Shri Naresh Gopaldas Bhojwani, Ahmedabad V. The Income Tax Officer, Ward-5(2)(3), Old Ward-10(3), Ahmedabad

ITA 929/AHD/2015

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4176 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 16-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Set aside
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (CONDUCTING THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.929/AHD/2015 (ASSESSMENT YEARS: 2011-12) NARESH GOPALDAS BHOJWANI 1 ST FLOOR, A WING, GOPAL PALACE, OPP. OCEAN PARK, NEHRUNAGAR, SATELLITE ROAD, AHMEDABAD- 380015 VS. ITO WARD-5(2)(3) AHMEDABAD [PAN NO. ABLPB3567B] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI PRITESH SHAH, AR RESPONDENT BY : SHRI PURUSHOTTAM KUMAR , SR. DR DATE OF HEARING: 29/09/2021 DATE OF PRONOUNCEMENT: 05/10/2021 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER DATED 13.03.2015 PASSED BY THE LD. CIT(A)-5, AHMEDABAD AR ISING OUT OF THE ORDER DATED 27.03.2014 PASSED BY THE ITO, WARD-10(3), AHMEDABAD UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO T HE ACT) FOR A.Y. 2011-12 WITH THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS. 82,95,183/- IN RESPECT OF LONG TERM CAPITAL GAIN, SUCH ADDITION IS REQUESTED TO BE DELETED. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION OF CASH DEPOSITED TO BANK OF RS. 14,36,000/- AS UNEXPLAINED UNACCOUNTED INCOME, SUCH ADDITION IS REQUESTED TO BE DELETED. GROUND NO. 1:- 2. THE BRIEF FACTS LEADING TO THE CASE IS THIS THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE SOLD A JOINT PROPERTY AM OUNTING TO RS.2,62,00,000/-. THE - 2 - ITA NO.929/AHD/2015 NARESH GOPALDAS BHOJWANI VS . ITO A.Y. 2011-12 ASSESSEES SHARE IN SUCH PROPERTIES ONE HALF. UPON SELLING OF THE SAID PROPERTY THE LONG TERM CAPITAL GAIN IS THE ISSUE BEFORE US. ACCO RDING TO THE ASSESSEE DUE TO INVESTMENT IN THE NEW RESIDENTIAL HOUSE THE ASSESSE E WAS ENTITLED TO THE DEDUCTION UNDER SECTION 54 OF THE ACT RESULTING THE LONG TERM CAPITAL GAIN TO NIL. FACT REMAINS THAT THE APPELLANT RECEIVED THE SALE CONSID ERATION OF RS.1,81,00,000/- AND THE OTHER CO-OWNER SHRI MUKESH BHOJWANI RECEIVED ONLY R S.81,00,000/-. THE LD. AO CONCLUDED THE ASSESSMENT PROCEEDING WITH THE OBSERV ATION THAT THE APPELLANT WAS NOT THE OWNER OF 50% BUT OF 69% OF THE PROPERTY AND ACC ORDINGLY THE SALE CONSIDERATION WAS TAKEN AT RS.1,81,00,000/-. ON THE BASIS THE ASS ESSMENT PROCEEDING WAS FINALLY CONCLUDED BY THE LD. AO ACCORDINGLY. 3. IT IS ALSO THE CASE OF THE REVENUE THAT IN SUPPO RT OF THE CLAIM OF THE APPELLANT OF HAVING 50% OF SHARE NO SUPPORTING DETAILS AND/OR EV IDENCES HAVE BEEN PLACED BEFORE THE AUTHORITIES BELOW WHICH HAVE BEEN PLACED BEFORE US BY ANNEXING THE SAME IN THE PAPER BOOK. THIS DOCUMENTS INCLUDES THE PAYMENT BRE AKUP OF THE FLAT PURCHASED, THE BANK STATEMENT OF SUBSEQUENT YEAR WHICH WAS IN THE POSITION OF THE ACCOUNTANT COMMENCING FROM THE PERIOD 28.09.2011 TO 04.07.2012 APPEARING AT PAGES 147 TO 157 OF THE PAPER BOOK FILED BEFORE US. THE EXPLANATION RENDERED BY THE LD. AO FOR NOT BEEN ABLE TO SUBMIT THOSE DOCUMENTS BEFORE THE AUTH ORITIES BELOW IS THIS THAT THERE WAS SOME FAMILY DISPUTES PARTICULARLY BETWEEN THE TWO B ROTHERS, MORESO, THE ACCOUNTANT OF THE ASSESSEE LEFT THE JOB AT THE ASKING OF THE ASSE SSEES BROTHER. WHEREAS THE DOCUMENTS WERE LYING WITH THE SAID ACCOUNTANT AND T HUS COULD NOT BE PLACED BEFORE THE AUTHORITIES BELOW AT THE RELEVANT POINT OF TIME . SUBSEQUENTLY BY THE INTERVENTION OF THE FATHER OF THE ASSESSEE THE DISPUTES WERE RESOLV ED AND THE EVIDENCES MENTIONED ABOVE COULD BE OBTAINED FROM THE SAID ACCOUNTANT. S UCH PLEA TAKEN BY THE ASSESSEE SEEMS TO BE GENUINE AND HENCE WE ADMIT THOSE ADDITI ONAL DOCUMENTS PLACED BEFORE US. - 3 - ITA NO.929/AHD/2015 NARESH GOPALDAS BHOJWANI VS . ITO A.Y. 2011-12 HOWEVER SINCE THE AUTHORITIES BELOW DIDNT GET THE CHANCE TO DEAL WITH THOSE DOCUMENTS AS FILED BEFORE US THE CONTENTIONS MADE B Y THE APPELLATN IN SUPPORT OF HIS CLAIM COULD NOT BE VERIFIED. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND IT JUST AND PROPER TO SET ASIDE THE ISSUE TO THE FI LE OF THE LD. AO TO RECONSIDER THE MATTER AFRESH UPON GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON CONSIDERING THE EVIDENCES AS PLACED BEFORE US AND ANY OTHER EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE MATTER. GROUND NO. 2:- 4. THE ADDITION OF CASH DEPOSIT TO BANK OF RS. 14,3 6,000/- ON ACCOUNT OF UNEXPLAINED UNACCOUNTED INCOME IS THE SUBJECT MATTE R BEFORE US. 5. THE CASE OF THE ASSESSEE IS THIS THE CASH DEPOSI TS WERE MADE FROM CASH WITHDRAWALS MADE FROM TIME TO TIME. THE REVENUES CASE IS THIS SUCH SUBMISSIONS OF THE ASSESSEE IS GENERAL IN NATURE AND THE CASH FLOW STATEMENT WHICH ARE SUBMITTED BY THE ASSESSEE REVEALED THAT CASH DEPOSITS MADE FROM TIME TO TIME DO NOT TALLY WITH CASH WITHDRAWALS. NEITHER ANY REASON WAS FORTHCOMING FR OM THE ASSESSEE AS TO HOW CAN ONE WITHDRAW MONEY FROM THE BANK AND AGAIN DEPOSIT THE SAME INTO BANK. THE LD. AR CONTENDED BEFORE US THAT THE ASSESSEE FILED WRIT TEN SUBMISSION IN SUPPORT OF THE CONTENTIONS ALONG WITH THE DOCUMENTS SUBSTANTIATING THAT CASH WITHDRAWALS ARE FAR MORE THAN CASH DEPOSITS. HOWEVER, SUCH PLEA AND TH E EVIDENCES AS WELL WERE NOT TAKEN INTO CONSIDERATION IN ITS PROPER PERSPECTIVE BY THE REVENUE. HENCE, THE MATTER BE REMITTED TO THE FILE OF THE LD. AO FOR RECONSIDE RATION OF THE SAME AS SUBMITTED BY THE LD. AR. 6. HOWEVER, THE LD. DR RELIED UPON THE ORDER PASSED BY THE AUTHORITIES BELOW. 7. HAVING HEARD THE LD. COUNSEL APPEARING FOR THE P ARTIES, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT MA TTER NEEDS A FRESH CONSIDERATION BY - 4 - ITA NO.929/AHD/2015 NARESH GOPALDAS BHOJWANI VS . ITO A.Y. 2011-12 THE REVENUE AND HENCE WE REMIT THE ISSUE TO THE FIL E OF THE LD. AO TO RECONSIDER THE SAME AFRESH UPON PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON CONSIDERING THE EVIDENCE WHICH THE ASSESSEE MAY CHO OSE TO FILE AT THE TIME OF HEARING OF THE MATTER. HENCE, ASSESSEES APPEAL IS, THEREF ORE, ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 05/10/2021 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 05/10/2021 TANMAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE PCIT- AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 28.09.2021& 04.10.2021 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.09.2021&04.10.2021 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 05.10.2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 05 .10.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER