Appeal details
Counselvise Citation
[2018] 118 COUNSELVISE.COM (IT) 8593 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 9 month(s) 18 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
10-12-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
Not Allotted
Assessment Year
2011-2012
Appeal Filed On
21-02-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MANSI VIKAS SHAH, 210, ANAL FLATS, NAVRANGPURA, AHMEDABAD - 380009 PAN: CJCPS9102G (APPELLANT) VS THE ACIT, CIRCLE - 2(2) , AHMEDABAD - 380009 (RESPONDENT) CHHAYA VIKAS SHAH, 210, ANAL FLATS, NAVRANGPURA, AHMEDABAD - 380009 PAN: AQKPS0967J (APPELLANT) VS THE ACIT, CIRCLE - 2(2), AHMEDABAD - 380009 (RESPONDENT) REVENUE BY : S H RI KRISHNA MURARI , CIT - D . R. ASSESSEE BY: SHRI G.C. PIPARA, A.R. DATE OF HEARING : 01 - 11 - 2 018 DATE OF PRONOUNCEMENT : 10 - 12 - 2 018 / ORDER P ER BENCH : - THESE EIGHT APPEALS FILED BY TWO DIFFERENT ASSESSEES, NAMELY; MANSI VIKAS SHAH AND CHHAYA VIKAS SHAH FOR ASSESSMENT YEAR 2007 - 08, 2009 - 10 AND 2011 - 12 TO 2013 - 14 AGAINST THE ORDER OF LD. CIT(A) - 12, AHMEDABAD DATED 03 - 10 - 2016; IN P ROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961 . I T (SS) A NO S . 75 TO 78 / A HD/20 17 A Y 2009 - 10 & 2011 - 12 TO 2013 - 14 IT(SS)A NOS. 79 TO 82 /AHD/2017 AY 2007 - 08 & 2011 - 12 TO 2013 - 14 I.T. (SS) A NO. 75 TO 82 /AHD/20 17 PAGE NO MANSI VIKAS SHAH & CHHAYA VIKAS SHAH VS. ACIT 2 IT(SS)A NO 75/AHD/2017 ASSESSMENT YEAR 2009 - 10 2. THERE WAS A SEARCH ACTION U/S. 132 OF THE ACT CONDUCTED IN THE CASE OF VIKAS A. SHAH FATHER OF THE ASSESSEE. DURING THE COURSE OF SE ARCH OF LOCKER NO. D - 644 WITH NUTAN NAGRIK S AHKARI BANK LTD. HELD JOINTLY BY THE ASSESSEE AND HER MOTHER CHHAYA CASH AND JEWELRY W ERE FOUND AS PER ANNEXURE CF DATED 4 TH FEB, 2013 ANNEXED TO PANCHNAMA DATED 4 TH FEB, 2013. 3. THE ISSUE IN THE APPEAL OF THE ASSESSEE WAS RELA TED TO ADDITION OF RS. 1 , 59 , 6 65/ - FOR DIAMOND/PERL FOUND TO BE PURCHASED VIDE BILL DATED 25 TH NOV , 2008 ADDED BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED U/S. 69B OF THE ACT. IN THE APPEAL, THE LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT ASSESSEE HAS NOT EXPLAINED THE SOURCE OF FUND AVAILABLE FOR MAKING INVESTMENT IN THE AFORESAID DIAMOND/PERL FOUND DURING THE C OUR S E OF SEARCH ON THE BASIS OF AFORESAID PURCHASED BILL . DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COURSE HAS CONTENDED THAT ASSESSING OFFICER HAS NOT CONSIDER THE CBDT INSTRUCTION NO. 1916 DATED 11 MAY, 1994 WHILE ADDING THE S A ME AS UNACCOUNTED INVESTMENT IN THE INCOME OF THE ASSESSEE. ON THE OT HER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LD. CIT(A). 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. IT IS NOTICED THAT ASSESSING OFFICER DULY GRANTED THE BENEFIT AS ENVISAGED UNDER CBDT CIRCULA R NO. 19 1 6 DATED 11 TH MAY, 1994 IN RESPECT OF GOLD JEWELRY AND ORNAMENTS FOUND AND SEIZED DURING THE COURSE OF SEARCH. HOWEVER, THE IMPUGNED ADDITION WAS MADE IN RESPECT OF DIAMOND/ PERL PURCHA SE D AS REFLECTED IN THE PURCHASE BILL IN THE NAME OF THE ASSESS EE DATED 25 - 11 - 2008 WHICH IS NOT COVERED BY THE AFORESAID INSTRUCTION, THEREFORE, AFTER CONSIDERING THE DETAILED FINDING OF THE LD. CIT(A) THAT THE SOURCE OF INVESTMENT AS PER PURCHASE BILL DATED 25 - 11 - 2008 WAS REMAINED UN - EXPLAINED IN SPITE OF GIVING OPP ORTUNITIES TO THE ASSESSEE, WE DO NOT FIND ANY ERROR IN THE DECISION OF LD. CIT(A). ACCORDINGLY T HIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. I.T. (SS) A NO. 75 TO 82 /AHD/20 17 PAGE NO MANSI VIKAS SHAH & CHHAYA VIKAS SHAH VS. ACIT 3 IT(SS)A NOS. 76 TO 78 & 80 TO 82/AHD/2017 5. GROUND NOS. 1 - 2 OF IT(SS)A 76/AHD/2017 AND GROUND NO S . 1, 2 & 3 OF IT(SS)A NO. 77 /AHD/2017 AN D GROUND NO S . 1 & 2 OF 78/AHD/2017, GROUND NO. 1 OF IT(SS)A NO. 80/AHD/2017 AND GROUND NO S. 1 TO 3 OF IT(SS)A NO. 81 /AHD/2017 AND GROUND NOS. 1 TO 2 OF IT(SS)A NO. 82/AHD/2017 BASED ON IDENTICAL ISSUE AND IDENTICAL FACTS, THEREFORE, FOR THE SAKE OF CONVENIENCE ALL THESE GROUNDS ARE ADJUDICATED TOGETHER BY TAKING IT(SS)A 76/AHD/2017 AS THE LEAD CASE AND ITS FINDING WILL BE APPLICABLE TO THE OTHER GROUNDS OF DIFFERENT APPEALS . 6. DURING THE COURSE OF SEARCH, THE DOCUMENTS WERE SEIZED AND INVENTORIED AS PER ANNEXURE - A AND AA . A S PER PAG E 28 OF ANNEXURE AA /2, THE ASSESSING OFFICER HAS STATED THAT ASSESSEE HAS MADE INVESTMENT OF RS. 7 LACS I N FINANCIAL YEAR 2010 - 11 RELEVANT TO ASSESSMENT YEAR 2011 - 12. DURING THE COURSE O F AS SESSMENT , THE ASSESSEE WAS CALLED UPON TO EXPLAIN THE SOURCE OF INVESTMENT IN THE SHARE ALONG W ITH SUPPORTING EVIDENCES. THE ASSESSING OFFICER HAS STATED THAT BE FORE ISSUING CHEQUE OF RS. 7 LACS ASSESSEE HAS DEPOSITED A CASH OF RS. 6, 90,000/ - ON 19 TH APR IL, 2010 IN HIS BANK ACCOUNT AND THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE SOURCE OF DEPOSIT IN THE SAVING ACCOUNT WITH SUPPORTING EVIDENCES. THEREFORE, THE AMOUNT OF RS. 7 LACS WAS ADDED TO THE TOTAL INCOME OF THE A SSESSEE U/S. 69 OF THE ACT. REGARDIN G SECOND GROUND OF APPEAL A N ADDITION ON ACCOUNT OF UNEXPLA INED CASH DEPOSIT OF RS. 41,000/ - IN ICICI BANK ACCOUNT , THE ASSESSING OFFICER HAS STATED THAT ON VERIFICATION OF ASSESSEE S BANK ACCOUNT WITH ICICI BANK IT WAS FOUND THAT ASSESSEE HAS MADE CASH DEPOSIT OF RS. 41,000/ - DURING F.Y. 2010 - 11. HOWEVER, THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSIT WITH SUPPORTING EVIDENCES. THEREFORE , THE SAID CASH DEPOSIT WAS TREATED AS UNEXPLAINED AND ADDED TO THE T OTAL INCOME OF THE ASSESSEE. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) HAS REJECTED THE APPEAL OF THE ASSESSEE AND SUSTAINED THE ADDITION OF RS. 7 LACS AND RS. 41,000/ - AS UNEXPLAINED INVESTMENT ON THE GROUND THAT ASSESSEE HAS FAILED TO SUBSTANTIATE THE SOURCE OF INVESTMENT WITH SUPPO RTING EVIDENCES. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS SUBMITTED PAPER BOOK CONTAINING DETAIL OF INFORMATION I.T. (SS) A NO. 75 TO 82 /AHD/20 17 PAGE NO MANSI VIKAS SHAH & CHHAYA VIKAS SHAH VS. ACIT 4 SUBMITTED BEFORE ASSESSING OFFICER AND BEFORE LD. CIT(A) DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND APPEL LATE PROCEEDINGS. THE LD. COUNSEL HAS ALSO CONTENDED THAT LD. CIT(A) HAS NOT CONSIDERED THE ADDITIONAL EVIDENCES FILED DURING THE COURSE OF APPELLATE PROCEEDINGS AND, THEREFORE, THE DECISION OF LD. CIT(A) IS NOT JUSTIFIED. VIDE LETTER DATED 31 ST OCTOBER, 2018 THE ASSESSEE HAS SUBMITTED THAT CERTAIN EVIDENCES FOR ASSESSMENT YEAR 2011 - 12 TO 2013 - 14 IN THE FORM OF CASH BOOK, GIFT, INCOME ACCOUNT ETC. FOR THE RELEVANT PERIOD WERE FURNISHED BEFORE T H E LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS. HOW EVER, NECESSARY PRAYER FOR ADMISSION OF SUCH ADDITIONAL EVIDENCES UNDER RULE 46A OF THE INCOME TAX ACT, 1962 COULD NOT BE MADE AS THE AUTHORIZED REPRESENTATIVE OF T HE AS S ESEEE WAS NOT CLEAR ABOUT WHETHER THESE EVIDE NCES WERE FILED BEFORE THE ASSESSING OFFI CER OR NOT. IT WAS ALSO CONTENDED BY THE ASSESSEE THAT THESE EVIDENCES PERTAIN TO THE ROOT ISSUE INVOLVED IN THE APPEAL. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LD. CIT(A). 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. IT IS UNDISPUTED FACT THAT THE ADDITIONAL EVIDENCES AS SUPRA MENTIONED IN THIS ORDER WERE NOT EXAMINED/VERIFIED BY THE LD. CIT(A) ON THE GROUND THAT NECESSARY PRAYER UNDER RULE 46A WAS NOT MADE. AFTER CONSIDERIN G THE SUBMISSION OF THE ASSESSEE THAT CERTAIN EVIDENCES IN THE FORM OF CASH, GIFT INCOME ACCOUNT ETC. AS ST A TED ABOVE WERE SUBMITTED BUT FORM AL PRAYER UNDER RULE 46A COULD NOT BE MADE INADVERTENTLY AS THE AUTHORIZED REPRESENTATIVE OF THE ASSESEE WAS NOT SU RE ABOUT THE SUBMISSION OF THOSE DOCUMENTS BEFORE THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. AFTER CONSIDERING THE ABOVE FACTS, WE OBSERVE THAT THERE APPEAR TO BE A BONA FIDE REASON FOR NOT MAKING FOR M AL PRAYER UNDER RULE 46A , THEREFORE, IN THE INTEREST O F JUSTICE, WE ARE OF THE VIEW THAT IT WILL BE APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR RE - ADJUDICATION OF T HIS MATTER AFRESH AFTER VERIFICATION AND EXAMINATION OF THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSE E. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE MATTER AFRESH AS DIRECTED ABOVE AFTER AFFORDING ADEQUATE OPPORTUNIT IES TO THE ASSESSEE. THEREFORE THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. I.T. (SS) A NO. 75 TO 82 /AHD/20 17 PAGE NO MANSI VIKAS SHAH & CHHAYA VIKAS SHAH VS. ACIT 5 8. IT(SS)A NO. 77 /AHD/201 7 GROUND NO. 4, GROUND NO. 3 OF IT(SS)A 78 /AHD/2017 , GROUND NO S . 4 & 5 OF IT(SS)A 81/AHD /2017 , GROUND NO . 3, 4, & 5 OF IT(SS)A NO. 82/AHD/2017 THE IDENTICAL FACTS AND ISSUE ARE INVOLVED IN THE SE GROUNDS OF APPEAL, THEREFORE, FOR THE SAKE OF CONVENIENCE THE SE GROUNDS OF APPEALS ARE ADJUDICATED BY TAKING THE FACTS OF IT(SS)A 81/AHD / 17 AS LEAD CASE. 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON VERIFICATION OF STATEMENT OF INCOME FILED BY THE ASSESSEE , THE ASSESSING OFFICER HAS STATED THAT ASS ESSEE HAS C LAIMED DEDUCTION OF R S. 3820 U/S. 80C OF THE ACT. DURING THE COURSE OF ASSESSMENT, THE ASSESSEE WAS ASKED TO PRODUCE THE EVIDENCE IN SUPPORT OF CLAIM OF DEDUCTION U/S. 80C. HOWEVER, THE ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDENCE, THEREFORE , THE A SSESSING OFFICER HAS DISALLOWED THE CLAIM OF DEDUCTION OF RS. 3820 U/S. 80C OF THE ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS , THE ASSESSING OFFICER HAS ALSO NOTICED THAT ASSESSEE HAS SHOWN DIVIDEND INCOME FROM VARIOUS COMPANIES AGGREGATING TO RS. 68 54/ - . D URING T HE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO FURNISH THE DETAIL OF ALL DEMAT ACCOUNT/SHAREHOLDING STATEMENT TO SUBSTANTIATE THE EARNING OF DIVIDEND INCOME AS CLAIMED EXEMPT IN THE STATEMENT. HOWEVER, THE ASSESSING OFFICER HAS NOT SUBMITTED THE INFORMATION, THEREFORE, THE CLAIM OF EXEMPT INCOME WAS REJECTED AND THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS SUSTAINED BOTH T HE ADDITIONS OF RS. 38 20/ - + RS. 6858/ - IN RESPECT OF DEDUCTION U/S. 80C AND EXEMPT INCOME RESPECTIVELY ON THE GROUND THAT ASSESSEE HAS NOT SUBSTANTIATED THE RESPECTIVE CLAIMS. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. C OUNSEL HAS SUB MITTED THAT CLAIM OF DEDUCTION 80C OF THE ACT IS PERTAINED TO THE PAYMENT OF LIC PREMIUM AND DIVIDEND RECEIPT PERTAINED TO EARNING OF DIVIDEND INCOME FROM VARIOUS COMPANIES IN WHICH THE ASSESSEE HAS MADE INVESTMENT. HE HAS CONTENDED THAT ASSESSING OFFIC ER HAS NOT VERIFIED THE SAME FROM THE DIVIDEND RECEIPT , LIC RECEIPT AND FROM THE BANK STATEMENT OF THE ASSESSEE. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LD. CIT(A). AFTER CONSIDERING THE FACT THAT ASSESSEE HAS BEEN P AYING LIC PREMIUM YEAR AFTER YEAR AND DIVIDEND INCOME HAS ALSO BEEN REPORTED IN THE BANK STATEMENT, WE ARE OF THE OPINION THAT IN THE INTEREST OF I.T. (SS) A NO. 75 TO 82 /AHD/20 17 PAGE NO MANSI VIKAS SHAH & CHHAYA VIKAS SHAH VS. ACIT 6 JUSTICE, IT WILL BE APPROPRIATE TO RESTORE THIS ISSUE ALSO TO THE FILE OF ASSESSING OFFICER TO RE - ADJUDICATE I T AFTER EXAMINATION AND VERIFICATION OF THE RELEVANT EVIDENCES TO BE PRODUCED BY THE ASSESSEE IN THE SET ASIDE PROCEEDINGS. THEREFORE, THIS MATTER IS RESTORED TO THE ASSESSING OFFICER FOR DECIDING AFRESH AS DIRECTED ABOVE AFTER PROVIDING PROP ER OPPORTUNIT Y TO THE ASSESSEE. IT(SS)A NO. 79/AHD/2017 10. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS SUBMITTED THAT THESE GROUNDS OF APPEAL ARE NOT PRESSED, THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED. 11. IN THE RESULT, IT(SS )A NOS. 75 & 79 /AHD/2017 ARE DISMISSED AND IT(SS)A NOS. 76 TO 78/AHD/2017 AND IT(SS)A 80, 81 & 82/AHD/2017 ARE ALLOWED FOR STATISTICAL PURPOSES ORDER PR ONOUNCED IN THE OPEN C OURT ON 10 - 12 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AM ARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 10 /12 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,
