M/s Cham Real Estate Pvt. Ltd., PORBANDAR V. The Income Tax Officer, Ward-2(3), PORBANDAR

ITA 969/RJT/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 2959 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-12-2010
• Assessment Year: 1997-1998
• Appeal Filed On: 09-09-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DM RINDANI
• Keywords: Additional evidence
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) I.T.A. NO. 969/RJT/2009 (ASSESSMENT YEAR 1997-98) CHAM REAL ESTATE PVT LTD VS ITO, WD.2(3) BOKHIRA, PROBANDER PORBANDER PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DM RINDANI RESPONDENT BY: SHRI AVINASH KUMAR O R D E R A.L. GEHLOT : THIS IS AN APPEAL FILED BY THE ASSESS EE AND IS DIRECTED AGAINST THE ORDER OF THE CIT(A), JAMNAGAR DATED 25-06-2009 FOR THE ASSESSMENT YEAR 1997- 98. THE SOLE ISSUE RAISED IN THE APPEAL IS THAT TH E CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.5,53,000 BY WAY OF ALLEGED UNEXPLAIN ED CASH CREDIT U/S 68 MADE BY THE AO. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGINA L ASSESSMENT WAS COMPLETED ON 30 TH MARCH, 2000. THE NATURE OF BUSINESS OF THE ASSESS EE IS CONSTRUCTION OF FLATS. IN THE FIRST ROUND OF LITIGATION, AN ADDITI ON OF RS.96,53,190 WAS MADE ON ACCOUNT OF ADVANCES SHOWN AGAINST THE BOOKING OF FL ATS. THE CIT(A) VIDE ORDER DATED 29-03-2001 DELETED THE ADDITION MADE BY THE A SSESSING OFFICER. HOWEVER, THE DEPARTMENT FILED APPEAL BEFORE ITAT, THE ITAT V IDE ORDER DATED 11 TH APRIL, 2004 RESTORED THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER WITH SPECIFIC DIRECTION TO DECIDE THE MATTER AFRESH AFTER ENQUIRY IN RESPEC T OF 17 DEPOSITORS. IN COMPLIANCE TO THE DIRECTION OF THE ITAT, THE ASSESS ING OFFICER EXAMINED THE CASE OF THE ASSESSEE AFRESH. DURING THE EXAMINATION, TH E ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS FURNISHED THE EVIDENCES REGAR DING DEPOSITS RECEIVED FROM THE DEPOSITORS THROUGH CHEQUES / DRAFTS AND SAME WE RE ACCOUNTED FOR IN BANK ACCOUNT OF THE ASSESSEE COMPANY. THE ASSESSEE FURN ISHED DETAILS, I.E. ITA NO.969/RJT/2009 2 CONFIRMATION LETTERS FROM DEPOSITORS, FULL POSTAL A DDRESSES OF THE DEPOSITORS DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS AND THE DETAILS FURNISHED HAVE BEEN VERIFIED FROM THE BOOKS OF ACCOUNT AND BANK AC COUNT. HOWEVER, THE ASSESSING OFFICER CALLED FOR INFORMATION U/S 133(6) OF THE ACT FROM THE STATE BANK OF SAURASHTRA, VASHI BRANCH, WHO VIDE LETTER DATED 11-08-2006 HAVE EXPRESSED THEIR INABILITY TO FURNISH THE SAME ON THE GROUND T HAT RECORD IN QUESTION WERE MORE THAN THREE YEARS OLD AND WERE STORED IN PANVEL BRAN CH AND DAMAGED IN FLOOD OF JULY, 2005. THE LETTERS CALLING INFORMATION FROM A LL THE DEPOSITORS AT THE ADDRESSES PROVIDED BY THE ASSESSEE WERE ISSUED BY T HE ASSESSING OFFICER. HOWEVER, OUT OF 12 DEPOSITORS SERVICE COULD BE EFFE CTED ONLY IN 7 CASES AND MAJORITY OF THEM HAVE SUBMITTED REPLIES AND CONFIRM ED THE AMOUNT OF DEPOSITORS AND IN SOME OF THE CASES VERIFICATION HAS BEEN MADE FROM THE BANK STATEMENT AS ALL THE ENTRIES WERE MADE THROUGH BANK. THE ASSESS ING OFFICER NOTICED THAT 5 DEPOSITORS STILL REMAINED OUT OF TOUCH AS THE LETTE RS SENT TO THEM HAVE BEEN RETURNED WITH THE REMARKS EITHER, NOT KNOWN OR N OT FOUND OR NOT CLAIMED. THE ASSESSEE FAILED TO PRODUCE 5 PERSONS. THEREFORE, T HE ASSESSING OFFICER MADE THE ADDITION OF THE RELATED AMOUNT F RS.5,53,000. THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 3. AT THE OUTSET, THE LD.AR SUBMITTED THAT THE ASSE SSEE HAS OBTAINED SOME MATERIAL IN RESPECT OF THREE PARTIES, VIZ. BABU T M IRCHANDANI RS.2,38,000, PM JAIN RS. 48,500 AND RAVINDRA GUPTA RS. 1,02,000 WHI CH HAVE BEEN PLACED AT PAGES 79 TO 81, 16 TO 19 AND 41 TO 45 OF PAPER BOOK . IN RESPECT OF OTHER TWO PARTIES, BANSILAL C KHATRI RS. 1,36,000 AND SHAMI G UPTA & KAVITA GUPTA RS. 28,500 THE ASSESSEE IS NOT ABLE TO OBTAIN ANY MATER IAL OTHER THAN MATERIAL FURNISHED BEFORE THE LOWER AUTHORITIES. THE LD.AR GAVE REASONS AS TO WHY THOSE MATERIALS OF THE THREE PARTIES WERE NOT ABLE TO BTA IN AND FURNISH BEFORE THE LOWER AUTHORITIES WHICH IS STATED IN THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE THAT THERE WAS SOME INTERNAL MANAGEMENT PROBLEM IN ASSESSEE COMPANY. THE DETAILS REASONS GIVEN HAVE BEEN PLACED ON RECORD. ITA NO.969/RJT/2009 3 4. AFTER HEARING THE LEARNED REPRESENTATIVES OF THE PARTIES WE FIND THAT THE ASSESSEE IS NOT ABLE TO PRODUCE ANY MATERIAL EVIDEN CE IN RESPECT OF SHRI BANSILAL C KHATRI AND SHAMI GUPTA & KAVITA GUPTA AND THEREFO RE, THE ADDITION IN RESPECT OF THE CASH CREDITS INTRODUCED BY THEM OF RS. 1,64, 500 (RS.1,36,000 + RS.28,500) IS HEREBY CONFIRMED. WITH REGARD TO OTHER THREE PA RTIES, VIZ. BABU T MIRCHANDANI, PM JAIN AND RAVINDRA GUPTA WE FIND THAT THE ASSESSE E HAS SOME COGENT MATERIAL RELATED TO THE ISSUE WHICH REQUIRES TO BE CONSIDERED IN THE INTEREST OF JUSTICE. WE, THEREFORE, SEND BACK THE MATTER RELAT ING TO THOSE THREE PARTIES TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE MATERIA L PRODUCED BEFORE US AND TAKE A DECISION AFRESH IN THE MATTER AFTER PROVIDING OPPOR TUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 31-12-2010. SD/- SD/- (D.T. GARASIA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 31 ST DECEMBER, 2010 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), JAMNAGAR 4. THE CIT, JAMNAGAR 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT