The ACIT, Central Circle-1(1), Ahmedabad V. Shri Dipakkumar A.Thakkar, Ahmedabad

ITSSA 835/AHD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8146 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 27-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Keywords: Additional evidence
• Section: 32; 132; 68

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH BAHMEDABAD BEFORE S/SHRI G. D. AGRAWAL, V.P. AND D. K. TYAGI, J.M. IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 ASSTT. CIT, CEN.CIR 1(1), AHMEDABAD. V/S . SHRI DIPAKKUMAR A. THAKKAR, 17, DEV APARTMENTS, B/H HAREKRISHNA COMPLEX, PRITAM NAGAR, AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI ALOK JOHRI, CIT, DR RESPONDENT BY:- NONE DATE OF HEARING : 2/9/2011 DATE OF PRONOUNCEMENT: 9/9/2011. O R D E R PER D. K. TYAGI, JUDICIAL MEMBER. THE APPEAL HAS BEEN FILED BY THE REVENUE AND THE C ROSS OBJECTION BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) DAT ED 18.10.20. 2. THE REVENUE HAS RAISED FOLLOWING GROUND IN ITS APPEAL :- (1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING TO DELETE THE ADDITION OF RS.23,71,369/- MADE U/S 68 O F THE ACT, AFTER VERIFICATION OF FRESH EVIDENCES. IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 2 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND IN HIS CROSS OBJECTION :- (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN NOT UPHOLDING THE ASSESSEES CHALLENGE THA T THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER UNDER SE CTION 153A(B) OF THE INCOME-TAX ACT, 1961 WAS BAD IN LAW AND IT IS THEREFORE, REQUIRED TO BE CANCELLED. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING DESPITE THE FACT THAT NOTICE WAS SERVED UPON HIM. T HEREFORE, WE PROCEEDED TO DECIDE THIS APPEAL AND THE CROSS OBJEC TION AFTER HEARING THE LD. DR AND PERUSING THE RECORD. 5. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS E NGAGED IN THE BUSINESS OF CONSTRUCTION AND DURING THE CURRENT YEA R HE HAS TWO PROPRIETARY CONSTRUCTION CONCERNS VIZ. DEVKUNJ BUIL DERS AND DEV SWAMI BUILDERS. THE ASSESSEE HAD FILED HIS ORIGINAL RETUR N OF INCOME ON 29/9/2003 VIDE ACK. NO.24302327 WITH ITO WARD 9(2) DECLARING TOTAL INCOME OF RS.1,70,170/-. ON 9/2/2005 A SEARCH U/S 1 32 OF THE ACT WAS CONDUCTED AT THE RESIDENTIAL AS WELL AS BUSINESS PR EMISES OF THE ASSESSEE. IN SEARCH CASH OF RS.71,565/- AND JEWELLERY WORTH R S.2,69,800/- WAS FOUND OUT OF WHICH CASH OF RS.50,000/- WAS SEIZED. CONSEQUENT UPON THE SEARCH PROCEEDINGS UNDER CHAPTER XIV WERE INITIATED AND NOTICE U/S 153A(A) WAS ISSUED ON 14/7/2005 REQUIRING THE ASSES SEE TO FILE THE RETURN OF INCOME U/S 153A. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED THE RETURN ON 2/6/2006 AGAIN DECLARING TOTAL INCOME OF RS.1,10,170/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO OBSERVE D THAT ASSESSEE HAS ACCEPTED TOTAL CASH CREDITS OF RS.23,71,369/- FROM DIFFERENT PARTIES IN DIFFERENT PROPRIETARY CONCERNS. THE AO ASKED THE AS SESSEE TO PROVIDE NAMES, ADDRESSES, COPIES OF ACCOUNTS, CONTRA-ACCOUN TS, PA NOS. OF THE CREDITORS IN RESPECT OF THE CASH CREDITS AND ALSO I N RESPECT OF THE IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 3 DEPOSITORS WHOSE ACCOUNTS WERE SQUARED UP. THE ASSE SSEE MADE PART COMPLIANCE. ACCORDING TO THE AO ASSESSEE HAD GIVEN COPIES OF ACCOUNT OF THE RESPECTIVE PARTY BUT DID NOT FILE OTHER DETAILS . THE AO FURTHER STATED THAT THE ASSESSEE HAS TO PROVE THE CASH CREDITS BY GIVING THE IDENTITY OF THE DEPOSITORS, GENUINENESS OF THE TRANSACTIONS AND CRE DITWORTHINESS OF THE DEPOSITORS. REFERRING TO VARIOUS CASE LAWS HE OBSER VED THAT THE ONUS IS ON THE ASSESSEE TO PROVE THE CASH CREDITS. SINCE THE A SSESSEE HAS FAILED TO DISCHARGE THE ONUS LYING UPON HIM TO PROVE THE CRED ITWORTHINESS AND CAPACITY OF THE DEPOSITORS, THE AO MADE THE ADDITIO N OF RS.23,71,369/-. 5. BEFORE LD. CIT(A) THE ASSESSEES CONTENTION WAS AS UNDER :- IN THE BACK GROUND OF THE ABOVE POSITION, THE APPE LLANT NOW BEGS TO SUBMIT THE FOLLOWING DETAILS WHICH WERE ALREADY SUBMITTED ALON G WITH THE SUBMISSIONS DATED 12.4.2007 FILED WITH CIT(A)-I, AHMEDABAD. I) THE APPELLANT IS ENGAGED IN THE BUSINESS OF DEVE LOPMENT OF SCHEME AND CONSTRUCTION OF PROPERTIES. IN THE PROPRIETARY CONC ERN VIZ. DEVKUNJ BUILDERS FOR UNDERTAKING CONSTRUCTION WORK, THE APPELLANT HA D ENTERED INTO AGREEMENTS WITH DIFFERENT PARTIES AND FOR SUCH WORK BOOKING RE CEIPTS WERE RECEIVED. THE BOOKING DEPOSITS SO RECEIVED ARE AS UNDER WHICH ARE SUPPORTED BY THE DOCUMENTS REFERRED TO AGAINST SUCH DETAILS: NAME OF PERSON AMOUNT REMARKS SANJAY N.SHAH, B,NO. 01 DEVKUNJ NR. MAHALAXMI CROSS ROAD, PALDI, ALIMEDABAD. 51,000 AMOUNT RECEIVED BY CHEQUE AND DEPOSITED IN APPELLANTS ACCOUNT NO.971 WITH MAHILA VIKAS CO-OP. BANK. THE AMOUNT WAS RECEIVED AS PER AGREEMENT WITH THE SAID PARTY WHICH WAS ENTERED INTO IN 10-1-2004 BEFORE THE NOTARY PUBLIC. A COPY OF THE AGREEMENT IS ENCLOSED. THE FINA DOCUMENT WAS REGISTERED ON 3-3-2004, COPY OF INDEX IS ATTACHED. COPY OF ACCOUNT PARTY FROM THE BOOKS 0 PROPRIETARY CONCERN DEVKUNJ BUILDERS ATTACHED SANJAY N.SHAH, B,NO. 01 DEVKUNJ NR. MAHALAXMI CROSS ROAD, PALDI, ALIMEDABAD. 2,50,000 THE AMOUNT WAS RECEIVED BY CHEQUE DRAWN ON BANK OF INDIA, PALDI BRANCH. THE AMOUNT WAS RECEIVED AS PER AGREEMENT WITH THE SAID PARTY WHICH WAS ENTERED INTO ON 10-1- 2004 BEFORE THE NOTARY PUBLIC. IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 4 A COPY OF THE AGREEMENT IS ENCLOSED. THE FINAL DOCUMENT WAS REGISTERED ON 3-3-2004. COPY OF INDEX IS ATTACHED. COPY OF ACCOUNT OF PARTY ENCLOSED. DAMAYANTI F SONI . B.NO. 08 DEVKUNJ , NR.MAHALAXMI CROSS ROAD,PALDI, AHMEDABAD 5,00,000 1,00,000 1,00,000 1,00,000 I;00,000 50,000 50,000 THE AMOUNT %VAS RECEIVED BY DIFFERENT CHEQUE DRAWN ON MANEK CHOWK CO-OP, BANK AND INDIAN BANK AS PER FOLLOWING DETAILS ON 17-2-2005 BY CHEUQE NO,728354 ON MANEKCHOWK CO-OP. BANK. ON 19-2-2003 BY CHEQUE NO.328355 ON MANEKCHOWK CO-OP BANK. ON 1-3-2003 BY CHEQUE: NO.328360 ON MANEKCHOWK CO-OP. BANK. ON 1-3-2003 BY CHEQUE NO.607275 ON INDIAN BANK, PALDI. . ON 5-3-2003 BY CHEQUE NO.32S361 ON MANEKCHOWK CO-OP. BANK ON 5-3-2003 BY CHEUE NO.607274 ON INDIAN BANK, PALDI. THE ABOVE AMOUNT WAS RECEIVED AS PER AGREEMENT FOR CONSTRUCTION WHICH WAS DULY SIGNED BEFORE THE PUBLIC NOTARY ON 9-4-2003 (COPY ENCLOSED). COPY OF ACCOUNT OF PARTY IS ENCLOSED. SANJAY N.SHAH, B,NO. 01 DEVKUNJ NR. MAHALAXMI CROSS ROAD, PALDI, ALIMEDABAD 15,00,000 RECEIVED BY CHEQUE DRAWN ON DCNA BANK ELLISBRIDGC, AS PER AGREEMENT FOR CONSTRUCTION WITH THEM, A COPY OF WHICH IS ENCLOSED. THIS AGREEMENT WAS SIGNED BEFORE THE PUBLIC NOTARY ON 6-9-2003, COPY OF ACCOUNT ENCLOSED. MOHANLAL NATHAJI 50,000 S. S. THAKKAR 5 TH FLOOR, KARMA SHRESHT TOWER, SAMAL CROSS ROAD, SATELLITE, ABAD. 20,369 THE AMOUNT WAS RECEIVED BY CHEQUE. THE DEPOSITOR IS ASSESSED WITH PAN AIVPP 8236D. COPY OF THEIR A/C DULY CONFIRMED IS FURNISHED ALONG WITH EARLIER SUBMISSIONS. HAVING REGARD TO THE ABOVE POSITION, ON FACTS THE A DDITION MADE BY THE AO IS UNJUSTIFIED AND DESERVES TO BE DELETED. THE ABOVE E VIDENCES MAY PLEASE BE TAKEN INTO CONSIDERATION AND THE ADDITION BE DELETED. ON THIS SUBMISSION OF ASSESSEE THE LD. CIT(A) CALLE D FOR REMAND REPORT FROM THE AO. IN HIS REMAND REPORT THE AO OBJECTED T O FURNISHING OF FRESH DETAILS BEFORE LD. CIT(A). HOWEVER, THE LD. CIT(A) FOLLOWING THE RATIO OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF PRABHAVATI S. SHAH 231 ITR 1 ADMITTED THE EVIDENCE SUBMITTED BY T HE ASSESSEE IN IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 5 RESPECT OF CASH CREDITS AND AFTER TAKING INTO CONSI DERATION THE SUBMISSIONS AND ADDITIONAL EVIDENCES OF THE ASSESSEE, DIRECTED THE AO TO VERIFY THE FACTS AND PASS A SPEAKING ORDER BY OBSERVING AS UND ER :- 3.5 I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE ABOVE SUBMISSIONS, IT IS NOTICED THAT THE REASON FOR MAKING THE ADDITION ON ACCOUNT OF CASH CREDIT IS THAT THE APPELLANT HAD NOT FURNISHED CONTRA ACCOUNT OF THE P ARTIES OR THEIR P.A. NOS. THE APPELLANT HAS STATED THAT IT IS IN THE BUSINESS OF DEVELOPMENT OF PROJECTS AND IN THIS LINE OF BUSINESS THEY HAVE RECEIVED BOOKING DEPOSIT S FOR WHICH THE DOCUMENTS ARE ALSO FURNISHED. IT IS ALSO NOTICED THAT ALL THE AMOUNTS ARE RECEIVED BY BANKING CHANNELS EXCEPT IN THE CASE OF MOHANLAL NATHAJI FROM WHOM AM OUNT OF RS.50,000/- WAS RECEIVED. THE APPELLANT HAS ALSO FURNISHED COPIES O F AGREEMENT FOR CONSTRUCTION WITH THE RESPECTIVE PERSONS. CONSIDERING ALL THESE EVIDE NCES, THE AO IS DIRECTED THAT WHILE GIVING EFFECT TO THE INSTANT APPELLATE ORDER, RE-VE RIFY ALL THESE CREDITS. IN CASE, PARTIES ARE IDENTIFIABLE AND CREDITS ARE RECEIVED AGAINST S ALE OF THE PROPERTY, THEN NO SUCH ADDITIONS U/S 68 OF THE I.T. ACT COULD BE MADE IN T HE CASE OF APPELLANT. THE AO IS DIRECTED TO VERIFY THESE FACTS AND PASS A SPEAKING ORDER IN THIS POINT. BEING AGGRIEVED WITH THIS ORDER OF LD. CIT(A) THE R EVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING THE LD. DR VEHEMENTLY SUP PORTED THE ORDER OF A.O. AND FURTHER SUBMITTED THAT SINCE NO DETAILS OF CONFIRMATION OF ACCOUNTS, ADDRESSES, P.A. NOS. ETC. WERE FILED BEFO RE THE AO, THE LD. CIT(A) WAS NOT JUSTIFIED IN ACCEPTING THE ADDITIONA L EVIDENCE FILED BY THE ASSESSEE BEFORE HIM AND, THEREFORE, PRAYED THAT THE ORDER PASSED BY THE LD. CIT(A) BE SET ASIDE AND THAT OF THE AO BE RESTORED. 7. AFTER HEARING THE LD. DR AND PERUSING THE RECORD , WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) AS THOUGH HE H AS ADMITTED FRESH EVIDENCES FURNISHED BY ASSESSEE BEFORE HIM IN RESPE CT OF CASH CREDITS BUT HAS NOT GIVEN ANY RELIEF TO THE ASSESSEE. HE HAS SI MPLY RESTORED THE MATTER BACK TO THE FILE OF AO TO VERIFY THE FRESH EVIDENCE S AND THEN PASS A SPEAKING ORDER ON THE ISSUE. THEREFORE THE ORDER PA SSED BY HIM IS HEREBY UPHELD. THE APPEAL OF THE REVENUE IS DISMISSED. IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 6 8. NOW COMING TO THE CROSS OBJECTION OF THE ASSESSE E, WE FIND THAT THE ASSESSEE HAS CHOSEN NOT TO APPEAR BEFORE US, DE SPITE THE FACT THAT NOTICE WAS SERVED UPON HIM. IT APPEARS THAT HE IS NOT INTERESTED IN PURSUING THE CROSS OBJECTION, THEREFORE, THE SAME I S HEREBY DISMISSED FOR WANT OF PROSECUTION. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A ND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 9/9/2011. SD/- SD/- (G. D. AGRAWAL) (D. K. TYAGI) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD, DATED : 9/9/2011. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD IT(SS)A NO.835/AHD/2010 ALONG WITH C.O. NO.26/AHD/2011 ASST. YEAR 2003-04 7 1.DATE OF DICTATION 2/9/11. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 6/9/11. /OTHER MEMBER . 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..