Shri Mithun N.Kapadia, Surat V. The ACIT.,Cent.Circle-4, Surat

ITA 447/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80386 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 10-09-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 11-02-2010
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: RAJESH SHAH AR
• Keywords: Unexplained investment

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD 0 00 0 0 00 0 , , , , ! ! ! ! ' #$% ' #$% ' #$% ' #$% #& #&#& #&0 00 0# ## #0 00 0 '& '& '& '&, , , , () * () * () * () * ( ' ( ' ( ' ( ' BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.S. SAINI, ACCOUNTANT % % % %./ ././ ./ ITA NO. 447/AHD/2010 & - $.- & - $.- & - $.- & - $.-/ // / ASSESSMENT YEAR: 2006-07 SHRI MITHUN N. KAPADIA, SURAT. PAN: AIEPK8406C VS INCOME TAX OFFICER, WARD-6(1), AHMEDABAD. /0/ (APPELLANT) 12 /0/ (RESPONDENT) REVENUE BY : SHRI VIMALENDU VERMA, DR ASSESSEE(S) BY : SHRI RAJESH SHAH, AR &$3 4 )/ // / DATE OF HEARING : 11/09/2014 56. 4 ) / DATE OF PRONOUNCEMENT: 19/09/2014 (7 (7 (7 (7/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XI, AHM EDABAD DATED 27.11.2009. 2. AT THE TIME OF HEARING, THE AUTHORIZED REPRESEN TATIVE OF THE ASSESSEE SUBMITTED THAT THE ONLY GRIEVANCE OF T HE ASSESSEE IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN SUSTAINING THE ADDITION MADE BY THE ASSESSING OF FICER OF GROSS PROFIT OF RS 6061/- ON ALLEGED UNEXPLAINED SALES OF RS 1,21,229/- AND ITA NO. 447/AHD/2010 SHRI MITHUN N. KAPADIA, SURAT. FOR A.Y. 2006-07 - 2 - ALSO MAKING ADDITION OF THE ENTIRE AMOUNT OF PURCHA SES OF RS 1,21,229/-. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE UNDISCLOSED SALES OF RS 1,21,229/ - WAS FOUND DURING THE COURSE OF SEARCH. THE ASSESSING OFFICER ADDED RS 6061/- BEING PROFIT AT THE RATE OF 5% ON SUCH SALE AND ALSO ADDE D RS 1,21,229/- AS UNEXPLAINED INVESTMENT IN PURCHASE OF UNRECORDED SA LES. 4. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) CONFIRMED BOTH THE ADDITIONS. 5. BEFORE US, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONCEDED THAT THERE IS NO GRIEVANCE IN RESPECT OF T HE ADDITION OF RS 6061/- ON ACCOUNT OF PROFIT ON SALE OF RS 1,21,229/ -. IN RESPECT OF UNEXPLAINED INVESTMENT IN PURCHASE, NO MATERIAL WAS BROUGHT BEFORE US TO SHOW THAT ANY UNEXPLAINED INVESTMENT WAS MADE . HOWEVER, BOTH THE PARTIES BEFORE US AGREED THAT ADDITION ON 25% OF THE IMPUGNED AMOUNT WOULD MEET THE ENDS OF JUSTICE. WE, THEREFORE, MODIFY THE ORDERS OF LOWER AUTHORITIES AND CONFIRM THE ADDITION TO THE EXTENT OF RS 6061/- ON ACCOUNT OF PROFIT ON SALE OF RS 2,21,229/- AND 25% OF THE PURCHASE AMOUNT ON ACCOUNT OF UNEXPLAINED IN VESTMENT IN PURCHASES. THUS, THE GROUND OF THE ASSESSEE IS PAR TLY ALLOWED. 6. GROUND NO. 5 OF THE APPEAL IS DIRECTED AGAINST ADDITION OF RS 20,72,888/- MADE ON ACCOUNT OF UNEXPLAINED INVES TMENT IN VARIOUS BANK ACCOUNTS. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE ITA NO. 447/AHD/2010 SHRI MITHUN N. KAPADIA, SURAT. FOR A.Y. 2006-07 - 3 - INSTANT CASE, THE ASSESSING OFFICER MADE ADDITION O F INCREMENTAL PEAK DEPOSITS TOTALLING TO RS 20,72,886/- U/S. 69 OF THE ACT IN THE FOLLOWING BANK ACCOUNTS WHICH WERE UNDISCLOSED BANK ACCOUNTS OF THE ASSESSEE: BANK NAME A/C NO. AMOUNT IN RS. (FY 05-06) CENTURION BANK OF PUNJAB 94207 1125 PANCHSHEEL CO-OP BANK LTD 4922 19 STATE BANK OF SAURASTRA 3247 81 CENTURION BANK OF PUNJAB 0041-097690-020 501000 CENTURION BANK OF PUNJAB 0041- 097734-020 1001000 CENTURION BANK OF PUNJAB 0047- 094207-001 16076 CENTURION BANK OF PUNJAB 0041-097715-051 553587 TOTAL 2072888 8. DURING THE COURSE OF HEARING, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE POINTED OUT FROM PAG E NO. 37 OF THE PAPER BOOK WHEREIN BANK STATEMENT OF CENTURION BANK LTD., SURAT FOR ACCOUNT NO. 0041097715051 IS PLACED, THAT A SUM OF RS 5,51,000/- WAS CREDITED ON 18.08.2004, RS 1,000/- WAS THE CASH DEPOSIT MADE ON 16.08.2004 AND RS 1587/- WAS THE INTEREST CREDIT ED ON 04.10.2004, TOTALLING TO RS 5,53,587/-. FURTHER, H E POINTED OUT FROM PAGE NO. 43 OF THE PAPER BOOK WHEREIN BANK STATEMEN T OF CENTURION BANK LTD., SURAT FOR ACCOUNT NO. 0041097690020 IS PLACED, THAT THE SUM OF RS 5,00,000/- WAS CREDITED ON 12.08.2004 AND RS 1,000/- WAS THE CASH DEPOSIT MADE ON 07.08.2004, TOTALLING TO RS 5,01,000/- FURTHER, HE POINTED OUT FROM PAGE NO. 53 OF THE PAP ER BOOK WHEREIN BANK STATEMENT OF CENTURION BANK LTD., SURAT FOR AC COUNT NO. 0041097734020 IS PLACED, THAT RS 5,00,000/- WAS CRE DITED ON 17.08.2004, ANOTHER RS 5,00,000/- WAS CREDITED ON 2 4.08.2004 AND RS 1,000/- WAS THE CASH DEPOSIT MADE ON 16.08.2004, TOTALLING TO RS 10,01,000/-. HE THEREFORE SUBMITTED THAT THE TOTAL DEPOSIT OF RS 20,55,587/- WAS RECEIVED IN THE FINANCIAL YEAR 2004 -05 RELEVANT TO ITA NO. 447/AHD/2010 SHRI MITHUN N. KAPADIA, SURAT. FOR A.Y. 2006-07 - 4 - THE ASSESSMENT YEAR 2005-06 AND NO ADDITION FOR THE SAME CAN BE MADE IN THE ASSESSMENT YEAR 2006-07. FOR THIS CONT ENTION, HE PLACED RELIANCE ON THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SMT. PREMILABEN A. JARIWALA VS. ACIT IN ITA NO. 155/AHD/2011 ORDER DATED 04.04.2014. 11. THE DEPARTMENTAL REPRESENTATIVE COULD NOT CONT ROVERT THE ABOVE SUBMISSION OF THE AUTHORIZED REPRESENTATI VE OF THE ASSESSEE. 12. ON THE ABOVE FACTS, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THIS BENCH OF THE TRIBUN AL IN THE CASE OF SMT. PREMILABEN A. JARIWALA VS. ACIT (SUPRA) WHEREI N THE TRIBUNAL HELD AS UNDER: AT THE TIME OF HEARING LEARNED COUNSEL OF THE ASSES SEE AT THE OUTSET SUBMITTED THAT THE DEPOSITS AMOUNTING TO RS10,43,994/- IN THE ACCOUNT WERE MADE BY ASSESSEE DURING THE ASSESSMENT YEAR 2005-06 AND THEREFORE ADDITION CANNOT BE MADE DURING THE YEAR UNDER APPEAL. CONCLUDING TH E ARGUMENT, LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ADDITIONS SO MADE BY AO AND SUSTAINED BY THE LD. CI T(A) MAY KINDLY BE DELETED. LD. DR ON THE OTHER HAND RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 7. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD PARTICULARLY PAGE NO. 48 AND 49 OF THE PAPER BOOK, WE AGREE WITH THE CONTENTIONS OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THESE DEPOSITS WERE MADE IN THE SAID BANK ACCO UNT DURING THE ASSESSMENT YEAR 2005-06 AND THEREFORE ADDITION CANNOT BE MADE DURING THE YEAR UNDER APPEAL FOR UNEXPLAINE D INVESTMENT. THE ADDITION SO MADE AND SUSTAINED BY L D. CIT(A) IS HEREBY DELETED. AO HOWEVER WILL BE AT LIBERTY T O TAKE COGNIZANCE OF THESE DEPOSITS FOR ASSESSMENT YEAR 20 05-06 AS PER LAW. THIS GROUND OF THE ASSESSEE IS ALLOWED. 13. RESPECTFULLY FOLLOWING THE ABOVE QUOTED DECI SION OF THE TRIBUNAL, WE SET ASIDE THE ORDERS OF LOWER AUTHORIT IES AND DELETE THE ADDITION OF RS 20,55,587/- BY HOLDING THAT THE DEPO SITS WERE MADE IN ITA NO. 447/AHD/2010 SHRI MITHUN N. KAPADIA, SURAT. FOR A.Y. 2006-07 - 5 - THE SAID BANK ACCOUNTS DURING THE ASSESSMENT YEAR 2 005-06 AND THEREFORE ADDITION CANNOT BE MADE DURING THE YEAR U NDER APPEAL FOR UNEXPLAINED INVESTMENT. HOWEVER, THE ASSESSING OFF ICER WILL BE AT LIBERTY TO TAKE COGNIZANCE OF THESE DEPOSITS IN THE ASSESSMENT YEAR 2005-06 AS PER LAW. FURTHER, WE OBSERVE THAT THE A UTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS MADE ABSOLUTELY NO SUBMISSIONS FOR THE ADDITIONS MADE IN THE FOLLOWING BANK ACCOUN TS: BANK NAME A/C NO. AMOUNT IN RS. (FY 05-06) CENTURION BANK OF PUNJAB 94207 1125 PANCHSHEEL CO-OP BANK LTD 4922 19 STATE BANK OF SAURASTRA 3247 81 CENTURION BANK OF PUNJAB 0047- 094207-001 16076 TOTAL 17301 THEREFORE, WE CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF THE ADDITION OF RS 17301/-. THUS, THIS GROUND OF APPEAL IS PARTLY ALLOWED. 14. NO OTHER POINT WAS ARGUED OR PRESSED BY THE AU THORIZED REPRESENTATIVE OF THE ASSESSEE. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 19 TH OF SEPTEMBER, 2014 AT AHMEDABAD. SD/- SD/- (G.C. GUPTA) VICE PRESIDENT ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 19/9/2014 GHANSHYAM MAURYA, SR. P.S.