Rajendra Shandilya, Bhopal V. ITO-3(2), Bhopal

ITA 490/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4936 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-09-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH PORVAL
• Assessee Lawyers: N D PATVA ARS
• Keywords: Gift; Opportunity of being heard; Additional evidence; Initiation of penalty proceedings; Set aside
• Section: 234B; 44AB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.490/IND/2019 ASSESSMENT YEAR: 2011-12 SHRI RAJENDRA SHANDILYA, LIG-182, SECTOR-A, SONAGIRI, BHOPAL / VS. ITO - 3 ( 1 ) BHOPAL (APPELLANT) (REVENUE) P.A. NO. BAYPS339 8J APPELLANT BY S/ SHRI ASHISH GOYAL & N.D. PATVA, ARS RE VENUE BY SHRI ASHISH PORVAL , SR. DR DATE OF HEARING: 17.09.2020 DATE OF PRONOUNCEMENT: 30.09.2020 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX APPEALS [CIT(A)], BHOPAL DATED 22.03.2014 PERTAINING TO THE ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION O F RS.16,86,300/- BEING ADDITION MADE IN CAPITAL RAJENDRA SHANDILYA /ITANO.490/2019 2 ACCOUNT WITHOUT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE SAID AMOUNT IS RECEIVED BY THE ASSESSEE FROM FATHER AS GIFT AND ASSESSEES FATHER HAS CAPACITY TO GIVE THE AMOUNT TO THE ASSESSEE WHICH IS UNJUST, UNFAIR AND DESERVES TO BE DELETED. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CHARGING OF INTEREST U/S 234B IS NOT JUSTIFIE D. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, INITIATION OF PENALTY PROCEEDINGS U/S 271(1)( C) IS NOT JUSTIFIED. 4. THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE , TO ALTER OR TO AMEND ANY OF THE GROUNDS OF APPEAL O N OR BEFORE THE DATE OF HEARING. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE IS INDIVIDUAL ENGAGED IN THE BUSINESS OF STAMP VENDOR. THE ASSESSEE MAINTAINS REGULAR AND PROPER BOOKS OF ACCOUNT WHICH ARE AUDITED U/S 44AB OF THE INCOME TA X ACT 1961 (HEREINAFTER REFERRED AS THE ACT). THE ASSE SSEE HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RAJENDRA SHANDILYA /ITANO.490/2019 3 RS.1,58,330/-. THEREAFTER, THE CASE OF THE ASSESSEE W AS PICKED UP FOR SCRUTINY ASSESSMENT ON THE GROUND THAT THE ASSESSEE HAD MADE INVESTMENT IN PURCHASE OF PROPERTY IN ABHINAV HOMES, BHOPAL AMOUNTING TO RS.14,60,429/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS STATED BY THE ASSESSEE THAT OUT OF THE TOTAL GIFT OF RS.16,86,300/-. THE ASSESSEE HAS INVESTED IN THE HOUS E PROPERTY. THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OFFERED BY THE ASSESSEE, THEREFORE, HE MAD E ADDITION OF RS.16,86,300/-. 3. AGGRIEVED AGAINST THIS THE ASSESSEE PREFERRED AN APP EAL BEFORE LD. CIT(A), WHO ALSO CONFIRM THE ADDITION. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. IT IS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE H AS RECEIVED GIFT FROM HIS FATHER IN CASH WHO HAD DRAWN F ROM HIS BANK ACCOUNT ON DIFFERENT DATES AND OUT OF THIS CASH RECEIVED FROM FATHER, WAS DEPOSITED CASH IN THE BANK RAJENDRA SHANDILYA /ITANO.490/2019 4 ACCOUNT OF THE ASSESSEE. AN APPLICATION UNDER RULE 29 O F THE INCOME TAX RULES, 1963(HEREINAFTER REFERRED AS TH E RULES), IS FILED ON BEHALF OF THE ASSESSEE. THE ASSESS EE HAS FILED AN APPLICATION OF SHRI P.D. SHANDILYA SON OF LATE SHRI D.L. SHANDILYA TO AFFIRM THE WITHDRAWAL OF THE AMOUNT FROM THE BANK ACCOUNT. 5. ON THE OTHER HAND, LD. SR. DR OPPOSED THE APPLICATI ON UNDER RULE 29 OF THE RULES. 6. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORDS. CONSIDERING THE RIVAL SUBMISSIONS IN THE INTEREST OF JUSTICE, I AM OF THE VIEW THAT THE ADDITIONAL EVIDENCE, SO FILED, THROUGH APPLICATION UNDER RULE 29 OF THE I.T. RULES NEED TO BE ADMITTED IN VIE W OF THE RATION LAID DOWN IN THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KUM SATYA SETHIA 143 ITR 486 (MP). THEREFORE, I SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND ACCORDINGLY, THE MATTER IS REMANDED BACK RAJENDRA SHANDILYA /ITANO.490/2019 5 TO THE FILE OF THE AO FOR FRESH CONSIDERATION AFTER G IVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE WOULD COOPERATE IN THE MATTER BY FURNISHING T HE EVIDENCES/PAPER BOOK IN SUPPORT OF THE CLAIM. 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30.09.2020 . SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 30.09.2020 PATEL/PS COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE BY ORDER ASSISTANT REGISTRAR, INDORE