The ITO, Ward-14(4), Ahmedabad V. Smt. Kiranben B.Gohil, Ahmedabad

ITA 537/AHD/2013

• Counselvise Citation: 53720514 RSA 2013
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Salary income; Opportunity of being heard; Additional evidence; Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMADABAD BEFORE SHRI D.K.TYAGI , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 537/AHD/2013 ASSESSMENT YEAR :2009-10 INCOME TAX OFFICER, WARD 14(2), AHMEDABAD. V/S . SMT. KIRANBEN B. GOHIL BHAGWATI VIDHYALAY HIRAWADI ROAD, BAPUNAGAR, AHMEDABAD. PAN NO. A EBPG3400M (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI P. L. KUREEL, SR. D.R. /BY RESPONDENT SHRI PRITESH SHAH, A.R. /DATE OF HEARING 23.08.2013 /DATE OF PRONOUNCEMENT 11.10.2013 O R D E R PER : SHRI T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF REVENUE WHICH HA S EMANATED FROM THE ORDER OF CIT(A)-XXI, AHMEDABAD, DATED 10.12.201 2 FOR ASSESSMENT YEAR 2009-10. THE SOLE GROUND OF APPEAL IS AGAINST DELE TING THE ADDITION MADE U/S. 68 OF THE IT ACT FOR RS. 50.2 LACS. 2. THE A.O. OBSERVED THAT ASSESSEE HAD TAKEN LOAN F ROM FOLLOWING PERSONS: SR. NO. NAME & ADDRESS AMOUNT RECEIVED ( A ) RAJENDRA B. PATE L 145000/ - ITA NO. 537/AHD/13 A.Y. 09-10 PAGE 2 (B) KRUSHANG V. BAROT N.K. CHOWK, BAROTVAS, KALOL, DIST: GANDHINAGAR 50000/- (C) SHAILESHBHAI B. NAI JALSALPUR, TA.: KADI, DIST: MEHSANA 150000/- (D) ANANDIBEN V. BAROT N.K. CHOWK, BAROTVAS, KALOL, DIST: GANDHINAGAR 75000/- (E) VINODBHAI BAROT N.K. CHOWK, BAROTVAS, KALOL, DIST: GANDHINAGAR 50000/- (F) MAHESHBHAI P. NAI JALSALPUR, TA.: KADI, DIST: MEHSANA 50000/- (G) SHILPABEN M. NAI MAIN POST, TA: KADI, DIST: MEHSANA 100000/- (H) SUPER SERVICE 50000/- (I) BIPINBHAI PATEL \ 25000/- (J) LEENA INDRAVADAN 25000/- (K) VADILAL MULJIBHAI 50000/- 50000/- (L) GOVINDBHAI PARMAR JALSALPUR, TA.: KADI, DIST: MEHSANA 100000/- (M) ROHITBHAI M. PATEL JALSALPUR, TA.; KADI, DIST: MEHSANA 50000/- (N) GHANSHYAMBHAI R. SOLANKI 63/B, HARIKRISHNA SOCIETY, KADI KALOI ROOD, TA. KADI. DIST: MEHSANA 100000/- (O) NITUL H. PATEL ROYAL FASHION, JODHPUR ROAD, S.G. HIGHWAY, AHMEDABAD 750000/- 750000/- (P) KAMLESH M. THAKKAR LAXMINARAYAN SOCIETY, NARANPURA, AHMEDABAD 2700000/- THE A.O. HAD ISSUED NOTICE U/S. 133(6) IN CASE OF R AJENDRA B. PATEL, KRUSHANG V. BAROT, ANANDIBEN PATEL, VINODBHAI BAROT , ROHITBHAI M. PATEL, NITUL H. PATEL, KAMLESH N. THAKKAR, ONLY NOTICE WAS SERVED ON RAJENDRA B. PATEL NOT OTHER CASH CREDITORS WHICH WERE RETURNED BACK TO THE A.O. THE A.O. GAVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE TO FILE THE LOAN ITA NO. 537/AHD/13 A.Y. 09-10 PAGE 3 CONFIRMATION AS WELL AS OTHER EVIDENCES TO PROVE TH E GENUINENESS OF THE TRANSACTION. THE ASSESSEE FILED THE CONFIRMATION W ITH NAME AND ADDRESS, PAN NO. AND DETAILS OF TRANSACTION BEFORE THE A.O. IN CASE OF RAJENDRA B. PATEL. BUT IT WAS INFORMED IN REMAINING CASH CREDI TORS THAT THEIR ADDRESSES HAD CHANGED AND THE A.O. WAS REQUESTED TO INQUIRE D IRECTLY ON NEW ADDRESSES OF SHRI KRUSHANG V. BAROT, ANANDIBEN V. BAROT, VINODBHAI BAROT, ROHITBHAI M. PATEL, NITUL H. PATEL. BUT NO INQUIRY WAS CONDUCTED BY THE A.O. HE DID NOT SATISFY WITH THE EVIDENCES SUBMITTED BY THE APPELLANT FOR THESE CASH CREDITORS. THE LOAN CREDITOR IN THE NAME OF S HAILESHBHAI B. NAI, IT WAS OBSERVED BY THE A.O. THAT HE HAD SALARY INCOME AND INFORMATION CALLED U/S. 133(6) WAS NOT FURNISHED BY THE ASSESSEE AND ALSO R EFERRED THE CASH DEPOSITED IN THE BANK ACCOUNT BEFORE ISSUING CHEQUE . IN CASE OF MAHESHBHAI P. NAI, NOTICE U/S. 133(6) WAS SERVED AND THE APPEL LANT FILED CONFIRMATION ALONGWITH COPY OF BANK ACCOUNT BUT THE A.O. DID NOT FIND ANY CREDITWORTHINESS OF THE LENDER TO GIVE THE LOAN OF RS.50,000/-, IN R ESPECT OF SHILPABEN M. NAI FOR RS. 1 LAC IN RESPONSE TO NOTICE U/S. 133(6), THE AS SESSEE FILED CONFIRMATION, COPY OF PAN AND DETAILS OF SALARY BUT THE A.O. DID NOT FIND CREDITWORTHINESS OF THE CREDITOR. WITH REFERENCE TO GOVINDBHAI PARMAR FOR RS. 1LAC IN RESPONSE TO NOTICE U/S. 133(6), THE CREDITOR HAS FILED CONFIRMA TION, DETAIL OF SALARY AS WELL AS AGRICULTURAL INCOME AND COPY OF BANK ACCOUNT. S IMILARLY, THE A.O. DID NOT FIND ANY CREDITWORTHINESS TO ADVANCE RS.1 LAC TO TH E ASSESSEE. IN CASE OF GHANSHYAMBHAI R. SOLANKI FOR RS. 1 LAC, IDENTICAL F INDINGS WERE GIVEN BY THE A.O. IN CASE OF KAMLESH N. THAKKAR FOR RS. 27 LACS , NOTICE U/S.133(6) WAS ITA NO. 537/AHD/13 A.Y. 09-10 PAGE 4 RETURNED BACK, WHICH WAS RECEIVED BY THE ASSESSEE, ELECTRIC TRANSFER OF FUND BUT A.O. WAS NOT SATISFIED WITH REGARD TO THE SOURC E OF LOAN AND IDENTITY OF THE CREDITOR AND ITS CREDITWORTHINESS. THUS, HE MADE A DDITION OF RS.52.7 LACS INCLUDING OTHER CASH CREDITORS. 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAD ALLOWED THE APPEAL BY OBSERVING THAT THE LOAN CREDITORS HAD FILED THE CONFIRMATION, COPY OF PAN, COPY OF BANK ACCOUNT AND SOURCE OF INCOME HAS BEEN EXPLAINED BY THE ASSE SSEE. EVEN RE-PAYMENT PARTLY HAD BEEN MADE DURING THE YEAR AND SUBSEQUENT YEAR. THE LD. CIT(A) HELD THAT THE ASSESSEE HAS DISCHARGED HIS ONUS AND LD. A.O. HAD NOT BROUGHT ON RECORD ANY EVIDENCE CONTROVERTING THE SUBMISSION MADE BY THE ASSESSEE. IN SOME OF CASES, THE ASSESSEE SUBMITTED INFORMATIO N/DETAILS BEFORE THE CIT(A) DURING THE COURSE OF APPELLANT PROCEEDING ON WHICH REMAND REPORT HAS BEEN CALLED FOR FROM THE A.O. UNDER RULE 46A OF THE IT RULE. AFTER CONSIDERING THE REMAND REPORT, THE LD. CIT(A) DELET ED THE ADDITION. 4. NOW THE REVENUE IS BEFORE US. LD. SR. D.R. VEHE MENTLY RELIED UPON THE ORDER OF THE A.O. AT THE OUTSET, LD. COUNSEL FOR T HE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAD FURNISHED CONFIRMATION LE TTER, COPY OF PAN, COPY OF BANK ACCOUNT, DETAILS OF THE INCOME OF THE CASH CRE DITORS EITHER BEFORE THE A.O. OR BEFORE THE CIT(A). THE LD. CIT(A) ALSO HAD TAKEN REMAND REPORT FROM THE A.O. FOR ADDITIONAL EVIDENCE SUBMITTED BEFORE H IM FROM THE A.O. AFTER ITA NO. 537/AHD/13 A.Y. 09-10 PAGE 5 CONSIDERING EVIDENCE, THE ASSESSEE HAS DISCHARGED H IS ONUS TO PROVE THE LOANS ARE GENUINE. LD. SR. D.R. HAD NOT CONTROVERT ED THE FINDINGS GIVEN BY THE CIT(A). THUS, WE UPHOLD THE ORDER OF THE CIT(A). 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . THIS ORDER PRONOUNCED IN OPEN COURT ON 11.10.2013 SD/- SD/- ( D.K.TYAGI ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ;