The ACIT, Cent, Circle-1(2), Ahmedabad V. Smt. Renukaben J.Thakkar, Banaskantha

ITSSA 527/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0677 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 153A; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) I.T(SS). A. NO S. 526 & 527/AHD/2011 (ASSESSMENT YEARS: 2008-09 & 2009-2010) ACIT, CENTRAL CIRCLE 1(2), AHMEDABAD V/S SMT. RENUKABEN J. THAKKAR SHREYANS SOCEITY, BHABHAR DIST: BANASKANTHA (APPELLANT) (RESPONDENT) PAN: AFFPT5494Q APPELLANT BY : SHRI SHELLEY JINDAL,CIT/DR RESPONDENT BY : SHRI MAHESH CHHAJED ( )/ ORDER DATE OF HEARING : 11-05-2015 DATE OF PRONOUNCEMENT : 15 -05-2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE 2 APPEAL FILED BY THE REVENUE ARE AGAINST THE ORDER OF CIT(A)-I, AHMEDABAD DATED 08.07.2011& 12.07.2011 FOR A.YS. 20 08-09 & 2009-2010 RESPECTIVELY. 2. AT THE OUTSET, BEFORE US, BOTH THE PARTIES SUBMITTE D THAT THOUGH THE APPEAL OF THE REVENUE RELATES TO 2 DIFFERENT ASSESSMENT YEARS BUT THE FACTS AND CIRCUMSTANCES OF BOTH THE CASES ARE SIMILAR EXCEPT FOR THE ASSESSMENT YEARS AND AMOUNTS AND THE SUBMISSIONS ARE ALSO COMMON FOR BOTH THE APPEALS AND IT(SS)A NOS. 526 & 527/AHD/2011 . A.YS. 2008-0 9 & 2009-2010 2 THEREFORE BOTH THE APPEALS CAN BE HEARD TOGETHER. W E THEREFORE PROCEED TO DISPOSE OF BOTH THE APPEALS TOGETHER FOR THE SAKE O F CONVENIENCE AND PROCEED WITH THE FACTS OF A.Y. 2008-09. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. A SEARCH U/S. 132 OF THE ACT WAS CONDUCTED ON 05.02 .2009 IN JIGNESH K. THAKKAR GROUP. DURING THE COURSE OF SEARCH VARIOUS DOCUMENTS/BOOKS OF ACCOUNTS/OTHER VALUABLE ARTICLES THINGS WERE FOUND AND SEIZED WHICH ALSO INCLUDED DOCUMENTS BELONGING TO THE ASSESSEE AND TH EREFORE PROCEEDINGS U/S. 153C R.W.S. 153A OF THE ACT WERE INITIATED AGA INST ASSESSEE AND IN RESPONSE TO THE NOTICE U/S. 153C DATED 29.07.2010, ASSESSEE FILED HER RETURN OF INCOME ON 08.10.2008 DECLARING TOTAL INCOME AT R S. 1,27,840/-. ASSESSMENT WAS THEREAFTER FRAMED U/S. 143(3) R.W.S. 153C R.W.S. 153A(1)(B) OF THE ACT VIDE ORDER DATED 20.12.2010 AND THE TOTA L INCOME WAS DETERMINED AT RS. 3,16,27,840/-. AGGRIEVED BY THE ORDER OF A.O ., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 08.07 .2011 ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED T HE FOLLOWING GROUND:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CREDITS OF RS. 3,15,00,000/-. 5. ON PERUSING THE BALANCE SHEET AS ON 31.03.2008, A.O NOTICED THAT ASSESSEE HAD BORROWED UNSECURED LOAN OF RS. 3,15,00,000/- FR OM SHRI JAYANTILAL RAMANLAL PATEL. THE ASSESSEE WAS ASKED TO FURNISH THE CONFIRMATION OF LOAN AND TO PROVE THE GENUINENESS AND CREDITWORTHINESS O F THE LENDER PARTY. A.O IT(SS)A NOS. 526 & 527/AHD/2011 . A.YS. 2008-0 9 & 2009-2010 3 NOTED THAT APART FROM FURNISHING THE COPY OF THE LE DGER ACCOUNT WHICH WAS NOT CONFIRMED BY THE PARTY, ASSESSEE COULD FURNISH ANY EVIDENCE TO PROVE THE GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE LENDER. HE ACCORDINGLY TREATED THE AMOUNT OF RS. 3,15,00,000/- AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT AND ADDED IT TO THE INCOM E. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT (A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPO RT DELETED THE ADDITION BY HOLDING AS UNDER:- 12. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE, SUBMISSION OF THE APPELLANT, REMAND REPORT AND THE ASSESSMENT ORDER. IT IS NOTICED T HAT THE ENTIRE PROCEEDINGS IN REGARD TO ADDITION U/S.68 COMMENCED FROM 23/11/10 AND THE ASS ESSMENT ORDER WAS PASSED ON 20/12/10. THE APPELLANT DID FURNISH THE ADDRESS A ND PAN OF THE CREDITOR AND THE COPY OF ACCOUNT. IT IS ALSO MENTIONED BEFORE ME THAT THE CREDITOR WAS NOT IN TOWN AND THAT IS WHY THE CONFIRMATION COULD NOT BE PRODUCED BY 30/11/10. GIVEN THE TIME FRAME INVOLVED AND THE FACT THAT THE : EVIDENCE NOW PRODUCED IS TO SUBSTANTIATE THE DETAI LS ALREADY BEFORE THE ASSESSING OFFICER, AND ALSO THE FACT THAT THE DETAI LS NOW FURNISHED HAVE MATERIAL BEARING ON THE ISSUE AT HAND, IN THE INTEREST OF JUSTICE, T HE ADDITIONAL EVIDENCES ARE ALLOWED TO BE ADMITTED. IN THE REMAND, REPORT THE ASSESSING OFF ICER HAS OMITTED TO COMMENT ON THE MERITS OF THE EVIDENCES FURNISHED. I HAVE PERUSED THESE DETAILS CAREFULLY. IT IS .OBSERVED THAT THE CREDITOR SHRI JAYANTIBHAI PATEL IS ASSESSE D TO TAX IN WARD-6(2) AT SURAT AND HAS DISCLOSED GROSS TOTAL INCOME OF RS.1,35,980/- IN A. Y.2008-09. FURTHER THERE WAS A BALANCE OF RS.3,41,62,189/- IN HIS SAVING BANK ACCO UNT NO.20001202214 IN GUJARAT UNIVERSITY, AHMEDABAD BRANCH AS ON 24/3/08 AND THAT ON 25 TH AND 26 TH OF MARCH, 2008 TWO CHEQUES OF RS. 75 LAKHS AND RS. 2.4 CRORES WERE ISSUED FROM THE SAID ACCOUNT RESPECTIVELY. THERE WERE TWO DEPOSITS ON 24/3/08 TH ROUGH CHEQUES OF RS. 58,95,000/- AND RS.2.25 CRORE IN THE SAID ACCOUNT. UNDER THESE CIRCUMSTANCES, THE CREDITWORTHINESS OF THE -CREDITOR,, THE IDENTITY OF THE CREDITOR AND THE GENUINENESS OF TRANSACTION STAND ESTABLISHED AND THUS THE ADDITION OF RS. 3.15 CRORE IS DIRECTED TO BE DELETED. THE ASSESSING OFFICER HOWEVER MAY INTIMATE THE ASSESSING OFFICER WARD : 6(2), IT(SS)A NOS. 526 & 527/AHD/2011 . A.YS. 2008-0 9 & 2009-2010 4 SURAT TO ENQUIRE ABOUT THE SOURCE OF DEPOSITS BY CH EQUE IN THE ACCOUNT OF THE CREDITOR ON 24/3/08 AND IN CASE THE SOURCE IS FOUND TO BE UNEXP LAINED THE AMOUNT MAY BE ADDED IN THE HANDS OF JAYANTIBHAI PATEL. AS OF NOW GROUND NO.2 IS ALLOWED. 6. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), REV ENUE IS NOW IN APPEAL BEFORE US. 7. BEFORE US LD. D.R. SUBMITTED THAT ASSESSEE HAS NOT FILED THE CONFIRMATION THOUGH THE A.O HAD ASKED THE ASSESSEE TO FILE THE S AME. IN THE WRITTEN SUBMISSIONS, LD. D.R. FURTHER SUBMITTED THAT THE SI GNATURES ON THE COPY OF ACCOUNT WERE ALSO NOT IDENTIFIED AND THERE WAS NO P ROOF OF IT BEING OF THE DEPOSITOR. HE FURTHER SUBMITTED THAT THE FILING OF BANK ACCOUNT AND I.T. RETURN OF THE DEPOSITOR CANNOT BE CONSIDERED TO BE SUFFICI ENT COMPLIANCE AND FURTHER THERE WAS NO EVIDENCE THAT THE DEPOSITOR WAS GENUIN E AND IT REALLY EXIST. HE ALSO PLACED RELIANCE ON VARIOUS DECISIONS AND VEHEM ENTLY SUPPORTED THE ORDER OF A.O. ON THE OTHER HAND LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THA T BEFORE A.O, ASSESSEE HAD FILED CONFIRMATION OF THE ACKNOWLEDGEMENT OF RE TURN OF INCOME AND COPY OF THE PASS BOOK AND THUS THE ASSESSEE HAD FUL LY DISCHARGED THE ONUS CAST UPON HER. HE THUS SUPPORTED THE ORDER OF CIT(A ). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, ADDITION U/S. 68 WAS MADE SOLELY FOR THE REASON THAT ASSESSEE HAD NOT FILED CONFIRMATION LETTER. WE FIND THAT LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS HAS DELETED THE ADDITIO N. WHILE DELETING THE ADDITION LD. CIT(A) HAS NOTED THAT IN THE REMAND RE PORT, THE A.O HAS OMITTED TO COMMENT ON THE MERITS OF THE EVIDENCES FURNISHED BY THE ASSESSEE. HE HAS IT(SS)A NOS. 526 & 527/AHD/2011 . A.YS. 2008-0 9 & 2009-2010 5 FURTHER GIVEN A FINDING THAT THE CREDITOR SHRI JAYA NTILAL PATEL WAS ASSESSED TO TAX IN WARD-6)(2), SURAT AND THE AMOUNT WAS PAID FR OM HIS BANK ACCOUNT AND THE CREDITWORTHINESS OF THE CREDITOR, THE IDENTITY AND THE GENUINENESS OF THE TRANSACTION STAND ESTABLISHED. WHILE DELETING THE A DDITION LD. CIT(A) HAS ALSO DIRECTED THE A.O TO INTIMATE THE A.O OF WARD-6(2) T O ENQUIRE ABOUT THE SOURCE OF DEPOSITS BY CHEQUE IN THE ACCOUNT OF THE CREDITORS AND IN CASE THE SOURCE IS FOUND TO BE UNEXPLAINED THE AMOUNT MAY BE ADDED IN THE HANDS OF SHRI JAYANTILAL PATEL. WE FIND THAT IN THE REMAND P ROCEEDINGS, A.O HAD NOT EXAMINED THE DETAILS FURNISHED BY THE ASSESSEE NOR HAD SUMMONED THE CREDITOR FOR EXAMINATION. BEFORE US, NO MATERIAL HA S BEEN PLACED ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE PAN NUMBER A ND ADDRESS OF THE LENDER GIVEN BY THE ASSESSEE IS NOT CORRECT. BEFO RE US, REVENUE HAS RELIED ON THE VARIOUS DECISIONS BUT WE FIND THAT THE FACTS OF THE CASE IN THOSE CASES ARE DISTINGUISHABLE FROM THE FACTS OF THE ASSESSEE. CONSIDERING THE TOTALITY O AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WIT H THE ORDER OF LD. CIT(A) AND THUS DISMISS THE GROUND OF REVENUE. 9. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. IT(SS)A NOS.527/AHD/2011 (FOR A.Y. 2009-20 10). 10. IN THE PRESENT CASES, SINCE BOTH THE PARTIES HAVE A DMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE CASE ARE IDENTICAL TO THAT IN A.Y. 2008-09, WE THEREFORE FOR THE REASONS STATED HEREINABOVE WHILE DECIDING T HE APPEAL FOR A.Y. 2008- 09 IN IT(SS)A NO. 526/AHD/2011 (SUPRA) AND FOR SIMI LAR REASONS DISMISS THE GROUNDS OF REVENUE IN THE PRESENT APPEAL. IT(SS)A NOS. 526 & 527/AHD/2011 . A.YS. 2008-0 9 & 2009-2010 6 11. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON 15 - 05 - 2015. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) 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,AH MEDABAD