The ITO, Ward-4, Gandhinagar V. Shri Yogeshkumar N.Patel, Ahmedabad

ITA 525/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5862 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 27-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, VICE-PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SN ITA/CO NO. AY / APPELLANT / RESPONDENT 1 ITA NO. 525/AHD/2013 2008-09 ITO, WARD-4, GADHINAGAR SHRI YOGESHKUMAR N. PATEL, C/O. KAMLESH V. PATEL, B-403, SHREEJI AVENUE, NR. PAWAN FLATS, MANINAGAR, AHMEDABAD-380008 PAN : AQZPP 2528 F 2 CO NO. 124/AHD/2013 (IN ITA NO.525/A/13) 2008-09 SHRI YOGESHKUMAR N. PATEL, MANINAGAR, ABAD PAN : AQZPP 2528 F ITO, WARD-4, GADHINAGAR 3 ITA NO. 3169/AHD/2015 2009-10 ITO, WARD-4, GADHINAGAR SHRI YOGESHKUMAR N. PATEL, MANINAGAR, AHMEDABAD PAN : AQZPP 2528 F 4 ITA NO. 3170/AHD/2015 2010-11 ITO, WARD-4, GADHINAGAR SHRI YOGESHKUMAR N. PATEL, MANINAGAR, AHMEDABAD PAN : AQZPP 2528 F REVENUE BY : SHRI SANJAY AGRAWAL, CIT-DR ASSESSEE BY : NONE / DATE OF HEARING : 23/05/2017 / DATE OF PRONOUNCEMENT: 23/05/2017 / O R D E R PER R.P. TOLANI, VICE-PRESIDENT :- THESE ARE THREE REVENUES APPEALS AND ONE ASSESSEE S CROSS-OBJECTION. THESE THREE REVENUES APPEALS ARE DIRECTED AGAINST THE ORDER OF THE CIT(A), GANDHINAGAR DATED 14.12.2012 FOR AY 2008-09 AND A C OMMON ORDER OF THE CIT(A), GANDHINAGAR DATED 25.08.2015 FOR AYS 2009-1 0 AND 2010-11 RESPECTIVELY. THE CROSS-OBJECTION FILED BY THE ASS ESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A), GANDHINAGAR DATED 14.12.20 12 FOR AY 2008-09. THE ASSESSEE BEING SAME, ALL THESE APPEALS/CO ARE DISPO SED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS. 525 OF 13, 3169, 3170/AHD/2015 & CO 124/AHD/ 2013 ITO VS. YOGESHKUMAR N PATEL AY : 2008-09, 2009-10 & 2010-11 2 2. AT THE OUTSET, WE OBSERVE THAT THE ASSESSEE HAS NOT BEEN APPEARING BEFORE THE TRIBUNAL IN THE SEVERAL EARLIER HEARINGS . FOR HEARING ON 23.05.2017, THE NOTICE WAS SERVED ON THE ADDRESS OF THE ASSESSEE AND THE SAME WAS RECEIVED BY THE FATHER OF THE ASSESSEE SHR I NARENDRABHAI HARGOVANDAS PATEL, WHICH IS ON RECORD. THE LD. DEP ARTMENTAL REPRESENTATIVE CONTENDS THAT THE ASSESSEE HAS BEEN HABITUALLY NOT APPEARING IN THESE REVENUES APPEALS; THEREFORE, THESE APPEAL S MAY BE DECIDED EX- PARTE, QUA THE ASSESSEE, AFTER CONSIDERING THE MATERIAL A VAILABLE ON RECORD AND CONTENTIONS OF LD. DEPARTMENTAL REPRESENTATIVE. 3. WE FIND MERIT IN THE CONTENTIONS OF THE LD. DEPA RTMENTAL REPRESENTATIVE. DUE TO NON-APPEARANCE OF ASSESSEE BEFORE THE TRIBUNAL INSPITE OF SERVICE OF NOTICE, WE ARE LEFT WITH NO C HOICE BUT TO DECIDE THE APPEAL EX-PARTE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND A RGUMENTS OF LD. DEPARTMENTAL REPRESENTATIVE. 4. THE COMMON GROUND RAISED IN REVENUES APPEALS FO R ALL THREE ASSESSMENT YEARS IS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS MADE BY THE AO O N ACCOUNT OF UNEXPLAINED CASH CREDITS; THEREFORE, THE ORDER OF THE ASSESSING OFFICER IS REQUIRED TO BE UPHELD. THE ADDITIONS MADE BY THE AO ARE AS UNDER:- AY 2008-09 - RS.6,17,56,018/- AY 2009-10 - RS.8,80,77,088/- AY 2010-11 - RS.1,14,08,750/- 5. THE ASSESSEE HAS RAISED CROSS-OBJECTION FOR AY 2 008-09, WHICH READS AS UNDER:- THE LEARNED CIT(A) ERRED IN LAW IN DETERMINING THE ESTIMATED INCOME AT 2% AS AGAINST 0.25% AS AFFORD BY ASSESSEE WITHOUT SUBSTANTIATING ANY REASONS. ITA NOS. 525 OF 13, 3169, 3170/AHD/2015 & CO 124/AHD/ 2013 ITO VS. YOGESHKUMAR N PATEL AY : 2008-09, 2009-10 & 2010-11 3 6. AT THE TIME OF HEARING, LD. DEPARTMENTAL REPRESE NTATIVE CONTENDS THAT THE LD. CIT(A) HAS GRANTED SUBSTANTIAL RELIEF WITHO UT CONSIDERING THE PERTINENT ASPECTS NECESSARY FOR PROPER ADJUDICATION OF APPEALS WHICH ARE AS UNDER:- (1) BANK ACCOUNT IS IN THE NAME OF ASSESSEE. ONUS IS ON HIM TO EXPLAIN SOURCE THEREOF OR DETAILS OF USER OF SUCH BANK ACCO UNTS. (2) THERE IS NO PROOF THAT THE ASSESSEE WAS ENGAG ED IN ANY COMMISSION BUSINESS OR IN THE BUSINESS OF ISSUING BOGUS BILLS OR WAS AN ENTRY PROVIDER AND THUS RELIANCE BY CIT(A) ON THIS SELF S ERVING STATEMENT/SUBMISSION IS MISPLACED. (3) CIT(A) HAS NOT CONSIDERED CASH DEPOSIT AT RS. 23,36,000/- IN BANK AND SOURCE THEREOF. (4) CIT(A) HAS SHIFTED THE ONUS TO VERIFY SOURCE O F DEPOSITS ON A.O. WHICH IS NOT PROPER. (5) DESTINATION OF CASH WITHDRAWAL IS NOT PROVIDED BY ASSESSEE AND THUS PAYMENTS THEREOF TO ISSUER OF CHEQUE AS BELIEVED BY CIT(A) IS IMPROPER AND WITHOUT ANY BASIS. FURTHER, THERE IS NO EVIDENC E REGARDING PURCHASES OR EXPENSE THOUGH SALES WERE MADE AND SOM E PURCHASERS CONFIRMED RECEIPT OF MATERIAL AS PER BILLS. (6) PARTIES FROM WHOM CHEQUE RECEIVED, THE DETAIL S THEREOF WERE FURNISHED BY ASSESSEE WITH NO CONFIRMATION. FURTHER, THESE DO NO T CORRESPOND TO DEPOSIT AMOUNTS IN BANK EG FIRST ENTRY OF RS. 1 CRO RE DEPOSIT ON 21.9.2007 DOES NOT TALLY WITH ANY OF THE PARTY. THI S IS NOT CONSIDERED BY CIT(A). (7) A.O. COULD NOT LOCATE THEM (PARTIES) WHEN VER IFIED ON TEST CHECK METHOD. HE FAILED TO CONSIDER THE REPORT OF ITI DATED 29.12 .2011 THAT ON MAKING PERSONAL ENQUIRIES OF 4 PARTIES, THE SAME WERE NOT LOCATED AS DISCUSSED IN ASSESSMENT ORDER ON PAGE 11 OF ASSESSMENT ORDER. 7. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN OUR CONSIDERED VI EW, LD. CIT(A) HAS NOT APPRECIATED THE ISSUES RAISED BY THE LD. CIT-DR AS MENTIONED ABOVE. DUE TO THE NON-APPEARANCE OF THE ASSESSEE IN THE PROCEEDIN GS, WE ARE NOT IN A POSITION TO ASCERTAIN THE RELEVANT FACTS AND CLARIF Y THE DISCREPANCIES MENTIONED BY THE LD. CIT-DR. BESIDES, THEY WILL RE QUIRE FRESH RE-LOOK ON THE ITA NOS. 525 OF 13, 3169, 3170/AHD/2015 & CO 124/AHD/ 2013 ITO VS. YOGESHKUMAR N PATEL AY : 2008-09, 2009-10 & 2010-11 4 FACTS AND DOCUMENTS AVAILABLE ON RECORD. IN CONSID ERATION OF ALL THE ABOVE FACTS AND CIRCUMSTANCES, IN THE INTEREST OF JUSTICE , WE SET ASIDE THE ISSUES RAISED IN THE REVENUES APPEALS AND THE ASSESSEES CROSS-OBJECTION BACK TO THE FILE OF THE ASSESSING OFFICER TO RE-DECIDE THE ISSUES AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, ALL THREE APPEALS FILED BY THE RE VENUE AND THE CROSS- OBJECTION FILED BY THE ASSESSEE ARE ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 23 RD MAY, 2017 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (R.P. TOLANI) VICE-PRESIDENT (AZ) AHMEDABAD; DATED 23/05/2017 *BIJU T., SR PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD