The ITO, Ward-6(5), Ahmedabad V. Smt. Jyotiben Bipinkumar Ganatra, Ahmedabad

ITA 959/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80574 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA NO. 959/AHD/2011 (ASSESSMENT YEAR: 2006-07) INCOME-TAX OFFICER, WARD-6(5), C.U. SHAH COLLEGE BUILDING, 2 ND FLOOR, ASHRAM ROAD, AHMEDABAD APPELLANT VS. SMT. JYOTIBEN BIPINKUMAR GANATRA PROP HARSHIL BROKERS, 11, YAGNAPURUSHPA, RATNA PARK, GHATLODIA, AHMADABAD RESPONDENT PAN: AIKPG4966D / BY REVENUE :SHRI DINESH SINGH, SR. D.R. / BY ASSESSEE : NONE /DATE OF HEARING :31.12.2014 !'# /DATE OF PRONOUNCEMENT : 31.12.2014 I.T.A. NO. 959/AHD/2011 FOR A.Y. 06-07 (ITO VS. SMT. JYOTIBEN B. GANATRA) PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XI, AHMEDABAD, DATED 28.01.2011 FOR A.Y. 2006-07 ON THE FOLLOWING GROUND S: 1. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRE D IN LAW AND ON FACTS IN: (I) HOLDING THAT THE ASSESSEE FOLLOWED CASH SYSTE M OF ACCOUNTING. (II) DIRECTING THE AO TO VERIFY THE CONTENTION OF A SSESSEE AND TO DELETE THE ADDITION OF RS.11,98,330/- MADE O N ACCOUNT OF BROKERAGE RECEIPTS, IN CONTRAVENTION OF SEC.251 OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.87,200/- OUT OF ADDITION MADE OF RS.1,25,000/- U/S.68 WHICH WAS MADE ON ACCOUNT OF UNEXPLAINED LOAN AND ADVANCES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 2. FIRST ISSUE IS WITH REGARDS TO ADDITION OF RS.11 ,98,330/- MADE ON ACCOUNT OF BROKERAGE RECEIPTS. IN TRADING AND PROFIT AND LOSS ACCOUNT, ASSESSEE HAD SHOWN TOTAL BROKERAG E RECEIPT RECEIVED AT RS.3,60,569/- AND CLAIMED TDS OF RS.87, 209/-. ON GOING THROUGH THE TDS CERTIFICATES FILED, IT WAS NO TICED BY ASSESSING OFFICER THAT ASSESSEE HAD RECEIVED GROSS RECEIPT OF BROKERAGE DURING F.Y. UNDER CONSIDERATION OF RS.15, 58,894/- AS AGAINST RS.3,60,569/- SHOWN IN THE PROFIT AND LO SS ACCOUNT. I.T.A. NO. 959/AHD/2011 FOR A.Y. 06-07 (ITO VS. SMT. JYOTIBEN B. GANATRA) PAGE 3 DURING COURSE OF ASSESSMENT PROCEEDINGS, ON BEING A SKED AS TO WHY DIFFERENCE OF RS.11,98,330/- SHOULD NOT BE ADDE D, ASSESSEE FILED REPLY AS REPRODUCED IN PARA 3.1 OF A SSESSMENT ORDER. REPLY FILED BY ASSESSEE WAS NOT CONSIDERED BY ASSESSING OFFICER TO BE SATISFACTORY. THEREFORE, ASSESSING O FFICER MADE ADDITION OF RS.11,98,330/-. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F ASSESSEE. HAVING CONSIDERED THE SAME CIT(A) HAS GRANTED RELIE F TO THE ASSESSEE. 2.2 SAME HAS BEEN OPPOSED BEFORE US. NONE ON BEHAL F OF ASSESSEE, SO THIS ISSUE HAS BEEN DECIDED ON THE BAS IS OF ARGUMENTS OF LD. DEPARTMENTAL REPRESENTATIVE WHO SU PPORTED THE ORDER OF ASSESSING OFFICER AND MATERIAL ON RECO RD. WE FIND THAT ASSESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTIN G. THE BROKERAGE ACTUALLY RECEIVED DURING THE YEAR WAS OFF ERED TO TAX. THE BALANCE AMOUNT WAS OFFERED ON RECEIPT BASIS IN SUBSEQUENT TWO ASSESSMENT YEARS, FOR WHICH ORDER U/ S.143(3) WERE PASSED. ASSESSING OFFICER WAS DIRECTED TO VER IFY THE CONTENTIONS AND DELETE THE ADDITION. HOWEVER, IN V IEW OF PROVISIONS OF SECTION 199, HE WAS DIRECTED TO BE TO RESTRICT THE CREDIT FOR TDS TO THE EXTENT OF INCOME OFFERED DURI NG THE YEAR. CREDIT FOR BALANCE TDS SHALL BE GIVEN IN THE YEARS IN WHICH BALANCE INCOME WAS OFFERED TO TAX. THIS REASONED F ACTUAL FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SI DE. WE UPHOLD THE SAME. I.T.A. NO. 959/AHD/2011 FOR A.Y. 06-07 (ITO VS. SMT. JYOTIBEN B. GANATRA) PAGE 4 3. NEXT ISSUE IS WITH REGARDS TO ADDITION U/S. 68. ASSESSING OFFICER MADE ADDITION OF RS.1,25,000/- OUT OF WHICH CIT(A) GRANTED RELIEF TO THE EXTENT OF RS.87,200/-. SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. WE FIND TH AT ASSESSEE HAS RECEIVED UNSECURED LOAN OF RS.2,22,500/- FROM 1 0 PERSONS AS MENTIONED BY ASSESSING OFFICER IN PARA 5 OF ASSE SSMENT ORDER, WHEREIN CIT9A) HAS MADE ADDITION OF RS.1,25, 000/-. 4. MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AU THORITY AND CERTAIN CONDITIONS WERE RAISED ON BEHALF OF ASS ESSEE WHICH READS AS UNDER: ASSESSEE HAD SUBMITTED ALL THE CONFIRMATION WITH N AMES AND ADDRESSES OF CASH CREDITORS AND REQUESTED TO IT O TO CROSS CONFIRM IF REQUIRED. APPELLANT ASSESSEE HAS TRIED HIS LEVEL BEST TO SUBMIT ALL THE DETAILS OF CASH CREDIT ORS. THEN ALSO LEARNED ITO HAS DISBELIEVED AND ADDED RS.1,25, 000/- AS INCOME OF THE ASSESSEE. APPELLANT ASSESSEE REQU ESTS WITH TWO FOLDED HANDS OF KINDLY TAKE DECISION AFTER DUE VERIFICATION FROM THE CASH CREDITORS AND DO THE NEE DFUL. HAVING CONSIDERED THE SAME CIT(A) HAS GRANTED RELIE F TO THE EXTENT OF RS.87,200/-. CIT(A) OBSERVED THAT ASSESS EE BORROWED IN CASH RS.2,22,500/- FROM 10 PERSONS. HE ACCEPTED THE BORROWALS FROM PERSONS MENTIONED AT SL. NOS. 1, 3 & 4 TOTALING TO RS.97,500/-. BALANCE AMOUNT OF RS.1,25,000/- WA S ADDED BY ASSESSING OFFICER U/S.68. CIT(A) FURTHER OBSERV ED FROM PARA 5.1 OF ASSESSMENT ORDER IN RESPECT OF PERSONS MENTI ONED AT SL. NOS. 2, 5, 6, 7 & 10 WITH REGARD TO WHOM CONFIRMATI ON LETTERS WERE FURNISHED. HOWEVER, ASSESSING OFFICER DID NOT MAKE ANY INQUIRY WITH THE SAME. BORROWALS RANGE FROM RS.17, 500/- TO I.T.A. NO. 959/AHD/2011 FOR A.Y. 06-07 (ITO VS. SMT. JYOTIBEN B. GANATRA) PAGE 5 RS.18,500/-. THEREFORE, CIT(A) WAS JUSTIFIED IN HO LDING THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDIT ION TO THE EXTENT OF RS.87,200/- FOUND FROM ABOVE SERIAL NOS. PERSONS AND SAME WAS RIGHTLY DELETED BY CIT(A). THIS REASONED FACTUAL FINDING OF CIT(A) BASED ON CONFIRMATION FURNISHED T O ASSESSING OFFICER, NEEDS NO INTERFERENCE FROM OUR SIDE. WE U PHOLD THE SAME. 5. AS A RESULT, APPEAL FILED BY REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE 31 ST DAY OF DECEMBER, 2014. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA $ $ $ $ &' &' &' &' ('# ('# ('# ('# / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. -- . / CONCERNED CIT 4. .- / CIT (A) 5. '23 &, , / DR, ITAT, AHMEDABAD 6. 367 89 / GUARD FILE. BY ORDER / $ , :/ - , <