Shri Vallabhabhai R. Hirpara, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-4(2), RAJKOT-GUJARAT

ITA 516/RJT/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8875 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-09-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 19-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SONTAKKE
• Assessee Lawyers: DM RINDANI
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Additional evidence
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT , , BEFORE SHRI PRADIP KUMAR KEDIA , A CCOUNTANT MEMBER & SHRI MAHAVI R PRASAD , JUDICIAL MEMBER ./ I.T.A. NO. 516/RJT/2013 ( / ASSESSMENT YEAR : 2006 - 0 7 ) SHRI VALLABHBHAI R. HIRPARA, TIRTH ,1, JAY PARK SOCIETY, NANA MAVA ROAD, RAJKOT / VS. THE INCOME - TAX OFFICER, WARD 4 ( 2 ), RAJKOT. ./ ./ PAN/GIR NO. : AAHPH 1938 B ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D.M. RINDANI, A.R. / RESPONDENT BY : SHRI ARVIND SONTAKKE, D.R. / DATE OF HEARING 13 /03/2018 / DATE OF PRONOUNCEMENT 16 / 0 3 /201 8 / O R D E R PER MAHAVIR PRASAD JUDICIAL M EMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) - III , RAJKOT [CIT(A) IN SHORT] VIDE APPEAL NO. CIT(A) - III / 0175 /1 1 - 1 2 DATED 0 9/10 / 201 3 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.1 4 3(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 29 /12 /201 1 RELEVANT TO ASSESSMENT YEAR (AY) 2006 - 07. ITA NO. 516 /RJT/201 3 SHRI VALLABHBHAI R. HIRPARA VS. ITO ASST.YEAR 2006 - 07 - 2 - 2. THE G ROUND S OF APPEAL RAISED BY THE ASSESSEE READ AS UNDER: - 1. THE LD. CIT(A) - III, RAJKOT ERRED IN CONFIRMING THE ADDITION OF RS. 19,23,918/ - OUT OF THE TOTAL ADDITION OF RS.22,03,918/ - AS UNEXPLAINED INVESTMENTS. 2. THE LD. CIT(A) - III, RAJKOT ERRED IN CONFIRMING THE ADDITION OF RS.2,87,767/ - BY TREATING IT AS LONG TERM CAPITAL GAIN U/S.50C ON SALE OF IM MOVABLE PROPERTY. 3. WITHOUT PREJUDICE TO GROUND NO.2 ABOVE, THE LD. CIT(A) - III, RAJKOT FAILED TO APPRECIATE THAT THE COST OF IMPROVEMENT OF OTHER THREE CO - OWNERS OF THE PROPERTY HAS BEEN ASSESSED AND ACCEPTED U/S.143(3) R.W.S 147. 3. BRIEFLY STATED , FACTS ARE THAT THE ASSESSMENT U/S. 143(3) OF THE ACT WAS COMPLETED ON 29/12/2011, DETERMINING THE TOTAL INCOME AT RS.26,16,780/ - AGAINST THE INCOME RETURNED AT RS.92,706/ - . THE DETAILS OF THE ADDITIONS MADE TO THE INCOME RETURNED ARE AS FOLLOWS: SR. NO. NATURE OF ADDITION AMOUNT 1. STANDARD DEDUCTION 30,000/ - 2. LONG TERM CAPITAL GAIN 2,87,767/ - 3. UNEXPLAINED INVESTMENT 22,03,918/ - 4. BANK INTEREST 2,388/ - TOTAL: 25,24,073/ - 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS FOUND THAT THERE ARE CERTAIN DEPOSITS IN THE BANK ACCOUNT NO.12240 MAINTAINED WITH THE CO - OPERATIVE BANK OF RAJKOT LTD. M AIN BRANCH, RAJKOT AGGREGATING TO RS.22,03,918/ - . OUT OF THIS AMOUNT, DEPOSITS TO THE TUNE OF RS.6,33,000/ - ARE BY WAY OF CASH AND THE BALANCE DEPOSITS OF RS.15,70,918/ - ARE BY WAY OF TRANSFERS (CLEARINGS). APPELLANT WAS GIVEN OPPORTUNITY BUT HE FAILED TO FILE ANY SATISFACTORY REPLY TO THE ASSESSING OFFICER. AT THE STAGE OF FIRST APPELLATE, APPELLANT FILED PAPER BOOK AND REMAND REPORT WA S SOUGHT FROM THE ASSESSING OFFICER. IN REMAND REPORT, IT WAS STATED THEREIN THAT RS.15,70,918/ - BY WAY OF TRANSFER ENTRIES APPEARING IN THE ITA NO. 516 /RJT/201 3 SHRI VALLABHBHAI R. HIRPARA VS. ITO ASST.YEAR 2006 - 07 - 3 - IMPUGNED BANK ACCOUNT STANDS UNEXPLAINED. BUT AS PER THE LOWER AUTHORITIES RS.4,87,500/ - WERE EXPLAINED AND REMAINI NG AMOUNT OF RS.22,03,918/ - WAS NOT EXPLAINED AND SAME WAS CONFIRMED BY THE LOWER AUTHORITIES. 5. IN IMPUGNED ORDER, IT IS STATED THAT LD. ASSESSING OFFICER ALSO VERIFIED THE INVOICES PRODUCED BY THE APPELLANT. IN SUPPORT OF THE CLAIM OF COST OF IMPROVEME NT TO THE TUNE OF RS.12,19,300/ - WHICH PERTAINS OF ALLEGED PAYMENT MADE TO THE ABOVE TOW PERSONS. ON VERIFICATION BY THE ASSESSING OFFICER, IT WAS FOUND THAT SAID INVOICES DO NOT CONTAIN ANY ADDRESS OF PERSON, WHO ISSUED INVOICE, SALE TAX REGISTRATION NUMB ER IF ANY, INVOICE NUMBER, DETAILED MEASUREMENT OF THE WORK EXECUTED IN TERMS OF QUALITY AND QUANTITY OF MATERIAL USED FOR THE SO CALLED IMPROVEMENT CLAIMED BY THE APPELLANT. BEFORE THE LD. CIT(A) APPELLANT FAILED TO PRODUCE THESE TWO PERSONS FOR EXAMINATI ON AND VERIFICATION OF THE CLAIM MADE BY THE APPELLANT THAT AN AMOUNT OF RS.12,99,200/ - HAS BEEN SPENT ON COST OF IMPROVEMENT. THEREFORE, LOWER AUTHORITIES HELD THESE TWO BILLS APPEAR TO BE BOGUS AND DEVOID OF ANY ACTIONABLE EVIDENCE WHICH CAN BE RELIED UP ON IN SUPPORT OF THE CLAIM MADE BY THE APPELLANT AND HOLD THAT ASSESSING OFFICER WAS RIGHT IN DETERMINING LONG TERM CAPITAL GAIN OF RS.2,87,767/ - TOWARDS 1/4 TH SHARE OF THE APPELLANT IS IN ACCORDANCE OF LAW. 6. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGNED ORDER. LD. AR HAS FILED DETAILED PAPER BOOK BEFORE US AND PRAYED THAT SAME MAY BE ADMITTED AS ADDITIONAL EVIDENCE UNDER RULE 46A AND REQUESTED THAT IN VIEW OF THE PAPER BOOK FILED BY THE APPELLANT, THIS CASE MAY BE SENT BACK TO THE CIT(A). 7. LD . DR HAS NOTHING TO CONTROVERT THE ARGUMENTS ADVANCED BY THE LD. AR. T HEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THIS MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THIS ITA NO. 516 /RJT/201 3 SHRI VALLABHBHAI R. HIRPARA VS. ITO ASST.YEAR 2006 - 07 - 4 - MATTER AFRESH AFTER CONSIDERING ALL THESE PAPERS FILED BY THE APPELLANT T HEREAFTER, WILL PASS DETAILED AND REASONED ORDER AS PER LAW. ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AND AS WHEN CALLED FOR. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. THIS ORDER PRONOUNCED IN OP EN COURT ON 16 / 0 3 /201 8 SD / - SD/ - ( ) ( ) ( PRADIP KUMAR K EDIA ) ( MAHAVIR PRASAD ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 16 /03 /2018 PRITI YADAV , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III , RAJKOT. 5. , , /DR,ITAT, RAJKOT 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, RAJKOT 1. DATE OF D ICTATION 13 /03/2018 (DICTATION - PAD 3 PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14 /03/2018 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S .. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S . 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER .. 10. DATE OF DESPATCH OF THE ORDER