Shri Bharatbhai A.Patel, Sabarkantha V. The Dy.CIT.,S.K.Circle, Himatnagar

ITSSA 37/AHD/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8567 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-03-2011
• Assessment Year: misc
• Appeal Filed On: 01-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: B T THAKKAR
• Keywords: Unexplained cash credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA, JUDICIAL MEMBER) IT(SS)A NO.37/AHD/2009 [BLOCK PERIOD 1-8-1985 TO 31-3-1997] BHARATBHAI A. PATEL DUGARWADA, TAL. MODASA DIST. SABARKANTHA PAN : AAWPP 0637 Q VS. DCIT, S.K. CIRCLE HIMATNAGAR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B.T. THAKKAR REVENUE BY : SHRI R.K. DHANESTA O R D E R PER G.D. AGARWAL, VICE-PRESIDENT: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-X, AHMEDABAD DATED 18.03.2009 ARISING OUT OF THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 158BC R.W.S. 143(3) TH E INCOME TAX ACT, 1961. 2. THE APPEAL FILED BY THE ASSESSEE WAS LATE. THE ASSESSEE FILED THE PETITION FOR CONDONATION OF DELAY. IT WAS EXPLAINE D BY THE ASSESSEE THAT THERE WAS SEARCH AT THE ASSESSEES PREMISES ON 1-8- 1996; THAT THE ORIGINAL ASSESSMENT COMPLETED UNDER SECTION 158BC WAS SET AS IDE BY THE ITAT. THEREAFTER, THE AO COMPLETED THE ASSESSMENT UNDER S ECTION 143(3) R.W.S. 158BC ON 27-12-2007 WHICH WAS SERVED UPON THE ASSES SEE ON 31-12- 2007. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) ON 30-1-2008; THAT THE CIT(A) DID NOT ADMIT THE ASSESSEES APPEAL VIDE ORD ER DATED 18-3-2009 ON THE GROUND THAT THE APPEAL IS TO BE FILED DIRECTLY TO THE ITAT BECAUSE SEARCH WAS CARRIED OUT PRIOR TO 1-1-1997. THE ORDE R OF THE CIT(A) WAS SERVED UPON THE ASSESSEE ON 4-5-2009 AND THEREAFTER THE ASSESSEE FILED THE IT(SS)A NO.37/AHD/2009 -2- APPEAL BEFORE THE ITAT ON 1-7-2009. HE HAS STATED THAT THE DELAY IN FILING THE APPEAL BEFORE THE ITAT HAPPENED BECAUSE THE ASSESSEES COUNSEL WAS UNDER BONA FIDE BELIEF THAT THE APPEAL AGAINST THE ASSESSMENT ORDER IS TO BE FILED BEFORE THE CIT(A) AND THE ASSE SSEE IN FACT DID FILE THE APPEAL WITHIN THE TIME BEFORE THE CIT(A). HE THERE FORE SUBMITTED THAT THE DELAY IN FILING OF THE APPEAL MAY BE CONDONED. 3. AFTER CONSIDERING THE SUBMISSIONS OF THE LEARNED COUNSEL AND THE FACTS ON RECORD, WE DEEM IT PROPER TO CONDONE THE D ELAY IN FILING OF THE APPEAL BY THE ASSESSEE. ACCORDINGLY, THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED FOR HEARING ON MERIT. 4. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASS ESSEE IS AGAINST THE ADDITION OF RS.1,22,000/- MADE BY THE AO AS UNEXPLA INED DEPOSITS IN THE NAME OF FOLLOWING THREE PARTIES: I) SHRI JAGDISHBHAI PATEL RS.35,000/- II) M/S.SUBHLAXMI SHROFF RS.47,000/- III) M/S. K.L. SHROFF RS.40,000/- RS.1,22,000/- 5. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT DURING THE SET ASIDE PROCEEDINGS, THE ASSESSEE HAS FURNISHED CONFIRMATIONS OF ALL THE THREE PARTIES BUT THE AO W ANTED THE ASSESSEE TO PRODUCE THOSE PARTIES; THAT THE CREDITS IN THE ASSE SSEES ACCOUNT WAS DURING 1995-96 AND THE SET ASIDE ASSESSMENT WAS TAK EN UP IN THE YEAR 2007; THAT AFTER THE LAPSE OF A DECADE, THE CREDITO RS WERE NOT COOPERATING WITH THE ASSESSEE; THAT THE AMOUNT RECEIVED BY THE ASSESSEE WERE DULY RECORDED IN THE DIARY FOUND AT THE TIME OF SEARCH A ND THE ASSESSEE HAD ALSO FURNISHED THE CONFORMATIONS OF ALL THREE PARTIES; T HAT THE CREDITS IN THE IT(SS)A NO.37/AHD/2009 -3- NAME OF EACH PERSON WAS OF VERY SMALL SUM. HE FURT HER STATED THAT THE CREDIT WAS DURING THE FINANCIAL YEAR RELEVANT TO TH E ASSESSMENT YEAR, 1995- 96, 1996-97 AND 1997-98 IS AS UNDER: ASSTT.YEAR NAME DATE AMOUNT 1995-96 SHRI JAGDISHBHAI PATEL 2-3-1995 15,000 SUBHLAXMI SHROFF & FINANCE 8-1-1995 32,000 47,000 1996-97 SUBHLAXMI SHROFF & FINANCE 12-1-1996 15,00 0 25-3-1996 20,000 35,000 1997-98 K.L. SHROFF 16-4-96 20,000 JAGDISH PATEL 01-4-96 20,000 40,000 GROUND TOTAL 1,22,000 THAT IN THESE THREE YEARS, THE ASSESSEE HAD NO OTHE R SOURCE OF INCOME AND THEREFORE, EVEN IF THE CREDITS ARE TREATED AS UNEXP LAINED, THE INCOME OF THE ASSESSEE WOULD BE BELOW TAXABLE. HE HAS STATED THA T THE AO DID NOT WORK OUT THE UNDISCLOSED INCOME FOR EACH YEAR AND HAS CL UBBED ALL THE INCOME TOGETHER AND RAISED THE PAYMENT OF RS.73,200/- AGA INST THE ASSESSEE. HE THEREFORE SUBMITTED THAT THE UNDISCLOSED INCOME DET ERMINED AT RS.1,22,000/- MAY BE DELETED. 6. THE LEARNED DR, ON OTHER HAND, RELIED UPON THE O RDERS OF THE AUTHORITIES. 7. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THA T THE CREDIT IN THE ASSESSEES DIARY FOUND AT THE TIME OF SEARCH WAS OF SMALL AMOUNT OF RS.35,000/- IN THE NAME OF JAGIDSH PATEL, RS.42,000 /- SUBHLAXMI SHROFF IT(SS)A NO.37/AHD/2009 -4- AND RS.40,000/- IN THE NAME OF SHRI K.L. SHROFF. T HE ASSESSEE FURNISHED CONFIRMATIONS FROM THE PARTIES. MERELY BECAUSE THE ASSESSEE COULD NOT PRODUCE THOSE PARTIES AFTER A LAPSE OF A DECADE, IT CANNOT BE SAID THAT THE ABOVE CREDITS WERE UNEXPLAINED. CONSIDERING THE FA CTS AND CIRCUMSTANCES OF THE CASE AND THE SMALLNESS OF THE AMOUNT INVOLVE D, WE HOLD THAT THE ASSESSEE HAS DULY DISCHARGED THE ONUS OF PROVING TH E CREDIT IN HIS DIARY. WE THEREFORE DELETE THE ADDITION OF RS.1,22,000/- M ADE BY THE AO AS UNEXPLAINED CASH CREDITS. 8. IN RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31 ST MARCH, 2011 SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 31-03-2011 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