The ITO, Ward-4, Navsari V. Shri Urvesh M.Shah, Navsari

ITA 962/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9477 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 03-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: ADITI SHAH
• Keywords: Unexplained investment; Depreciation; Retrospective amendment; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER URVESHKUMAR MANHARLAL SHAH PROP. OF YASH MARBLE & SANITARY, OPP. VASUDHARA COMPLEX, MAJIGAM ROAD, SAMROLI, CHIKHLI - BILIMORA ROAD, TAL. CHIKHLI, DIST. NAVSARI PAN: AJXPS4747E (APPELLANT) VS THE INCOME TAX OFFICER, WARD - 4, NAVSARI (RESPONDENT /CROSS OBJECTOR ) REVENUE BY : S H RI NARENDRA SINGH , SR. D . R. ASSESSEE BY: S H RI TUSHAR HEMANI & ADITI SHAH , A.R. DATE OF HEARING : 22 - 01 - 2 016 DATE OF PRONOUNCEMENT : 15 - 02 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THESE CROSS APPEALS FILED BY ASSESSEE AND REVENUE FOR A.Y. 2007 - 08 , AR ISE FROM ORDER OF THE CIT(A), VALSAD DATED 27 - 01 - 2012 IN I T A NO S . 820 & 962 / A HD/20 12 A SSESSMENT YEAR 200 7 - 08 I.T.A NO S. 82 0 & 962 /AHD/20 12 A.Y. 2007 - 08 PAGE NO URVESHKUMAR MANHARLAL SHAH VS. ITO 2 APPEAL NO. CIT(A)/VLS/310/09 - 10 , IN PROCEEDINGS UNDER SECTION 143( 3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. WE COME TO ASSESSEE APPEAL 820/AHD/2012 FIRST RAISING SOLE SUBSTANTIVE GROUNDS CHALLENGING SECTION 68 ADDITION OF UNEXPLAINED CASH DEPOSITS AMOUNTING TO RS. 2,25,000/ - AS MADE BY THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 24 - 12 - 2009 AND AFFIRMED IN THE LOWER APPELLATE PROCEEDINGS. A PERUSAL OF THE CASE FILE REVEALS THAT THE ASSESSING OFFICER NOTICED THE ASSESSEE TO HAVE ACCEPTED A LOAN OF RS. 2,25,000/ - FROM HIS FATHER SHRI MANHARBHAI M. SHAH ON 02 - 05 - 2006 THROUGH AN ACCOUNT PAYEE CHEQUE. THERE IS NO DISPUTE THAT ASSESSEE S FATHER IS AN AGRICULTURIST. RELE VANT REVENUE RECORD OF LAND HOLDING, CROP PATTERN, CUL TIVATI ON AREA ETC ALREADY FORM S PART OF RECORD IN ASSESSMENT ORDER AT PAGE 09. THE ASS ESSING OFFICER OBSERVED THAT ASSESSEE S FATHER BANK STATEMENT REVEALED CASH DEPOSITS OF RS. 2 LACS ON VARIOUS DATES WHICH RISE TO AN INFERENCE THAT HE HIMSELF HAD GIVEN THE VERY AMOUNT TO HIS FATHER. ALL THIS RESULTED IN THE IMPUGNED ADDITION AFTER REJECT ING ASSESSEE S FATHER AFFIDAVIT BY GIVING A FINDING THAT THIS WHOLE EXPLANATION RESULTED CREDITWORTHINESS FOR WANT OF PROOF OF AGRICULTURAL INCOME. THE CIT(A) CONFIRMS THE ASSESSING OFFICER S ACTION. 3. WE HAVE HEARD BOTH THE PARTIES. LD. REPRESENTATI VES APPEARING ON THEIR BEHALF REITERATE RESPECTIVE STANDS. THERE IS NO DISPUTE THAT ASSESSEE S FATHER POSS ESSES AGRICULTURAL LAND WHO HAS FILED AN AFFIDAVIT CONFIRMING ASSESSEE S STAND AND THE IMPUGNED DEPOSITS I.T.A NO S. 82 0 & 962 /AHD/20 12 A.Y. 2007 - 08 PAGE NO URVESHKUMAR MANHARLAL SHAH VS. ITO 3 HAVE TO ACCOUNT PAYEE CHEQUES. WE OBSERVE I N THESE FACTS THAT BOTH THE LOWER AUTHORITIES OUGHT NOT TO HAVE REJECTED ASSESSEE S EXPLANATION SUPPORTED BY ALL EVIDENCE S OF REVENUE RECORD PREPARED BY AGRARIAN AUTHORITIES IN ABSENCE OF ANY MATERIAL BY SIMPLY BRUSHING ASIDE THE RELEVANT DOCUMENTS. THE H ON BLE JURISDICTIONAL HIGH COURT IN MURLIDHAR LAHORIMAL VS. CIT 280 ITR 512 ALSO HOLDS THAT AN ASSESSEE IS NOT TO PROVE SOURCE OF SOURCE. WE DRAW SUPPORT FROM THE SAME AND ACCEPT ASSESSEE S SOLE SUBSTANTIVE GROUND. THE IMPUGNED SECTION 68 ADDITION OF RS. 2,25,000/ - IS DELETED. ITA 820/AHD/2012 SUCCEEDS. 4. NOW , WE COME TO REVENUE S ITA 962/AHD/2012 SEEKING TO RESTORE DISALLOWANCES/ ADDITION S OF RS. 17,63 3/ - IN RESPECT OF GROSS PROFITS RS. 9,37,475/ - RELATING TO SALES OUTSIDE BOOKS, RS. 3,60,050/ - PERTAI NING TO UNEXPLAINED INVESTMENT, RS. 29,282/ - QUA DEPRECIATION AND RS. 18,147/ - IN RESPECT OF VARIOUS EXPENSES. THERE CAN HARDLY BE ANY DISPUTE THAT NET TAX EFFECT INVOLVES IN THE INSTANT APPEAL IS LE SS THAN RS. 10 LACS. WE FIND THAT THE CENTRAL BOARD OF DIRECT TAXES; HEREAFTER THE BOARD HAS ISSUED THE CIRCULAR NO. 21/2015 DATED 10 - 12 - 2015 CLEARLY ENVISAGING THEREIN THAT DEPARTMENT S PENDING APPEALS BEFORE THE TRIBUNAL/HIGH COURTS ARE TO BE WITHDRAWN/NOT PRESSED AS PER THE ABOVE STATED CIRCULAR. THE SAM E HAS BEEN DECLARED TO BE HAVING RETROSPECTIVE EFFECT IN OTHER WORDS. WE TAKE INTO CONSIDERATION THE ABOVE STATED BOARD S CIRCULAR AND DISMISS THE INSTANT APPEAL ACCORDINGLY. I.T.A NO S. 82 0 & 962 /AHD/20 12 A.Y. 2007 - 08 PAGE NO URVESHKUMAR MANHARLAL SHAH VS. ITO 4 5 . ASSESSEE S APPEAL ITA 820/AHD/2012 IS ALLOWED AND REVENUE S APPEAL ITA 962 /AHD/2012 IS DISMISSED AS HAVING LOW TAX EFFECT. ORDER PR ONOUNCED IN THE OPEN C OURT ON 15 - 02 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 15 /02 / 2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,