The ITO, Ward-6(2), Ahmedabad V. Smt. Anitaben Devendranath Chaturvedi, Ahmedabad

ITSSA 378/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1865 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-04-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: A L THAKKAR
• Keywords: Unexplained cash credit; Audit objection; Peak credit; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS. 378 TO 381/AHD/2012 / ASSESSMENT YEAR: 1999-2000 TO 2001-02 & 2003-04 INCOME TAX OFFICER, WARD-6 (2), AHMEDABAD .. APPELLANT VS SMT. ANITABEN DEVENDRANATH CHATURVEDI, BUNGALOW NO.11/13 NIRANT PARK SOCIETY, PART-1, OPP. SUN N STEP CLUB, THALTEJ, AHMEDABAD - 380054 .. RESPONDENT PAN : AAYPC 9724 B REVENUE BY : SHRI R.I. PATEL, CIT-DR ASSESSEE(S) BY : SHRI A.L. THAKKAR, AR / DATE OF HEARING 05/04/2016 /DATE OF PRONOUNCEMENT 06/04/2016 / O R D E R PER BENCH: THESE FOUR APPEALS BY THE REVENUE ARE DIRECTED AGAI NST SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- XI, AHMEDABAD OF EVEN DATED 28.05.2012 FOR ASSESSMENT YEARS 1999- 2000, 2000-2001, 2001-02 AND 2003-04. 2. FOR ASSESSMENT YEAR 1999-2000, THE REVENUE HAS T AKEN FOLLOWING GROUNDS OF APPEAL:- IT(SS)A NOS.3782 TO 381 AHD 2012 ITO VS. SMT. ANITABEN DEVENDRANATH CHATURVEDI AY : 1999-00, 2000-01, 2001-02 & 2003-04 2 1) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.16,79,889/- MADE ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS . 2) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS HOLDING THAT THE CREDITS IN THE A/C. NO.01 865 WITH THE KALUPUR CO-OP BANK LTD, NAVA VADAJ BRANCH, AHMEDABA D WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI AND THUS DELETING THE ADDITION OF RS.14,17,199/- MADE ON ACC OUNT OF UNEXPLAINED CREDITS IN THE SAID ACCOUNT. 3) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE CREDITS IN THE A/C NO. 307866 WITH THE BANK OF BARODA, NAVRANGPURA WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI AND THUS DELETING THE AD DITION OF RS.2,62,690/- MADE ON ACCOUNT OF UNEXPLAINED CRE DITS IN THE SAID ACCOUNT. 4) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN ADOPTING THE PEAK CREDIT METHOD FOR TAX ING THE UNEXPLAINED CREDITS IN THE BANK ACCOUNTS, PARTICULA RLY WHEN THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE TO PROVE THE UTILIZATION OF THE WITHDRAWALS MADE FROM THE BANK A CCOUNTS. 5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 6) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2.1 FOR ASSESSMENT YEAR 2000-01, THE EFFECTIVE GROU NDS RAISED BY THE REVENUE READ AS UNDER:- IT(SS)A NOS.3782 TO 381 AHD 2012 ITO VS. SMT. ANITABEN DEVENDRANATH CHATURVEDI AY : 1999-00, 2000-01, 2001-02 & 2003-04 3 1) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.18,82,759/- MADE ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS . 2) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS HOLDING THAT THE CREDITS IN THE A/C. NO.01 865 WITH THE KALUPUR CO-OP BANK LTD, NAVA VADAJ BRANCH, AHMEDABA D WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI AND THUS DELETING THE ADDITION OF RS.16,94,156/- MADE ON ACC OUNT OF UNEXPLAINED CREDITS IN THE SAID ACCOUNT. 3) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE CREDITS IN THE A/C NO. 307866 WITH THE BANK OF BARODA, NAVRANGPURA WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI. 4) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN ADOPTING THE PEAK CREDIT METHOD FOR TAX ING THE UNEXPLAINED CREDITS IN THE BANK ACCOUNTS, PARTICULA RLY WHEN THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE TO PROVE THE UTILIZATION OF THE WITHDRAWALS MADE FROM THE BANK A CCOUNTS. 2.2 FOR ASSESSMENT YEAR 2001-02, THE EFFECTIVE GROU NDS RAISED BY THE REVENUE READ AS UNDER:- 1) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.29,08,926/- MADE ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS . 2) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS HOLDING THAT THE CREDITS IN THE A/C. NO.01 865 WITH THE KALUPUR CO-OP BANK LTD, NAVA VADAJ BRANCH, AHMEDABA D WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI AND THUS IT(SS)A NOS.3782 TO 381 AHD 2012 ITO VS. SMT. ANITABEN DEVENDRANATH CHATURVEDI AY : 1999-00, 2000-01, 2001-02 & 2003-04 4 DELETING THE ADDITION OF RS.24,67,255/- MADE ON ACC OUNT OF UNEXPLAINED CREDITS IN THE SAID ACCOUNT. 3) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE CREDITS IN THE A/C NO. 307866 WITH THE BANK OF BARODA, NAVRANGPURA WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI AND THUS DELETING THE AD DITION OF RS.1,56,671/- MADE ON ACCOUNT OF UNEXPLAINED CRE DITS IN THE SAID ACCOUNT. 4) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN ADOPTING THE PEAK CREDIT METHOD FOR TAX ING THE UNEXPLAINED CREDITS IN THE BANK ACCOUNTS, PARTICULA RLY WHEN THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE TO PROVE THE UTILIZATION OF THE WITHDRAWALS MADE FROM THE BANK A CCOUNTS. 2.3 FOR ASSESSMENT YEAR 2003-04, THE EFFECTIVE GROU NDS TAKEN BY THE REVENUE READ AS UNDER:- 1) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.13,31,314/- MADE ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS . 2) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS HOLDING THAT THE CREDITS IN THE A/C. NO.01 865 WITH THE KALUPUR CO-OP BANK LTD, NAVA VADAJ BRANCH, AHMEDABA D WERE PERTAINING TO SHRI DEVENDRANATH G. CHATURVEDI AND THUS DELETING THE ADDITION OF RS.2,50,000/- MADE ON ACCO UNT OF UNEXPLAINED CREDITS IN THE SAID ACCOUNT. 3) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN ADOPTING THE PEAK CREDIT METHOD FOR TAX ING THE UNEXPLAINED CREDITS IN THE BANK ACCOUNTS, PARTICULA RLY WHEN THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE TO PROVE THE UTILIZATION OF THE WITHDRAWALS MADE FROM THE BANK A CCOUNTS. IT(SS)A NOS.3782 TO 381 AHD 2012 ITO VS. SMT. ANITABEN DEVENDRANATH CHATURVEDI AY : 1999-00, 2000-01, 2001-02 & 2003-04 5 3. BEFORE US, AT THE OUTSET, LD. AUTHORIZED REPRESE NTATIVE SUBMITTED THAT THE PRESENT APPEALS OF THE REVENUE NEED TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCU LAR NO.21 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTAT IVE FAIRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIB ED BY THE AFORESAID CBDT CIRCULAR. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE PRIMA-FACIE FIND THAT THE TAX EFFEC T IN EACH OF THESE APPEALS IS BELOW RS.10 LACS. AS PER THE ANNOUNCEME NT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.2015 (CIRC ULAR NO.21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINS T RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNL ESS THE TAX EFFECT, EXCLUDING INTEREST, EXCEEDS RS.10 LACS AND IT FURTH ER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PEND ING APPEALS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTION S WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUA SHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS , ETC. WE PRIMA- FACIE FIND THAT THE PRESENT CASES DO NOT FALL WITHI N THE EXEMPTION CLAUSE AND THE TAX EFFECT OF EACH OF THESE APPEALS IS BELO W RS. 10 LAKHS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPE AL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERI FICATION AT THE END OF THE ASSESSING OFFICER, IT CAME TO THE NOTICE THAT T HE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN IT(SS)A NOS.3782 TO 381 AHD 2012 ITO VS. SMT. ANITABEN DEVENDRANATH CHATURVEDI AY : 1999-00, 2000-01, 2001-02 & 2003-04 6 THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE T RIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHI N FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEALS OF THE RE VENUE ARE DISMISSED. 5. IN THE RESULT, ALL THE APPEALS FILED BY THE REVE NUE ARE DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 6 TH OF APRIL 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (SHAILENDRA K. YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 06/04/2016 BIJU T., PS ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD