Shri Dharmendrasinh R.Vaghela, Baroda V. The ACIT, Circle-2(1), Baroda

ITA 737/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8524 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 01-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.737/AHD/2015 ( / ASSESSMENT YEAR : 2010-11) DHARMENDRASINH R.VAGHELA PROP.NARENDRA ROADLINES 1, GOKULNAGAR, NANDESARI BARODA 391 340 / VS. THE ACIT CIRCLE-2(1) BARODA 390 007 # ./ ./ PAN/GIR NO. : AAHPV 2633 D ( #% / APPELLANT ) .. ( &#% / RESPONDENT ) #%' / APPELLANT BY : SHRI MUKUND BAKSHI, AR &#%(' / RESPONDENT BY : SHRI RAJDEEP SINGH, SR.DR )*(+ / DATE OF HEARING 04/04/2018 ,-./(+ / DATE OF PRONOUNCEMENT 06/04/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTA NCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISS IONER OF INCOME TAX(APPEALS)-5, VADODARA [CIT(A) IN SHORT] DATED 27/11/2014 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF T HE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 30/03/2013 RELEVANT TO ASSESSMENT YEAR (AY) 2009-10. ITA NO. 737/AHD /2015 DHARMENDRASINH R.VAGHELA VS. ACIT ASST.YEAR 2010-11 - 2 - 2. THE ASSESSEE RAISED SEVERAL GROUNDS IN ITS APP EAL, BUT IN FOREMOST, CHALLENGES THE ACTION OF THE CIT(A) IN NOT ADMITTIN G ADDITIONAL EVIDENCES FURNISHED TOWARDS BROKERAGE EXPENSES AND IN RELATIO N TO ADDITIONS MADE UNDER S.68 TOWARDS UNEXPLAINED CASH CREDIT. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LD. AR FOR THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE SUPPORTIN G DOCUMENTS IN THE FORM OF INVOICES TOWARDS BROKERAGE EXPENSES COULD N OT BE SUBMITTED BEFORE THE AO OWING TO PAUCITY OF TIME. THE ASSES SEE COULD NOT TRACE THE SUPPORTING DOCUMENTS IN THE COURSE OF ASSESSMEN T PROCEEDINGS. IN THE FIRST APPEAL, THE CIT(A) HAS REFUSED TO ADMIT T HE ADDITIONAL EVIDENCES TO SUPPORT THE CLAIM OF BROKERAGE EXPENSES. THE LD .AR CONTENDED THAT THE BROKERAGE EXPENSES WERE PAID THROUGH BANKING CH ANNEL AND THEREFORE THERE WAS NO ELEMENT OF AFTERTHOUGHT. IT WAS THUS SUBMITTED THAT THE CIT(A) OUGHT TO HAVE ENTERTAINED THE PETITION FOR A DMISSION OF ADDITIONAL EVIDENCES. THE LD.AR NEXT SUBMITTED THAT THE BANK STATEMENT OF THE LENDERS TOWARDS CREDIT AVAILED BY THE ASSESSEE COUL D NOT BE SUBMITTED TO THE AO IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. IN THIS REGARD, THE LD.AR CONTENDED THAT THE BANK STATEMENT BELONGS TO THE THIRD PARTY AND WERE COLLECTED AND SOUGHT TO BE RELIED UPON BY WAY OF ADDITIONAL EVIDENCE TO SUPPORT THE BONAFIDES OF THE CASH CREDI T. THE EVIDENCE IN THE FORM OF NON-SUBMISSION OF BANK STATEMENT OF THIRD P ARTY OUGHT TO HAVE BEEN SEEN IN PERSPECTIVE AND ADDITIONAL EVIDENCE S HOULD HAVE BEEN ENTERTAINED BY THE CIT(A) WHILE DETERMINING THE ISS UE. ITA NO. 737/AHD /2015 DHARMENDRASINH R.VAGHELA VS. ACIT ASST.YEAR 2010-11 - 3 - 4. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DER OF THE CIT(A) AND CONTENDED THAT THE ASSESSEE HAS FAILED TO GIVE ANY JUSTIFIABLE REASON FOR ADMISSION OF THE ADDITIONAL EVIDENCES AT THE BE LATED STAGE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE ORDERS OF THE AUTHORITIES BELOW. WE STRAIGHT AWAY FIND ME RIT IN THE PLEA OF THE ASSESSEE FOR ADMISSION OF THE ADDITIONAL EVIDENCES. AS NARRATED ON BEHALF OF THE ASSESSEE, THE ADDITIONAL EVIDENCES IN THE FO RM OF BANK STATEMENT, ONLY SEEKS TO SUPPORT THE DOMINANT EVIDENCES IN POS SESSION OF THE ASSESSEE TOWARDS SUPPOSED BONAFIDE OF THE CASH CRED IT. THE THIRD PARTY EVIDENCE NOT IN POSSESSION OF THE ASSESSEE OR NOT C ALLED FOR IN THE ASSESSMENT PROCEEDINGS SHOULD HAVE BEEN ADMITTED AT THE APPELLATE STAGE FOR FAIR ADJUDICATION OF THE ISSUE. SIMILARLY, THE INVOICE AND OTHER SUPPORTING DOCUMENTS TO SUPPORT THE BROKERAGE EXPEN SES INCURRED SHOULD BE ENTERTAINED TO PROMOTE THE PRINCIPLE OF NATURAL JUSTICE IN THE ABSENCE OF ANY MALAFIDES SHOWN IN THIS REGARD. WE DO NOT SEE ANY SERIOUS PREJUDICE TO THE REVENUE IN ADMITTING THE ADDITIONAL EVIDENCE S ALBEIT AT THE BELATED STAGE. THEREFORE, IN THE LARGER INTEREST OF JUSTIC E, WE DEEM IT EXPEDIENT TO DIRECT THE CIT(A) TO ADMIT THE ADDITIONAL EVIDENCES PLACED BEFORE HIM IN THE COURSE OF THE APPELLATE PROCEEDINGS AND ADJUDIC ATE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW AFTER MAKING SUCH ENQUIRY AS MAY BE CONSIDERED NECESSARY. THEREFORE, WE SET ASIDE THE APPELLATE O RDER OF THE CIT(A) ITA NO. 737/AHD /2015 DHARMENDRASINH R.VAGHELA VS. ACIT ASST.YEAR 2010-11 - 4 - DATED 27/11/2014 AND RESTORE THE ISSUES BACK TO THE FILE OF THE CIT(A) FOR DE NOVO ADJUDICATION AFTER TAKING COGNIZANCE OF ADDITIONAL EVIDENCES AND AFTER GIVING REASONABLE OPPORTUNITY TO ASSESSEE TO DEFEND ITS CASE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 06 / 04/2018 SD/- SD/- () ( ) (RAJPAL YADAV) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 06/ 04 /2018 3..),.)../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. #% / THE APPELLANT 2. &#% / THE RESPONDENT. 3. 456+ 7+ / CONCERNED CIT 4. 7+ ( ) / THE CIT(A)-5, VADODARA 5. 89:+)56 , 56/ , 4 / DR, ITAT, AHMEDABAD 6. :<* / GUARD FILE. / BY ORDER, &8++ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD