LOANS. IN CASE THESE AMOUNTS HAVE BEEN CONSIDERED FOR ADDITION IN THESE YEARS, NO ADDITION IS CALLED FOR IN THIS YEAR ; OTHERWISE, THE AO WILL DECIDE THE ISSUE AS PER LAW. THIS GROUND O F REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. I.T.A NO. 439/RJT/2011 A.Y. 2008 - 09 PAGE NO ITO VS. ABDUL KADIR IBRAHIM UDIA 3 4. GROUN D NO. 2 RELATES ADDITION OF RS. 9,8 1,7 00 / - AS UNDISCLOSED INCOME ON ACCOUNT OF INVESTMENT IN PROPERTIES NOT HAVING BEEN EXPLAINED SATISFACTORILY BEFORE THE ASSESSING OFFICER. THE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE BY ACCEPTING THE SUBMISSION OF THE ASSESSEE THAT INVESTMENT OF THIS AMOU NT WAS MADE IN THESE PROPERTIES IN CASH AFTER ENCASHING FDR OF RS. 11.7 0 LAKHS DURING THE YEAR. LD. CIT(A) HA S FURTHER HELD THAT FDRS OF RS. 11.7 0 LAKHS WERE INVESTED IN THE EARLIER YEARS AND SOURCE OF SUCH INVESTMENT IN FDR WAS ALREADY UNDER INVESTIGATION BY ASSESSING OFFICER BY RE - OPENING OF ASSESSMENT FOR THESE YEAR S . T HEREFORE , THIS MATTER IS ALSO RESTORED BACK TO THE FILE OF A.O. FOR FRESH ADJUDICATION IN THE LIGHT OF HIS FINDING IN RESPECT OF INVESTMENT MADE BY THE ASSESSEE IN THE FDR IN EARLIER YEARS . THIS GROUND IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 5. THIRD GROUND RELATES TO ADDITION OF RS. 17,97,577/ - DUE TO CASH AND CHEQUE DEPOSITED IN ASSESSEES BANK. LD. CIT(A) HAS DELETED THIS ADDITION BY OBSERVING AS UNDER: 4.1 1 HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. APPELLANT HAD RECEIVED INTEREST OF RS 20800 A S INTEREST ON FD OF RS 11. 5 LAKH AT THE TIME OF ENCASHMENT ON 19 - 05 - 2007 IN THE BANK ACCOUNT NO. 555 OF ICICI. THIS INTEREST IS REFLECT ED IN THE PROFIT AND LOSS ACCOUNT OF APPELLANT AS PART OF THE INTEREST INCOME OF RS 26476 ALONG THE AGRICULTURAL INCOME AND RELIGION INCOME. THEREFORE THERE IS NO REASON TO TAX THE PART OF THIS RECEIPT AGAIN AS UNDISCLOSED INCOME BECAUSE THAT WOULD AMOUNT TO DOUBLE TAXATION OF THE SAME INCOME. AS FAR AS THE PRINCIPAL AMOUNT OF FD OF RS 11.5 LAKH IS CONCERNED, 1 HAVE ALREADY MENTIONED IN GROUND NO 3 ABOVE THAT FIXED DEPOSIT OF RS. 11,50,000/ - I S APPEARING IN THE BALANCE SHEET OF ASSESSMENT YEAR 2007 - 08 . AS SESSING OFFICER HAS ALREADY REOPENED THE AS SESSMENT OF ASSESSMENT YEAR 200 7 - 08 BY ISSUING NOTICE U/S 148 ON 25/03/2011 AND THE SOURCE OF SUCH FD IN I.T.A NO. 439/RJT/2011 A.Y. 2008 - 09 PAGE NO ITO VS. ABDUL KADIR IBRAHIM UDIA 4 ASSESSMENT YEAR 2007 - 08 IS ALREADY UNDER INVESTIGATION. THEREFORE THERE IS NO REASON T O CONSIDER THE ENCASHM ENT OF THIS FD AS UNEXPLAINED SOURCE OF INCOME IN ASSESSMENT YEAR UNDER APPEAL. I THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS 11,70,800/ - ON ACCOUNT OF MATURITY OF F D. IT IS CLEAR FROM THE ABOVE THAT THE CIT(A) HAS GIVEN RELI EF T O THE ASSESSEE ON SIMILAR LINES AS IN GROUND NO. 1 AND 2 AND THEREFORE , THE REASONS GIVEN BY US WHILE RESTORING THE MATTER BACK TO THE FILE OF A.O. IN RESPECT OF THESE GROUNDS, WILL HOLD GOOD IN RESPECT OF THIS GROUND ALSO AND THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR FRESH ADJUDICATION. THIS GROUND IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT , REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE, SD/ - SD/ - (A.MOHAN ALANKAMONY ) ( D. K.TYAGI ) ACCOUNTANT MEM BER JUDICIAL MEMBER AHMEDABAD: DATED /05 /2013 A K /LK ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE AT CAPTION PAGE. SD/ - SD/ - (D. K. SRIVASTAVA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER AEB EB / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT THE I.T.O., WARD - 1(2), JUNAGADH 2 . / RESPONDENT SHRI ABDUL KADIR IBRAHIM UDIA, PARSI BAUG, PORBANDAR ROAD, MANGROL 3 . W / CONCERNED CIT - III, RAJKOT 4 . - / CIT (A) IV, RAJKOT 5 . TT W , P W , / DR, ITAT, RAJKOT 6 . [ / GUARD FILE. //TRUE COPY// BY ORDER/ , H TW PW ,