Fortune Baroda Network Pvt.Ltd., Baroda V. The Income tax Officer,Ward-1(4), Baroda

ITA 811/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80317 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-08-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 14-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA SR DR
• Keywords: Unexplained cash credit; Principle of natural justice; Condonation of delay
• Section: 133(6)

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.811/AHD/2011 [ASSTT.YEAR : 2005-2006] FORTUNE BARODA NETWORK PVT. LTD. 301, YESHA APARTMENT NEAR JAIN TEMPLE MANJALPUR, VADODARA. PAN : AAACF 7861 P /VS. ITO, WARD-1(4) BARODA. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI PARIN SHAH + 2 3 )/ REVENUE BY : SHRI B. KULSHRESTHA, SR.DR 5 2 &(*/ DATE OF HEARING : 27 TH AUGUST, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 05/09/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASST.YEAR 2005-2006 IS DIRECTED AGAINST THE ORD ER OF THE CIT(A). 2. THERE IS A DELAY OF 59 DAYS IN FILING THE PRESEN T APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE ACCOUNTANT OF THE ASSESSEE, SHRI HARESH SHANTILAL P ATEL, HAS FILED AN AFFIDAVIT BEFORE THE TRIBUNAL EXPLAINING THE REASON FOR DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. WE HAVE HEARD PARTIES ON THE ISSUE OF ITA NO.811/AHD/2011 -2- CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E TRIBUNAL. IN THE FACTS EXPLAINED BY THE LEARNED COUNSEL FOR THE ASSESSEE, AND IN VIEW OF THE CONTENTS OF THE AFFIDAVIT OF SHRI HARESH SHANTILAL PATEL, ACCOUNTANT, WE ARE OF THE VIEW THAT IT IS A FIT CASE FOR CONDONATION O F DELAY OF 59 DAYS IN FILING THE PRESENT APPEAL BEFORE THE TRIBUNAL, AND WE COND ONE THE DELAY ACCORDINGLY. 3. THE ONLY GROUND OF THE APPEAL OF THE ASSESSEE IS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION MADE BY AO OF RS.2,05,000/- BEING UNEXPLAI NED CASH CREDIT U/S.68 OF THE ACT. BOTH THE LOWER AUTHORITIES HAVE GROSSLY ERRED IN REJECTING VARIOUS EVIDENCES, SUBMISSIONS AND EXPLAN ATION OF THE APPELLANT WHICH IS TOTALLY AGAINST THE PRINCIPLES O F NATURAL JUSTICE AND HENCE THE ORDER OF LD.CIT(A) DESERVES TO BE QUA SHED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE CREDITOR SHRI MAGANBHAI C. PATEL HAS DEPOSITED RS.2,05,000/-WITH THE ASSESSEE, WHICH WAS ADDED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. HE SUBMITTED THAT THE AMOUNT DEPOSITED IN DIFFERENT INSTALMENTS DURIN G THE YEAR. HE SUBMITTED THAT NOTICE UNDER SECTION 133(6) BY THE A O WAS RETURNED UNSERVED, AS THE DEPOSITOR SHRI MAGANBHAI C. PATEL HAS DIED ON 23.10.2007. HE SUBMITTED THAT IN VIEW OF THE NEPHE W OF THE CREDITOR SHRI VENUS C. PATEL HAS COMPLIED WITH THE REQUIREMENT OF THE AO AND HAS INTIMATED THAT HIS UNCLE HAS DIED, HE HAS CONFIRMED THE FACT OF DEPOSIT BY HIS LATE UNCLE. HE ALSO FILED COPIES OF 7/12 EXTRA CTS TO PROVE THAT THE DECEASED CREDITOR WAS HAVING AGRICULTURE LAND MEASU RING 1.32 ACRES, AND THE LAND WAS IRRIGATED AND FERTILE AND COPY THEREOF HAVE BEEN FILED IN THE COMPILATION BEFORE THE TRIBUNAL. THE LEARNED COUNS EL FOR THE ASSESSEE SUBMITTED THAT PRIMARY ONUS ON THE ASSESSE WAS DISC HARGED BY HIM, AND THERE IS NO MATERIAL BROUGHT ON RECORD TO DISBELIEF THE EVIDENCE PRODUCED ITA NO.811/AHD/2011 -3- ON BEHALF OF THE CREDITOR. THE LEARNED DR HAS OPPO SED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT NO DETAILS COULD BE PRODUCED BY THE ASSESSEE EXCEPT 7/12 EXTRACTS, WHIC H DOES NOT INDICATE THE YIELD/SALES OF THE CROP DURING THE YEAR, AND THAT T HE CREDIT-WORTHINESS OF THE DEPOSITOR WAS NOT ESTABLISHED AT ALL BY THE ASSESSE E. THE AMOUNT WAS RECEIVED BY THE ASSESSEE FROM SHRI MAGANBHAI C. PAT EL IN CASH. HE REFERRED TO THE RELEVANT PORTIONS OF THE APPELLATE ORDER PASSED BY THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE. HE R ELIED ON THE ORDERS OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPIES OF VARIOUS DOCUMENTS FILED BY THE ASSESSEE IN THE COMPILATION BEFORE US. WE FIND THAT THE LEDGER ACCOUNT OF THE CREDITOR IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE WAS CONFIRMED ON BEHALF OF THE CREDITOR. THE ASSESSEE HAS FILED DEATH CERTIFICATE OF SHRI MAGANBHAI C. PATEL STATING THAT HE HAS EXPIRED ON 23.10.2007, AND THEREFORE, THE NOTICE ISSUED UNDER SECTION 133(6) WAS RETURNED UNSERVED. THE NEPHEW OF THE CREDITOR, SHR I VENUS C. PATEL HAS FILED DOCUMENTARY EVIDENCE IN THE FORM OF COPY OF 7 /12 EXTRACTS OF THE AGRICULTURE LAND SHOWING THAT THE DECEASED WAS HAVI NG AGRICULTURE LAND MEASURING 1.32 ACRES, WHICH WAS FERTILE AND IRRIGAT ED ALSO. WE FIND THAT NO ADVERSE EVIDENCE COULD BE PRODUCED BY THE REVENUE T O DISBELIEF THE CLAIM OF THE ASSESSEE REGARDING THE CREDIT-WORTHINESS OF THE DEPOSITOR AND GENUINENESS OF THE TRANSACTION. THERE IS NO MATERI AL BROUGHT ON RECORD TO SUGGEST THAT THE DECEASED DEPOSITOR SHRI MAGANBHAI C. PATEL HAS MADE SOME OTHER DEPOSITS ELSEWHERE ALSO. IN THE FACTS O F THE CASE, WE FIND THAT THE ASSESSEE HAS DISCHARGED ITS INITIAL ONUS TO PRO VE THE IDENTITY AND CREDIT- WORTHINESS OF THE DEPOSITOR AND GENUINENESS OF THE TRANSACTION OF THE LOAN TO THE ASSESSEE. WE FIND THAT IN CASE THE AO HAS S OME DOUBTS REGARDING ITA NO.811/AHD/2011 -4- YIELD/SALE OF CROPS DURING THE YEAR, HE COULD HAVE MADE ENQUIRIES FROM THE LAND REVENUE AUTHORITIES. NO SUCH EXERCISE WAS UND ERTAKEN BY THE AO. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT NO CASE OF ADDITION OF THE CREDIT ENTRY OF RS.2,05,000/- COULD BE MADE OUT BY THE REVENUE, AND ACCORDINGLY, THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE, AND THE GROUND NO.1 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT 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