ACIT, Circle,-II, Nagpur V. Shri Mohd. Ashif Shaikh, Nagpur

ITA 72/NAG/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9570 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 08-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M MANI
• Keywords: Principle of natural justice; Additional evidence
• Section: 68

Judgement Text

ITA NO S . 71&72/NAGPUR/2010 SHRI MD. ASIF SHAIKH, NAGPUR IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , NAGPUR BEFORE: SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI D.T. GARASIA , JUDICIAL MEMBER ITA NO S . 71&72 / NAG / 20 10 ASSESSMENT YEAR : 2001 - 02 & 2002 - 03 ACIT CIRCLE - 2 NAGPUR VS. S HRI MOHAMMAD ASIF SHAIKH NAGPUR (APPELLANT) (RESPONDENT) PAN NO.AERPS 4677N APPELLANT BY: SHRI B. RAJARAM, ADDL.CIT WITH DR. MILIND BHUSARI, CIT(DR) RESPONDENT BY: SHRI M. MANI, ADVOCATE DATE OF HEARING: 11.10.2012 DATE OF PRONOUNCEMENT: 15.10.2 012 ORDER PER P.K. BANSAL, ACCOUNTANT MEMBER: - SINCE THE ISSUE INVOLVED IS COMMON IN BOTH THE APPEALS RELATING TO SAME ASSESSEE, BOTH THE APPEALS ARE DECIDED BY THIS COMMON ORDER. ITA NO.71/NAGPUR/2010: 2. TH IS APPEAL HA S BEEN FILED BY THE REVENUE A GAINST THE ORDER OF THE CIT(A) DATED 19.2.2010. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATE TO THE DELETION OF THE ADDITION OF RS.13,50,000/ - BY THE CIT(A). THE BRIEF FACTS RELATING TO THIS APPEAL ARE THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDING S, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS TAKEN LOAN FROM HIS FATHER SHRI SHAIKH DILAWAR ABDUL BARI AMOUNTING TO RS.13,50,000/ - . THE ASSESSEE WAS ASKED TO ESTABLISH THE GENUINENESS AND CREDITWORTHINESS. THE EXPLANATION SUBMITTED BY THE ASSESSE E WAS REJECTED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE THE ADDITION U/S 68 OF THE INCOME - TAX ACT. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE ASSESSING OFFICER SUBMITTED DOCUMENTS TO PROVE THE CREDITWORTHINESS OF SHAIKH DILAWAR ABDUL BARI WHICH CONSIST OF CASH FLOW STATEMENT ABOUT THE AVAILABILITY OF THE FUNDS IN THE HANDS OF SHRI SHAIKH DILAWAR ABDUL BARI. THE CIT(A) CALLED FOR ITA NOS.71&72/NAGPUR/2010 SHRI MD. ASIF SHAIKH, NAGPUR 2 THE REMAND REPORT FROM THE ASSESSING OFFICER. IN THE REMAND REPORT, THE ASSESSING OFFICER STATED THAT T HE DOCUMENTS WERE FILED FOR THE FIRST TIME AT THE APPELLATE STAGE AND ARE NOT FILED BEFORE HIM. THE CIT ON THE BASIS OF FRESH EVIDENCE, EVEN THOUGH THEY WERE NOT SPECIFICALLY ADMITTED BY HIM DELETED THE ADDITION. 3 . WE HEARD THE RIVAL SUBMISSIONS AND CAR EFULLY CONSIDERED THE SAME. WE NOTED AS POINTED OUT BY THE LD. D.R. THAT THE ASSESSEE HAS FILED THE STATEMENT FOR THE AVAILABILITY OF FUNDS FOR THE FIRST TIME BEFORE THE CIT(A) IN THE FORM OF THE OPENING BALANCE OF CASH AND BANK BALANCE. THE DOCUMENTS WE RE NOT FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER DID NOT HAD THE OPPORTUNITY TO EXAMINE THE DOCUMENTS. THE CIT(A) EVEN THOUGH DELETED THE ADDITION RELYING ON THESE DOCUMENTS BUT HE HAS NOT GIVEN ANY FINDING ABOUT THE ADMISSION ON THESE DO CUMENTS AS AN ADDITIONAL EVIDENCE. WE ALSO NOTED THAT NO APPLICATION UNDER RULE 46A WAS FILED BEFORE THE CIT(A). THE ASSESSEE ALSO DID NOT DENY THAT THE DOCUMENTS WERE FILED BEFORE THE CIT(A) FOR THE FIRST TIME TO PROVE THE CREDITWORTHINESS OF THE FATHER OF THE ASSESSEE. IN OUR OPINION, ONUS U/S 68 LIES ON THE ASSESSEE TO PROVE ALL THE THREE INGREDIENTS I.E. IDENTITY, GENUINENESS OF THE TRANSACTIONS AND THE CREDITWORTHINESS OF THE CREDITOR. WE, THEREFORE, IN VIEW OF THE NATURAL JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHALL RE - DECIDE THE ISSUE AFTER EXAMINING ALL THE EVIDENCES AS THE ASSESSEE MAY FILE IN THIS REGARD IN ACCORDANCE WITH LAW. 4 . IN THE RESULT, THIS APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.72/NAGPUR/2010: 5 . BOTH THE PARTIES AGREED BEFORE US THAT IN ITA NO.72 ALSO THE SIMILAR ISSUE ARISE S RELATING TO THE ADDITION OF THE CASH CREDIT AMOUNTING TO RS.7 LAKHS RECEIVED BY THE ASSESSEE FROM SHRI SHAIKH DILAWAR ABDUL BARI. BOTH THE COUNSEL AGREED THAT WHATEVER VIEW THIS TRIBUNAL MAY TAKE IN RESPECT TO THE APPEAL NO.ITA 71, THE SAME VIEW MAY BE TAKEN IN RESPECT OF THIS APPEAL. SINCE THIS APPEAL ALS O RELATE TO ITA NOS.71&72/NAGPUR/2010 SHRI MD. ASIF SHAIKH, NAGPUR 3 THE SAME ISSUE , WE ACCORDINGLY, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THIS ISSUE ALSO TO THE FILE OF THE ASSESSING OFFICER FOR MAKING FRESH ASSESSMENT IN ACCORDANCE WITH THE LAW AFTER GIVING PROPER AND DUE OPPORTUNITY TO THE ASSESSEE FO R PRODUCING THE EVIDENCE AS THE ASSESSING OFFICER REQUIRE AND AS THE ASSESSEE LIKE TO SUBMIT FOR DISCHARGING HIS ONUS. 6 . IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15.10 .20 1 2 SD/ - SD/ - ( D.T. GARASIA ) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER VG/SPS NAGPUR DATED 15 TH OCTOBER , 20 1 2 COPY TO 1 ACIT, CIRCLE - 2, NAGPUR 2 SHRI MOHAMMAD ASIF SHAIKH, 19, GAZAL APARTMENT, KATOL RO AD, CHHAONI, NAGPUR 3 THE CIT (A) , NAGPUR 4 THE DR, ITAT, NAGPUR 5 GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL NAGP UR