My Shipping Private Limited, Suredranagar V. ACIT, Surendranagar Circle, , Surendranagar

ITA 461/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3859 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRI S N DIVETIA
• Keywords: Unexplained cash credit; Principle of natural justice; Condonation of delay; Reason to believe
• Section: 143(3); 142(1); 153A; 64; 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (CONDUCTED THROUGH VIRTUAL COURT) BEFORE: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER M/S SHIPPING PVT. LTD. SURENDRANAGAR PAN: AAFCM6819H (APPELLANT) VS THE ACIT, SURENDRANAGAR CIRCLE, SURENDRANAGAR (RESPONDENT) REVENUE BY: SHRI PURUSHOTTAM KUMAR, SR. D.R . ASSESSEE BY: SHRI SHRI S.N. DIVETIA , A.R. DATE OF HEARING : 04-10-2021 DATE OF PRONOUNCEMENT : 07-10-20 21 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THIS ASSESSEES APPEAL FOR A.Y. 2013-14, ARISES FRO M ORDER OF THE CIT(A)-7, SURENDRANAGAR DATED 25-10-2017, IN PROCEEDINGS UNDE R SECTION 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE REOPENING U/S 147 R.W.S. 148 IS BAD IN LAW AS THE REOPENING IS ON BASIS OF REASO N TO SUSPECT AND NOT REASON TO BELIEVE. 2] ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE REOPENING U/S 147 R.W.S 148 IS BAD IN LAW AS THE SATISFACTION RECORDED U/S 151(2) OF THE ACT IS NOT AS PER THE REQUIREMENT OF THE PROVISIONS OF THE ACT. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE C1T(A] ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICE IN MAKING AN ADDITION OF RS.450000/- ON ACCOUNT OF CASH DEPOSITED IN THE BANK IGNORING THE FACTS OF THE CASE. ITA NO. 461/AHD/2018 ASSESSMENT YEAR 2013-14 I.T.A NO. 461/AHD/2018 A.Y. 2013-14 PAGE NO MY SHIPPING PVT. LTD. VS. ACIT 2 4) ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT [A] AND AO PASSED THE ORDER WITHOUT GIVING PROPER OPPORTUNITY TO THE APPE LLANT AND IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 3. THERE WAS A SMALL DELAY OF 64 DAYS IN FILING THE INSTANT APPEAL BY THE ASSESSEE. IN THIS REGARD, THE ASSESSEE HAS APPLIED FOR CONDONATION OF DELAY AND FURNISHED AFFIDAVIT DATED 18 TH MARCH, 2020 FROM THE DIRECTOR SHRI JAYVEER SHAH. IN THE AFFIDAVIT, THE ASSESSEE HAS SUBMITTED THAT H E HAD SHIFTED TO MUMBAI AND NO- ONE WAS THERE AT HIS NATIVE PLACE, SURENDRANGAR TO RECEIVE THE NOTICES AND OTHER COMMUNICATIONS. THEREFORE, BECAUSE OF NON-COMMUNIC ATION, THERE WAS A DELAY OF 64 DAYS. 4. HEARD BOTH THE SIDE AND PERUSED THE MATERIAL ON RECORD. IT APPEARED THAT THERE IS A BONAFIDE REASON FOR FILING THE INSTANT A PPEAL BY A DELAY OF 64 DAYS. THEREFORE, WE CONDONE DELAY IN FILING THE INSTANT A PPEAL. 5. IN THIS CASE, ASSESSMENT WAS FINALIZED U/S. 143 (3) R.W.S. 147 OF THE ACT. THE BRIEF FACT OF THE CASE IS THAT IN RESPONSE TO NOTIC E U/S. 148, THE ASSESSEE HAS FILED RETURN OF INCOME ON 2 ND APRIL, 2016 SHOWING NIL INCOME. DURING THE COURS E ASSESSMENT, THE ASSESSING OFFICER STATED THAT AS PE R ITS DATA, ASSESSEE HAS MADE CASH DEPOSIT IN THE BANK ACCOUNT TO THE AMOUNT OF R S. 4,50,000/-. THE BREAK-UP OF THIS CASH DEPOSIT HAS BEEN GIVEN BY THE ASSESSING O FFICER AS UNDER:- SR. NO. DATE AMOUNT 1 28.03.2013 2,50,000/- 2 28.05.2012 2,00,000/- TOTAL 4,50,000/- THE ASSESSING OFFICER STATED THAT ASSESSEE ACCEPTED THAT HE WAS NOT ABLE TO EXPLAIN SUCH CASH DEPOSIT, THEREFORE, THE SAME WAS TREATED AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. I.T.A NO. 461/AHD/2018 A.Y. 2013-14 PAGE NO MY SHIPPING PVT. LTD. VS. ACIT 3 6. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT (A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE REITERATING TH E FACTS STATED BEFORE THE ASSESSING OFFICER. 7. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LD. COUNSEL HAS BROUGHT TO OUR NOTICE THAT ASSESSEE HAS NOT ADMITTE D BEFORE THE ASSESSING OFFICER THAT IMPUGNED CASH DEPOSIT WAS NOT EXPLAINABLE. TH E LD. COUNSEL HAS ALSO SUBMITTED THAT BEFORE THE LD. CIT(A) CASH WITHDRAWA L AND DEPOSIT WERE EXPLAINED AND BOOKS OF ACCOUNTS WERE PRODUCED BUT THE SAME WE RE NOT CONSIDERED BY THE LD. CIT(A). THE LD. COUNSEL HAS ALSO FILED ONE PAPER BOOK COMPRISING COY OF RETURN FILED, COMPUTATION OF TOTAL INCOME, DETAIL OF BANK ACCOUNT AND DETAIL SUBMITTED IN RESPONSE TO THE NOTICE U/S. 142(1) OF THE ACT. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LOWER AUTHORITIES. 8. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WITHOUT REITERATING THE FACTS AS ELABORATED ABOVE, AFTER PE RUSAL OF THE MATERIAL ON RECORD, IT IS OBSERVED THAT ASSESSING OFFICER HAS NOT MADE ANY SPECIFIC REFERENCE TO ANY NOTING ON THE ORDER SHEET OR TO ANY SHOW CAUSE NOTI CE VIDE WHICH ASSESSEE WAS ASKED TO PROVIDE EXPLANATION OF THE IMPUGNED CASH D EPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. IN SUPPORT OF HIS FINDINGS, THE A SSESSING OFFICER HAS ALSO NOT REFERRED ANY EVIDENCE TO SUBSTANTIATE THAT ASSESSEE HAS ADMITTED THE CASH DEPOSITED AS UNEXPLAINABLE. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING SPECIFIC REASON TO CONTRAVENE THE SUBMISSION MADE BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS. THE ASSESSING OFFICER HAS ALSO NOT POINTED OUT ANY DISCREPANCY NOTICED FROM THE BOOKS OF ACCOU NTS PRODUCED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN V IEW OF THE AFORESAID INFIRMITY FOUND IN THE ORDER OF THE ASSESSING OFFICER, WE RES TORE THIS ISSUE TO THE FILE OF THE I.T.A NO. 461/AHD/2018 A.Y. 2013-14 PAGE NO MY SHIPPING PVT. LTD. VS. ACIT 4 ASSESSING OFFICER FOR DECIDING DE-NOVO AFTER CONSID ERING THE SPECIFIC SUBMISSION TO BE FILED BY THE ASSESSEE AFTER AFFORDING REASONA BLE OPPORTUNITY TO THE ASSESSEE. ACCORDINGLY, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07-10-2021 SD/- SD- (MADHUMITA ROY) (AMARJIT SINGH) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD : DATED 07/10/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,