Shri Kanubhai Girdharbhai Patel, Ahmedabad V. The Dy.CIT.,Circle-2(1), Ahmedabad

ITA 65/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1661 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 04-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 10-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHAURYA SHUKLA
• Assessee Lawyers: ANIL R SHAH
• Section: 194C; 68

Judgement Text

ITA NO.65/AHD/2011 A.Y. 2006-07 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.65/AHD/2011 ASSESSMENT YEAR: 2006-07 SHOBHA MAHENDRA PATEL, VS. DY. COMMISSIONER OF IN COME TAX, L/H OF LATE SHRI KANUBHAI GIRDHARBHAI CIRCLE 2(1 ), BARODA. PATEL, PROP. KANUBHAI G. PATEL, 6, CHETAN SOCIETY, AKOTA ROAD, BARODA. [PAN ACQPP 7754 E] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL R. SHAH, A.R. RESPONDENT BY : SHRI SHAURYA SHUKLA, SR. D. R. DATE OF HEARING : 04.05.2016 DATE OF PRONOUNCEMENT : 06.05.2016 O R D E R PER R.P. TOLANI, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL. FOLLOWING GROUNDS ARE R AISED: 1(A) THE CIT(A) HAS ERRED BOTH IN LAW AND IN FACT I N UPHOLDING APPLICABILITY OF SECTION 40(A)(IA) OF THE ACT AND THEREBY CONFIRMING DISALLOWANCE OF RS.1,31,230/- MADE BY THE ASSESSING OFFICER. (B) YOUR APPELLANT SUBMITS THAT SAID SECTION DOES N OT APPLY AND THAT SINCE YOUR APPELLANT HAS NOT COMMITTED ANY DEFAULT U/S. 1 94C(3) THE DISALLOWANCE BE DELETED. 2(A) THE CIT(A) HAS ALSO ERRED IN CONFIRMING APPLIC ABILITY OF SECTION 68 OF THE ACT AND THEREBY UPHOLDING ADDITION OF RS.2,00,000/- MADE BY THE ASSESSING OFFICER IN THE ACCOUNT OF SMT. LILABEN S . KHER CORRECT NAME BEING LILARAM SHANKERLAL DANGE. (B) YOUR APPELLANT SUBMITS THAT SECTION 68 DOES NOT APPLY TO THE FACTS OF THE CASE AND HE HAVING SATISFIED ALL REQUIREMENTS OF LA W THE ADDITION BE DELETED. ITA NO.65/AHD/2011 A.Y. 2006-07 PAGE 2 OF 3 IT IS THEREFORE SUBMITTED THAT RELIEF CLAIMED ABOV E BE ALLOWED AND THE ORDER OF THE ASSESSING OFFICER BE MODIFIED ACCORDIN GLY. 2. WE HAVE HEARD BOTH THE PARTIES. 3. APROPOS GROUND NO.1 I.E. DISALLOWANCE UNDER SECT ION 40(A)(IA) OF THE INCOME TAX ACT 1961, IN OUR CONSIDERED VIEW, THERE IS MERI T IN THE CONTENTION OF THE LD. COUNSEL THAT EACH CARTING CONTRACT WAS BELOW RS.20, 000/- AND WAS DISTINCT AND SEPARATE CONTRACT. AFTER COMPLETION OF EACH CARTIN G CONTRACT THERE WAS NO CONTINUATION WHATSOEVER. IN VIEW OF THESE UNDISPUT ED FACTS, SECTION 194C IS NOT APPLICABLE IN ASSESSEES CASE AND CONSEQUENTLY THER E CANNOT BE ANY DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. THIS DISALLOWA NCE IS DELETED. 4. THIS GROUND OF ASSESSEE IS ALLOWED. 5. APROPOS GROUND NO.2, I.E. ADDITION OF RS.2,00,00 0/- UNDER SECTION 68 OF THE ACT, LD. CIT(A) CONFIRMED THE ADDITION BY OBSERVING AS U NDER:- 3.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE LEARN ED AUTHORISED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFIC ER. THE APPELLANT HAS DISCHARGED ITS ONUS IN RESPECT OF KANUBHAI G. PATEL (HUF) THEREFORE THE ADDITION OF RS.3,28,750/- IS DELETED. THE ASSESSIN G OFFICER IS HOWEVER, DIRECTED TO PASS ON THIS INFORMATION TO THE ASSESSI NG OFFICER OF KANUBHAI G. PATEL (HUF) AND TAKE ACTION, IF ANY, IN ITS HAND. THE ADDITION IN RESPECT OF SMT. LILABEN/LILARAM DANGE, THE ADDITION IS CONFIRMED AS APPELLANT HAS FAILED TO DISCHARGE ITS ONUS. NEITHER THE GENUINENESS OF TRA NSACTION NOR CREDITWORTHINESS IS PROVED. ADDITION MADE IN RESPE CT OF M/S. RAJ AND SHIRISH IS DELETED BECAUSE THIS ONLY AN OPENING BALANCE. 6. SINCE THE LD. CIT(A) HAS CORRECTED THE MISTAKE C OMMITTED BY THE ASSESSING OFFICER IN THE NAME OF CREDITOR SMT. LILARAM DANGE, WE SEE NO MERIT IN THIS CONTENTION. FURTHER AFTER HEARING BOTH THE PARTIES IT EMERGES FROM RECORD THAT THE ASSESSEE MERELY SUBMITTED COPY OF ACCOUNT FROM HIS ACCOUNTS PURPORTING TO BE SIGNED BY THE CREDITOR AFTER THE DATE OF HEARING OF THE ASSESSMENT WAS CLOSED BY THE ASSESSING OFFICER. BESIDES, NO AUTHENTIC PROOF FOR FILING THE SAME WITH ASSESSING ITA NO.65/AHD/2011 A.Y. 2006-07 PAGE 3 OF 3 OFFICER HAS BEEN PLACED ON RECORD. THERE IS MERE E XPLANATION BY THE ASSESSEE THAT IT IS FILED WITH THE ASSESSING OFFICER. ON QUESTION, LEARNED COUNSEL COULD NOT INFORM THE BENCH WHO WAS THE PERSON HANDED OVER THE PAPERS AS ALLEGED BY THE ASSESSEE. BESIDES, THE PURPORTED CONFIRMATION WHICH WAS NOT D ULY FILED DOES NOT REFLECT ANYTHING ON CREDITWORTHINESS OF THE CREDITOR. IN VIEW OF AL L THESE GLARING INCONSISTENCIES, IT IS APPARENT THAT THE ASSESSEE FAILED TO DISCHARGE HIS ONUS IN TERMS OF CONTEMPLATING SECTION 68 OF THE ACT. IN VIEW THEREOF, THIS ADDIT ION IS CONFIRMED. 7. THIS GROUND OF ASSESSEE IS DISMISSED. 8. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED. (THIS ORDER PRONOUNCED IN THE OPEN COURT TODAY ON T HE 6 TH DAY OF MAY, 2016.) SD/- SD/- N.K. BILLAIYA R.P. TOLANI (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, THE 6 TH DAY OF MAY, 2016 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FIL E BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD