Appeal details
Counselvise Citation
[2012] 140 COUNSELVISE.COM (IT) 62817 (ITAT-RAJKOT)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 30 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
08-06-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
23-05-2012
Assessment Year
2008-2009
Appeal Filed On
09-12-2011
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T.K. SHARMA, JM AND SHRI D.K. SHRIVASTA VA, AM ITA-467/RJT-2011 / ASSESSMENT YEAR:-2008-09 INCOME-TAX OFFICER, WARD-2,SURENDRANAGAR. ( */ APPELLANT) SHRI TRAMBAKLAL DHANJIBHAI GOSALIA, PROP. OF MEET TRADERS, AMIZARA CHAMBERS, MEHTA MARKET SURENDRANAGAR. PAN NO.ADNPG1725C +,*/ RESPONDENT / V/S. * . /APPELLANT BY SHRI M.K. SINGH, D.R. +,* . / BY RESPONDENT WRITTEN SUBMISSION. . / DATE OF HEARING 23-05-2012 . / DATE OF PRONOUNCEMENT 08-06-2012 / / / / ORDER PER T.K. SHARMA, JM : THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DA TED 26-09- 2011 OF CIT(A)-XVI, AHMEDABAD FOR THE ASSESSMENT YE AR 2008-09. 2. BRIEFLY STATED THE FACTS ARE THAT IN THE ASSESSM ENT ORDER DATED 27-12-2010 FRAMED BY ASSESSING OFFICER UNDER SECTION 143(3) OF THE I.T. ACT. IN THIS ASSESSMENT ORDER, THE ASSESSING OFFICER MADE ADDITION OF RS.1 1,22,900/- ON ACCOUNT OF EXPLAINED CASH CREDIT, FOR THE DETAILED REASONS GIVEN IN PARA 5.1 OF THE ASSESSMENT ORDER. 3. ON APPEAL IN THE IMPUNGED ORDER, THE LD.CIT(A) DELETED THE SAID ADDITION FOR THE DETAILED REASON GIVEN IN PARA- 2.3 WHICH READS AS U NDER. 2 IT IS EVIDENT FROM THE COPY OF BANK ACCOUNT SENT B Y THE ASSESSING OFFICER THAT THE BANK ACCOUNT WAS IN NAME OF SHRI JASHWANTL AL D. GOSALIA, THE BROTHER OF THE ASSESSEE. THE DATE-WISE CASH DEPOSI T OF RS.11,22,900/- ARE VERIFIABLE FROM THE AFORESAID BANK ACCOUNT. IT IS CLEAR FROM THE BANK STATEMENT AND THE STATEMENT RECORDED U/S 131 OF THE ACT DATED 16-12- 2010 THAT NO CASH DEPOSIT WAS MADE BY THE ASSESSEE IN HIS BANK ACCOUNT. THE ASSESSING OFFICER WAS REQUIRED TO CLA RIFY THE POSITION FROM THE BANK WHEN THE ASSESSEE HAD DENIED REGARDING ANY CASH DEPOSIT IN HIS BANK ACCOUNT. HOWEVER, THE BURDEN WAS WRONGLY PLACED BY THE ASSESSING OFFICER ON THE ASSESSEE TO PRODUCE LETTER FROM THE BANK FOR MAKING ANY CLARIFICATION IN THIS REGARD. IT IS NOT EVIDENT HOW THE BANK AUTHORITIES WILL CARIFY IN THE CASE OF THE ASSESSEE WHEN NO CASH DEPOSIT WERE MADE IN HIS BANK ACCOUNT. THE BANK ACCOUNT WA S IN THE NAME OF SHRI JASHWANTLAL D. GOSALIA AND THE CASH DEPOSITED WERE APPEARING IN HIS BANK ACCOUNT. SHRI JASHWANTLAL D. GOSALIA CAN EXPL AIN THE CASH DEPOSIT MADE IN HIS BANK ACCOUNT AND ANY ADDITION FOR ANY U NEXPLAINED CASH DEPOSITS CAN BE MADE ONLY IN HIS BANK ACCOUNT. NO ADDITION OF THE CASH DEPOSITS IN HIS BROTHERS ACCOUNT CAN BE MADE IN TH E CASE OF THE ASSESSEE. THE ASSESSING OFFICER WAS THUS NOT JUSTI FIED IN MAKING THE ADDITION OF CASH DEPOSIT OF RS.11,22,900/- IN THE H ANDS OF THE ASSESSEE AND THE SAME IS HEREBY DELETED. THE FIRST GROUND O F APPEAL IF ACCORDINGLY ALLOWED. 4. AGGRIEVED WITH THE ORDER OF THE LD.CIT(A) ON THI S ISSUE THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS. 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION OF RS.11,22,900/- MADE ON ACCOUNT OF CASH CREDIT U/S 6 8 OF THE ACT. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN A PPRECIATING THAT THE BANK ACCOUNT WHERE IN THE ABOVE AMOUNT WAS DEPOSITED WAS HAVING PAN OF THE ASSESSEE AND THEREFORE, ALL THE TRANSACTIONS CARRIE D IN THIS ACCOUNTS BELONGS TO THE ASSESSEE ONLY. 3. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN TAKIN G ACCOUNT THE FACT THE ASSESSEE AVOIDED TO OBTAIN ANY WRITTEN CLARIFICATIO N FROM THE BANK AND TO PRODUCE BEFORE THE ASSESSING OFFICER TO SUBSTANTIAT E HIS CLAIM. THIS FACT ITSELF IS SUFFICIENT AND LEAD TO BELIEVE THAT THERE WAS NO CLERICAL MISTAKE IN THE RECORD AND ASSESSEES CONTENTION DOES NOT DESERVE A NY CONSIDERATION. 5. ON THE DATE OF FIXED FOR HEARING, NONE WAS PRESE NT ON BEHALF OF THE ASSESSEE. ONLY THE WRITTEN SUBMISSIONS WERE FILED. WE THEREFO RE PROCEED TO DECIDE THIS APPEAL ON THE BASIS OF WRITTEN SUBMISSION AND COMMENTS OF ASS ESSING OFFICER THEREON. SHRI M.K.SINGH, D.R. APPEARED FOR THE REVENUE CONTENDED THAT IN THE BANK ACCOUNT, PAN NUMBER OF THE ASSESSEE WAS MENTIONED THEREFORE, THE BANK ACCOUNT IN QUESTION BELONGING TO THE ASSESSEE AND NOT TO HIS BROTHER NA MELY SHRI JASHWANTLAL D. GOSALIA. HE FURTHER SUBMITTED THAT NEITHER BEFORE THE ASSESS ING OFFICER NOR BEFORE THE LD.CIT(A) THE ASSESSEE HAS FURNISHED CLARIFICATION FROM THE C ONCERNED BANK. THEREFORE, ADDITION OF RS.11,22,900/- MADE BY ASSESSING OFFICER UNDER SECT ION 68 OF THE I.T. ACT, BE RESTORED. 3 6. IN THE WRITTEN SUBMISSION THE ASSESSEE PLEADED T HAT BANK ACCOUNT WAS IN THE NAME OF HIS BROTHER OF THE ASSESSEE NAMELY SHRI JAS HWANTLAL D. GOSALIA AND NOT IN THE NAME OF THE ASSESSEE. ALL THE DEPOSIT IN THE SAID ACCOUNT WERE MADE BY THE ASSESSEES BROTHER AND NOT BY HIM. THEREFORE, VIEW TAKEN BY L D.CIT(A) BE UPHELD. 7. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW AND PURSUE THE MATERIAL PLACED BEFORE US. THE BANK ACCOUNT IN QUE STION WERE CASH IS DEPOSITED IS IN THE NAME OF SHRI JASHWANTLAL D. GOSALIA I.E. THE BR OTHER OF THE ASSESSEE. IN THE SAID ACCOUNT IN THE CASH WAS DEPOSITED. THE ONUS TO EXP LAIN THE SOURCE OF DEPOSIT IN THE SAID ACCOUNT IS OF SHRI JASJWANTLAL D. GOSALIA BROTHER O F THE ASSESSEE. THEREFORE, ADDITION IN QUESTION UNDER SECTION 68 WAS INCORRECTLY MADE BY A SSESSING OFFICER AND LD.CIT(A) LEGALLY AND FACTUALLY CREDIT IN DELETING THE SAME. WE, THEREFORE, DECLINE TO INTERFERE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. . 4 08/06/2012 ; . THIS ORDER PRONOUNCED IN OPEN COURT ON 08 / 06 / 2012 . SD/- SD/- ( D.K. SRIVASTAVA ) (T.K. SHARMA ) ( ) ( ) ACCOUNTANTMEMBER JUDICIAL MEMBER 4 / ORDER DATE 08/06 /2012 PUJARA. /RAJKOT . .. . +? +? +? +? @? @? @? @? / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-THE INCOME TAX OFFICER, WARD-2, SUREND RANAGAR. 2. +,* / RESPONDENT-SHRI TRAMBAKLAL DHANJIBHAI GOSALIA, S URENDRANAGAR. 3. B / CONCERNED CIT-V, AHMEDABAD. 4. B- / CIT (A)-XVI, AHMEDABAD. 5. ? +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.
