Mahalaxmi Hsg. & Finstock Pvt. Ltd., Ahmedabad V. The Income tax Officer, Ward-4(4), Ahmedabad

ITA 819/AHD/2006

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 7752 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-07-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 03-04-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C
• Assessee Lawyers: ANIL N SHAH
• Keywords: Unexplained cash credit; Additional evidence; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI R.V.EASWAR, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA.NO.819/AHD/2006 [ASSTT.YEAR : 2002-2003] MAHALAXMI HOUSING & FINSTOCK P.LTD. 1, NARAYAN CHAMBERS 1 ST FLOOR, ASHRAM ROAD, AHMEDABAD. VS. ITO, WARD-4(4) AHMEDABAD. ASSESSEE BY : SHRI ANIL N. SHAH REVENUE BY : SHRI M.C.PANDIT O R D E R PER R.V.EASWAR, VICE-PRESIDENT : THIS APPEAL BY THE ASSESSEE RELATES TO THE AY 2002-03. THE ASSESSEE IS A PRIVAT E LIMITED COMPANY ENGAGED IN THE CONSTRUCTION AND DEVELOPMENT OF PROP ERTIES. 2. THE ONLY ISSUE IN THE APPEAL IS WHETHER THE INCO ME-TAX AUTHORITIES WERE RIGHT IN ADDING RS.47,48,870 CREDITED IN THE B ANK ACCOUNT OF THE ASSESSEE AS UNEXPLAINED CREDIT U/S 68 OF THE IT ACT . 3. WHILE COMPLETING THE ASSESSMENT THE ASSESSING OF FICER NOTICED SEVERAL DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSE E IN MEHSANA URBAN CO-OP. BANK, CG ROAD BRANCH, AHMEDABAD. HE CALLED U PON THE ASSESSEE TO PROVE THE NATURE AND SOURCE OF THE SAME. HE ALSO TOOK THE VIEW THAT THE ASSESSEE HAD MADE CASH TRANSACTIONS EXCEEDING RS.20 ,000 AT A TIME DURING THE PERIOD FROM 16-7-2001 TO 5-1-2002. THE ASSESSEE FILED THE RELEVANT DETAILS OF THE ENTRIES IN THE BANK ACCOUNT AND ALSO EXPLAINED THAT THE AMOUNTS WERE RECEIVED BY CHEQUES FROM MAHALAKSHMI B HAVAN CO-OP. HOUSING SOCIETY LTD. ON THE GROUND THAT THE ASSESSE E DID NOT FURNISH THE PAGE - 2 ITA.NO.819/AHD/2006 -2- COMPLETE DETAILS CALLED FOR, THE ASSESSING OFFICER TREATED THE ENTIRE AMOUNT OF RS.47,48,870 AS UNEXPLAINED CASH CREDIT U /S 68 AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 4. IN THE APPEAL BEFORE THE CIT(A) THE ASSESSEE, BE SIDES REITERATING ITS SUBMISSIONS BEFORE THE ASSESSING OFFICER, SOUGHT TO PRODUCE THE LEDGER ACCOUNT OF MAHALAKSHMI BHAVAN CO-OP HOUSING SOCIETY LTD IN THE ASSESSEES BOOKS AS ADDITIONAL EVIDENCE AND INVOKED RULE 46A OF THE IT RULES, 1962 BUT THE CIT(A) DID NOT ADMIT THE SAME, SAYING THAT IT WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER. ON MERITS, H E AGREED WITH THE ASSESSING OFFICER THAT THE CAPACITY OF THE CREDITOR AND THE GENUINENESS OF THE CREDITS WERE NOT ESTABLISHED AND CONFIRMED THE ADDITION. 5. THE ASSESSEE IS IN FURTHER APPEAL. AFTER HEARING THE RIVAL SUBMISSIONS, INCLUDING THE SUBMISSION THAT THE CIT( A) OUGHT TO HAVE ADMITTED THE ADDITIONAL EVIDENCE (GROUND NO.3), WE ARE INCLINED TO RESTORE THE MATTER TO THE ASSESSING OFFICER FOR FRESH CONSI DERATION. IN OUR VIEW, THE ASSESSEE HAD FURNISHED THE DETAILS OF THE BANK DEPOSITS AS REQUIRED BY THE ASSESSING OFFICER. THERE IS NOTHING TO SHOW THA T HE SPECIFICALLY ASKED THE ASSESSEE TO PRODUCE THE LEDGER ACCOUNT IN THE B OOKS OF MAHALAKSHMI BHAVAN CO-OP.HOUSING SOCIETY. FURTHER, THE EVIDENCE SOUGHT TO BE ADDUCED BEFORE THE CIT(A) IS REQUIRED TO BE LOOKED INTO IN ORDER TO KNOW THE NATURE AND SOURCE OF THE RECEIPTS AND THE INTER ESTS OF JUSTICE REQUIRE THAT THEY BE ADMITTED AS ADDITIONAL EVIDENCE. ACCOR DING TO THE ASSESSEE, THE LEDGER ACCOUNT SHOWS THAT OPENING DEBIT BALANCE OF RS.1,26,03,575 AND RECEIPT OF CHEQUES IN DISCHARGE OF THE SAME, WH ICH ACCORDING TO THE ASSESSEE HAVE BEEN DEPOSITED IN THE BANK ACCOUNT. T HIS EXPLANATION NEEDS TO BE VETTED BY THE ASSESSING OFFICER. WE THEREFORE SET ASIDE THE ORDERS OF THE INCOME-TAX AUTHORITIES ON THE POINT AND RESTORE THE ISSUE TO THE FILE OF PAGE - 3 ITA.NO.819/AHD/2006 -3- THE ASSESSING OFFICER FOR BEING REDECIDED IN ACCORD ANCE WITH LAW AND AFTER CONSIDERING THE EVIDENCE ADDUCED BY THE ASSES SEE, INCLUDING THE ADDITIONAL EVIDENCE. WE DIRECT ACCORDINGLY AND ALLO W THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. THE OTHER GROUND S ARE NOT DECIDED IN THE VIEW WE HAVE TAKEN OF GROUND NO.3. ORDER PRONOUNCED IN THE OPEN COURT THIS 24 TH OF JULY, 2009. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (R.V.EASWAR) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 24-07-2009 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD