Mehul Vinodbhai Sangani, RAJKOT-GUJARAT V. The Income Tax Officer (OSD), Range-2, RAJKOT-GUJARAT

ITA 541/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0133 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DR ADHIA
• Keywords: Gift; Additional evidence; Corroborative evidences

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA JM AND SHRI B. R. JAIN AM ITA NO.541/RJT/2012 / ASSESSMENT YEAR 2008-09. MEHUL VINODBHAI SANGANI, 143-BAL KRUSHNA SOCIETY, SANT KABIR ROAD, RAJKOT. PAN : BDRPS9763H ( / APPELLANT THE I. T. O, (OSD), RANGE-2, RAJKOT. / RESPONDENT / ASSESSEE BY SHRI D. R. ADHIA, A. R. # / REVENUE BY SHRI AVINASH KUMAR, D.R. & / DATE OF HEARING 05-12-2012 & / DATE OF PRONOUNCEMENT 07 - 12-2012 / / / / ORDER B. R. JAIN, A. M. : THIS APPEALS BY THE ASSESSEE AGAINST THE ORDER D ATED 13-7- 2012 OF LEARNED CIT(A)-III, RAJKOT RAISES THE FOLLO WING GROUNDS:- 1. WITHOUT PREJUDICE, THE LD. C.I.T (A) HAS ERRED I N LAW AND FACT IN NOT ADMITTING EVIDENCES AND CALLING REMAND REPORT. THE ADDITION OF RS.8,00,870/- ORDER NEEDS CANCELLATION. 2. THE LD. C.I.T. (A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION IN RESPECT OF AMOUNT OF RS.8,00,870/- MADE BY THE L D. A.O. THE SAME NEEDS DELETION. 3. THE LD. C.I.T. (A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION IN RESPECT OF AMOUNT OF RS.8,00,870/- DISBELIEVING THE EXPLANATION AND WITH SUPPORTING EVIDENCES FURNISHED BEFORE THE LD. A.O. THE ADDITION NEEDS DELETION. 4. THE LD. C.I.T. (A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION IN RESPECT OF AMOUNT OF RS.8,00,870/- WITHOUT COGEN T REASON AND ITA 541/RJT/2012 2 WITHOUT CONSIDERING THE RELEVANCY OF THE MATTER. TH E ADDITION NEEDS DELETION. 5. WITHOUT PREJUDICE, NO REASONABLE, LEGAL AND ADEQ UATE OPPORTUNITY WAS PROVIDED AND THEREFORE THE PRINCIPLES OF NATURA L JUSTICE ARE VIOLATED. THE ASSESSMENT NEEDS ANNULMENT. 6. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY A ND FACTUAL ASPECT NO ADDITION OUGHT TO HAVE BEEN MADE. THE ADDITION NEED S DELETION. 7. WITHOUT PREJUDICE, THE LD. C.I.T (A) HAS ERRED I N LAW AND FACT IN NOT CONSIDERING THE PEAK AMOUNT IN FULL POSITION AND AM OUNT TO BE ADDED ACCORDING TO PEAK WORKING, INSTEAD OF FULL AD DITION OF RS.8,00,870/- MADE. THE DISALLOWANCE NEEDS SUITABL E REDUCTION. 8. THE APPELLANT CRAVES LEAVE TO ADD / ALTER / AMEN D AND/OR SUBSTITUTE ANY OR ALL GROUNDS OF APPEAL BEFORE THE ACTUAL HEAR ING TAKES PLACE. 2. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE AN INDIVIDUAL RETURNED INCOME OF RS.1,50,350/-. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS DEPOS ITED AMOUNT AGGREGATING TO RS.15,49,910/- IN CASH IN HIS ACCOUNT NO.0870101001 88296 WITH AXIS BANK. HE THEREFORE, REQUIRED THE ASSESSEE TO EXPLAIN THE SOU RCE OF THIS CASH DEPOSIT. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE VIDE ORDE R SHEET ENTRY DATED 28-12- 2010, AGREED FOR THE ADDITION OF THE PEAK AMOUNT OF RS.8,00,870/- APPEARING IN THE SAID ACCOUNT WITH AXIS BANK. ACCORDINGLY, THE ASSESSING OFFICER MADE THE ADDITION AND COMPLETED THE ASSESSMENT AT A TOTAL IN COME OF RS.9,51,220/-. 3. BEFORE LD. CIT(A), THE ASSESSEE WITHOUT MAKING A NY APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES STATED BRIEF FACT S ABOUT THE CASH POSITION OF SAID TRANSACTION AND ANNEXED NEW EVIDENCE THAT WAS NOT LAID BEFORE THE ASSESSING AUTHORITY AS UNDER:- 1. MR. MEHUL SANGANI HAS RECEIVED A SUM OF RS.3000 00.00 FROM MR. VINODBHAI SANGANI (FATHER OF ASSESSEE) ON 04.11.200 7 AS GIFT ON ITA 541/RJT/2012 3 THE OCCASION OF MARRIAGE OF MR. MEHUL SANGANI (AFFI DAVIT OF MR. VINODBHAI SANGANI ATTACHED ATTACHMENT -1). 2. MR. MEHUL SANGANI HAD OCCASION OF HIS OWN MARRIA GE ON 06.12.2007 (INVITATION CARD ATTACHED ATTACHMENT 2). HENCE HE HAS RECEIVED A SUM OF RS.315603.00 AS GIFT IN CASH FROM VARIOUS RELATIVES AND FRIENDS ON OCCASION OF MARRIAGE (LIST OF GIFT RECEIVED ATTACHED ATTACHMENT 3). 3. AS THE PARTY IS HAVING MARRIAGE, HE HAS TAKEN AD HOCK MISCELLANEOUS LOAN FROM MEETING HIS SMALL MARRIAGE CASH EXPENSE AND LIQUID CASH FROM FRIENDS AND RELATIVE OF RS.359 020.00 AND FROM CITY FINANCIAL RS.23303.00. ALL UNSECURED LOAN WAS PAID AS THE PARTY HAD ENOUGH CASH ON HAND. (LIST OF PERSON ATT ACHED ATTACHMENT 4). 4. HENCE PARTY IS HAVING HIGH INFLOW OF CASH DURING THE PERIOD OF NO.2007 AND DEC.2007 FROM GIFT ON THE OCCASION OF M ARRIAGE (EXEMPTED AS PER SEC.56(2)(VI) BEING MONEY RECEIVED ON THE OCCASION OF MARRIAGE OF INDIVIDUAL) AND FROM MISC. LOAN TAKEN FOR MARRIAGE PURPOSE. (NOT CONSIDERED AS INCOME AS REC EIVED BELOW RS.200000.00 AND ALSO REPAID) ACCOUNT TO CLOSING BA LANCE OF CASH OF RS.816074.54 ON 31.12.2007. 5. HENCE AS THE PARTY IS HAVING HIGH CASH ON HAND, HAS DEPOSITED A SUM OF RS.800000.00 IN HIS AXIS BANK ACCOUNT ON 12. 01.2008 WHICH IS ACTUALLY NOT ANY TYPE OF INCOME OF PARTY, WHICH THE LEARNED AO HAS NOT CONSIDERED WHILE ASSESSMENT. 6. AS BEING AMOUNT OF LOAN, THE PARTY HAS REPAID TH E ENTIRE MISC. LOAN DURING THE PERIOD OF JAN., FEB., AND MARCH 2008 AFT ER WITHDRAWING THE AMOUNT FROM THE SAID BANK ACCOUNT. 7. THE PARTY HAS ALSO INCURRED MARRIAGE EXPENSES IN THE SAME PERIOD AFTER WITHDRAWING FROM THE SAID BANK ACCOUNT. (LED GE COPY OF CAPITAL ACCOUNT ATTACHED ATTACHMENT 5). ITA 541/RJT/2012 4 4. THE LD. CIT (A) SOUGHT A REMAND REPORT FROM THE ASSESSING AUTHORITY. IN THE REMAND REPORT, THE ASSESSING AUTHORITY OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE AS THE SAME WAS NOT LAID BEFORE HIM IN ASSESSMENT PROCEEDINGS AND ASSESSEE HAVING AGREED TO THE ADDIT ION OF THE PEAK AMOUNT, THE EXPLANATION TENDERED THEREAFTER IN APPEAL PROCEEDIN GS WAS AN AFTERTHOUGHT. THE LD. CIT (A) THEREFORE, DID NOT ADMIT THE ADDITIONAL EVIDENCE AND AS THE ASSESSEE HAS AGREED TO THE ADDITION, HE UPHELD THE ADDITION SO MADE BY THE ASSESSING OFFICER. 5. IN APPEAL BEFORE US, THE LD. COUNSEL FOR THE ASS ESSEE SHRI D. R. ADHIA VEHEMENTLY ARGUED THAT THE LD. CIT (A) OUGHT TO HA VE ADMITTED THE ADDITIONAL EVIDENCE AND PROVIDED OPPORTUNITY TO HIM. THE LD. CIT (A) HAS HOWEVER, DESPITE ISSUING A NOTICE ON 21-12-2011 FOR RE-FIXING THE AP PEAL FOR HEARING ON 20-01-2012 DID NOT GIVE OPPORTUNITY FOR HEARING ON THIS REMAND REPORT AND THUS, HIS REFUSAL TO ADMIT NEW PLEA AND NEW EVIDENCE IS CONTRARY TO PROV ISIONS CONTAINED UNDER RULE 46A OF INCOME-TAX RULES, 1962. SINCE THE VITAL DOC UMENTS HAVE NOT BEEN ADMITTED BEFORE SUSTAINING THE ISSUE, THE ADDITION OF RS.8,00,870/- IS THUS UNJUST AND UNCALLED FOR AND REQUIRES TO BE DELETED OR IN T HE ALTERNATE, THE MATTER BE SENT BACK FOR EXAMINING CORRECTNESS AND GENUINENESS OF T HE CLAIM OF THE ASSESSEE AND TAKE DECISION IN ACCORDANCE WITH LAW. 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE CONTENDS THAT THE ASSESSEE DID NOT FILE ANY APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME-TAX RULES, 1962 NOR BROUGHT ON RECORD ANY SUCH CIRCUMSTANCE WHICH PREVENTED HIM TO LEAD EVIDENCE I N ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING AUTHORITY. THE LD. CIT (A) TH EREFORE AFTER CONSIDERING THE OBJECTIONS RAISED BY THE ASSESSING AUTHORITY, JUSTI FIABLY REJECTED THE ASSESSEES NEW PLEA AND NEW EVIDENCE AS ALSO THE SAME WAS WITH IN THE SCOPE OF HIS POWERS. FURTHERMORE, THE ASSESSEE HAS AGREED TO TH E ADDITION OF THE PEAK AMOUNT AND THEREFORE, THERE LIES NOTHING IN HIS MOU TH TO SAY THAT THERE IS NO ITA 541/RJT/2012 5 JUSTICE RENDERED TO HIM IN SUSTAINING THE ADDITION OF RS.8,00,870/- ONLY OUT OF THE CASH DEPOSITS OF RS.15,49,910/-. 7. HEARD PARTIES WITH REFERENCE TO MATERIAL ON RECO RDS. THIS IS A CASE WHERE THE ASSESSEE SOUGHT ADMISSION OF NEW PLEA AND NEW E VIDENCE WITHOUT MAKING ANY APPLICATION UNDER RULE 46A OF THE INCOME-TAX RU LES, 1962. THE ASSESSEE ALSO DID NOT SPELL OUT CIRCUMSTANCES WHICH PREVENTE D HIM IN NOT PRODUCING THE EVIDENCE IN ASSESSMENT PROCEEDINGS WHEN ASSESSING O FFICER HAD GIVEN AMPLE OPPORTUNITY AND SHOW CAUSE NOTICE FOR EXPLAINING TH E CASH DEPOSITS AMOUNTING TO RS.15,49,910/- IN HIS BANK ACCOUNT. THE LD. CIT (A ) THEREFORE AFTER CONSIDERING THE OBJECTIONS RAISED BY THE ASSESSING AUTHORITY, A CTED WITHIN THE SCOPE OF HIS POWERS AND REFUSED TO ADMIT THE NEW PLEA AND NEW EV IDENCE RAISED BY THE ASSESSEE AT APPELLATE PROCEEDINGS BEFORE HIM. 8. THE ASSESSEE ALSO DID NOT SHOW AS TO HOW THE LD. CIT (A) HAS ERRED IN NOT ADMITTING THE NEW PLEAS AND NEW EVIDENCES IN A CASE LIKE THIS NOR IT WAS SHOWN AS TO HOW HE CAN COMPEL THIS TRIBUNAL TO DIRECT THE LD. CIT (A) FOR CONSIDERING SUCH EVIDENCE AFRESH UNDER THE PECULIAR FACTS AND C IRCUMSTANCES OF THE CASE. WE THEREFORE, FIND NO REASON TO DIRECT THE LD. CIT( A) TO ADMIT NEW PLEAS AND NEW EVIDENCES AND APPRECIATE THE MATERIAL AFRESH THAT W AS NOT LAID IN ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING AUTHORITY. FINDIN G NO MERIT IN GROUND NO.1 RAISED IN APPEAL, THE SAME STANDS REJECTED. 9. IN SO FAR AS THE ASSESSEES GRIEVANCE IN GROUNDS NO.2 TO 7 IS CONCERNED, IT IS APPARENT FROM THE IMPUGNED ORDER THAT THE ASSESS EES COUNSEL VIDE ORDER SHEET ENTRY DATED 28-12-2010 HAS AGREED FOR AN ADDI TION OF THE PEAK AMOUNT OF RS.8,00,870/- APPEARING IN THE ASSESSEES BANK ACCO UNT WITH AXIS BANK OUT OF THE TOTAL DEPOSITS OF CASH AMOUNTING TO RS.15,49.91 0/- MADE IN THAT ACCOUNT. IN THIS VIEW OF THE MATTER, WHEN THE ASSESSEE HAS MADE A STATEMENT OF FACT, HE COULD HAVE NO GRIEVANCE, IF, THE TAXING AUTHORITY H AS TAXED HIM IN ACCORDANCE WITH THAT STATEMENT. IF THE ASSESSEES CASE IS THAT HIS STATEMENT HAS BEEN WRONGLY ITA 541/RJT/2012 6 RECORDED OR THAT HE MADE THE STATEMENT UNDER A MIST AKE OF BELIEF OF FACT OR LAW THEN HE SHOULD MAKE AN APPLICATION FOR RECTIFICATIO N TO THE AUTHORITY WHICH PASSED THE ORDER BASED UPON THAT STATEMENT. UNTIL RECTIFI CATION IS MADE, AN APPEAL ON THE GROUND AS SUCH RAISED BY THE ASSESSEE IS NOT CO MPETENT. THIS VIEW FINDS SUPPORT FROM THE JUDGMENT RENDERED BY HONBLE BOMBA Y HIGH COURT - NAGPUR BENCH IN THE CASE OF RAMESHCHANDRA & CO. VS. CIT (1 987) 168 ITR 375 (BOM.) AS A RESULT, GROUNDS RAISED IN APPEAL BY ASSESSEE S TANDS REJECTED AND APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-12-2012. SD/- SD/- ( T. K. SHARMA ) ( B. R . JAIN ) # /JUDICIAL MEMBER # / ACCOUNTANT MEMBER +/ ORDER DATE 07-12-2012. /RAJKOT NVA/- - - - - .- .- .- .- / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S. MEHUL VINODBHAI SANGANI, RAJKOT. 2. /RESPONDENT-THE INCOME-TAX OFFICER,(OSD), RANGE-2, RAJKOT. 3. 4 / CIT-II, RAJKOT. 4. 4- / CIT (A)-III, RAJKOT. 5. - , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY. SENIOR PRIVATE SECRETARY, , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.