Shri Amit N.Kapadia, Surat V. The ACIT.,Cent.Circle-4, Surat

ITSSA 148/AHD/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1608 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 1 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 22-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Search and seizure; Principle of natural justice; Peak credit; Revised return
• Section: 143(3); 133A; 153A; 69; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI SHAILENDRA YADAV, JM, & MANISH BOR AD, AM. IT(SS)A NO. 148 & 150 /AHD/2011 ASST. YEAR: 2003-04 & 2005-06 SHRI AMIT N. KAPADIA, 3/1810, GHAMLAWAD, SHERI NO.1, GHAMLAWAD, SURAT. VS. ACIT, CEN. CIR-4, SURAT. APPELLANT RESPONDENT PAN AKDPK 2449J AND IT(SS)A NO. 152/AHD/2011 ASST. YEAR: 2003-04 SHRI MITHUN N. KAPADIA, 3/1810, GHAMLAWAD, SHERI NO.1, GHAMLAWAD, SURAT. VS. ACIT, CEN. CIR-4, SURAT. APPELLANT RESPONDENT PAN AIEPK 8406C APPELLANT BY SHRI RAJESH C. SHAH, AR RESPONDENT BY SHRI SANJAY AGRAWAL, CIT, DR DATE OF HEARING: 23.2.2016 DATE OF PRONOUNCEMENT: 22/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . ALL THESE THREE APPEALS ARE DIRECTED AGAINST THE C ONSOLIDATED ORDER OF LD. CIT(A)-II, AHMEDABAD DATED 13.12.2010 PASSED FOR ASST. YEARS 2003-04 TO 2006-07. HOWEVER, IN THE PRESENT C ASES WE ARE IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 2 CONCERNED ABOUT ASSESSMENT YEARS 2003-04 & 2005-06. ASSESSMENTS WERE FRAMED U/S 143(3) R.W.S. 153C OF T HE I. T. ACT., 1961 (HEREINAFTER REFERRED TO AS THE ACT). SINCE TH E ASSESSEES ARE OF THE SAME GROUP AND THE ISSUES INVOLVED ARE SIMILAR, THESE APPEALS WERE TAKEN TOGETHER AND ARE BEING DISPOSED OF BY TH IS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP IT(SS)A NO.148/AHD/2011 FOR ASS T. YEAR 2003- 04, IN THE CASE OF SHRI AMIT N. KAPADIA, WHEREIN FO LLOWING GROUNDS HAVE BEEN RAISED :- 1.. THAT ON FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A)-II HAS ERRED IN- -CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS. 4,05,000/- MADE IN BANK ACCOUNT OF THE APPEL LANT. - WITHOUT CONSIDERING THE FACT THAT THE AMOUNT DEPO SITED IN THE BANK ACCOUNT COMPRISES MAINLY OF GIFTS RECEIVED FROM RELATIVES. - AND THE DOCUMENTARY EVIDENCE OF WHICH HAS BEEN SU BMITTED TO THE LEARNED CIT(A)-II AS WELL AS THE AO DURING THE COURSE OF APPELLATE/ASSES SMENT PROCEEDINGS. 2. THAT ON THE FACTS AND CIRCUMSTANCES THE CIT(A) -II HAS ERRED IN SUSTAINING THE ACT OF THE AO OF NOT DOING TELESCOPING IN THE APPELLANT 'S CASE -OF THE DISCREPANCY IF ANY REMAINING UNIDENTIFIED I N THE HANDS OF SHRI NAGINBHAI KAPADIA AND / OR SHRI ASHOKBHAI JARIWALA AS CATEGORICALLY M ENTIONED BY THEM IN NOTES FILED WITH THEIR REVISED RETURN U/S. 153A STATING THAT -THE CONDITIONAL DISCLOSURE MADE THEREIN IS A FIRST HAND APPROXIMATION WHICH MAY VARY WITHIN THE OVERALL AMOUNT DECLARED AT THE TIME OF A SSESSMENT PROCEEDINGS OR APPELLATE OR REVISION PROCEEDINGS AND THE AMOUNT OF CONDITIONAL DISCLOSURE REMAINING SPEC IFICALLY UNIDENTIFIED MAY BE TELESCOPED AGAINST ANY ADDITION OR DISALLOWANCES OF ANY EXPENSES OR DEDUCTION OR OTHERWISE MADE DURING THE COURSE OF ASSESSMENT PROC EEDINGS OR APPELLATE OR REVISION PROCEEDINGS IN THE HANDS OF FAMILY MEMBERS OR ANY G ROUP CONCERNS FOR THE PERIOD COVERED UNDER THE NOTICE ISSUED U/S. 153A/153C OF T HE ACT. IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 3 3. THAT THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE AO BE DIRECTED TO CARRY OUT APPEAL EFFECTS CONSEQUENT TO THE PRESENT APPEAL ALS O IN THE CASE OF SHRI ASHOKBHAI JARIWALA AND SHRI NAGINBHAI KAPADIA ON THE MATTER B EING FINALLY SETTLED. 3. THE GROUNDS ARE ARGUMENTATIVE AND DESCRIPTIVE AN D NOT IN CONSONANCE WITH RULE-8 OF ITAT RULES, 1963. HOWEVER , THE SOLITARY GRIEVANCE OF THE ASSESSEE REVOLVES ROUND THE ACTION LD. CIT(A) CONFIRMING ADDITION OF RS.4,05,000/- MADE BY ASSESS ING OFFICER. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME ON 21.01.2004 DECLAR ING TOTAL INCOME AT RS.2,03,000/-. SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT ON 14.12.2005 AT THE RESIDENTIAL PREMIS ES OF SH. NAGINDAS T. KAPADIA AND SH. ASHOK H. JARIWALA OF TNK GROUP A ND SURVEY ACTION U/S 133A WERE CONDUCTED AT BUSINESS PREMISES OF THE ASSESSEE GROUP ON THE SAME DATE. DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS AT THE RESIDENTIAL PREMISES OF S H. NAGINDAS T. KAPADIA AND SH. ASHOK H. JARIWALA BOOKS OF ACCOUNTS /DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED VI DE ANNEXURE A- 1,, A-2 AND A-3 OF THE PANCHNAMA DATED 14.12.2005. ASSESSEE IS ONE OF THE MEMBERS OF T.N. KAPADIA (TNK) GROUP COMP RISING OF TWO FAMILIES VIZ. THE KAPADIA AND JARIWALAS ENGAGED IN BUSINESS OF MANUFACTURE, TRADING AND SALE OF METALLIC THREADS ( ZARI). ASSESSEE IS ALSO PROPRIETOR OF A CONCERN NAMED SHRI SHAKTI JARI . NOTICE U/S 153C OF THE ACT WAS ISSUED ON 16.08.2007 WHICH WAS SERVE D UPON THE ASSESSEE REQUESTING HIM TO FILE THE RETURN OF INCOM E FOR ASST. YEAR 2003-04 AND IN RESPONSE THEREOF ASSESSEE FILED HIS RETURN OF INCOME ON 10.10.2007 DECLARING TOTAL INCOME AT RS.2,03,000 /-. THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE U/S 143 (2) OF THE ACT WAS IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 4 ISSUED ON 5.11.2007 AND SERVED UPON THE ASSESSEE. D URING THE COURSE OF ASSESSMENT PROCEEDINGS LD. ASSESSING OFFI CER OBSERVED THAT BANK ACCOUNT NO.0041-094206-001 WHICH WAS OPER ATED BY THE ASSESSEE IN UNACCOUNTED MANNER AND THERE WAS A PEAK BALANCE OF RS.4,05,000/- AND ACCORDINGLY MADE ADDITION AS UNEX PLAINED INVESTMENT AT RS.4,05,000/-. 4. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) WHO DISMISSED THE APPEAL OF ASSESSEE. 5. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. LD. AR AT THE OUTSET SUBMITTED THAT THE ADDITION MADE B Y ASSESSING OFFICER WAS BAD IN LAW BECAUSE THE IMPUGNED AMOUNT OF RS.4,05,000/- WHICH THE LD. ASSESSING OFFICER IS IM PRESSING TO HAVE BEEN INVESTED DURING ASST. YEAR 2003-04 IS NOT CORR ECT BECAUSE THE SUM OF RS.4,05,000/- APPEARING IN THE BANK ACCOUNT WAS RECEIVED DURING FINANCIAL YEAR 2001-02 AND ASST. YEAR 2002-0 3 AND, THEREFORE, ADDITION, IF ANY, COULD HAVE BEEN MADE ONLY IN ASST . YEAR 2002-03. 6. LD. AR FURTHER SUBMITTED REFERRING TO THE BANK S TATEMENT OF CENTURIAN BANK LTD. APPEARING ON PAGE 18 OF THE PAP ER BOOK WHICH SHOWS THE STATEMENT FOR THE PERIOD FROM 26.3.2002 T O 31.03.2002 I.E. PART OF F.Y. 2001-02 RELEVANT TO ASST. YEAR 2002-03 WHICH SHOWS CASH OF RS.5,000/- ON 26.3.2002 DEPOSITED FOR OPENI NG THE BANK ACCOUNT AND THEREAFTER RS.2 LACS EACH WAS RECEIVED ON 27.3.2002 VIDE CHEQUE NO.576251 & 576242 AS GIFT FROM MR. DHA NSUKH RATILAL JARIWALA AND COUSIN BROTHER OF ASSESSEE MR. IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 5 DEEPAKKUMAR JETHALAL. LD. AR THEREFORE, SUBMITTED T HAT AS THE VERY BASIS OF ADDITION FOR UNEXPLAINED INVESTMENT IS OUT OF PURVIEW OF ASSESSMENT YEAR 2003-04, LD. ASSESSING OFFICER WAS NOT CORRECT IN MAKING ADDITION AT RS.4,05,000/-. 7. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDERS O F LOWER AUTHORITIES AND HAS ALSO FILED A COPY OF DECISION O F HON. DELHI HIGH COURT IN THE CASE OF SANDEEP KUMAR (HUF) VS. CIT (2 007) 293 ITR 0294 WHEREIN IT WAS HELD THAT AMOUNT RECEIVED BY AS SESSEE FROM NRI CANNOT BE ACCEPTED AS GENUINE AND THE SAME WERE RIG HTLY TREATED AS UNDISCLOSED INCOME OF ASSESSEE. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE MATERIAL ON RECORD. THE ISSUE IN THIS APPEAL IS AGA INST THE ADDITION OF RS.4,05,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE UNDISCLOSED BANK ACCOUNT. FROM GOING THROUGH THE AV AILABLE RECORDS AND SUBMISSIONS OF LD. AR WE UNDERSTAND THAT THE SO URCE OF ADDITION OF RS.4,05,000/- WHICH LD. ASSESSING OFFICER IS REF ERRING IN HIS ASSESSMENT ORDER AS BASIS FOR ADDITION FOR UNEXPLAI NED INVESTMENT IS DERIVED OUT OF THE UNDISCLOSED BANK ACCOUNT OF ASSE SSEE HELD WITH CENTURIAN BANK LTD., SURAT A/C NO. 0041-094206-001. FROM PERUSAL OF THIS BANK ACCOUNT WE FIND STRENGTH IN THE SUBMIS SIONS OF LD. AR THAT THE AMOUNT OF RS.4,05,000/- WAS DEPOSITED IN THE BA NK ACCOUNT DURING ASST. YEAR 2002-03 I.E. BEFORE ASST. YEAR 20 03-04. THIS ADDITION OF RS.4,05,000/- IN THE BANK ACCOUNT WAS ARISING OU T OF THE FOLLOWING IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 6 A) CASH DEPOSIT IN BANK ON 26.3.2002 B) DEPOSIT OF CHEQUE NO.576251 OF RS.2,00,000/- RECEIVED FROM SHRI DHANSUKH RATILAL JARIWALA (UNCLE OF ASSESSEE) C) DEPOSIT OF RS.2,00,000/- VIDE CHEQUE NO.576242 R ECEIVED AS GIFT FROM COUSIN BROTHER OF ASSESSEE MR. DEEPAKKUMA R JETHALAL. 9. WE ARE, THEREFORE, OF THE OPINION THAT AS THE EN TRIES RELEVANT TO THE BANK ACCOUNT TOTAL TO RS.4,05,000/- RELATE TO A SST. YEAR 2002-03 AND ARE NOT RELEVANT FOR ASST. YEAR 2003-04 AND, TH EREFORE, THE ASSESSING OFFICER WAS NOT CORRECT IN MAKING THE ADD ITION TO THE TOTAL INCOME OF ASSESSEE FOR ASST. YEAR 2003-04 AND THE S AME IS DELETED. ACCORDINGLY WE ALLOW THE APPEAL OF ASSESSEE. 10. NOW WE TAKE IT(SS) 150/AHD/2011 FOR ASST. YEAR 2005-06. IN THIS CASE, ASSESSMENT WAS COMPLETED ON 31.12.2007 A ND THE ONLY ADDITION MADE BY THE ASSESSING OFFICER WAS ON ACCOU NT OF UNEXPLAINED INVESTMENT AT RS.70,455/- ON ACCOUNT OF UNDISCLOSED INVESTMENT IN BANK ACCOUNT DURING THE YEAR. 11. APPEAL BEFORE LD. CIT(A) COULD BRING ANY RELIEF TO THE ASSESSEE. 12. AGGRIEVED, ASSESSEE IW NOW IN APPEAL BEFORE US. AT THE OUTSET LD. AR OF THE ASSESSEE SUBMITTED THAT THE AMOUNT OF ADDITION OF RS.70,455/- MADE BY ASSESSING OFFICER FOR ASST. YEA R 2005-06 WAS NOT CORRECT AS THERE WAS NO SUCH INVESTMENT DURING THE YEAR IN THE IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 7 CENTURIAN BANK LTD. AND THE AMOUNT OF RS.70,455/- W AS ACTUALLY AN OPENING BALANCE AS ON 1.4.2004. 13. ON THE OTHER HAND, LD. DR STRONGLY OBJECTED TO THE SUBMISSIONS MADE BY LD. AR AND STATED THAT THE COPY OF BANK STA TEMENTS WHICH THE ASSESSEE HAS SUBMITTED DURING THE PROCEEDINGS B EFORE THE TRIBUNAL WERE NOT SUBMITTED IN THE PAPER BOOK AND C OGNIZANCE SHOULD NOT BE GIVEN TO SUCH DOCUMENTS DURING THE APPELLATE PROCEEDINGS. HOWEVER, LD. DR AGREED TO THE EXTENT THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF ASSESSING OFFICER WHO WILL EXAMINE T HE BANK STATEMENT AND IN CASE THE SUBMISSION OF LD. AR IS FOUND TO BE CORRECT THEN THE ADDITION MAY BE DELETED. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. ON GOING THROUGH THE IMPUGNED ASSESSMENT ORDER, WE FIND THAT ADDITION OF RS.70,455/- WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE BANK ACCOUNT HELD WITH CENTURIAN BANK LTD. IN THE NAME OF ASSESSEE. HOWEVER, ON GOING THROUGH THE BAN K STATEMENT SUBMITTED BEFORE US DURING THE PROCEEDINGS, WE FIND THAT RS.70,455/- WAS A BALANCE BROUGHT FORWARD FROM PREVIOUS YEAR AN D THERE WAS NO SUCH INVESTMENT DURING THE ASST. YEAR 2005-06 IN TH E UNDISCLOSED BANK ACCOUNT MENTIONED BY THE ASSESSING OFFICER. 15. HOWEVER, WE FIND THAT THE COPY OF THIS BANK ACC OUNT WAS NEITHER PUT UP IN THE FORM OF PAPER BOOK NOR SUBMITTED BEFO RE THE LOWER AUTHORITIES AND THE LD. DR OBJECTED TO IT AND, THER EFORE, IN THE INTEREST OF NATURAL JUSTICE, WE SET ASIDE THE ISSUE TO THE F ILE OF ASSESSING IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 8 OFFICER WITH CLEAR INSTRUCTION THAT PROPER OPPORTUN ITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE TO SUBMIT COPY OF BANK STATEMENT OF CENTURIAN BANK LTD. SHOWING THAT RS.70,455/- WAS TH E BALANCE BROUGHT FORWARD FROM ASST. YEAR 2004-05 AND THERE W AS NO ENTRY OF RS.70,455/- DURING THE YEAR UNDER APPEAL AND THEREA FTER IF THE ASSESSING OFFICER IS SATISFIED TO THIS FACT THAT RS .70,455/- WAS NOT INVESTED DURING THE YEAR AND IT WAS ACTUALLY BALANC E BROUGHT FORWARD OF PREVIOUS YEAR THEN NO ADDITION FOR UNEXPLAINED I NVESTMENT SHOULD BE CALLED FOR RS.70,455/-. IN VIEW OF OUR ABOVE DIS CUSSION, WE ALLOW THE APPEAL OF ASSESSEE FOR STATISTICAL PURPOSES. 16. NOW WE TAKE UP IT(SS)A NO.152/AHD/2011 FOR ASST . YEAR 2003- 04 IN THE CASE OF SHRI MITHUN N. KAPADIA. IN THIS A PPEAL ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1.. THAT ON FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A)-II HAS ERRED IN- -CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS. 4,05,000/- MADE IN BANK ACCOUNT OF THE APPEL LANT. - WITHOUT CONSIDERING THE FACT THAT THE AMOUNT DEPO SITED IN THE BANK ACCOUNT COMPRISES MAINLY OF GIFTS RECEIVED FROM RELATIVES. - AND THE DOCUMENTARY EVIDENCE OF WHICH HAS BEEN SU BMITTED TO THE LEARNED CIT(A)-II AS WELL AS THE AO DURING THE COURSE OF APPELLATE/ASSES SMENT PROCEEDINGS. 2. THAT ON THE FACTS AND CIRCUMSTANCES THE CIT(A) -II HAS ERRED IN SUSTAINING THE ACT OF THE AO OF NOT DOING TELESCOPING IN THE APPELLANT 'S CASE -OF THE DISCREPANCY IF ANY REMAINING UNIDENTIFIED I N THE HANDS OF SHRI NAGINBHAI KAPADIA AND / OR SHRI ASHOKBHAI JARIWALA AS CATEGORICALLY M ENTIONED BY THEM IN NOTES FILED WITH THEIR REVISED RETURN U/S. 153A STATING THAT -THE CONDITIONAL DISCLOSURE MADE THEREIN IS A FIRST HAND APPROXIMATION WHICH MAY VARY WITHIN THE OVERALL AMOUNT DECLARED AT THE TIME OF A SSESSMENT PROCEEDINGS OR APPELLATE OR REVISION PROCEEDINGS AND IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 9 THE AMOUNT OF CONDITIONAL DISCLOSURE REMAINING SPEC IFICALLY UNIDENTIFIED MAY BE TELESCOPED AGAINST ANY ADDITION OR DISALLOWANCES OF ANY EXPENSES OR DEDUCTION OR OTHERWISE MADE DURING THE COURSE OF ASSESSMENT PROC EEDINGS OR APPELLATE OR REVISION PROCEEDINGS IN THE HANDS OF FAMILY MEMBERS OR ANY G ROUP CONCERNS FOR THE PERIOD COVERED UNDER THE NOTICE ISSUED U/S. 153A/153C OF T HE ACT. 3. THAT THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE AO BE DIRECTED TO CARRY OUT APPEAL EFFECTS CONSEQUENT TO THE PRESENT APPEAL ALS O IN THE CASE OF SHRI ASHOKBHAI JARIWALA AND SHRI NAGINBHAI KAPADIA ON THE MATTER B EING FINALLY SETTLED. 17. THE GROUNDS ARE AGUMENTATIVE AND DESCRIPTIVE AN D NOT IN CONSONANCE WITH RULE-8 OF ITAT RULES, 1963. HOWEVER , THE ONLY SOLITARY GRIEVANCE OF THE ASSESSEE REVOLVES ROUND T HE ACTION LD. CIT(A) SUSTAINING ADDITION OF RS.4,05,000/- MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT. 18. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A N INDIVIDUAL WHO HAS FILED HIS REGULAR INCOME TAX RETURN ON 21.1.200 4 DECLARING TOTAL INCOME AT RS.2,16,330/-. IN PURSUANCE TO SEARCH OPE RATION U/S 132 OF THE ACT ON 14.12.2005 IN THE TNK GROUP AND SURVEY U /S 133A OF THE ACT NOTICE U/S 153C OF THE ACT WAS ISSUED ON 21.9.2 007 AND DULY SERVED UPON THE ASSESSEE. IN REPLY TO NOTICE U/S 15 3C ASSESSEE FILED HIS RETURN OF INCOME ON 10.10.2007 DECLARING TOTAL INCOME AT RS.2,16,330/-. THE CASE WAS SELECTED FOR SCRUTINY A SSESSMENT AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 5.11.200 7 AND DULY SERVED UPON THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY ASSESSING OFFICER THAT ASSESSEE HAS NOT DISCLOSED BANK ACCOUNT HELD WITH CENTURIAN BANK IN HIS REGULA R BOOKS OF ACCOUNTS AND THEREFORE, MADE ADDITION U/S 69 OF THE ACT TOWARDS UNEXPLAINED INVESTMENT AT RS.8,05,992/-. IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 10 19. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. C IT(A) WHO PARTLY ALLOWED THE APPEAL OF ASSESSEE BY OBSERVING THAT ASSESSING OFFICER HAS ERRED IN COMPUTING THE FIGURE OF RS.8,0 5,992/- BY MAKING DOUBLE ADDITION OF THE AMOUNT DEPOSITED IN BANK ACC OUNT NO.94207 MAINTAINED WITH CENTURIAN BANK LTD. AND THE FIGURE OF RS.4,03,415/- HAS BEEN TAKEN AGAINST ACCOUNT NO.94207 AND AGAIN R S.4,00,501/- AGAINST ACCOUNT NUMBER 0041-094207 OF CENTURIAN BAN K. ACCORDINGLY, LD. CIT(A) DELETED THE ADDITION OF RS. 4,00,501/- FOR ASST. YEAR 2003-04 AND SUSTAINED THE REMAINING AMOUNT. 20. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL FOR THE REMAINING AMOUNT OF ADDITION OF RS.4,05,000/-. LD. AR SUBMITTED THAT THE IMPUGNED ADDITION MADE BY LD. ASSESSING OF FICER AT THE TIME OF FRAMING THE ASSESSMENT ORDER WAS BAD IN LAW BECA USE THE TRANSACTIONS APPEARING IN THE BANK STATEMENT WHICH THE LD. ASSESSING OFFICER HAS TAKEN UP AS UNDISCLOSED INVESTMENT FOR ASST. YEAR 2003- 04 ARE ACTUALLY RELATED TO ASST. YEAR 2002-03. THE LD. AR FURTHER SUBMITTED BY REFERRING TO PAGE 26 OF THE PAPER BOOK WHEREIN COPY OF BANK STATEMENT OF CENTURIAN BANK LTD., SURAT IN THE NAME OF ASSESSEE FOR ACCOUNT NO.0041094207001, THAT THE TRA NSACTIONS AMOUNTING TO RS.4,05,000/- HAVE ALREADY BEEN ENTERE D INTO DURING F.Y. 2001-02 AND THEREFORE, AS THE TRANSACTIONS ON THE BASIS OF WHICH ADDITION U/S 69 OF THE ACT HAS BEEN MADE FOR UNEXPL AINED INVESTMENT HAVE BEEN WRONGLY TAKEN, THEREFORE, THE SAME SHOULD BE DELETED. IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 11 21. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIES. 22. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THIS APPEAL IS SIMILAR TO T HE ISSUE AS DISCUSSED IN APPEAL NO. IT(SS)A 148/AHD/2011 FOR AS ST. YEAR 2003- 04 IN THE CASE OF SHRI AMIT N. KAPADIA. IN THIS CAS E ALSO THE FACTS ARE SIMILAR WHEREIN ASSESSEE IS POSSESSING SAVINGS BANK ACCOUNT WITH CENTURIAN BANK LTD., SURAT BEARING NO.0041094207001 AND THIS ACCOUNT HAS NOT BEEN DISCLOSED IN THE RETURN OF INC OME SUBMITTED BY ASSESSEE. FROM GOING THROUGH THE ABOVE REFERRED BAN K ACCOUNT, WE FIND THAT ASSESSEE HAS OPENED THIS BANK ACCOUNT BY DEPOSITING RS.5,000/- ON 26.3.2002 AND THEREAFTER ON 27.3.2002 TWO ENTRIES OF RS.2,00,000/- EACH ON ACCOUNT OF GIFT RECEIVED BY A SSESSEE FROM SHRI DEEPAK JETHALAL AND ASHOKBHAI N. JARIWALA VIDE CHEQ UE NOS.576241 AND 576232/- BOTH DATED 26.3.2002 IN TOTAL RS.4,05, 000/- WAS DEBITED IN THE BANK ACCOUNT HELD WITH CENTURIAN BANK. ALL T HESE THREE AMOUNTS OF RS.5,000/-, RS.2,00,000/- AND RS.2,00,00 0/- HAVE BEEN ENTERED IN THE BANK ACCOUNT OF ASSESSEE DURING FINA NCIAL YEAR 2001- 02 RELEVANT TO ASST. YEAR 2002-03. WE THEREFORE, FI ND SUBSTANCE IN THE SUBMISSIONS OF LD. AR THAT THE ADDITION OF RS.4 ,05,000/- WHICH WAS WRONGLY ADDED TWICE IN THE ASSESSMENT ORDER FRA MED BY LD. ASSESSING OFFICER AND THEREAFTER PARTLY ALLOWED BY LD. CIT(A) WAS ACTUALLY RELATED TO ASST. YEAR 2002-03 AND, THEREFO RE, NO ADDITION SHOULD HAVE BEEN MADE FOR THE AMOUNT OF RS.4,05,000 /- IN THE ASSESSMENT FRAMED FOR ASST. YEAR 2003-04. WE, THERE FORE, DELETE THE IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 12 ADDITION OF RS.4,05,000/- SUSTAINED BY LD. CIT(A) A ND ALLOW THE APPEAL OF ASSESSEE. 23. IN THE RESULT, APPEAL OF ASSESSEE IN IT(SS)A NO .148/AHD/2011 FOR ASST. YEAR 2003-04 IS ALLOWED, IT(SS)A NO.150/A HD/2011 FOR ASST. YEAR 2005-06 IS ALLOWED FOR STATISTICAL PURPOSES AN D IT(SS)A NO.152/AHD/2911 FOR ASST. YEAR 2003-04 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND MARCH, 2016 SD/- SD/- (SHAILENDRA YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 22/03/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD IT(SS)A NO.148, 150 & 152/AHD/2011 ASST. YEAR 2003-04 & 2005-06 13 1. DATE OF DICTATION: 23/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 7/03/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK:2 2/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: