The ACIT, Central Circle-2(1), Ahmedabad V. Shri Nazir Hussain Kaliwala, Bhavnagar

ITSSA 514/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1669 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 25-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 16-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Assessee Lawyers: S S MEHTA
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) IT(SS)A. NO: 514/AHD/2012 (ASSESSMENT YEAR: 2004-05) ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(1), AHMEDABAD V/S SHRI NAZIR HUSSAIN KALIWALA BHAVNAGAR PLOT NO. 474, PRABHUDAS LAKE, NR. SHISHUVIHAR CIRCLE, BHAVNAGAR (APPELLANT) (RESPONDENT) PAN: AARFS6330C APPELLANT BY : SMT. VIBHA BHALLA, CIT/DR RESPONDENT BY : SHRI S. S. MEHTA ( )/ ORDER DATE OF HEARING : 25 -02-20 16 DATE OF PRONOUNCEMENT : 29 -02-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-III, AHMEDABAD DATED 29.08.2012 PERTAINING T O A.Y. 2004- 05. IT(SS)A NO. 514/AHD/2012 . A.Y. 2004-05 2 2. THE SOLE GRIEVANCE OF THE REVENUE RELATES TO THE DE LETION OF THE ADDITION OF RS. 35 LACS MADE U/S. 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS, THE A.O NOTICED THAT THE ASSESSEE HAS RECEIVED RS. 35 LACS AS INTEREST FREE LOAN FROM S.S. ENTERPRISES. THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME IN THE LIGHT OF THE PROVISIONS OF SECTION 68 O F THE ACT. ASSESSEE FILED A DETAILED REPLY WHICH WAS CONSIDERED BY THE A.O. THE A.O OBSERVED THAT THE ASSESSEE HAS ONLY FILED CONFIRMAT ION OF M/S. S.S. ENTERPRISES, HOWEVER, THE A.O DID NOT ACCEPT THE CL AIM OF THE ASSESSEE STATING THAT THE ASSESSEE HAS NOT FURNISHE D PAN OF THE LENDERS NOR THE ASSESSEE HAS PROVED THE IDENTITY AN D CREDITWORTHINESS OF THE DEPOSITOR. THE A.O MADE THE ADDITION OF RS. 35 LACS U/S. 68 OF THE ACT. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE ASSESSEE STRONGLY CONTENDED THAT THE LO AN FROM S.S. ENTERPRISES HAS BEEN REPAID DURING THE YEAR ITSELF. IT WAS FURTHER EXPLAINED THAT SINCE THE DEPOSITOR HAS MOVED TO DUB AI, THEREFORE, THE ASSESSEE LOST CONTACT WITH THE PROPRIETOR SHAMS HER HUSSAIN SHAIKH. THEREFORE, PAN DETAILS AND BANK STATEMENTS COULD NOT BE FILED BEFORE THE A.O, HOWEVER, BEFORE THE LD. CIT(A ), THE ASSESSEE FILED PAN DETAILS ALONG WITH BANK STATEMENT. 5. THE LD. CIT(A) WAS CONVINCED WITH THE ADMISSIBILITY OF THE ADDITIONAL EVIDENCE AND CALLED THE A.O AND THE ADDITIONAL CIT( A) TO COMMENT ON THE SUBMISSIONS MADE BY THE ASSESSEE REGARDING T HE ADDITIONAL EVIDENCE. IT(SS)A NO. 514/AHD/2012 . A.Y. 2004-05 3 6. THE A.O SUBMITTED HER REPORT ON 16 TH AUGUST, WHICH IS INCORPORATED BY THE LD. CIT(A) IN HIS ORDER AT PAGED 7 TO 10 , T HE REMAND REPORT WAS CONFRONTED TO THE ASSESSEE WHO FILED A REJOINDE R WHICH IS INCORPORATED AT PAGE 10 ONWARDS. 7. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS AND THE ADDITIONAL EVIDENCE, THE LD. CIT(A) CONSIDERED THE REMAND REPO RT OF THE A.O AND WAS CONVINCED THAT THE ASSESSEE HAS EXPLAINED THE L OAN AMOUNT OF RS. 35 LACS SUCCESSFULLY WITH IN THE LIGHT OF SECTI ON 68 OF THE ACT AND DIRECTED THE A.O TO DELETE THE IMPUGNED ADDITIONS. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. THE LD. D.R. RELIED UPON THE FINDINGS OF THE A.O. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE R EITERATED WHAT HAS BEEN STATED BEFORE THE FIRST APPELLATE AUTHORITY. 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD. CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCE AFTER GIVING AN OPPORTUNITY TO THE A.O. WE FIND THAT THE ASSESSEE HAD FURNISHED THE PAN DETAILS ALO NG WITH THE BANK STATEMENT OF HDFC ACCOUNT FROM WHERE M/S. S.S. ENTE RPRISES HAS TENDERED THE LOAN AMOUNT. IN OUR CONSIDERED OPINION , THE ASSESSEE HAS PROVED THE IDENTITY, CAPACITY AND ALSO THE GENU INENESS OF TRANSACTIONS WITHIN THE FOUR WALLS OF SECTION 68 OF THE ACT. WE THEREFORE DO NOT FIND ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE LD. CIT(A). IT(SS)A NO. 514/AHD/2012 . A.Y. 2004-05 4 9. APPEAL FILED BY THE REVENUE IS ACCORDINGLY DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 29 - 02 - 2016. SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY 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