Dipika Yogeshbhai Gandhi, Surat V. The ACIT.,Cent,Circle-3, Surat

ITSSA 504/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9089 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 18-04-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 24-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: REVENNUE SHRI D K SINGH SRDR
• Assessee Lawyers: R N VEPARI
• Keywords: Valuation report; Revised return
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER IT(SS)A NO.504-506/AHD/2010 ASSESSMENT YEAR :2002-03 DIPIKA YOGESHBHAI GANDHI PROP. DIPTI TEXTILES, 1/1201, KAKAJI STEET, NANPURA, SURAT [ PAN NO. ABAPG 3796N ] MAHESHKUMAR AMRUTLAL GANDHI PROP. GANESH TEXTILES, 1/1201, KAKAJI STREET, NANPURA, SURAT [ PAN NO. AAZPG 7807L ] ANISHABEN MAHESHKUMAR GANDHI PROP. SANKET SILK MILLS, 1/1201, KAKAJI STREET, NANPURA, SURAT [ PAN NO.AAZPG 7807L ] V/S . V/S . V/S . ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3, SURAT ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3, SURAT ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3, SURAT / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI R.N. VEPARI, AR /BY REVENNUE SHRI D.K. SINGH, SR-DR /DATE OF HEARING 18-04-2013 ! /DATE OF PRONOUNCEMENT 30-04-2013 ' ' ' ' / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- ALL THESE THREE APPEALS ARE FILED BY THREE DIFFERE NT BUT CONNECTED ASSESSEES WHICH ARE DIRECTED AGAINST THREE SEPARATE ORDERS OF IT(SS)A NO.504-06/AHD/2010 A.Y. 2002-03 DIPIKA Y GANDHI, MAHESHKUMAR A GANDHI & ANISHABEN M GANDHI V. ACIT CC-3 SRT PAGE 2 COMMISSIONER OF INCOME-TAX (APPEALS)-II, AHMEDABAD ALL DATED 06-04- 2012 ALL PERTAINING TO ASSESSMENT YEAR (AY) 2002-03 . SINCE THE ISSUE INVOLVED IS IDENTICAL AND CONNECTED ALL THESE APPEA LS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED FACTS ARE THAT A SEARCH U/S. 132 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WA S CARRIED OUT IN THE PREMISES OF SHRI SANJAY I SADADIWALA ON 07-11-2006 AND SOME BOOKS OF ACCOUNTS AND DOCUMENTS HAVE BEEN FOUND WHICH BEL ONGED TO THESE THREE ASSESSEES WHO ARE FAMILY MEMBERS. THE AO OF A LL THESE ASSESSEES ISSUED A NOTICE U/S. 153C OF THE ACT AND ASKED THE THESE ASSESSEES TO FILE RETURN OF INCOME. THEREAFTER ALL THREE ASSESSEES HAVE FILED RETURN OF INCOME. DIPIKABEN Y GANDHI, IT(SS)A NO. 504/AHD/2010 FILED THE RETURN ON 31-07-2008 IN RESPONSE TO NOTIC E DECLARING TOTAL INCOME OF RS.1,18,810/- LATER ON SHE FILED REVISED RETURN ON 06-10-2008 DECLARING INCOME OF RS.4,51,810/- (INCLUDING UNDISC LOSED INCOME OF RS.3.40 LAKH) AND THE TAX WAS ALSO PAID BY HER OF R S.1,06,634/- ON 06- 10-2008. SIMILARLY SECOND ASSESSEE, SHRI MAHESHKUMA R A GANDHI IN IT(SS)A NO. 505/AHD/2010 FILED RETURN OF INCOME ON 31-07-2008 DECLARING TOTAL INCOME OF RS.84,560/- AND THEREAFTE R REVISED RETURN OF INCOME WAS FILED ON 06-10-2008 DECLARING TOTAL INCO ME OF RS.4,14,560/- (INCLUDING UNDISCLOSED INCOME OF RS.3.30 LAKH). SIM ILARLY, SMT ANISHABEN M GANDHI IN IT(SS)A NO. 506/AHD/2010 FILE D RETURN OF INCOME ON 31-07-2008 DECLARING TOTAL INCOME OF RS.86,780/- AND THEREAFTER, SHE ALSO FILED REVISED RETURN OF INCOME ON 06-10-2008 D ECLARING TOTAL INCOME OF RS.4,16,780/-. ALL THE THREE ASSESSEES PAID CONS EQUENTIAL TAX ALSO ON 06-10-2008. THEREAFTER, IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DID NOT ACCEPT THE REVISED RETURN S FILED BY THESE THREE IT(SS)A NO.504-06/AHD/2010 A.Y. 2002-03 DIPIKA Y GANDHI, MAHESHKUMAR A GANDHI & ANISHABEN M GANDHI V. ACIT CC-3 SRT PAGE 3 ASSESSEES BUT HE MADE ADDITION OF THOSE AMOUNTS ALS O WHICH WAS DECLARED BY THE ASSESSEE IN THE REVISED RETURN OF I NCOME. IN ADDITION TO THIS, THE AO ALSO MADE TWO OTHER ADDITIONS, IN ALL THESE THREE CASES, FIRST ADDITION WAS MADE BY THE AO BY DISALLOWING 15% OF T HE EXPENSES DEBITED BY THESE ASSESSEES IN THEIR RESPECTIVE PROF IT AND LOSS ACCOUNT WHICH AMOUNTED TO RS.4,12,789/- IN THE CASE OF SMT. DIPIKA Y GANDHI, RS.3,68,524/- IN THE CASE OF SHRI MAHESHKUMAR A GAN DHI AND RS.4,06,816/- IN THE CASE OF REMAINING SMT. ANISHAB EN M GANDHI. THE THIRD ADDITION MADE BY ASSESSING OFFICER WAS IN RES PECT OF BUNGALOW ALLEGED TO BE CONSTRUCTED BY THESE ASSESSEES ON THE PLOT FOR WHICH INCOME WAS DECLARED BY THE ASSESSEES IN THE REVISED RETURN OF INCOME. IN THE CASE OF SMT. DIPIKA Y GANDHI, THE AO MADE AD DITION OF RS.2,41,133/- ON THIS BASIS, THAT PLOT VALUE OF BUN GALOW CONSIDERING IN THE THREE CASES WAS VALUED BY VALUER AT RS.17,13,40 0/- AND HENCE, THE VALUE OF ONE PLOT COMES TO RS.5,71,133/-. THE ASSES SEE HAD DECLARED RS.3.40 LAKH IN THE REVISED RETURN OF INCOME FOR WH ICH SEPARATE ADDITION WAS MADE BY THE AO, THE AO MADE FURTHER ADDITION OF BALANCE AMOUNT OF RS.2,31,133/-. SIMILARLY IN THE CASE OF, SHRI MA HESHKUMAR A GANDHI ALSO, THE AO WORKED OUT THE VALUE OF RS.5,71,133/- AND AFTER DEDUCTING THE AMOUNT OF EXTRA DISCLOSURE MADE BY THE ASSESSEE IN THE REVISED RETURN OF INCOME OF RS3.30 LAKH, HE MADE FURTHER AD DITION OF RS.241,133/- IN HIS HANDS. IN THE HAND OF THE THIRD ASSESSEE, SMT. ANISHABEN M GANDHI ALSO, THE AO ESTIMATED THE VALUE OF ONE BUNGALOW AT RS.5,71,133/- AND AFTER DEDUCTING THE AMOUNT DIS CLOSED BY THIS ASSESSEE IN THE REVISED RETURN OF INCOME OF RS.3.30 LAKH, HE MADE FURTHER ADDITION OF RS.2,41,133/- IN HER HANDS. ALL THE THREE ASSESSEES CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) AGAI NST ALL THESE THREE ADDITIONS AND LD. CIT(A) HAS DELETED THE SECOND ADD ITION MADE BY AO IN RESPECT OF 15% OF THE EXPENSES DEBITED IN PROFIT AN D LOSS ACCOUNT FOR IT(SS)A NO.504-06/AHD/2010 A.Y. 2002-03 DIPIKA Y GANDHI, MAHESHKUMAR A GANDHI & ANISHABEN M GANDHI V. ACIT CC-3 SRT PAGE 4 WHICH THE REVENUE IS NOT IN APPEAL BEFORE US FOR TH ESE THREE ASSESSEES. THE REMAINING TWO ADDITIONS WERE CONFIRMED BY LD. C IT(A) IN ALL THREE CASES FOR WHICH ALL THREE ASSESSEES ARE IN FURTHER APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US, MR. R.N. VERPA RI APPEARED BEFORE US AND MADE HIS ARGUMENTS AND HE REITERATED THE SAM E ARGUMENTS WHICH WERE MADE BY HIM BEFORE LD. CIT(A). LD. DR SU PPORTED THE ORDER OF LD. CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. 4.1 REGARDING THE ADDITION OF RS.3.40 LAKH IN THE C ASE OF SMT. DIPIKABEN Y GANDHI AND OF RS.3.30 LAKH EACH IN THE CASE OF REMAINING TWO CASES, WE FIND THAT SINCE THIS MUCH INCOME WAS DECLARED BY THESE ASSESSEES IN THE REVISED RETURN OF INCOME FILED BY THEM AND CONSEQUENTIAL TAX WAS ALSO PAID BY THEM, THERE IS N O MERIT IN THE ARGUMENTS OF LD. AR OF THE ASSESSEE REGARDING THESE ADDITIONS IN THESE THREE CASES. HENCE, THIS GROUND OF ASSESSEE REGARDI NG ADDITION OF RS.3.40 LAKH IN THE CASE OF SMT. DIPIKABEN Y GANDHI AND OF RS.3.30 LAKH EACH IN THE REMAINING TWO CASES IS DECIDED AGAINST THE ASSESSEE. 4.2 REGARDING ADDITION OF RS.231,133/- IN THE CASE OF SMT. DIPIKABEN Y GANDHI AND RS.2,41,133/- EACH IN REMAINING TWO CA SES, WE FIND THAT THIS ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF VALUATION REPORT OBTAINED BY THE ASSESSEE. REGARDIN G THIS VALUATION REPORT, IT WAS SUBMITTED BY ASSESSEE BEFORE THE LD. CIT(A) AS NOTED BY HIM IN FROM 5.1 OF HIS ORDER THAT VALUATION REPORT WAS OBTAINED FOR THE PURPOSE OF OBTAINING LOAN FROM THE BANK. IT IS NOTE D BY THE ASSESSING IT(SS)A NO.504-06/AHD/2010 A.Y. 2002-03 DIPIKA Y GANDHI, MAHESHKUMAR A GANDHI & ANISHABEN M GANDHI V. ACIT CC-3 SRT PAGE 5 OFFICER THAT THESE THREE PLOTS WERE PURCHASED ON 05 -09-2001 AND DURING THE SAME YEAR, CONSTRUCTION WAS DONE AND VALUATION REPORT WAS OBTAINED AND THE AO HAS NOT GIVEN EVEN THE DATE OF VALUATION REPORT. THERE IS NO FINDING GIVEN BY LD. CIT(A) AS TO HOW THIS SUBMISSI ON OF ASSESSEE THAT VALUATION REPORT WAS OBTAINED FOR THE PURPOSE OF OB TAINING LOAN FROM THE BANK IS NOT ACCEPTABLE. CONSIDERING ALL THESE FACTS , WE ARE OF THE CONSIDERED OPINION THAT IN THE PRESENT CASES, THIS FURTHER ADDITION MADE BY AO ON THE BASIS OF SO-CALLED VALUATION REPORT IN THE ABSENCE OF ANY OTHER COGENT EVIDENCE, IS NOT SUSTAINABLE. WE THERE FORE DELETE THE SAME. AS A RESULT, ASSESSEE, SMT. DIPIKABEN Y GANDHIS CA SE GETS RELIEF OF RS.2,31,133/- WHEREAS THE REMAINING TWO ASSESSEES G ET RELIEF OF RS.2,41,133/- EACH. 5. IN COMBINED RESULT, ALL THE ASSESSEES APPEALS ARE PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP #$%- 30/04/2013 ,-. / ' ' ' ' 001 001 001 001 21 21 21 21 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $.$04 5 / CONCERNED CIT 4. 5- / CIT (A) . 1 67 0004, 04!, ,-. / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ ' , /TRUE COPY >/, $ 04!, IT(SS)A NO.504-06/AHD/2010 A.Y. 2002-03 DIPIKA Y GANDHI, MAHESHKUMAR A GANDHI & ANISHABEN M GANDHI V. ACIT CC-3 SRT PAGE 6 ,-. / STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 29/04 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 29/04 4) DATE OF CORRECTION 30/04 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 30/04 7) ORDER UPLOADED ON 30/04 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 30/04