Shri Rajeshkumar S.Agrawal(HUF), Dahod V. The ACIT.,Cent.Circle-1, Baroda

ITSSA 545/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9392 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-09-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 08-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Keywords: Gift; Income from undisclosed sources; Opportunity of being heard; Additional evidence
• Section: 143(3); 153A; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND SHRI T.R. MEENA, ACCOUNTANT MEMBER IT(SS)A NO. 544, 545, 546, 547 & 548/AHD/2010 ASSESSMENT YEARS :2001-02, 02-03, 04- 05, 05-06 & 06-07 RESP. SHRI RAJESH AGRAWAL (HUF) 4, MEGHDOOT SOCIETY, CHAKALIYA ROAD, DAHOD V/S . ACIT, CENTRAL CIRCLE-1, BARODA PAN NO. AA IHR7473Q (APPELLANT) .. (RESPONDENT) IT(SS)A NO. 549 & 550/AHD/2010 ASSESSMENT YEARS : 02-03 & 03-04 RESP. SHRI RAJESH AGRAWAL 4, MEGHDOOT SOCIETY, CHAKALIYA ROAD, DAHOD V/S . ACIT, CENTRAL CIRCLE-1, BARODA PAN NO. ABUPA1628H (APPELLANT) .. (RESPONDENT) BY REVENUE SHRI VIMALENDU VERMA, CIT D.R. /BY ASSESSEE SMT. URVASHI SODHAN, A.R. /DATE OF HEARING 0 4 .0 9 .201 3 /DATE OF PRONOUNCEMENT 13.09.2013 O R D E R PER BENCH THESE SIX APPEALS FILED BY THE ASSESSEE WHICH HAVE EMANATED FROM THE ORDERS OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)- IV, AHMEDABAD, DATED 22.03.2010 FOR A.Y. 2001-02 AND 19.03.2010 FOR A.Y. 2002-03, 04-05, 05-06 & 06-07. ARGUMENTS IN ALL APPEALS ARE SAME. THEREFO RE, WE ARE DECIDING ALL IN A CONSOLIDATE ORDER FOR THE SAKE OF CONVENIENCE. THE GROUNDS OF ALL APPEALS ARE AS UNDER:- IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 2 IT(SS)A NO. 544/AHD/2010 (A.Y. 01-02) 1. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE ACTION OF THE ASSESSING OFFICER IN REJECTING THE EVIDENCES FI LED WITHOUT GIVING REASONS WAS CORRECT AND VALID. 2. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING AD DITION OF RS.3,55,521/- BEING UNEXPLAINED DEPOSIT IN CAPITAL ACCOUNT. 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE SAID ADDITION WAS CORRECTLY MADE IN THE ORDER PASSED U/S 153A R.W.S. 143(3). IT(SS)A NO. 545/AHD/2010 (A.Y. 02-03) 1. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING A DDITION OF RS.1,60,000/- INTRODUCED IN THE CAPITAL ACCOUNT OF THE APPELLANT WHICH WERE MADE AT THE WITHDRAWALS FROM M/S JAMNADA S INDUSTRIES. 2. THE LEARNED CIT (APPEALS) ERRED IN NOT ACCEPTING THE EXPLANATION/ADDITIONAL FURNISHED EVIDENCES DURING T HE COURSE OF APPELLATE PROCEEDINGS AND FURTHER ERRED IN CONFIRMI NG THE SAME WITHOUT AFFORDING OPPORTUNITY TO THE APPELLANT. 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE ADDITION OF RS.1,60,000/- WAS CORRECTLY MADE IN THE ASSESSME NT ORDER PASSED U/S 153A R.W.S. 143(3). IT(SS)A NO. 546/AHD/2010 (A.Y. 04-05) 1. THE LEARNED CIT (APPEALS) ERRED IN NOT ACCEPTIN G THAT THE ADDITIONAL EVIDENCES SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS AND FURTHER ERRED IN NOT GIVING PROPER OPPORTUNITY TO THE APPELLANT. THE LD. CIT (APPEALS) DID NOT GIVE ANY OPPORTUNITY TO THE APPELLANT FOR EXPLAINING THE REASONS FOR FURNISHING ADDITIONAL EVIDENCES. IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 3 2. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING TH E GIFT OF RS.10,00,000/- RECEIVED FROM SHRIRAM AGRAWAL OF DUB AI AND FURTHER ERRED IN NOT ACCEPTING THE DOCUMENTARY EVIDENCES FU RNISHED DURING THE COURSE OF APPELLATE PROCEEDINGS. 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE ADDITION OF RS.15,95,000/- WAS CORRECTLY MADE IN THE ASSESSM ENT ORDER PASSED U/S 153A R.W.S. 143(3). IT(SS)A NO. 547/AHD/2010 (A.Y. 05-06) 1. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE GIFT RECEIVED AMOUNTING TO RS.12,62,000/- WAS NOT PROPER LY EXPLAINED AND FURTHER ERRED IN CONFIRMING THE ADDITION OF RS. 12,62,000/-. 2. THE LEARNED CIT (APPEALS) DID NOT ALLOWING THE P ROPER OPPORTUNITY TO THE APPELLANT IN EXPLAINING THE DOCU MENTS SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND APP ELLATE PROCEEDINGS. 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE A.O. WAS CORRECT IN SUMMARARILY REJECTING THE DOCUMENTARY EV IDENCES FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THE LD. CIT (APPEALS) ERRED IN CONFIRMING THE AD DITION OF RS. 12,72,000/- IN THE ORDER PASSED U/S 153A R.W.S. 143 (3). IT(SS)A NO. 548/AHD/2010 (A.Y. 06-07) 1. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.2,50,000/- BEING CAPITAL INTRODUCED IN G.J. INDU STRIES AND FURTHER ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN SUMMARARILY REJECTING THE EXPLANATION FURNISHED BY THE APPELLAN T. 2. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING AD DITION OF RS.2,50,000/- BEING ADDITION MADE IN THE ASSESSMENT ORDER PASSED U/S 153A R.W.S. 143(3). IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 4 2. A SEARCH U/S. 132 OF THE IT ACT WAS CARRIED OUT IN THE CASE OF M/S. LAXMI GROUP, DAHOD AND IN THE CASE OF ASSESSEE ON 19.09. 2006. CONSEQUENT TO THE SEARCH ACTION AND BASED UPON MATERIAL FOUND DUR ING THE COURSE OF SEARCH, THE PROCEEDINGS U/S. 153C OF THE ACT WERE INITIATED . ACCORDINGLY, NOTICE U/S. 153C WAS ISSUED ON 31/01/2008 AND IN COMPLIANCE THE RETO THE ASSESSEE DID NOT FILE ITS RETURN OF INCOME FOR THE ASSESSMENT YE AR 2001-02. ON VERIFICATION OF THE RECORDS, IT WAS FOUND THAT THE ASSESSEE FILE D ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION AT RS. 42,415/- U/S. 139(1 ) OF THE IT ACT. THE CASE WAS SCRUTINIZED U/S. 143(3) R.W.S. 153C OF IT ACT. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE WAS ASKED TO FU RNISH THE CAPITAL ACCOUNT, DETAILS OF RECEIPT AND PAYMENT, PROFIT & L OSS ACCOUNT AND BALANCE SHEET FOR THE YEARS COVERED UNDER ASSESSMENT PROCEE DINGS. ON EXAMINATION OF THE DETAILS FURNISHED IT WAS FOUND THAT THERE IS A CAPITAL ADDITION OF RS.3,55,521/- IN CASH. THE ASSESSEE WAS ASKED TO E XPLAIN THIS ADDITION. IN RESPONSE THERETO, THE ASSESSEE COULD NOT FURNISH AN Y SATISFACTORY EXPLANATION. THUS, THE A.O. MADE ADDITION OF RS. 3,55,521/- AS U NDISCLOSED INCOME IN A.Y. 2001-02. 2(I). SIMILARLY IN A.Y. 2002-03 , THE A.O. NOTICED A GIFT OF RS.1,60,000/- AND THE ASSESSEE WAS ASKED TO FILE THE CONFIRMATION, GI FT DEED WHICH WAS ALSO NOT FILED BY THE ASSESSEE. THUS, HE MADE ADDITION OF R S.1,60,000/- AS UNACCOUNTED INCOME OF THE ASSESSEE. 2(II). IN A.Y. 04-05 , THE ASSESSEE HAS SHOWN GIFT OF RS.15,95,000/- AND HE WAS ASKED TO EXPLAIN THE SOURCE OF THE GIFT WITH EV IDENCE FROM RAJENDRA IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 5 AGRAWAL, USA AND SHRIRAM AGRAWAL. THE ASSESSEE SUB MITTED HIS REPLY BUT IT WAS HELD THAT THE EVIDENCES SUBMITTED BY THE ASSESS EE ARE NOT SUFFICIENT TO PROVE THE CREDITWORTHINESS AND GENUINENESS OF THE D ONOR. THUS, HE MADE ADDITION OF RS. 15,95,000/- AS UNACCOUNTED INCOME. 2(III). IN A.Y. 05-06 , THE ASSESSEE HAS RECEIVED GIFT OF RS. 12,62,000/- . THE A.O. ASKED THE ASSESSEE TO EXPLAIN THE SOURCE AND I T WAS SUBMITTED THAT HE HAD RECEIVED GIFT OF RS.12,62,000/- FROM THE FOLLOW ING PERSONS: DATE GIFT RS. SOURCE 15.07.04 1,25,000 BHAVESH SHAH 1,00,000 SUSHILA BISSA 125000 MAYURI SHAH 125000 SHANTA AGRAWAL 1,00,000 RAMGOPAL VYAS 125000 GEETA MEHTA 20.07.04 1,01,000 PRADEEP BHATT 1,25,000 DEEPAK CHOTALAL 1,00,000 CHAMPAKLAL VYAS 1,25,000 KAMALA VYAS 1,11,000 HASUMTI SHAH TOTAL 12,62,000/ - ON VERIFICATION OF GIFT DEED, COPY OF RETURN AND BA NK STATEMENT, THE DONORS CREDITWORTHINESS WAS NOT FUND AND RETURNS WERE SUBM ITTED BELOW TAXABLE RETURN. THERE WAS NO SUFFICIENT CASH BALANCE IN TH E BOOKS OF ACCOUNT. THUS, IN ABSENCE OF SUFFICIENT EVIDENCE FOR THE CREDITWOR THINESS AND GENUINENESS OF THE GIFT, HE MADE ADDITION OF RS. 12,62,000/- AS UN ACCOUNTED INCOME. 2(IV). IN A.Y. 06-07 , THE ASSESSEE SHOWN ADDITION IN CAPITAL ACCOUNT OF RS. 2,50,000/- IN THE NAME OF G. J. INDUSTRIES. THE AS SESSEE WAS ASKED TO EXPLAIN THE CREDIT IN THE CAPITAL ACCOUNT BUT NO SA TISFACTORY EXPLANATION WAS GIVEN. THUS, HE MADE ADDITION OF RS.2,50,000/- AS UNDISCLOSED INCOME. IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 6 3. IN A.Y. 01-02 , BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASS ESSEE CARRIED THE MATTER BEFORE THE CIT(A). IT WAS HELD BY THE CIT(A) THAT THE FACT OF THE CASE IS THAT KARTA OF APPELLANT HUF AND HIS WIF E HAD INTRODUCED CASH IN THE CAPITAL ACCOUNT IN VARIOUS YEARS AND SOURCE OF SUCH CASH WAS SHOWN AS SAVINGS. HE HAD DECIDED THE ISSUE AGAINST THE KART A OF THE APPELLANT HUF AND HIS WIFE. THE FACTS OF THE APPELLANTS CASE WE RE NOT DIFFERENT. THE APPELLANT HAD INTRODUCED THE CASH OF RS.3,55,521/- IN ITS CAPITAL ACCOUNT LIKE ITS KARTA. THERE WAS VIRTUALLY NO EXPLANATION WITH THE APPELLANT FOR THIS CASH INTRODUCED IN THE CAPITAL ACCOUNT AND FOR THIS REAS ON ONLY ADJOURNMENT WERE SOUGHT. THE APPELLANT HAD NOT EXPLAINED THE SOURCE OF HE MONEY. THUS, HE CONFIRMED THE ADDITION. 3(I). NOW THE ASSESSEE IS BEFORE US. THE LD. COUNS EL FOR THE APPELLANT FILED THE PAPER BOOK AND HAS DRAWN OUR ATTENTION THAT THI S AMOUNT WAS THE PAST SAVINGS. THE APPELLANT WAS FILED RETURN BUT THERE IS NO EVIDENCE OF PAST RETURN FILED. THUS, SHE REQUESTED TO ALLOW ONE MORE OPPOR TUNITY AND SENT BACK THE CASE TO THE LD. CIT(A). THE LD. CIT D.R. HAS NOT OPPOSED THE PROPOSAL MADE BY THE LD. A.R. FOR THE APPELLANT. ON THE FACTS AN D CIRCUMSTANCES OF THE CASE, WE HAVE CONSIDERED VIEW AND IN THE INTEREST OF JUST ICE, THE ASSESSEE IS ALLOWED ONE MORE CHANCE AND DIRECTED TO PRODUCE ALL THE EVIDENCES BEFORE THE CIT(A). SHE REFERRED THE CO-ORDINATE B BENCH, AHMA DABAD, DECISION IN CASE OF SMT. HEENA SHARMA IN ITA NO. IT(SS) A NO. 197/AH D/2009 FOR A.Y. 03-04 & HONBLE GUJARAT HIGH COURT DECISION IN CASE OF CI T VS. HEENA SHARMA IN IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 7 TAX APPEAL NO. 712 OF 2012. ACCORDINGLY, WE SET AS IDE THE ORDER OF THE CIT(A). 3(II). THE APPEAL FOR A.Y. 01-02 IS ALLOWED FOR STA TISTICAL PURPOSE. 4. IN A.Y. 02-03 , BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASS ESSEE CARRIED THE MATTER BEFORE THE CIT(A). IT WAS FOUND THAT RS.1,60,000/- CREDITED IN THE ACCOUNT OF HUF, WAS NOT A GIFT BUT AMOUNT CR EDITED IN THE ACCOUNT OF HUF WITH M/S. JAMNADAS INDUSTRIES ON VARIOUS DATES. THE AMOUNT OF RS.1 LAC TRANSFERRED TO M/S. JAMNADAS INDUSTRIES ON 13.08.20 01 (DEBITED TO THE CAPITAL ACCOUNT OF KARTA). THE AMOUNTS OF RS.50,000/- AND RS.10,000/- WERE TRANSFERRED FROM SHAH SHANTILAL PANNALAL ON 13.08.2 001 AND 27.03.2002. THESE AMOUNTS REPRESENTED WITHDRAWALS FROM THE FIRM . THIS WAS AN ADDITIONAL EVIDENCE WITHOUT ANY APPLICATION OF ADMISSION OF AD DITIONAL EVIDENCE AND THEREFORE, LD. CIT(A) HAD NOT ADMITTED. THE EVIDEN CE FILED BEFORE THE LD. CIT(A) WERE UNSIGNED AND UNCERTIFIED. THE ASSESSEE HAD NOT FULFILLED THE CONDITION LAID DOWN IN RULE 46A OF THE IT RULE, 196 2. THIS EVIDENCE WAS NOT EITHER FURNISHED BEFORE THE A.O. OR NOT IN PROPER F ORM BEFORE THE LD. CIT(A). THUS, HE DISMISSED THE APPEAL. 4(I). NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL F OR THE APPELLANT FILED PAPER BOOK AND HAS DRAWN OUR ATTENTION ON PAGE NO.6 AND ARGUED THAT RS. 1,60,000/- WAS PAID THROUGH VARIOUS CHEQUES TO M/S. JAMNADAS INDUSTRIES IN THE YEAR UNDER CONSIDERATION. SHE ALSO FILED COPY OF BANK ACCOUNT. THUS, SHE REQUESTED TO ALLOW THE REASONABLE OPPORTUNITY OF BE ING HEARD BEFORE THE CIT(A) ON THE EVIDENCE FILED AFTER PERUSING THE EVI DENCE SUBMITTED BEFORE THE IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 8 CIT(A) AND ALSO PRAYED TO SET ASIDE THE CASE IN THE INTEREST OF JUSTICE TO THE CIT(A). 4(III). THIS APPEAL IS ALLOWED FOR STATISTICAL PURP OSE. 5. IN A.Y. 04-05 , BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASS ESSEE CARRIED THE MATTER BEFORE THE CIT(A). IT WAS HELD BY THE LD. CIT(A) THAT LD. COUNSEL HAD CHANGED HIS STAND DURING THE COURSE OF APPELLATE PROCEEDINGS. IT WAS EXPLAINED THAT THE AMOUNT OF RS.10 LACS WAS REC EIVED FROM SHRI SHRIRAM AGRAWAL AND THE AMOUNT OF RS.5,95,000/- FROM SHRI R AJESH S. AGRAWAL AND NOT FROM SHRI RAJENDRA AGRAWAL AS STATED BY THE ASSESSI NG OFFICER IN THE ASSESSMENT ORDER, WHICH WAS NOT FOUND CORRECT BY TH E LD. CIT(A) AS LD. COUNSEL HAD ENCLOSED UNSIGNED AND UNCERTIFIED COPY OF THE STATEMENT OF AFFAIRS AS ON 31.03.2004 OF THE APPELLANT HUF IN WH ICH THE AMOUNT OF RS.15,95,000/- HAD BEEN SHOWN AS GIFTS RECEIVED DUR ING THE YEAR IN THE LIABILITY SIDE. IT CANNOT BE ACCEPTABLE THAT THE AMOUNT OF R S.5,95,000/- IS NOT A GIFT. EVEN IF, THIS IS AMOUNT OF RS.5,95,000/- NOT A GIFT FROM SHRI RAJENDRA AGRAWAL AS PER ASSESSMENT ORDER AND RECEIVED FROM SHRI RAJE SH S. AGRAWAL, THEN THE STAND TAKEN NOW AMOUNTS TO FURNISHING OF ADDITIONAL EVIDENCE. THE APPELLANT HAD NOT SATISFIED THE CONDITION LAID DOWN IN CLAUSE (A) TO (D) OF SUB-RULE (1) OF RULE 46A AND RELIED UPON VARIOUS CASE LAWS. THE AP PELLANT DID NOT MAKE ANY APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE BE FORE HIM. SIMILARLY GIFT OF RS. 10 LACS RECEIVED FROM SHRI SHRIRAM AGRAWAL, WAS EVIDENCED BY THE UNCERTIFIED COPIES OF GIFT DECLARATION BY SHRI SHRI RAM AGRAWAL, WHICH WAS NOT SIGNED BY ANYONE AS GIFT ACCEPTED. IF THE DETAILS OF TWO DEMAND DRAFTS OF RS.5 IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 9 LACS EACH AND ILLEGIBLE COPY OF PASS PORT IN WHICH EVEN THE PHOTOGRAPH OF THE SO CALLED DONOR IN NOT VISIBLE. THE APPELLANT HAD FAILED TO ESTABLISH THE IDENTITY, SIGNATURE OF DONOR SHRI SHRIRAM AGRAWAL. THE LOVE AND AFFECTION WITH DONEE, OCCASION OF GIFT AND THE CREDITWORTHINESS OF DONOR BEFORE A.O. AS WELL AS BEFORE HIM. IT WAS FURTHER HELD THAT RECEIPT OF GIFT BY BANKING DONOR IS NOT SUFFICIENT TO EXPLAIN THE GIFT AS GENUINE. HE RELI ED UPON VARIOUS CASE LAWS FOR THESE PURPOSES. THUS, HE SUSTAINED THE ADDITION OF RS. 15,95,000/-. 5(I). NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL F OR THE APPELLANT HAS DRAWN OUR ATTENTION ON PAGE NO. 7 WHICH WAS SIGNED BY SHRI SHRIRAM AGRAWAL, DONOR AND RECEIVED GIFT OF RS. 1,00,000/-, WHICH WA S RECEIVED THROUGH BANKING CHANNEL AND ON PAGE NO.8, WHICH IS ACCEPTANCE OF GI FT BY KARTA, NAMELY, RAJESH S. AGRAWAL FOR APPELLANT HUF FOR RS. 10 LACS . PAGE NOS. 9 & 10 ARE THE COPY OF PASSPORT OF SHRI SHRIRAM AGRAWAL. PAGE NO.11 IS THE COPY OF TWO DRAFTS FOR RS. 5 LACS EACH IN FAVOUR OF R.S. AGRAWA L HUF. RS. 5,95,000/- WAS RECEIVED FROM SHRI RAJESH S. AGRAWAL. FROM M/S. JA MNADAS INDUSTRIES FOR WHICH HE HAS FILED COPY OF THE ASSESSEE AND ARGUED THAT THE SOURCES OF BOTH THE ENTRIES ARE EXPLAINED. NO ADDITION IS REQUIRED . AT THE OUTSET, LD. CIT D.R. RELIED UPON THE ORDER OF THE CIT(A) AND REQUESTED T O CONFIRM THE ADDITION. 5(II). WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIAL ON RECORD. THE LD. CIT(A) HAD NOT ADMITTED THE ADDITI ONAL EVIDENCE AS ASSESSEE COULD NOT FILE THIS EVIDENCE BEFORE THE A.O. THERE FORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE CASE TO THE CIT(A) FOR DE NOVO. 5(III). IN THE RESULT, THE APPEAL IS ALLOWED FOR ST ATISTICAL PURPOSE. IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 10 6. IN A.Y. 05-06 , BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASS ESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAS CONFIR MED THE ADDITION BY OBSERVING THAT THE APPELLANT HAD ARRANGED THE GIFTS IN RANGE OF RS. 1 LAC TO RS. 1.25 LAC EACH FROM 11 PERSONS OF DIFFERENT LOCALITY OF MUMBAI AND THANE. GIFT DECLARATIONS WERE FILED IN ALL THE CASES. ALL THE GIFTS WERE RECEIVED ONLY BY DEMAND DRAFTS AND ALSO NOTARIZED BY SHRI N. R. GUPT A AND SHRI G. J. RAJANI OF MUMBAI IN ALL CASES OF DONORS EVEN THEY WERE RESIDI NG IN DIFFERENT PLACES OF MUMBAI WHICH IS NOT PRACTICABLE. NO EVIDENCE OF IN COME TAX RETURN FOR A.Y. 05-06 IN CASE OF DONORS WAS FILED. FROM THE COPIES OF ACKNOWLEDGEMENT SLIP, IT WAS NOTICED THAT ALL THE DONORS WERE NOT HAVING PAN NOS., NO SOURCE OF INCOME HAVE BEEN SHOWN IN THE GIFT DECLARATION, NOT ANY RELATIONSHIP, NO OTHER EVIDENCE FOR RELATIONSHIP AS WELL AS CREDITWORTHINE SS OF THE DONORS WERE FILED. HE FURTHER HELD THAT THE RECEIPT OF GIFT BY BANKING CHANNEL IS NOT SUFFICIENT TO EXPLAIN THE GIFT AS GENUINE AND THE DONOR IS REQUIR ED TO ESTABLISH THE IDENTITY OF DONORS, PROOF OF SIGNATURE, OCCASION OF GIFT AND RE LATIONSHIP OF DONORS WITH DONE AND LASTLY, THE CREDITWORTHINESS OF THE DONORS . HE RELIED UPON VARIOUS DECISIONS OF VARIOUS HIGH COURTS. 6(I). NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL F OR THE APPELLANT HAS DRAWN OUR ATTENTION ON PAGE NOS. 1 TO 16 AND CLAIME D THAT THESE EVIDENCES WERE FILED BEFORE THE A.O. THE EVIDENCES PLACED ON PAGE NOS. 61 TO 63. HOWEVER, LD. CIT D.R. CLAIMED THAT THESE EVIDENCES WERE FILED BEFORE THE CIT(A), WHICH HAS BEEN CONSIDERED BY THE LD. CIT(A) AND HE HAS DISMISSED THE ASSESSEES APPEAL. AFTER PERUSAL OF ALL THE EV IDENCES AND ORDER OF THE IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 11 LOWER AUTHORITIES, IN THE INTEREST OF JUSTICE, WE S ET ASIDE THE ORDER OF THE CIT(A) TO CONSIDER ALL THE EVIDENCE TO DECIDE THE CASE AS PER LAW AFTER GIVING THE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 6(II). IN THE RESULT, THE APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. 7. IN A.Y. 06-07 , BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASS ESSEE CARRIED THE MATTER BEFORE CIT(A). IT WAS ADMITTED BY THE LD. COUNSEL FOR THE APPELLANT BEFORE THE CIT(A) THAT THESE DETAILS COUL D NOT BE SUBMITTED BEFORE THE A.O. THE LD. COUNSEL HAD TAKEN PLEA THAT IT WA S OUT OF CASH BALANCE OF JAMNADAS INDUSTRIES, INDORE, WHICH WAS FOR RS. 4,77 ,379/- OUT OF WHICH RS.2,50,000/- WERE GIVEN. THE LD. CIT(A) TREATED T HIS EXPLANATION AS ADDITIONAL EVIDENCE WHICH WAS NOT ALLOWED BY HIM BE CAUSE CONDITION SPELT OUT IN CLAUSE (A) TO (D) OF SUB-RULE (1) OF RULE-46A. HE ALSO RELIED UPON VARIOUS CASE LAWS AND DISMISSED THE ASSESSEES APPEAL. 7(I). NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL A RGUED THAT THE LD. CIT(A) HAD NOT ENTERTAINED THE EVIDENCE SUBMITTED BEFORE H IM. SHE HAS DRAWN OUR ATTENTION ON PAGE NO.6 AND ARGUED THAT THE CASE OF G. J. INDUSTRIES IS AN AUDITABLE FOR WHICH SHE FILED A COPY OF AUDIT REPOR T FOR A.Y. 06-07 ALONGWITH COPY OF TRADING ACCOUNT, BALANCE SHEET WHICH IS A P ROPRIETARY CONCERN OF HUF AND ARGUED THAT THE SOURCE OF CAPITAL CREDIT IS EXP LAINED. THUS, IN THE INTEREST OF JUSTICE, THE CIT(A) MAY BE DIRECTED TO CONSIDER THE ADDITIONAL EVIDENCE. AT THE OUTSET, LD. CIT(A) FAIRLY ACCEPTED THE PROPOSAL OF THE ASSESSEE. 7(II). WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIAL ON RECORD. THE ASSESSEE HAD NOT PRODUCED THESE EVIDEN CES BEFORE THE A.O. BUT IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 12 ARE THE PART OF INCOME TAX FILE. THEREFORE, IN THE INTEREST OF JUSTICE, THIS ISSUE IS SET ASIDE TO THE CIT(A) FOR DE NOVO. 7(III). THE APPEAL FOR A.Y. 06-07 IS ALLOWED FOR ST ATISTICAL PURPOSE. IT(SS)A NO. 549/AHD/2010 FOR A.Y. 2002-03 8. THESE APPEAL FILED BY THE ASSESSEE WHICH HAS E MANATED FROM THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-IV, AHMEDA BAD, DATED 19.03.2010 FOR A.Y. 2002-03. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER: 1. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THA T THE APPELLANT COULD NOT SUBMIT SATISFACTORY EXPLANATION IN RESPEC T OF ADDITION OF RS.20,000/- IN THE CAPITAL ACCOUNT AND FURTHER ERRE D IN CONFIRMING THE ADDITION. 2. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING AD DITION OF RS.8,72,000/- BEING GIFT RECEIVED FROM RAJENDRA SHA H, BROTHER OF THE APPELLANT. THE LD. CIT(APPEALS) ERRED IN HOLDING T HAT THE APPELLANT WAS REQUIRED TO PROVE THE GENUINENESS AND CREDITWOR THINESS EVEN IN THE CASE WHERE SATISFACTORY DOCUMENTARY EVIDENCES W ERE FILED WITH THE ASSESSING OFFICER AND ALSO THE FACT THAT SHRI R AJENDRA SHAH WAS ALSO ASSESSED TO TAX WITH THE SAME ASSESSING OFFICE R IN THE YEAR UNDER REFERENCE. 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT ADDITION HAS PROPERLY MADE IN THE ASSESSMENT ORDER U/S. 153A R.W .S. 143(3) OF THE ACT. 9. THE FIRST GROUND OF THE ASSESSEE AGAINST CONFIRM ING THE ADDITION OF RS. 20,000/- BY THE LD. CIT(A). THE FACT IS THAT THERE WAS AN ADDITION IN CAPITAL IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 13 ACCOUNT IN CASH. THE ASSESSEE WAS ASKED TO EXPLAIN THIS CASH. NO SATISFACTORY EXPLANATION WAS GIVEN BEFORE THE A.O. THUS, HE MADE ADDITION. THE CIT(A) CONFIRMED THE ADDITION BY HOLDING THAT H OUSEHOLD WITHDRAWALS WERE NOT SUFFICIENT IN CASE OF ASSESSEE. THUS, THERE CA NNOT BE SAVING TO THE EXTENT OF RS. 20,000/-. THE ASSESSEE HAS WITHDRAWN RS.600 0/- PER MONTH. THE BALD STATEMENT OF THE APPELLANT WAS NOT SUPPORTED BY ANY MATERIAL OR EVIDENCE. THEREFORE, THE SAME WAS NOT ACCEPTABLE. THUS, HE C ONFIRMED THE ADDITION. THE LD. COUNSEL FOR THE APPELLANT CONTENDED THAT TH IS IS SMALL AMOUNT AND ALL FAMILY MEMBERS WITHDREW FOR HOUSEHOLD PURPOSES AND THEREFORE, IT IS AN EXPLAINABLE BEING A SMALL AMOUNT AND VARIOUS WITHDR AWALS MADE BY THE FAMILY MEMBERS. BEING SMALL AMOUNT, WE DELETE THE ADDITIO N OF RS.20,000/- AND REVERSE THE ORDER OF THE CIT(A). 10. GROUND NOS. 2 & 3 IS AGAINST CONFIRMING THE ADD ITION OF RS.8,72,000/- BEING GIFT RECEIVED FROM RAJENDRA SHAH, BROTHER OF THE APPELLANT. THE A.O. FOUND THAT THE ASSESSEE HAS RECEIVED GIFT OF RS.8,7 2,000/- FROM ONE SHRI RAJENDRA S. AGRAWAL, USA. THE ASSESSEE COULD NOT E XPLAIN THIS GIFT. NO EVIDENCE REGARDING CONFIRMATION OF RS.8,72,000/- WA S SUBMITTED BY THE ASSESSEE. THUS, HE MADE ADDITION OF RS.8,72,000/- AS UNACCOUNTED INCOME OF THE ASSESSEE. THE CIT(A) CONFIRMED THE ADDITION BY OBSERVING THAT THE CREDIT OF RS. 8,72,000/- WAS APPEARING IN THE BOOKS OF ACCOUNT. THE ASSESSEE HAS TO FULFILL ALL THE ADDITIONS OF SECTION 68 OF T HE IT ACT I.E. GENUINENESS OF THE TRANSACTION, CREDITWORTHINESS OF THE CREDITOR AND I DENTITY OF THE PERSON. HE IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 14 RELIED UPON VARIOUS CASE LAWS ON PAGE NOS. 3 & 4 AN D HELD THAT THE GIFT RECEIVED BY THE APPELLANT IS NOT EXPLAINED. 11. NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL FOR THE APPELLANT HAS DRAWN OUR ATTENTION ON PAGE NOS. 14-16 & 18-20 AND CLAIMED THAT GIFTS WERE RECEIVED FROM SHRI RAJENDRA S. AGRAWAL, USA, WHO HA S CONFIRMED THE GIFTS WERE RECEIVED FROM ACCOUNT PAYEE CHEQUE AND WHO HAS CONFIRMED THE GIFT. THUS, THE APPELLANT HAD PROVED THE IDENTITY, CREDIT WORTHINESS OF THE DONORS AND GENUINENESS OF THE TRANSACTION AND PRAYED TO DE LETE THE ADDITION. AT THE OUTSET, LD. CIT D.R. RELIED UPON THE ORDER OF THE C IT(A) AND REQUESTED TO CONFIRM THE ADDITION. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. BOTH THE GIFTS WERE RECEIVED FROM ACCOUNT PAYEE CHEQUE FROM SHRI RAJENDRA S. AGRAWAL, USA, WHO HAS CONFIRMED THE GIF TS AND ALL THE DETAILS OF DONORS HAVE BEEN FILED BY THE APPELLANT. THUS, WE DELETE THE ADDITION AND REVERSE THE ORDER OF THE CIT(A). 13. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. IT(SS)A NO. 550/AHD/2010 FOR A.Y. 2003-04 14. THESE APPEAL FILED BY THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-IV, AHM EDABAD, DATED 19.03.2010 FOR A.Y. 2003-04. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER: IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 15 1. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.32716/- BEING DEPOSIT IN THE SAVINGS BANK ACCOUN T / CAPITAL ACCOUNT WHICH WERE MADE OUT OF WITHDRAWALS. 2. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE ASSESSING OFFICER HAS CORRECT IN DISREGARDING THE E VIDENCES FILED AND ALSO IN NOT GIVING COGENT REASONS FOR REJECTING THE EVIDENCES IN RELATION TO THE GIFT. 3. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING AD DITION OF RS.13,54,000/- BEING GIFT RECEIVED FROM VARIOUS PAR TIES INCLUDING GIFT RECEIVED FROM BROTHER SHRI RAJENDRA S SHAH. 4. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT ADDITION OF RS.13,54,000/- MADE IN THE ORDER PASSED U/S. 153A R .W.S. 143(3) WAS CORRECT AND FURTHER ERRED IN CONFIRMING THE SAI D GIFTS. 15. THE FIRST GROUND OF THE ASSESSEES APPEAL IS AG AINST CONFIRMING THE ADDITION OF RS.32,716/-. THE A.O. OBSERVED THAT TH ERE WAS A CAPITAL ADDITION OF RS.32,716/- IN CASH. LD. A.O. GAVE REASONABLE O PPORTUNITY OF BEING HEARD ON THIS ISSUE. THE ASSESSEE COULD NOT FURNISH ANY SATISFACTORY EXPLANATION. THUS, HE MADE ADDITION OF RS. 32,716/- AS UNDISCLOS ED INCOME OF THE ASSESSEE. THE CIT(A) HAD ALSO CONFIRMED THE ADDITI ON BY OBSERVING THAT THE ASSESSEE BEFORE HIM HAD NOT EXPLAINED THE ADDITION OF RS.32,716/-. LD. COUNSEL FOR THE APPELLANT HAS SUBMITTED THAT THESE DEPOSITS WERE MADE OUT OF VARIOUS HOUSEHOLD WITHDRAWAL MADE BY THE FAMILY MEM BERS DURING THE YEAR AND ARGUED THAT THIS CASH IN CAPITAL WAS EXPLAINED BEFORE THE LOWER AUTHORITIES. THE LD. CIT DR RELIED UPON THE ORDER OF THE CIT(A) AND PRAYED TO CONFIRM THE IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 16 ADDITION. BEING SMALL AMOUNT AND VARIOUS WITHDRAWA L MADE BY THE FAMILY MEMBERS FOR THE HOUSEHOLD PURPOSES, IT IS POSSIBLE THAT TO THAT EXTENT THE FAMILY MEMBERS CAN SAVE THE AMOUNT. THUS, WE DELET E THE ADDITION AND REVERSE THE ORDER OF THE CIT(A). 16. THE SECOND, THIRD & FOURTH GROUND OF APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS.13,54,000/- BEING GIFT RECEIVED FROM BROTHER SHRI RAJENDRA S SHAH. THE A.O. FOUND THAT ASSESSEE HAS SHOWN GIFT OF RS. 13,54,000/- FROM VARIOUS PERSONS. THE A.O. GAVE REASONABLE OPPORTUN ITY OF BEING HEARD ON THIS ISSUE. THE APPELLANT FURNISHED THE COPY OF GIFT DE ED, COPY OF RETURN OF INCOME AND BANK STATEMENT OF THE DONORS. THE A.O. DID NOT FIND CREDITWORTHINESS OF THE DONOR. THE INCOME TAX RETURNS FILED BY THE DON ORS ARE BELOW TAXABLE LIMIT AND BANK BALANCES WERE ALSO NOT CONVINCING TO SHOW THE GENUINENESS OF THE GIFT. THUS, HE MADE ADDITION OF RS.13,54,000/- AS UNACCOUNTED INCOME OF THE ASSESSEE. LD. CIT(A) HELD THAT THESE GIFTS WERE AR RANGED GIFTS. THE GIFT DECLARATION WAS FILED IN CASE OF SIX OUT OF EIGHT C ASES. NO GIFT DECLARATION IN CASE OF SHYAM SUNDER AGRAWAL WAS FURNISHED. IN CAS E OF POONAM HARISH GOYAL AND ANJU SHYAMSUNDER AGRAWAL, ONLY GIFT DECLA RATIONS WERE FILED, THE SOURCE OF INCOME HAD NOT BEEN DISCLOSED. THE PAN NO. WAS GIVEN BUT RETURNS WERE FILED IN PRECEDING YEAR NOT CURRENT YE AR. THE GENUINENESS OF THE TRANSACTION, RELATION OF THE DONORS WITH DONEE, THE REASONS OF GIFT, GENUINENESS OF THE SIGNATURE OF THE DONORS AND THE CREDITWORTHI NESS OF THE DONORS COULD NOT BE ESTABLISHED IN THE CASE OF DONOR SHYAM SUNDER AG RAWAL, POONAM HARISH GOYAL AND ANJU SHYAMSUNDER AGRAWAL. THUS, HE HAD O UTRIGHTLY HELD GIFT OF IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 17 RS. 3,75,000/- AS NON GENUINE. HE FURTHER OBSERVED THAT SHRI N. R. GUPTA AND G. J. RAJANI AND SHRI KHUPSEL OF MUMBAI HAD NOTARIZ ED ALL THE GIFT DECLARATIONS EVEN DONORS RESIDING IN DIFFERENT PARTS OF MUMBAI A ND THANE. IN CASE OF GIFT OF RS. 4,79,000/- FROM SHRI RAJENDRA S. SHAH AGRAWAL, CONFIRMATION FILED IN PLAIN PAPER BUT PLACE HAD NOT BEEN MENTIONED ON IT. THE DECLARATION WAS SIGNED BY ONE SHRI RAJENDRA RATANLAL SHAH WHEREAS THE DONORS NAME WAS SHRI RAJENDRA S. AGRAWAL. APPARENTLY, THERE SEEMED TO B E NO RELATIONSHIP. THE GIFT THROUGH BANKING CHANNELS IS NOT SUFFICIENT ENO UGH FOR GENUINENESS OF THE GIFT AS HELD BY VARIOUS HIGH COURTS. THUS, HE CONF IRMED THE ADDITION BY RELYING UPON VARIOUS CASE LAWS. 16(I). NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL FOR THE APPELLANT CONTENDED THAT DOCUMENTS PERTAINED TO 1 TO 31 FURNI SHED BEFORE THE A.O. AND PAGE NO. 32 TO 34 FURNISHED BEFORE THE CIT(A). THE LD. CIT(A) HAD NOT ENTERTAINED THE EVIDENCE ACCORDING TO LAW. THEREFO RE, THE CASE MAY BE SET ASIDE TO THE CIT(A), WHICH IS FAIRLY ACCEPTED BY TH E LD. CIT D.R. AFTER CONSIDERING THE BOTH SIDES AND EVIDENCES SUBMITTED BY THE APPELLANT, WE HAVE CONSIDERED VIEW THAT THE LD. CIT(A) MAY GIVE ONE MO RE CHANCE TO EXAMINE THE EVIDENCE FURNISHED BY THE APPELLANT AFTER GIVING TH E REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. ACCORDINGLY, WE SET ASIDE THIS ORDER ON THIS GROUND TO THE CIT(A). 16(II). IN THE RESULT, THE ASSESSEES APPEAL IS PAR TLY ALLOWED. 17. IN THE COMBINED RESULT, APPEAL IN A.Y. 01-02, 0 2-03, 04-05, 05-06 & 06- 07 IN CASE OF HUF ALLOWED FOR STATISTICAL PURPOSE A ND IN A.Y. 02-03 IN CASE OF IT(SS)A NO. 544 TO 550/AHD/2010 A.YS. 01-02 TO 06-07 RESPECTIVELY PAGE 18 INDIVIDUAL, APPEAL IS ALLOWED & IN A.Y. 03-04 IN CA SE OF INDIVIDUAL, THE APPEAL IS PARTLY ALLOWED. THESE ORDERS PRONOUNCED IN OPEN COURT ON 13.09.2013 SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. '#$ / APPELLANT 2. &'#$ / RESPONDENT 3. )*)+ ' ', / CONCERNED CIT 4. ' ',- ' / CIT (A) 5. 01'' +, ' ''' +, 34 * / DR, ITAT, AHMEDABAD 6. 167 89 / GUARD FILE. BY ORDER/ , :/3' )' ' ''' +, 34 * <