Smt. Archna Vasudev Bansal, Surat V. The Income tax Officer,Ward-5(1), Surat

ITA 688/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1698 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R N VEPARI
• Keywords: Business income; Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA, JUDICIAL MEMBER) ITA NO.688/AHD/2010 [ASSTT. YEAR : 2006-2007] ARCHNA VASUDEV BANSAL VASUDEV BANSAL RAVINDHAM COMPLEX GHODDOD ROPAD, SURAT PAN : AASPB 9768 L VS. ITO, WARD-1(1) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.N. VEPARI REVENUE BY : SHRI K. MADHUSUDAN O R D E R PER G.D. AGARWAL, VICE-PRESIDENT: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, SURAT DATED 26.11.2009 ARISING OUT OF THE ORDER OF THE AS SESSING OFFICER PASSED UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. 2. THE FOLLOWING GROUNDS ARE RAISED IN THE APPEAL: I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN CONFIRMING ALLEGED UNEXPLAINED BANK DEPOSI T. II. ON THE FACTS AND CIRCUMSTANCES OF THE CSE, THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.57,603/- BY ESTIMATING BUSINESS INCOME AT RS.1,00,000/- WITHOUT ANY BASIS OR EVIDENCE. ITA NO.688/AHD/2010 -2- 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED COUNSEL THAT THE ASSESSEE IS A NON-RESIDENT INDIAN AND AT THE RELEVANT TIME, SHE WAS RESIDING IN USA; THAT ON THE BASIS OF SOME INFORMATION COLLECTED BY THE REVENUE, THE ASSESSING OFFICER ASKED THE ASS ESSEE TO EXPLAIN THE DEPOSIT IN HER BANK ACCOUNT WITH IDBI BANK; THAT SI NCE THE ASSESSEE WAS IN THE USA AT THE RELEVANT TIME, THE REQUISITE DETA ILS COULD NOT BE FURNISHED AND THEREFORE THE ASSESSING OFFICER TREAT ED THE ENTIRE DEPOSITS WHICH WERE PARTLY IN CASH AND PARTLY BY CHEQUE AS U NEXPLAINED BANK DEPOSITS. THAT THE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE FURNISHED A DETAILED EXPLAN ATION IN RESPECT OF EACH AND EVERY DEPOSIT. HOWEVER, THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) ASKED FOR THE REMAND REPORT FROM THE ASSE SSING OFFICER AND IN THE REMAND REPORT, THE ASSESSING OFFICER OBJECTED T O THE ASSESSEES EXPLANATION ON THE GROUND THAT THE ASSESSEE FURNISH ED NO EVIDENCE IN SUPPORT OF THE EXPLANATION. IT IS SUBMITTED BY THE LEARNED COUNSEL THAT THE AO IN REMAND PROCEEDINGS NEVER ASKED THE ASSESSEE T O SUBMIT EVIDENCE IN SUPPORT OF THE EXPLANATION FOR CASH CREDIT. IN VIEW OF THE ABOVE, THE ASSESSEE HAD REQUESTED FOR THE ADMISSION OF CERTAIN ADDITIONAL EVIDENCES WHICH ARE IN THE FORM OF CONFIRMATION, COPY OF ACCO UNT AND AFFIDAVIT FROM CERTAIN PARTIES. IT WAS EXPLAINED BY THE ASSESSEE THAT IN THE EARLIER YEARS, THE ASSESSEE HAD GIVEN ADVANCES TO CERTAIN TRADERS IN THE EARLIER YEAR. WHEN THOSE PERSONS COULD NOT RETURN THE MONEY IN CA SH, THE ASSESSEE HAD TAKEN THE CLOTHES FROM THEM WHICH WAS SOLD BY THE A SSESSEE. THE MONEY GENERATED ON SUCH SALE WAS DEPOSITED IN CASH IN THE BANK ACCOUNT. HE ALSO EXPLAINED THAT THE ASSESSEE HAS FURNISHED THE CONFORMATION OF THE PERSONS FROM WHOM THE AMOUNT WAS RECEIVED BY CHEQUE AND DEPOSITED IN THE ASSESSEES BANK ACCOUNT. HE THEREFORE SUBMITT ED THAT THE ABOVE ITA NO.688/AHD/2010 -3- ADDITIONAL EVIDENCES WOULD BE VERY IMPORTANT AS WEL L AS RELEVANT FOR ADJUDICATING THE ISSUE UNDER CONSIDERATION. 4. THE LEARNED DR, ON THE OTHER HAND, OBJECTED TO T HE ADMISSION OF THE ADDITIONAL EVIDENCE ON THE GROUND THAT ADEQUATE OPP ORTUNITIES WERE ALLOWED BY THE ASSESSING OFFICER DURING THE ASSESSM ENT PROCEEDINGS. THEREFORE, THIS ADDITIONAL EVIDENCE SHOULD NOT BE A DMITTED. 5. IN THE REJOINDER, IT WAS EXPLAINED BY THE LEARNE D COUNSEL THAT THE ASSESSEE IS A LADY WHO AFTER HER MARRIAGE SHIFTED T O USA AND THEREFORE COULD NOT FURNISH DETAILS DURING THE ASSESSMENT PRO CEEDINGS. HE THEREFORE SUBMITTED THAT THERE WAS A REASONABLE CAU SE FOR THE ASSESSEES FAILURE TO FURNISH THE DETAILS DURING THE ASSESSMEN T PROCEEDINGS. 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDE S AND THE FACTS OF THE CASE, IN OUR OPINION, IT WOULD MEET ENDS OF JUS TICE, IF THIS ISSUE IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR RE-E XAMINATION. WE THEREFORE SET ASIDE THE ORDER OF THE AUTHORITIES BE LOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSIN G OFFICER. WE DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES AS WELL AS EX PLANATION BEFORE THE ASSESSING OFFICER. WE ALSO DIRECT THE ASSESSING OF FICER TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER RE- ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW. 7. GROUND NO.2 IS ALSO INTER-RELATED TO THE GROUND NO.1 BECAUSE THE BUSINESS INCOME IS ONLY OUT OF THE SALE OF CLOTH WH ICH WAS TAKEN IN RECOVERY FROM THE PERSONS TO WHOM THE ASSESSEE HAS CLAIMED TO HAVE ADVANCED THE AMOUNT IN EARLIER YEARS. WE THEREFORE SET ASIDE BOTH THE ITA NO.688/AHD/2010 -4- GROUNDS TO THE FILE OF ASSESSING OFFICER FOR RE-ADJ UDICATION IN ACCORDANCE WITH LAW. 8. IN RESULT, ASSESSSEES APPEAL IS DEEMED TO BE AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 28 TH MARCH, 2011 SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 28-03-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD