The ACIT, Central Circle-1(3), Ahmedabad V. Smt. Jyotiben G. Vaghela, Ahmedabad

ITSSA 122/AHD/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3433 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained expenditure
• Section: 131; 69

Judgement Text

IT(SS) A NO.122 /AHD/201 4 A.Y. 20 11 - 12 PAG E 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT (SS) A NO. 122 /AHD/201 4 ASSESSMENT YEAR: 20 11 - 12 ASSTT. COMMISSIONER OF INCOME TAX VS. SMT. JYOTIBEN G . VAGHELA, CENTRAL CI R CLE 1(3), AHMEDABAD . 46, GOKULNAGR SOCIETY, NEAR JAYMALA POST OFFICE, GHODASAR, AHMEDABAD. [PAN: ACSPV 2267 Q] (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI T. SHANKAR, SR. D.R. RE SPONDENT BY : SHRI M.K. PATEL, A.R. DATE OF HEARING : 1 4 . 11 .201 7 DATE OF PRONOUNCEMENT : 16 .11 .201 7 O R D E R PER KUL BHARAT, J.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST ORDER DATED 31.12.2013 PASSED BY THE LEARNED CIT(A) FOR THE ASSESSMENT YEAR 2011 - 12. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - (1) THE LD. CIT ( A ) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,30,99,900/ - , BEING UNEXPLAINED EXPENDITURE U/S.69A OF THE ACT. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS OUGHT TO HAVE UPHELD T HE ORDER U/S.143(3) OF THE ACT. (3) IT IS, THEREFORE, PRAYED THAT T HE ORDER OF THE CIT(A) BE SET ASIDE A ND THAT OF THE A.O. BE R E STOR E D T O THE ABOVE EXTENT. 3. GROUND NO S.2 AND 3 ARE GENERAL IN NATURE, NEED NO SEPARATE ADJUDICATION. 4. THE EFFECTIVE GROUND IN R EVENUE S A PPEAL IS IN RESPECT OF DEL ETION OF ADDITION OF RS.1,30,99,900/ - TREATED AS UNEXPLAINED EXPENDITURE UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ). IT(SS) A NO.122 /AHD/201 4 A.Y. 20 11 - 12 PAG E 2 OF 3 5. LD. D EPARTMENTAL R EPRESENTATIVE SUPPORTED THE A SSESSMENT ORDER AND SUBMITTED T HAT THE L D. C I T ( A ) OUGHT NOT TO HAVE DELETED THE ADDITION. 6. PER CONTRA, LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE O R D E R OF LEARNED C I T(A). 7 . WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE A SSESSING OFFICER OBSERVED THAT DURING TH E COURSE OF SEA R CH A STATEMENT UNDER SECTION 131 OF THE ACT WAS RECORDED. IN THE STATEMENT ONE SHRI S . CHIMANLAL BHATEJA ADMITTED TO HAVE PAID ON BEHALF OF SHRI KHODIDAS J PATEL, TOT A L SALE CONSIDERATION FOR SURVEY NOS.191, 192, 197, 200/1 & 200/2 OF VITHLAPARA LAND AT RS.2,88,96,820/ - . OUT OF WHICH RS.11,90,000/ - WAS PAID BY CHEQUE AND REMAINING PART OF RS.2,77,06,820/ - W A S PAID BY CASH . THE ASSESSING O FFICER INVOK E D PROVISIONS OF SECTION 69A OF THE ACT, MADE AN ADDITION OF RS. 1,30,99,900/ - AND ALSO MADE ADDITION ON ACCOUNT OF SHORT TERM CAP ITAL GAIN OF RS.5,70,000/ - . AGGRIEVED B Y THIS, ASSESSEE PREFER RED APPEAL BEFORE TH E LEARNED C I T(A) WHO AFTER CONSIDERING SUBMISSIONS OF THE ASSESSEE DELET E D THE ADDITION BY GIVING FINDING A S UNDER : - 6.2 FURTHER, THE ASSESSING O FFICER, IN THIS CASE, HAS HELD THAT THE INCOME OF RS.1,30,99,900/ - IS TAXABLE U/S.69A O F THE I.T. ACT, 1961 BEING THE UNDISCLOSED INCOME OF THE APPELLANT . I T IS SEEN THAT THE ASSESSING O FFICER HAS NOT FOUND THE APPELLANT TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUN TS. THUS, THE ASSESSING O FFICER IS NOT JUSTIFIED IN MAKING THE ADDITION U/S.69A OF THE I.T. ACT, 1961. THE MOUNT OF RS.1,30,99,900/ - ALLEGEDLY RECEIVED FROM SHI KHODIDAS J PAT E L ON BEH ALF OF SHRI CHIMANLAL BHATEJA HAS BEEN H ELD TO BE FOR SALE OF AGRICULT URAL LAND. THE ASSESSING O FFICER HAS ALSO A C CEPT E D TH E F A CT THAT TH E AMOUNT PAID B Y SHRI CHIMANLAL BHATEJA W A S UNACCOUNTED CONSIDERATION PAID THOUGH SHRI KHODIDAS J, PATEL FOR THE PU R CHASE OF THESE LANDS. THUS, THE S A ME SHOULD HAVE BEEN TAXED A S A PART O F CAPITAL GAIN ON ARISING ON SALE OF LANDS. AS ALREADY DISCUSSED EARLIER IN THE O R DER, SINCE THE LAND IN QUESTION W A S AGRICULTURAL L A ND WHICH IS EVIDENT FRO M A COPY OF THE SALE DEED, THERE W A S NO QUESTION OF THE C A PI T AL GAIN BEING TAXED. IN VIEW OF THE A BOVE, THE ADDITION M A DE BY THE A S SESSING O FFICER OF RS.1,30,99,990/ - AND RS.5,70,000/ - ARE NOT JUSTIFIED. THE ADDITIONS MADE ARE DELETED 8. THE ABOVE FINDING ON FACTS IS NOT CONTROVERTED BY THE REVENUE. THEREFORE, WE DO NOT SEE ANY REASON T O INTERFERE IN THE FINDING OF THE LD. CIT(A). ADMITTEDLY THE REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD SUGGESTING THAT THE PROPERTY SOLD BY T HE ASSESSEE FELL UNDER DEFINITION OF CAPI TA L ASSET. WE , THEREFORE, DO NOT SEE ANY REASON TO INTERF ERE IN THE FINDING OF LE ARNED CI T(A). IT(SS) A NO.122 /AHD/201 4 A.Y. 20 11 - 12 PAG E 3 OF 3 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. OR DER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF NOVEMBER, 2017 . SD/ - SD/ - MANISH BORAD KUL BHARAT ( ACCOUNTANT MEMBER ) ( JUDICIAL MEMBER ) AHMEDABAD, THE 16 TH DAY OF NOVEMBER , 2017 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) C IT (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER UE COPY ASSIST ANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD