The ACIT, Circle-12, Ahmedabad V. Smt. Gayatriben M.Vyas, Ahmedabad

ITA 793/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0090 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI R. P. TOLANI, JM, & SHRI MANISH BORA D, AM. ITA NO. 793/AHD/202011 ASST. YEAR: 2007-08 ACIT, CIRCLE-12, AHMEDABAD. VS. SMT. GAYATRIBEN M. VYAS, 2, NATRAJ ESTATE, OPP. NAGARVEL HANUMAN, RAKHIAL, AHMEDABAD. APPELLANT RESPONDENT PAN AEAPV9755M APPELLANT BY SHRI K. MADHUSUDAN, SR.DR RESPONDENT BY NONE DATE OF HEARING: 8/11/2016 DATE OF PRONOUNCEMENT: 9/11/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL OF REVENUE FOR ASST. YEAR 2007-08 IS D IRECTED AGAINST THE ORDER OF LD. CIT(A)-XX, AHMEDABAD DATED 16.11.2010 VIDE ORDER NO.CIT(A)-XX/195/09-10 ARISING OUT OF TH E ORDER U/S 143(3) OF THE IT ACT, 1961 (IN SHORT THE ACT) FRAMED ON 30 .12.2009 BY ITO WD-12(4), AHMEDABAD. REVENUE HAS RAISED FOLLOWING G ROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN DELETING THE ADDITION OF RS.68,70,000/- WHICH WAS SHOWN AS CASH CREDITS FROM M/S. SHRI RADHE ENTERPRISE AND M/S. D.S. TRADERS. ITA NO. 793/AHD/2011 ASST. YEAR 2007-08 2 2. THE LD. CIT(A) HAS ERRED IN OBSERVING THAT THE ASSESSING OFFICER DID NOT CARRY OUT ANY INDEPENDENT VERIFICATION IN RESPECT O F SUCH CASH CREDITS. IN DOING SO, HE FAILED TO TAKE INTO CONSIDERATION THE FACT THAT THE TOTAL CASH CREDITS SHOWN BY THE ASSESSEE AS RECORDED IN PARA 9 .1 OF THE , APPELLATE ORDER WAS RS.1,27,70,000/- AND IT WAS ONLY AFTER MA KING THE RELEVANT ENQUIRIES THAT THE ASSESSING OFFICER MADE THE ADDIT ION OF ONLY THE SUM OF RS.68,70,000/- UNDER THE PROVISIONS OF SECTION 68 O F THE I.T. ACT. 3. THE LD. CTF(A) HAS ERRED IN FAILING TO SPELL OUT THE NATURE OF THE INDEPENDENT VERIFICATION WHICH THE ASSESSING OFFICE R OUGHT TO HAVE CARRIED OUT BEFORE MAKING THE ADDITION, ESPECIALLY SINCE TH E ASSESSING OFFICER HAD ALREADY CARRIED OUT THE REQUISITE VERIFICATION BEFO RE MAKING THE ADDITION. 4. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTE NT. 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE BEING AN INDIVIDUAL FILED HIS RETURN OF IN COME ON 12/10/2007 DECLARING TOTAL INCOME AT RS.2,66,360/-. THE CASE W AS SELECTED FOR SCRUTINY ASSESSMENT. INCOME WAS ASSESSED AT RS.2,03 ,89,900/- BY ASSESSING OFFICER AFTER MAKING ADDITION OF RS.2,01, 23,541/- WHICH INTER ALIA INCLUDED ADDITION TOWARDS CASH CREDIT U/ S 68 AT RS.68,70,000/-. APPEAL BEFORE LD. CIT(A) BROUGHT PA RT RELIEF TO THE ASSESSEE. 3. REVENUE IS NOW IN APPEAL BEFORE THE TRIBUNAL RAI SING SOLITARY ISSUE AGAINST THE ACTION OF LD. CIT(A) DELETING THE ADDITION OF RS.68,70,000/- MADE BY ASSESSING OFFICER U/S 68 OF THE ACT FOR UNEXPLAINED CASH CREDIT FROM M/S RADHE ENTERPRISE A T RS.43,70,000/- AND M/S D.S. TRADERS AT RS.25,00,000/-. 4. WHEN THE CASE WAS CALLED FOR, NONE APPEARED ON B EHALF OF THE ASSESSEE. FROM PERUSAL OF THE NOTE-SHEET AVAILABLE IN THE FILE WE ITA NO. 793/AHD/2011 ASST. YEAR 2007-08 3 OBSERVE THAT THE CASE HAS BEEN ADJOURNED AROUND 17 TIMES AND IT APPEARS THAT AT MOST OF THE HEARINGS EITHER NONE AP PEARED ON BEHALF OF THE ASSESSEE OR ADJOURNMENT WAS TAKEN. UNDER THE SE CIRCUMSTANCES WE FEEL IT APPROPRIATE TO ADJUDICATE THE APPEAL EX PARTE AFTER HEARING THE LD. DR. 5. LD. DR SUBMITTED THAT THE FACTS RELATING TO THE GROUND IN THIS APPEAL ARE THAT AN ADDITION OF RS.68,70,000/- WAS M ADE BY ASSESSING OFFICER TOWARDS UNEXPLAINED CASH CREDIT U/S 68 OF T HE ACT RECEIVED FROM M/S RADHE ENTERPRISE AT RS.43,70,000/- AND M/S D.S. TRADERS AT RS.25,00,000/-. WHILE MAKING THIS ADDITION LD. ASSE SSING OFFICER OBSERVED THAT LOANS HAVE BEEN RECEIVED BY BOOK ENTR Y AND THERE IS NO MOVEMENT OF CASH/CHEQUE AND IT IS MORE IN THE SH APE OF ACCOMMODATION ENTRY AND, THEREFORE, THE TRANSACTION S ARE NOT GENUINE. ASSESSEE WAS ALSO UNABLE TO PROVE THE GENU INENESS OF THE TRANSACTIONS BEFORE THE ASSESSING OFFICER. LD. DR F URTHER SUBMITTED THAT WHEN THE ISSUE CAME UP BEFORE LD. CIT(A) THE I MPUGNED ADDITION OF RS.68,70,000/- WAS DELETED BY JUST OBSERVING THA T NO VERIFICATION WAS CARRIED OUT BY ASSESSING OFFICER WITH REGARD TO DETAILS FILED BY ASSESSEE BEFORE HIM IN ORDER TO DISPROVE DISPROVED THE GENUINENESS OF THE TRANSACTIONS. LD. DR SUBMITTED THAT IN THE G IVEN CIRCUMSTANCES, THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSE SSING OFFICER FOR THE PURPOSE OF NECESSARY VERIFICATION OF THE DETAIL S SO SUPPLIED BY ASSESSEE IN ORDER TO VERIFY THE GENUINENESS OF THE TRANSACTIONS. 6. WE HAVE HEARD THE LD. DR AND GONE THROUGH THE RE CORD. THROUGH THIS GROUND REVENUE HAS RAISED THE SOLITARY GRIEVANCE ITA NO. 793/AHD/2011 ASST. YEAR 2007-08 4 AGAINST THE ORDER OF LD. CIT(A) DELETING THE ADDITI ON OF RS.68,70,000/- TOWARDS UNEXPLAINED CASH CREDIT FROM M/S. RADHE ENT ERPRISE AT RS.43,70,000/- AND M/S D.S. TRADERS AT RS.25,00,000 /-. FROM GOING THROUGH THE RECORD PLACED BEFORE US, WE FIND THAT T HERE IS NO DISPUTE THAT THE ASSESSEE PROVED THE IDENTITY AND CREDITWOR THINESS OF THE TWO DEPOSITORS NAMELY M/S RADHE ENTERPRISE AND M/S D. S . TRADERS. WHAT REMAINS IS THE GENUINENESS OF THE TRANSACTIONS WHICH HAVE BEEN QUESTIONED BY ASSESSING OFFICER DURING THE COU RSE OF ASSESSMENT PROCEEDINGS BUT DUE TO NON VERIFICATION OF DETAILS FILED BY ASSESSEE WITH REGARD TO THE IMPUGNED UNEXPLAINED CA SH CREDITORS, LD. CIT(A) DELETED THE IMPUGNED ADDITION. 7. IN THE GIVEN FACTS AND CIRCUMSTANCES WHEREIN NON E HAS APPEARED ON BEHALF OF ASSESSEE TO CONTROVERT THE CO NTENTIONS MADE BY LD. DR AND ALSO TO APPRAISE THE FACT THAT NECESS ARY VERIFICATION WAS NOT CARRIED OUT BY ASSESSING OFFICER IN ORDER TO SA TISFY ABOUT THE GENUINENESS OF THE LOAN TRANSACTIONS, WE ARE OF THE VIEW THAT IT WILL BE JUSTIFIED TO RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO CALL FOR NECESSARY DETAILS ABOUT T HE CASH CREDITS IN THE NAMES OF M/S RADHE ENTERPRISE AND M/S D. S. TRADERS AND CARRY OUT NECESSARY VERIFICATION TO SATISFY ABOUT THE GENUINE NESS OF THE LOAN TRANSACTIONS AND PASS ORDER ACCORDINGLY FOR THIS LI MITED ISSUE. NEEDLESS TO MENTION THAT PROPER OPPORTUNITY OF BEIN G HEARD, MAY BE GIVEN TO THE ASSESSEE. ACCORDINGLY, THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 793/AHD/2011 ASST. YEAR 2007-08 5 8. OTHER GROUNDS ARE OF GENERAL NATURE, WHICH NEED NO ADJUDICATION. 9. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 NOVEMBER, 2016 SD/- SD/- (R.P. TOLANI) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 9/11/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 8/11/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 8/11/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 9/11/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: