Shri Shaileshbhai Kantilal Patel, Ahmedabad V. The ACIT, Circle 6(1), Ahmedabad

ITA 586/AHD/2016

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9809 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-12-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 07-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K GOYAL
• Keywords: Opportunity of cross examination; Third party statement
• Section: 143(3); 201; 147; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SAILESHBHAI KANTILAL PATEL PROP. OF M/S SHAILESH ENTERPRISE, 31/32, PANCH A MRUT VASTUVILA , B/H, WATER TANK, B/S. SHUKAN MALL, VIL L AGE: SOLA, AHMEDABAD PAN: AHQPP8543C (APPELLANT) VS THE ACIT , CIRCLE - 6 ( 1 ) , AHMEDABAD (RE SPONDENT) REVENUE BY : S H RI N.K. GOYAL , SR. D . R. ASSESSEE BY: SHRI PRITESH SHAH , A.R. DATE OF HEARING : 10 - 12 - 2 019 DATE OF PRONOUNCEMENT : 20 - 1 2 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2007 - 08 , ARI SES FROM ORDER OF THE CIT(A) - 6, AHMEDABAD DATED 25 - 01 - 2 016 , IN PROCEEDINGS UNDER SECTION 1 4 7 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961, WHICH IS REQUESTED TO BE QUASHED. I T A NO . 586 / A HD/20 16 A SS ESSMENT YEAR 2007 - 08 I.T.A NO. 586 /AHD/20 16 A.Y. 2007 - 08 PAGE NO SAILESHBHAI KANTILAL PATEL VS. ACIT 2 2. THE LEARNED CIT(A) ERRED IN L AW AND ON FACTS IN PROVIDING OPPORTUNITY OF CROSS EXAMINING WITH THE 2 PARTIES, WHICH IS REQUESTED TO BE PROVIDED. 3. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION ON ACCOUNT OF UNDISCLOSED INCOME OF RS.28,02,944/ - , SUCH ADDITION IS REQUESTED TO BE DELETED. 3. THE FACT IN BRIEF IS THAT RETURN OF INCOME DECLARING INCOME OF RS. 6,13,360/ - WAS FILED ON 29 TH OCTOBER, 2007 . O N THE BASIS OF INFORMATION RECEIVED F ROM ACIT CENTRAL CIRCLE - 2(2) AHMEDABAD THAT DURING THE COURSE OF SEARCH AC TION CONDUCTED IN THE CASE OF SHRI GOV I NDBHAI MULCHAND PRAJAPATI AND OTHERS CERTAIN INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED AND ON VERIFICATION OF THE SAID DOCUMENTS IT WAS FOUND THAT THERE WAS CAS H TRANSACTION ON THE PURCHASE/SALE OF THE LAND SITUAT ED AT BLOCK NO. 1998 IN TALUKA DASKOI, DISTT: AHMEDABAD. AS PER INFORMATION RECEIVED, THERE WAS RECEIPT OF CASH AMOUNTING TO RS. 2 , 32 , 85 , 0000/ - TOWARDS PURCHASE OF ABOVE LAND AND ASSESSEE WAS HAVING 25% SHARES IN THE LAND . T HEREFORE , THE ASSESSEE HAD RE CEIVED AN AMOUNT OF RS. 58 , 21 , 250/ - (25% OF RS. 2 , 32 , 85 , 000/ - ) ON THE SALE OF THE PROPERTY. IT IS ALSO STATED THAT THESE FACTS CONFIRMED BY SHRI GOVINDBHAI MUL CHAND BHAI PRAJAPATI WHO WAS ONE OF THE CO - PURCHASER S OF THE LAND. THEREFORE, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE FOR NOT DISALLOWING THESE TRANSACTIONS IN THE RETURN OF INCOME FILED BY THE ASSESSEE . V IDE THE AFORESAID SHOW CAUSE NOTICE IT WAS ALSO STATED THAT SHRI VIJ AYBHAI GOVINDBHAI PRAJAPATI HAD TO ATTEND THE OFFICE OF THE ASSESSING O FFICER ON 22 ND MARCH, 2014, T HEREFORE, THE ASSESSEE WAS ASKED TO AVAIL THE OPPORTUNITY OF CROSS - EXAMINATION OF THE ABOVE PERSON. THE ASSESSING OFFICER HAS STATED THAT ABOVE P A RTY H AS ATTENDED HIS OFFICE ON 21 ST MARCH, 2014, H OWEVER, THE ASSESSEE HAS FAIL ED TO ATTEND THE HEARING TO AVAIL THE OPPORTUNITY FOR CROSS - EXAMINATION OF THE SAID PERSON. CONSEQUENTLY , ON THE BASIS OF STATEMENT OF SHRI VI JAYBHAI PRAJAPATI RECORDED U/S. 131 OF THE ACT, I.T.A NO. 586 /AHD/20 16 A.Y. 2007 - 08 PAGE NO SAILESHBHAI KANTILAL PATEL VS. ACIT 3 T HE ASSESSING OFFICER HAS ADDED AN AMOUNT OF R S. 28 , 02 , 944/ - BEIN G 25% SHARE OF THE ASSESSEE AS UNDISCLOSED INCOME TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSE L HAS F I LED PAPER BOOK CONTAINING COPIES OF DOCUMENT AND INFORMATION FURNISHED BEFORE THE ASSESSING OFFICER AND LD. CIT(A) DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS . IT WAS PLEADED T HAT NO EFFECTIVE OP PORTUNITY TO CROSS - EXAMINE OF SHRI GOVINDBHAI PRAJAPATI WAS PROVIDED TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT ASSESSING OFFICER HA D ISSUED LETTER TO THE ASSESSEE TO ATTEND THE OFFICE FOR CROSS - EXAMINATION OF SHRI GOVINDBHAI PRAJAPATI ON 21 - 03 - 2014, HOWEVER, TH E SAID LETTER WAS RECEIVED BY THE 75 YEARS OLD FATHER OF THE ASSESSEE ON 18 TH MARCH, 2014 AND DURING THAT PERIOD THE ASSESSEE HAD GONE TO HIS NATIVE VILLAGE IN CONNECTION WITH SUPERVISI ON OF AGRICULTURAL LAND. V IDE LETTER DATED 26 TH MARCH, 201 4 PLACED AT PAGE NO. 150 OF THE PAPER BOOK, IT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT FRESH OPPORTUNITY FOR CROSS - EXAMINE SHRI GOVIND BHAI PRAJAPATI AND SHRI VIJAY GOVINDBHAI PRAJAPATI BE PROVIDED BECAUSE OF NON - AVAILABILITY OF THE ASSESSEE FOR THE REASONS CITED ABOVE . HOWEVER, NO FURTHER PROPER OPPORTUNITY WAS GRANTED TO THE ASSESSEE FOR CROSS - EXAMINAT ION OF THE PARTIES AND THE ADDITION WAS MADE BEHIND THE BACK OF THE ASSESSEE SIMPLY RELYING ON THIRD PARTY STATEMENT. ON THE OTHER HAND, LD . DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LOWER AUTHORITIES. I.T.A NO. 586 /AHD/20 16 A.Y. 2007 - 08 PAGE NO SAILESHBHAI KANTILAL PATEL VS. ACIT 4 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. THE DETAIL/INFORMATION OF CASH/ON MONEY RECEIVED BY THE ASSESSEE FOR SALE OF LAND AT BLOC K NO. 198 WAS FOUND DU RING THE COURSE OF SEARCH ACTION IN THE CASE OF SHRI GOVIND MULCHAND PRAJAPATI ON 08 - 12 - 200 9 . IT WAS FOUND THAT CASH ON - MONEY OF RS. 2,72,85,000/ - WAS G IVEN ON THE SALE OF PROPERTY OF BLOCK 198 AND 194 RESPECTIVELY. THE ASSESSEE WAS HAVING 25 % SHARE - HOL DING IN THE SOLD PROPERTY OF BLOCK NO. 198 ONLY . THE RE FORE, THE ASSESSEE S SHARE IN ON MONEY OF RS. 1 , 12 , 11 ,7 78/ PERTAINING TO BLOCK NO. 198 WAS COMPUTED AT RS. 28 , 02 , 994/ - (25% OF RS. 1,12,11,778). SHRI VIJAYBHAI PRAJAPATI WHO HAD PAID THE CASH/ON MONEY TO THE ASSESSEE HAD ACCEPTED THE ON MONEY PAYMENT IN CASH AND PAID TAXES THEREON. THE ASSESSING OFFICER HAS PROVIDED OPPORTUNITY OF CROSS EXAMINATION OF SHRI GOVINDBHAI PRAJAPATI AND SHRI GOVIND BHAI VIJAYBHAI PRAJAPATI TO THE A SSESSEE ON 21ST MARCH, 201 4 , HOWEV ER , THE ASSESSEE H A S F A I LED TO AVAIL THE AFORESAID OPPORTUNITY OF CROSS EXAMINATION BECAUSE VISIT TO NATIVE VILLAGE. REGARDING T HE COMMENT OF THE ASSESSING OFFICER THAT SHRI VIJAY BHAI G. PATEL HAD AGAIN ATTENDED ON 24 TH MARCH, 2014 AN D THE ASSESSE E HAS FAILED TO AVAIL THE OPPORTUNITY AGAIN , THE ASSESSEE HA S PLEADED THAT HE WAS NOT INFORMED TO ATTEND THE CROSS - EXAMINATION ON 2 4 TH MARCH, 2014. AFTER PERUSAL O F T H E MATERIAL ON RECORD, WE OBSERVE THAT REASONS CITED BY THE ASSESSEE FOR NOT MAKING COM PLIANCE BEFORE THE ASSESSING OFFICER TO AVAIL THE OPPORTUNITY TO CROSS EXAMINATION ARE NOT BASED ON CREDIBLE MATERIAL AND THE ASSESSEE HAS DEBILITATED THE PREC IOUS TIME OF THE AUTHORITIES. HOWEVER, THE LD. COUNSEL HA S PLEADED THAT ONE MORE OPPORTUNITY BE PROVIDED TO THE ASSESSEE TO CROSS - EXAMINATION SHRI GOVINDBHAI VIJAY BHAI PRAJAPATI FOR DECIDING THE CASE ON MERIT . THE LD. COUNSEL HAS CONCURRED TO BEAR COST OF RS. 50,000/ - TO THE DEPARTMENT FOR I.T.A NO. 586 /AHD/20 16 A.Y. 2007 - 08 PAGE NO SAILESHBHAI KANTILAL PATEL VS. ACIT 5 FAILURE TO MAKE COMPLIANCE TO AVAILABLE OPPORTUNITY OF CRO SS EXAMINATION PROVIDED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE , IT WILL BE APPROPRIATE TO PROVIDE ONE MORE OPPORTUNITY TO T HE ASSESSEE FOR CROS S EXAMINATION THE AFORESAID PARTY. THE RE FORE, WE RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE MATTER AFRESH AFTER PROVIDING OPPORTUNITY TO CROSS EXAMINE SHRI GOVIND PRAJAPATI AND SHRI VIJAY GOVINDBHAI PRAJAPATI . AS STATED ABOVE , THE ASSESSEE HAS TO PAY COST OF NOT MAKING PROPER COMPLIANCE BEFORE THE LOWER AUTHORITIES OF RS . 50,000/ - WITHIN ONE MONTH OF RECEIPT OF THIS ORDER A ND PROVIDE COPY OF CHALLAN TO THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS TO DECIDE THE ISSUE AFR ESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO CROSS EXAMINATION AS DIRECTED ABOVE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPO S ES . ORDER PR ONOUNCED IN THE OPEN C OURT ON 20 - 12 - 201 9 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 20 /12 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. I.T.A NO. 586 /AHD/20 16 A.Y. 2007 - 08 PAGE NO SAILESHBHAI KANTILAL PATEL VS. ACIT 6 BY ORDER/ , / ,