Shri ketanbhai Kantilal Shah, Bharuch V. The ACIT.,Cent.Circle-2., Baroda

ITSSA 209/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9521 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-10-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P VAISHNAV
• Assessee Lawyers: S N DIVETIA
• Keywords: Unexplained investment; Validity of assessment

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO.209 AND 210/AHD/2010 [ASSTT.YEAR : 2003-2004 AND 2004-2005] SHRI KETANBHAI KANTILAL SHAH 23, TAXSHILA ARCADE NR. ZADESHWAR CHOKDI, BHARUCH. PAN : AAXPS 1322 F /VS. ACIT, CENT.CIR.2 AHMEDABAD. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI S.N. DIVETIA + 2 3 )/ REVENUE BY : SHRI O.P. VAISHNAV, CIT-DR 5 2 &(*/ DATE OF HEARING : 10 TH OCTOBER, 2013 678 2 &(*/ DATE OF PRONOUNCEMENT : 13/11/2013 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THESE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2003-2004 AND 200 4-2005 ARE DIRECTED AGAINST THE ORDERS OF THE LEARNED CIT(A). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. IT(SS)A NO.209/AHD/2010 ASSTT.YEAR 2003-2004: 2. THE GROUND NO.1.1 AND 1.2 OF THE APPEAL OF THE A SSESSEE ARE AS UNDER: IT(SS)A NO.209 AND 210/AHD/2010 -2- 1.1 THE ORDER PASSED U/S.250 OF THE ACT ON 21.12.2 009 FOR A.Y.2003-04 BY CIT(A)-IV, AHMEDABAD UPHOLDING T HE VALIDITY OF ASSESSMENT AND ADDITIONS MADE BY AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN UPHOLDING THE IMPUGNED DISALLOWANCES WITHOUT CONSIDERING FULLY AN D PROPERLY THE EVIDENCE PRODUCED AS WELL AS EXPLANATI ON OFFERED. 3. THESE GROUNDS OF THE APPEAL BEING GENERAL IN NAT URE, NEEDS NO ADJUDICATION. 4. THE GROUND NO.2.1, 2.2 AND 3.1 OF THE ASSESSEES APPEALS ARE AS UNDER: 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND/ OR ON FACTS IN UPHOLDING THE FOLLOWING ADDITIONS/DISALLOW ANCES. B) UNEXPLAINED INVESTMENT RS.1,68,902 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ABOVE SAID ADDITIONS/ DISALLOWANCES. 3.1 WITHOUT PREJUDICE AND IN THE ALTERNATIVE, THE LD.CIT(A) OUGHT TO HAVE ALLOWED BENEFIT OF THE DISCLOSURE/ADDITIONS MADE IN THE FIRM OF M/S.TIRUPA TI CONSTRUCTION CO. 5. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE HAS FILED EXPLANATION IN THIS REGARD THAT IT HAS SO LD GOLD ORNAMENTS FOR ` 90,817/- AND THE WIFE OF THE ASSESSEE HAS ALSO SOLD GOLD ORNAMENTS. THE CIT(A) HAS ALLOWED THE BENEFIT OF S ALE OF GOLD ORNAMENTS OF ` 90,817/- TO THE ASSESSEE, BUT HAS NOT ALLOWED THE IT(SS)A NO.209 AND 210/AHD/2010 -3- BENEFIT OF SALE OF OLD GOLD ORNAMENTS BY THE ASSESS EES WIFE. THE LEARNED DR SUBMITTED THAT THE ONUS WAS ON THE ASSES SEE TO PROVE THAT THE AMOUNT OF SALE OF GOLD ORNAMENTS PERTAININ G TO THE ASSESSEES WIFE WAS UTILISED IN THE CONSTRUCTION OF BUNGALOW. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FI ND THAT THE BENEFIT OF SALE OF OLD GOLD ORNAMENTS BY THE WIFE O F THE ASSESSEE SHOULD HAVE BEEN ALLOWED WHILE DETERMINING UNEXPLAI NED INVESTMENT IN THE CONSTRUCTION OF BUNGALOW BY THE A SSESSEE. HOWEVER, NECESSARY DETAILS OF THE SALE OF GOLD ORNA MENTS WERE NEITHER MENTIONED BY THE AO NOR THE CIT(A). IN THE SE FACTS, WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIREC TION TO ALLOW BENEFIT OF SALE OF OLD GOLD ORNAMENTS MADE BY THE A SSESSEES WIFE OUT OF ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMEN T OF ` 1,68,902/- AND THE BALANCE AMOUNT, IF ANY BE ADDED AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE. IT(SS)A NO.210/AHD/2010 ASSTT.YEAR 2004-2005: 7. THE GROUND NO.1.1 AND 1.2 OF THE APPEAL OF THE A SSESSEE ARE AS UNDER: 1.1 THE ORDER PASSED U/S.250 OF THE ACT ON 21.12.2 009 FOR A.Y.2004-05 BY CIT(A)-IV, AHMEDABAD UPHOLDING T HE VALIDITY OF ASSESSMENT AND ADDITIONS MADE BY AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. IT(SS)A NO.209 AND 210/AHD/2010 -4- 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN UPHOLDING THE IMPUGNED DISALLOWANCES WITHOUT CONSIDERING FULLY AN D PROPERLY THE EVIDENCE PRODUCED AS WELL AS EXPLANATI ON OFFERED. 8. THESE GROUNDS OF THE APPEAL BEING GENERAL IN NAT URE, NEEDS NO ADJUDICATION. 9. THE GROUND NO.2.1, 2.2 AND 3.1 OF THE ASSESSEES APPEALS ARE AS UNDER: 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND/ OR ON FACTS IN UPHOLDING THE ADDITION OF RS.10,76,352/- A S UNEXPLAINED INVESTMENT MADE BY THE ASSESSING OFFICE R. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ABOVE SAID ADDITIONS/ DISALLOWANCES. 3.1 WITHOUT PREJUDICE AND IN THE ALTERNATIVE, THE LD.CIT(A) OUGHT TO HAVE ALLOWED BENEFIT OF THE DISCLOSURE/ADDITIONS MADE IN THE FIRM OF M/S.TIRUPA TI CONSTRUCTION CO. 10. BOTH THE PARTIES BEFORE US SUBMITTED THAT THE F ACTS AND THE ISSUE ARE IDENTICAL WITH THE FACTS IN THE CASE OF B ROTHER OF ASSESSEE, SHRI VIJAYKUMAR KANTILAL SHAH FOR THE ASS ESSMENT YEAR 2004-2005, AND THEREFORE PLEADINGS REMAIN THE SAME, AS IN THE CASE OF THE SAID BROTHER. 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND THAT FOR THE DETAILED REASONING RECORDED WHILE DISPOSING OF THE APPEAL OF THE BROTHER OF THE ASSESSEE, SHRI VIJAYKUMAR KANTILAL S HAH FOR THE ASSESSMENT YEAR 2004-2005 (ITA NO.ITA(SS)210/AHD/10 ) IN THE IT(SS)A NO.209 AND 210/AHD/2010 -5- ORDER OF THE ITAT, AHMEDABAD OF THE EVEN DATE, WE H OLD THAT THE ASSESSEE IS ENTITLED TO TELESCOPIC BENEFIT OF THE P EAK AMOUNT OF ` 14,35,666/- SUSTAINED BY THE TRIBUNAL, AS PEAK OF C REDIT AND DEBIT ENTRIES IN THE SEIZED DIARY OF M/S.TIRUPATI CONSTRU CTION COMPANY, WHEREIN THE ASSESSEE HAS 13% SHARE. WE FIND THAT T HE ASSESSEES 13% SHARE IN THE PEAK AMOUNT OF ` 14,35,666/- ASSESSED IN THE CASE OF THE FIRM COMES TO ` 1,86,640/-, AND THE ADDITION IS ACCORDINGLY REDUCED BY A FIGURE ` 1,86,640/- OUT OF THE ADDITION OF ` 10,76,352/- AS UNEXPLAINED INVESTMENT AND THE BALA NCE ADDITION IS CONFIRMED. 12. IN THE RESULT, IT(SS)A.NO.209/AHD/2010 IS ALLOW ED FOR STATISTICAL PURPOSE AND IT(SS)A.NO.210/AHD/2010 IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD