The Deputy Commissioner of Income Tax, Central Circle-2(1), Ahmedabad V. Raj Enterprise, Mehsana

ITSSA 236/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8863 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA MEHUL TA LERA
• Keywords: Set aside
• Section: 142(1); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) IT(SS)A. NOS: 236 TO 238/AHD/2017 (ASSESSMENT YEARS: 2010-11 TO 2012-13) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1), AHMEDABAD V/S RAJ ENTERPRISE HOTEL RANGOLE 5 ASHOKNAGAR SOCIETY RADHANPURA ROAD, MEHSANA-384002 (APPELLANT) (RESPONDENT) PAN: AAFFR7302H APPELLANT BY : SHRI ALOK SINGH, CIT/DR RESPONDENT BY : SHRI S. N. DIVETIA, MEHUL TA LERA ( )/ ORDER DATE OF HEARING : 27 -06-201 9 DATE OF PRONOUNCEMENT : 28S -06-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE THREE APPEALS HAVE BEEN PREFERRED BY THE REVE NUE AGAINST THE ORDER OF THE LD. CIT(A) -7, AHMEDABAD DATED 17.03.2017 FOR A .YS. 2010-11 TO 2012-13 IN THE FIGURES AND ASSESSMENT YEARS ARE DIFFERENT B UT FACTS ARE SAME. THEREFORE, IT(SS)A NOS. 236 TO 238/AHD/2017 . A.YS. 2010-1 1 TO 2012-13 2 FOR THE SAKE OF BREVITY, WE WOULD LIKE TO DISPOSE O F ALL THREE APPEALS FILED BY THE REVENUE BY WAY OF A COMMON ORDER. 2. FIRST OF ALL WE WOULD LIKE TO TAKE UP IT(SS)A NO. 2 36/AHD/2017 FOR A.Y. 2010-11. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN NOT APPRECIATIN G THE PROVISIONS OF SECTION 153A OF THE I.T. ACT WHICH REQUIRES THE TOTAL INCOM E TO BE BROUGHT UNDER TAX WITHOUT ANY RESTRICTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT SU CH ASSESSMENT OR REASSESSMENT U/S 153A IS TO BE RESTRICTED ONLY TO THE INCRIMINAT ING MATERIALS FOUND DURING THE SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING ADDITI ON OF UNSECURED LOANS TAKEN FROM VARIOUS PARTIES OF RS. 8,72,90,958/- 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 3. FACTS OF THE CASE ARE THAT THE APPELLANT IS DOING B USINESS OF FINANCE AND REAL ESTATE. RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 62569/- WAS FILED ON 28- 09-2010. SEARCH OPERATION U/S. 132 OF I. T. ACT 196 1 WAS CARRIED OUT AT THE OFFICE PREMISES ON 3-1-2013 ON THE GROUP. IT IS PER TINENT TO NOTE THAT NOTHING OBJECTIONABLE AND OUTSIDE BOOKS OF ACCOUNT WAS FOUN D OUT DURING THE ENTIRE SEARCH. THE CASE OF THE APPELLANT WAS CENTRALISED U /S. 127 OF THE I.T.ACT 1961. IN RESPONSE TO NOTICE U/S. 153 A OF THE ACT. 4. THE APPELLANT SUBMITTED REQUIRED DETAILS IN RESPONS E TO NOTICES ISSUED U/S, 143(2) AND U/S. 142(1) OF THE I.T.ACT 1961. THE LEA RNED DCIT NOTICED THAT IT(SS)A NOS. 236 TO 238/AHD/2017 . A.YS. 2010-1 1 TO 2012-13 3 UNSECURED LOAN FROM DIFFERENT PERSONS WERE RECEIVED FOR WHICH CONFIRMATION ETC WERE CALLED FOR. THE APPELLANT WAS UNDER BONAFI DE BELIEF THAT OPENING BALANCE OF UNSECURED LOAN WAS NOT TO BE EXPLAINED A ND HAS SUBMITTED REMAINING CONFIRMATION AS ASSESSMENT PROCEEDING WAS COMMENCED AT THE FAG END OF THE ASSESSMENT YEAR. THE FACT OF THE CASE WA S NOT APPRECIATED AND HUGE ADDITION U/S. 68 FOR RS. 87290958/- WAS MADE. 5. BEING AGGRIEVED ON THE ABOVE ADDITIONS, A SSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. NOW REVENUE HAS COME BEFORE US BY WAY OF A SECOND A PPEAL. 7. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER AND WE NOTICED THAT BEFORE THE LD. CIT(A). ASSESSEE HAS FILED ALL THE DETAILS UNDER RULE 46A AND THEREAFTER LD. CIT(A) SOUGHT REMAND REPORT. AND AFT ER CONSIDERING THE REMAND REPORT, IT WAS FOUND BY THE LD. CIT(A) THAT ASSESSE E HAS FILED COMPLETE DETAILS WITH REGARD TO UNSECURED LOANS TAKEN FROM DIFFERENT PARTIES. 8. IN SUPPORT OF ITS CONTENTION, LD. A.R. CITED A JUDG MENT OF HONBLE GUJARAT HIGH COURT HAS HELD IN A CASE TITLED CIT VS. RANCCHOD JI VABHAI NAKHAVA, TAX APPEAL NO. 50 OF 2011 WHEREIN IT IS HELD THAT ONCE THE ASS ESSEE HAD FURNISHED CONFIRMATIONS AND PAN DETAILS, IT WAS THE DUTY OF T HE A.O. TO ASCERTAIN FROM THE A.OS OF THOSE LENDERS WHETHER THEY HAD REFLECTE D THE TRANSACTIONS IN THEIR RETURNS OF INCOME AND THAT WITHOUT DOING THE SAME, THE DETAILS FURNISHED BY THE ASSESSEE COULD NOT BE DISPUTED. 9. IN OUR CONSIDERED OPINION, LD. CIT(A) HAD PASSED RE ASONED ORDER AND SAME DOES NOT REQUIRE ANY KIND OF INTERFERENCE AT OUR EN D. IT(SS)A NOS. 236 TO 238/AHD/2017 . A.YS. 2010-1 1 TO 2012-13 4 10. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. 11. NOW WE COME TO IT(SS)A NO. 237/AHD/2017 FOR A.Y. 20 11-12. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN NOT APPRECIATIN G THE PROVISIONS OF SECTION 153A OF THE I.T. ACT WHICH REQUIRES THE TOTAL INCOM E TO BE BROUGHT UNDER TAX WITHOUT ANY RESTRICTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT SU CH ASSESSMENT OR REASSESSMENT U/S 153A IS TO BE RESTRICTED ONLY TO THE INCRIMINAT ING MATERIALS FOUND DURING THE SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING ADDITI ON OF UNSECURED LOANS TAKEN FROM VARIOUS PARTIES OF RS. 4,99,44,279/- 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 12. SINCE FACTS AND CIRCUMSTANCES OF THIS CASE ARE SAME ONLY FIGURES AND ASSESSMENT YEAR ARE DIFFERENT. THUS, IN PARITY WITH THE CONNEC TED APPEAL IN IT(SS)A NO. 236/ABHD/2017, WE DISMISS THIS APPEAL OF THE REVENU E AS WELL. 13. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. 14. NOW WE COME TO IT(SS)A NO. 238/AHD/2017 FOR A.Y. 20 12-13. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN NOT APPRECIATIN G THE PROVISIONS OF SECTION IT(SS)A NOS. 236 TO 238/AHD/2017 . A.YS. 2010-1 1 TO 2012-13 5 153A OF THE I.T. ACT WHICH REQUIRES THE TOTAL INCOM E TO BE BROUGHT UNDER TAX WITHOUT ANY RESTRICTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT SU CH ASSESSMENT OR REASSESSMENT U/S 153A IS TO BE RESTRICTED ONLY TO THE INCRIMINAT ING MATERIALS FOUND DURING THE SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING ADDITI ON OF UNSECURED LOANS TAKEN FROM VARIOUS PARTIES OF RS. 5,38,11,989/- 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 15. SINCE FACTS AND CIRCUMSTANCES OF THIS CASE ARE SAME ONLY FIGURES AND ASSESSMENT YEAR ARE DIFFERENT. THUS, IN PARITY WITH THE CONNEC TED APPEAL IN IT(SS)A NO. 236 & 237/ABHD/2017, WE DISMISS THIS APPEAL OF THE REVENUE AS WELL. 16. IN THE RESULT, ALL THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28 - 06- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 28/06/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD