Appeal details
Counselvise Citation
80724914 RSA 2010
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 9 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-01-2012
Appeal Filed By
Department
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
12-12-2011
Assessment Year
2006-2007
Appeal Filed On
22-03-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) ITA NO.807/RJT/2010. (ASSESSMENT YEAR 2006-07) THEE I.T.O., VS SHRI MANOJ TARACHAND NANKANI, WARD-2, GANDHIDHAM. PROP.OF M/S. NEW TECH INCORPO RATION, PLOT NO.64, WARD-12B, ADIPUR. PAN:AAWPN9918Q. (APPELLANT) (RESPONDENT) DATE OF HEARING : 14-12-2011 DATE OF PRONOUNCEMENT : 20 -01-2012. REVENUE BY : SHRI M. K. SINGH, D.R. ASSESSEE BY : SHRI KALPESH DOSHI, C.A.. O R D E R PER T.K. SHARMA (JM) THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 16-12-2009 OF CIT (A)-II, RAJKOT DELETING THE ADDIT ION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S.68 OF THE I.T. ACT, 19 61 AMOUNTING TO RS. 31,00,000/-FOR THE ASSESSMENT YEAR 2006-07. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL DOING BUSINESS OF IMPORT AND TRADING IN SCRAP IN HIS PROP RIETORSHIP CONCERN VIZ., NEW TECH INCORPORATION. FOR THE ASSESSMENT UNDER APPEA L, HE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,43,668/- ON 31-03-20 07. IN THE ASSESSMENT ORDER, AO TREATED THE FOLLOWING TWO CASH CREDIT AMOUNTING TO RS.31,00,000/- AS BOGUS/UNEXPLAINED U/S.68 OF THE I.T. ACT, 1961 ON T HE GROUND THAT ASSESSEE HAS NOT FURNISHED THE CONFIRMATION FROM SO-CALLED DEPOS ITORS.:- SR. NO. NAME OF THE PERSON. AMOUNT (RS.) 1. M/S. SHEETAL FLAM 6,00,000/- 2. MS. KOMAL GORDHAN KALANI 25,00,000/- TOTAL 31,00,000/- ITA NO 807/RJT/2010. 2 3. ON APPEAL BEFORE THE LD. CIT(A), ASSESSEE CONTEN DED THAT THE LOANS WERE RECEIVED FROM TWO PERSONS BY WAY OF ACCOUNT PAYEE C HEQUES. THE SAID LOANS WERE ALSO REPAID BY ACCOUNT PAYEE CHEQUES IN THE SA ME YEAR IN QUESTION. IN SUPPORT OF HIS SUBMISSION, ASSESSEE FURNISHED THE F OLLOWING DOCUMENTS AND EVIDENCE BEFORE THE LD. CIT(A):- M/S. SHITAL FILAMENTS LTD. COPY OF ADDRESS PROOF COPY OF PAN CARD [PAN AADCS3092A] COPY OF CONFIRMATION LETTER COPY OF ACCOUNTS FOR THE A.Y.2006-07. SMT. KOMAL GORDHAN KALANI COPY OF BANK STATEMENT OF HDFC BANK [A/C.NO.021610 70016244 COPY OF CHEQUE OF BANK OF AMERICA [CH.076662 COPY OF PASSPORT AND VISA [PASSPORT NO.Z-1023902] COPY OF PASSPORT AND VISA OF SHRI GORDHAN KALANI COPY OF ACCOUNTS FOR THE A.Y. 2006-07. 4. BEFORE LD. CIT(A), IT WAS POINTED OUT THAT ONLY IN THE CASE OF SMT. KOMAL GORDHAN KALANI, THE APPLICANT RECEIVED UNSECURED LO AN FROM THE DEPOSITOR OF RS.25 LAKH ON 20-12-2005 THROUGH CHEQUE NO.467020 O F THE HDFC BANK. THE SAME WAS ALSO CREDITED IN HER NAME IN THE BOOKS OF THE APPELLANT. DURING THE YEAR, THE SAME LOAN WAS REPAID BY THE APPELLANT. H ER ADDRESS WAS GIVEN AS DAZ-92, ADIPUR, KUTCH. IT WAS EXPLAINED THAT SMT. KOMAL WAS AN NRI RETURNED HOLDING DUAL CITIZENSHIP. SHE HAD BEEN STAYING IN NETHERLAND FOR ALMOST TWO DECADES FROM 26-8-1986 TO 21-5-2005. IT WAS ALSO S TATED THAT SHE WAS ALSO ENGAGED IN THE GARMENT BUSINESS IN NETHERLAND AND A LSO RECEIVED RENT FROM PROPERTIES. 5. WITH REGARDS TO LOAN RECEIVED FROM SHITAL FILAME NTS LTD. OF RS.6 LAKH, THE A.R. CLARIFIED THAT THE SAID AMOUNT WAS RECEIVED TH ROUGH ACCOUNT-PAYEE CHEQUE AND IT WAS REPAID BY THE ASSESSEE ON 23-12-2005 THR OUGH UTI BANK. THE ADDRESS OF THE COMPANY WAS STATED TO BE 4/3317, H. K. STREET, BEGHAMPURA, JANPA BAZAR, SURAT. ITA NO 807/RJT/2010. 3 6. AFTER CONSIDERING THE AFORESAID SUBMISSIONS, IN THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE ADDITION OBSERVING THAT AO WAS G IVEN OPPORTUNITY TO APPEAR BEFORE HIM TO ARGUE THE CASE IN SUPPORT OF THE DEPA RTMENT ON 25-06-2009,04-08- 2009, 11-10-2009 AND 03-12-2009, BUT TILL THE ORDE R IS PASSED, THE AO DID NOT EITHER PREFER TO APPEAR PERSONALLY OR SUBMIT ANY WR ITTEN ARGUMENTS INDICATING THAT HE HAD NOTHING TO SAY IN THIS REGARD. IN PARA-2 (C E) OF IMPUGNED ORDER, THE LD. CIT(A) ALSO OBSERVED THAT THE ASSESSMENT ORDER DID NOT CONTAIN ANY INDICATION THAT THE AO BEFORE PASSING THE ASSESSMENT ORDER ASS ESSING THE SAID UNEXPLAINED CASH CREDITS, CALLED FOR ANY CLARIFICATION FROM THE ASSESSEE. ACCORDING TO HIM, WITHOUT CALLING ANY INFORMATION FROM THE ASSESSEE, THE AO CONCLUDED THAT THE ASSESSEE INTRODUCED AN UNACCOUNTED INCOME IN THE FO RM OF SO-CALLED CASH CREDITS. AGGRIEVED WITH THE ORDER OF LD. CIT(A) DE LETING BOTH THE ADDITIONS, THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 7. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF R EVENUE SHRI M. K. SINGH, D.R. APPEARED AND POINTED OUT THAT IN THE MONTH OF DECEMBER, AO WAS BUSY IN TIME BARRING ASSESSMENT. THEREFORE, IN THE MONTH OF DECEMBER, IT WAS NOT POSSIBLE FOR AO TO APPEAR BEFORE CIT(A). HE POINTE D OUT THAT WHILE PASSING THE IMPUGNED ORDER, LD. CIT(A) HAS NOT CALLED THE ASSES SMENT REPORT. EVEN IN THE ASSESSMENT ORDER, THE AO HAS MENTIONED THAT ASSESSE E FAILED TO ESTABLISH THE IDENTITY OF THE DEPOSITOR, GENUINENESS OF THE TRANS ACTION AND CREDITWORTHINESS OF THE DEPOSITOR BECAUSE ASSESSEE HAS NOT FURNISHED E VEN THE CONFIRMATION FROM SO-CALLED DEPOSITORS. THIS ASPECT HAS BEEN COMPLETE LY IGNORED BY LD. CIT(A) WHILE PASSING THE IMPUGNED ORDER. HE POINTED OUT T HAT ALL THE DETAILS AND DOCUMENTS NOW ENCLOSED IN THE PAPER-BOOK WERE NOT F URNISHED BEFORE THE AO. 8. ON THE OTHER HAND, SHRI KALPESH DOSHI APPEARED O N BEHALF OF THE ASSESSEE POINTED OUT THAT BEFORE THE LD. CIT(A) ASS ESSEE FILED WRITTEN SUBMISSION AND ALL THE DETAILS AND DOCUMENTS ENCLOSED WITH THE WRITTEN SUBMISSION WERE FURNISHED BEFORE AO AS WELL AS CIT(A). IN ORDER TO ASCERTAIN THIS, WE HAVE VERIFIED THE ASSESSMENT RECORD. FROM ORDER SHEET E NTRIES, IT IS CLEAR THAT THE ITA NO 807/RJT/2010. 4 HEARING WAS CONCLUDED BY AO ON 23-12-2008. AFTER T HIS, LETTER DATED 24 TH DECEMBER,2008 (PLACED AT PAGE-9 OF THE PAPER BOOK) WAS FILED BY THE ASSESSEE AT RECEIPT COUNTER OF THE AO. PRIMA FACIE, IT APPE ARS THAT THIS WAS FILED AFTER CONCLUSION OF HEARING. APART FROM THIS, AT PAGE-28 , THE ASSESSEE HAS FURNISHED AN AFFIDAVIT OF SMT. KOMAL GORDHAN KALANI. THIS WA S ON THE STAMP PAPER OF RS.100/- WHICH WAS PURCHASED ON 01-12-2009. AO FRAM ED THE ASSESSMENT ON 29-12-2008. THESE DATES ALONG INDICATE THAT AFFIDAV IT IN QUESTION OF SMR. KOMAL GORDHAN KALANI WAS NOT FURNISHED BEFORE THE AO. HOW EVER, BEFORE US, THE COUNSEL OF THE ASSESSEE CONTENDED THAT DEPOSIT FROM BOTH CREDITORS WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE AND RETURNED THROUGH A CCOUNT PAYEE CHEQUE. IN SUPPORT OF THIS, COPY OF ACCOUNT AND BANK STATEMENT ARE ALSO FURNISHED IN THE PAPER BOOK WHICH IS ALLEGED TO BE FILED BEFORE THE LD. CIT(A). 9. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CI RCUMSTANCES OF THE CASE AND THE FACT THAT IN THE ASSESSMENT ORDER, THE AO HAS S TATED THAT EVEN CONFIRMATIONS FROM SO-CALLED DEPOSITORS WERE NOT FURNISHED BEFORE HIM, WE SET-ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION THAT THE ASSESSEE SHALL FURNISH ALL THE DETAILS AND DOCUMENT S BEFORE HIM. AO WILL VERIFY THE SAME. IN CASE THE LOANS WERE RECEIVED THROUGH A CCOUNT PAYEE CHEQUE AND ALSO RETURNED THROUGH ACCOUNT PAYEE CHEQUE AND THES E ARE CONFIRMED BY THE BOTH CREDITORS, IN THAT EVENT, WE ARE OF THE VIEW T HAT NO ADDITION BE MADE SUBJECT TO VERIFICATION AT THE END OF AO. FOR THIS PURPOSE , THE ADDITION MADE U/S.68 AMOUNTING TO RS.31,00,000/- RESTORED TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO WILL MAKE NECESSARY VERIFICATION AS INDICATE D ABOVE AND RE-ADJUDICATE BOTH ADDITIONS AFRESH IN ACCORDANCE WITH LAW. 10. IN THE RESULT, FOR THE STATISTICAL PURPOSES, TH E APPEAL OF THE REVENUE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN THE OPEN COURT ON 20-01- 2012. SD/- SD/- ( A. L. GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 20-01-2012. ITA NO 807/RJT/2010. 5 NVA/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-XXI, AHMEDABAD 4. THE CIT-III, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT
