The ITO, Ward-7(1), Ahmedabad V. Shri Manilal Amulakhrai Kothari, Ahmedabad

ITSSA 705/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0047 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 10-02-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 30-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AHD; T P KRISHNKUMAR ITSSA NO
• Assessee Lawyers: KETAN H SHAH
• Keywords: Unexplained investment; Additional evidence; Corroborative evidences; Onus to prove

Judgement Text

-1- , , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , ! ! ! !, , , , '# $% '# $% '# $% '# $% , , , , %& ' %& ' %& ' %& ' % ! ( % ! ( % ! ( % ! ( BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) IT(SS)A NO.705/AHD/2010 [ASSTT. YEAR : 2002-2003] ITO, WARD-7(1) AHMEDABAD. /VS. MANILAL AMULAKHRAI KOTHARI 19, JAY BHAVNI SOCIETY NR. MALAV TALAV, VEJALPUR AHMEDABAD. PAN : ACMPK 0159 J IT(SS)A NO.740/AHD/2010 [ASSTT. YEAR : 2004-2005] MANILAL AMULAKHRAI KOTHARI-HUF C/O. KETAN H. SHAH, ADVOCATE 903, SAPPHIRE COMPLEX NR.CARGO MOTORS, C.G.ROAD AHMEDABAD. PAN : AADHK 0091 E /VS. ITO, WARD-7(1) AHMEDABAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .$ / 0 %/ ASSESSEE BY : SHRI KETAN H. SHAH ' / 0 %/ REVENUE BY : SHRI T.P. KRISHNKUMAR, CIT-DR IT(SS)A NO.705 AND 740/AHD/2010 -2- 2 / $3&/ DATE OF HEARING : 10 TH FEBRUARY, 2014. 456 / $3&/ DATE OF PRONOUNCEMENT : 07-03-2014 %7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THESE APPEALS BY THE REVENUE FOR THE ASSESSMENT YEAR 2002-03 AND BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2004-05 ARE DIRECTED AGAINST THE ORDER OF THE CIT(A ). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER FOR THE SA KE OF CONVENIENCE. IT(SS)A.NO.705/AHD/2010 (ASSTT.YEAR 2002-03) REVENU ES APPEAL. 2. THE GROUND NO.1 OF THE REVENUES APPEAL IS AS UN DER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CANCELING THE ADDITION OF RS.8,91,000/- MADE U/S.69B OF THE ACT. 3. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED ON THE ORDER OF THE CIT(A) 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE CIT(A) HAS PAS SED A DETAILED SPEAKING ORDER ON THE ISSUE. THE CIT(A) HAS RECORDED IN HIS APPELLATE ORDER THAT THE ASSESSEE HAS EXPLAINED TO THE AO THE SOURCE OF DEPO SITS ALONG WITH NECESSARY EVIDENCES. THE INVESTMENTS IN THE FDR WERE OUT OF THE DEPOSITS WITH PRIVATE FIRMS, AND THE INTEREST ON WHICH WAS ADMITTED IN TH E RETURN OF EARLIER YEARS. THE CIT(A) HAS RECORDED THAT THE AO DID NOT CONTROV ERT THE CONTENTIONS OF IT(SS)A NO.705 AND 740/AHD/2010 -3- THE ASSESSEE. THE CIT(A) HAS RECORDED THAT ON SIMI LAR SET OF FACTS THE ISSUE WAS DECIDED IN FAVOUR OF SHRI MANILAL A. KOTHARI (H UF) IN THE ASSESSMENT YEARS 2002-03 AND 2003-04. NO ADVERSE MATERIAL COU LD BE PRODUCED BY THE DEPARTMENT TO CONTROVERT THE FINDINGS OF THE CIT(A) . IN THESE FACTS OF THE CASE, WE HOLD THAT THE ASSESSEE HAS DISCHARGED ITS ONUS TO PROVE THE SOURCE OF DEPOSITS BY FILING NECESSARY EVIDENCES BEFORE THE A O, AND ACCORDINGLY, THERE IS NO MISTAKE IN THE ORDER OF THE CIT(A) ON THIS IS SUE, WHICH IS CONFIRMED AND THE GROUND NO.1 OF THE REVENUE IS DISMISSED. 5. THE GROUND NO.2 OF THE REVENUE IS AS UNDER: 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO VERIFY THE CONTENTIONS OF THE ASSESSEE IN RESPEC T OF DISALLOWANCE OF INTEREST EXPENSES OF RS.1,50,502/- AND DELETE THE A DDITION. 6. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO AND THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE CIT(A). 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND T HAT THE ASSESSEE HAS CONTENDED THAT IMPUGNED INTEREST INCOME BELONGED TO THE TRUST AND WAS ADMITTED AS SUCH IN THE ROI OF THE SAID TRUST AND T HAT SUPPORTING EVIDENCE WAS FILED BEFORE THE AO. IN THESE FACTS, THE CIT(A ) HAS DIRECTED THE AO TO VERIFY THE CONTENTIONS OF THE ASSESSEE AND DELETE T HE ADDITION, AND SUBJECT TO VERIFICATION HAS ALLOWED THE GROUND OF THE APPEAL O F THE ASSESSEE. THERE BEING NO MISTAKE IN THE ORDER OF THE CIT(A) ON THIS ISSUE, THE SAME CONFIRMED AND THE GROUND NO.2 OF THE REVENUE IS DIS MISSED. 8. THE GROUND NO.3 OF THE REVENUE IS AS UNDER: 3. THE LD.CIT(A) HAS ERRED IN ENTERTAINING ADDITIO NAL EVIDENCE WITHOUT FOLLOWING THE PROVISIONS OF RULE 46A. IT(SS)A NO.705 AND 740/AHD/2010 -4- 9. THE LEARNED DR COULD NOT POINT OUT ANY SPECIFIC ADDITIONAL EVIDENCE ADMITTED BY THE CIT(A) IN VIOLATION OF RULE 46A, AN D ACCORDINGLY, THE GROUND NO.3 OF THE REVENUE BEING WITHOUT ANY MERIT, IS DISMISSED. IT(SS)A.NO.740/AHD/2010 (ASSTT.YEAR 2004-05) ASSESS EES APPEAL: 10. THE ONLY GROUND OF THE ASSESSEES APPEAL IS AS UNDER: 1. IN ADDING/CONFIRMING THE ADDITION U/S.69B OF THE ACT AS PER AOS ORDER PAGE 3 PARA 4.2 AS WELL AS CIT(APPEALS) ORDER PAGE 6 PARA 4.1. IT IS SUBMITTED THAT IN VIEW OF THE FACT S AND CIRCUMSTANCES OF THE CASE AS WELL AS IN VIEW OF VARIOUS SUBMISSIONS PLACED ON RECORD BEFORE LOWER AUTHORITY ALONG WITH EVIDENCE FURNISHE D, THE LOWER AUTHORITY HAS ERRED IN MAKING ADDITION OF RS.2,75,0 00/- TOWARDS SO- CALLED UNEXPLAINED INVESTMENT IN FDR. 11. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AMOUNT OF RS.2.75 LAKHS WAS TRANSFERRED FROM INDIVIDUAL BANK ACCOUNT OF THE ASSESEE AND NECESSARY EVIDENCE WAS FILED BEFORE THE REVENUE AUTHORITIES, AND THEREFORE, NO CASE OF ADDITION COULD BE MADE OUT BY THE REVENUE. THE LEARNED COUNSEL FOR THE ASSESSEE HAS REFERRED TO CO PIES OF BANK ACCOUNT OF THE ASSESSEE AND THAT OF THE INDIVIDUAL IN SUPPORT OF H IS CASE. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 12. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE HAS F ILED COPIES OF BANK ACCOUNT OF THE ASSESSEE-HUF AS WELL AS THE INDIVIDU AL BANK ACCOUNT TO PROVE THAT THE AMOUNT OF RS.2.75 LAKHS WAS TRANSFERRED FR OM INDIVIDUAL ACCOUNT TO THE ASSESSEE-HUF BANK ACCOUNT. IN THESE FACTS, WE HOLD THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FI LE OF THE AO WITH DIRECTION TO IT(SS)A NO.705 AND 740/AHD/2010 -5- VERIFY THE ENTRIES OF BANK ACCOUNT OF THE ASSESSEE- HUF AND INDIVIDUAL BANK ACCOUNT, AND IF ON VERIFICATION FOUND ENTRIES TO BE CORRECT, THEN NOT TO MAKE ANY ADDITION ON THIS COUNT. WE DIRECT ACCORDINGLY. 13. IN THE RESULT, THE APPEAL OF THE REVENUE FOR TH E ASSESSMENT YEAR 2002- 03 IS DISMISSED AND THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2004- 05 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( $% $% $% $% /T.R. MEENA) %& ' /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) ! ! ! ! /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD