Smt. Kokilaben Dhirajlal Sanghvi, Ahmedabad V. The Dy.CIT, Central Circle-2(4), Ahmedabad

ITSSA 49/AHD/2015

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3927 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-11-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 20-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: BIREN SHAH
• Section: 153A; 131; 68; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, HONBLE JUDICIAL MEMBER AND SHRI WASEEM AHMED HONBLE ACCOUNTANT MEMBER IT(SS)A.NO.49/AHD/2015 / ASSTT.YEAR : 2010-11 SMT.KOKILABEN DHIRAJLAL SANGHVI A/14,21, TIRTHBHUMI APARTMENT OPP: LAW GARDEN ELLISBRIDGE, AHMEDABAD. PAN : AEDPS 3414 B VS DCIT, CENT.CIR.2(4) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI BIREN SHAH, AR REVENUE BY : SHRI O.P. SHARMA, CIT-DR / DATE OF HEARING : 28/11/2019 / DATE OF PRONOUNCEMENT: 28/11/2019 !'/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-12, AHMEDABAD DATED 24.12.2014 PASSED FOR THE ASSTT.YEA R 2010-11. 2. SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CI T(A) HAS ERRED IN CONFIRMING ADDITION OF RS.6,00,000/- WHICH WAS ADDE D BY THE AO WITH AID OF SECTION 68 OF THE INCOME TAX ACT. 3. A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT WAS CARRIED OUT AT THE GROUP OF CASES OF SANGHVI GROUP ON 9.3.2011. NO TICE UNDER SECTION 153A IT(SS)A NO.49/AHD/2015 2 WAS ISSUED UPON THE ASSESSEE, AND SHE HAS FILED HER RETURN OF INCOME ON 16.3.2012 DECLARING INCOME AT RS.9,69,430/-. WITHO UT GOING INTO OTHER PERIPHERAL ISSUES, WE STRAIGHT AWAY TAKE THE ISSUE IN DISPUTE. IT REVEALED FROM THE RECORD THAT PROPRIETARY CONCERN OF THE ASSESSEE I.E. AISHWARAYA NX HAS TAKEN LOAN OF RS.6 LAKHS FROM BABUBHAI MOHANBHAI DE SAI. ISSUE IS, WHETHER THE ASSESSEE IS ABLE TO FULFILL ESSENTIAL CONDITION S CONTEMPLATED IN SECTION 68 FOR EXPLAINING THIS LOAN OR NOT. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. SECTION 68 OF THE INCOME TAX ACT CONTEMPLATES THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESS EE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATI ON ABOUT THE NATURE AND SOURCE THEREOF, OR THE EXPLANATION OFFERED BY THE A SSESSEE IS NOT, IN THE OPINION OF THE AO SATISFACTORY, THEN THE SUM SO CREDITED IN THE ACCOUNTS MAY BE TREATED AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. AT THE TIME OF HEARING, THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH PAG ES 23 TO 28 OF THE PAPER BOOK. SHRI BABUBHAI M. DESAI HAS GIVEN A CONFIRMAT ION WHICH HAS BEEN PLACED ON PAGE NO.23. THIS CONFIRMATION CONTAINED HIS PAN. ON PAGES 24 AND 25 BANKS STATEMENT OF BABUBHAI HAS BEEN PLACED ON RECORD. A PERUSAL OF THE BANKS STATEMENT WOULD REVEAL THAT A SUM OF RS.6 .00 LAKHS WAS GIVEN TO THE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUE BEARING NO.80 4695. THIS CHEQUE WAS CREDITED TO THE ACCOUNT OF ASSESSEES PROPRIETORSHI P CONCERN. THE BANK STATEMENT FURTHER REVEALED THAT SHRI BABUBHAI HAS R ECEIVED A SUM OF RS.6 LAKHS FROM SANGHVI FINCAP VIDE CHEQUE NO.11890. CO PY OF HIS INCOME-TAX RETURN HAS BEEN PLACED ON PAGE 27 AND COMPUTATION O N PAGES 28 AND 29. A PERUSAL OF THESE DOCUMENTS WOULD REVEAL THAT CONDIT IONS CONTEMPLATED IN SECTION 68 HAVE BEEN FULFILLED BY THE ASSESSEE. SH E HAS PROVED IDENTITY OF THE CREDITOR I.E BABUBHAI M. DESAI. SHE HAS PROVED GEN UINENESS OF THE LOAN TAKEN IT(SS)A NO.49/AHD/2015 3 THROUGH BANKING CHANNEL, AND SHE HAS PROVED CREDIT- WORTHINESS BY PRODUCING THE INCOME-TAX RETURN, PAN DATA AND AVAILABILITY OF FUNDS IN HIS BANK ACCOUNT. ON THE OTHER HAND, THE CASE OF THE AO IS THAT STATE MENT OF SHRI BABUBHAI WAS RECORDED BY HIM ON 4.3.2013 UNDER SECTION 131 OF TH E ACT. IN HIS EXAMINATION, HE WAS UNABLE TO DISCLOSE HIS SHARE TR ANSACTION BUSINESS, AND HOW THE TRADING WAS BEING CARRIED OUT BY HIM. A PE RUSAL OF THE STATEMENT WOULD INDICATE THAT HE WAS SIMPLY A DRIVER OF SANGH VI FAMILY, BUT GAVE LOANS TO DIFFERENT MEMBERS. THUS, HE INFERRED CREDIT-WO RTHINESS OF BABUBHAI HAS NOT BEEN PROVED BY THE ASSESSEE. WE HAVE LOOKED IN TO THE STAND OF THE AO AND ALSO PERUSED THE QUESTIONS AND REPLIES REPRODUC ED BY HIM ON PAGE 3 OF THE ASSESSMENT ORDER. A PERUSAL OF THE ORDER WOULD IND ICATE THAT HE HAS NOT DENIED THE ADVANCEMENT OF LOAN TO THE ASSESSEE. HE HAS GIVEN CERTAIN VAGUE REPLY WITH REGARD TO HIS SHARE TRADING BUSINESS. I T IS NOT DISCERNIBLE FROM THE STATEMENT, WHETHER THE ASSESSEE WAS GIVEN AN OPPORT UNITY TO CROSS-EXAMINE HIM. THEREFORE, SIMPLY ON THE BASIS OF REPLIES TO FEW QUESTIONS, THE EVIDENCE IN THE SHAPE OF BANK STATEMENT AND INCOME TAX DETAI LS CANNOT BE IGNORED. IN SUCH CIRCUMSTANCES NO ADDITION CAN BE SUSTAINED IN THE HANDS OF THE ASSESSEE. HENCE, THE APPEAL OF THE ASSESSEE ALLOWED, AND ADDI TION IS DELETED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 28 TH NOVEMBER, 2019 AT AHMEDABAD. SD/- SD/- (WASEEM AHMED ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 28/11/2019