The DCIT, Central Circle-2, Surat V. Shri Shyamlal G.Bhandari, Surat

ITSSA 537/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1648 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: MONIL SHAH
• Keywords: Unexplained cash credit; Audit objection; Tax effect
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AN D SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER IT(SS)A NOS. 535 TO 537/AHD/2012 / ASSESSMENT YEAR: 2005-06 TO 2007-08 THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2, SURAT .. APPELLANT VS SHYAMLAL G. BHANDHARI, 103, CITY PARK APPT., BHATAR ROAD, SURAT-395001 .. RESPONDENT PAN : AASPB 3725 F REVENUE BY : R.I. PATEL, CIT-DR ASSESSEE(S) BY MONIL SHAH, AR / DATE OF HEARING 23/03/2016 /DATE OF PRONOUNCEMENT 30/03/2016 / O R D E R PER SHAILENDRA K. YADAV, JUDICIAL MEMBER: THESE THREE APPEALS BY THE REVENUE ARE DIRECTED AGA INST SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- II, AHMEDABAD OF EVEN DATED 29.08.2012 FOR ASSESSMENT YEARS 2005-06 TO 2007-08. 2. FOR ASSESSMENT YEAR 2005-06, THE REVENUE HAS TAK EN FOLLOWING GROUNDS OF APPEAL:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT GIVING THE AO OPPORTUNITY TO OFFER HIS COMMENTS ON THE EVIDENC E FILED BEFORE HIM AS REQUIRED UNDER RULE 46A(3) OF THE I.T . RULES, BECAUSE DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOS ITS IN THE BANK ACCOUNTS WITH EVIDENCE. IT(SS)A NOS. 535 TO 537/AHD/2012 DCIT VS. SHYAMLAL G. BHANDHARI AY : 2005-06 TO 2007-08 2 2) THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACT S IN DELETING THE ADDITION OF RS.11,25,310/- MADE U/S 68 OF THE A CT ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS. 3) ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ADDITION OF RS.11,2 5,310/-. 4) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. 3. FOR ASSESSMENT YEAR 2006-07, THE REVENUE HAS RAI SED FOLLOWING GROUNDS OF APPEAL:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT GIVING THE AO OPPORTUNITY TO OFFER HIS COMMENTS ON THE EVIDENC E FILED BEFORE HIM AS REQUIRED UNDER RULE 46A(3) OF THE I.T . RULES, BECAUSE DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOS ITS IN THE BANK ACCOUNTS WITH EVIDENCE. 2) THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACT S IN DELETING THE ADDITION OF RS.19,16,515/- MADE U/S 68 OF THE A CT ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS. 3) ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ADDITION OF RS.19,1 6,515/-. 4) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. 4. FOR ASSESSMENT YEAR 2007-08, THE GROUNDS RAISED BY THE REVENUE READ AS UNDER:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT GIVING THE AO OPPORTUNITY TO OFFER HIS COMMENTS ON THE EVIDENC E FILED BEFORE HIM AS REQUIRED UNDER RULE 46A(3) OF THE I.T . RULES, BECAUSE DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOS ITS IN THE BANK ACCOUNTS WITH EVIDENCE. IT(SS)A NOS. 535 TO 537/AHD/2012 DCIT VS. SHYAMLAL G. BHANDHARI AY : 2005-06 TO 2007-08 3 2) THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACT S IN DELETING THE ADDITION OF RS.14,87,655/- MADE U/S 68 OF THE A CT ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS. 3) ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ADDITION OF RS.14,8 7,655/-. 4) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. 5. 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 CIRCULAR NO.2 1 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FA IRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 6. 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 FIND THAT REVENUE IS AGGRIEVED BY THE O RDER OF CIT(A) IN DELETING THE ADDITION OF RS.11,25,310/-, RS.19,16,5 15/- AND RS.14,87,655/- FOR ASSESSMENT YEARS 2005-06, 2006-07 TO 2007-08 RE SPECTIVELY, MADE U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CREDITS IN THE BANK ACCOUNTS. THE TAX EFFECT IN EACH OF THESE APPEALS IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT ) DATED 10.12.2015 (CIRCULAR NO.21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX AP PELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST, EXCEEDS RS.10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTI VELY TO THE PENDING APPEALS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAU SE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THES E INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION IT(SS)A NOS. 535 TO 537/AHD/2012 DCIT VS. SHYAMLAL G. BHANDHARI AY : 2005-06 TO 2007-08 4 RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS , ETC. WE PRIMA-FACIE FIND THAT THE PRESENT CASES DO NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS. 10 LAKHS. IT IS FURTHER O BSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE ASSESSING OFFI CER, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WI LL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SU CH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEALS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 30TH MARCH, 2016 A T AHMEDABAD. SD/- SD/- ANIL CHATURVEDI SHAILEND RA K. YADAV (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD; DATED 30/03/2016 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