Shri Rakesh S.Kapadia, Bharuch V. The Income tax Officer,Ward-2(4), Surat

MA 179/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0018 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 6 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 14-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: NIRAJ A SURTI
• Keywords: Unexplained cash credit
• Section: 254(2); 13; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA NO.179/AHD/2017 [ARISING OUT OF ITA NO.1570/AHD/2011] ASSESSMENT YEAR: (2007-08) (VIRTUAL COURT HEARING) RAKESH S. KAPADIA, C/O. NIRAJ A. SURTI & ASSOCIATES, CHARTERED ACCOUNTANTS, 204, SHREE MANGALAM COMPLEX, ABOVE IDBI BANK, KASAK CIRCLE, BHARUCH- 392001. VS. INCOME TAX OFFICER, WARD-2(4), SURAT. ./ ./ PAN/GIR NO.: AAUPK4420G (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI NIRAJ A. SURTI - AR REVENUE BY : MS ANUPAMA SINGLA - SR. DR / DATE OF HEARING : 11/12/2020 /DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY WAY OF THE CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 07/12/2016. 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT THE ASSESSEE IN GROUND NO. 5 HAS RAISED GRIEVANCE STATING THAT LD. CIT(APPEALS) HAS ERRED IN LAW AND IN FACTS IN IGNORING THE DOCUMENTARY EVIDENCE AND THEREBY, SUSTAINING AN ADDITION OF RS.1,55,575/-. BEFORE THE TRIBUNAL, THE ASSESSEE HAS SUBMITTED CONFIRMATIONS, HOWEVER, THE TRIBUNAL HAS NOT CONSIDERED THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CASE OF CIT V. ORISSA CORPORATION PVT. LTD. 159 ITR 78 TO DELETE THE ADDITION OF RS.1,55,575/-. PAGE | 2 MA NO.179/AHD/201 7 ASSESSMENT YEAR.2007-08 RAKESH S KAPADIA 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS BEFORE US THAT DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSING OFFICER NOTICED THAT ASSESSES HAS RECEIVED CASH LOANS FROM EIGHT DIFFERENT PERSONS BUT AMOUNTS WERE AROUND RS.19,000/- EACH. NO PAN NUMBERS WERE GIVEN BUT CONFIRMATIONS WERE DULY FURNISHED. EVIDENCES IN SUPPORT OF GENUINENESS AND MEANS OF THESE DEPOSITORS WERE NOT FURNISHED. ON THESE FACTS, HE ASSESSING OFFICER ADDED THE AGGREGATE OF THESE DEPOSITS I.E. RS.1,55,575/- AS UNEXPLAINED CREDITS UNDER SECTION 68. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A) BUT WITHOUT ANY SUCCESS. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. BEFORE THE TRIBUNAL ASSESSEE FILED CONFIRMATIONS, THAT IS, OUT OF 8 CASES OF DEPOSITS, 7 SIGNED CONFIRMATION OF THE DEPOSITORS ALONG WITH COMPLETE NAME AND ADDRESS HAVE BEEN FILED. ALSO, IN FOLLOWING 4 OUT OF 8 CASES, INCOME TAX PERMANENT ACCOUNT NUMBERS (PAN) HAVE ALSO BEEN MENTIONED IN THE SIGNED CONFIRMATION STATEMENTS: 1. DIVYANG GIRISHCHABDRA MUSAWALA (PAN: ANRPM7266R) 2. KRUNAL GIRISHCHABDRA MUSAWALA (PAN: APSPM8468B) 3. ASHWIN V. JARIWALA (PAN: AAQPJ7425G) 4. VIPUL GATTUAL SHAH (PAN: AYXPS2219J) THE ASSESSEE HAD RELIED HEAVILY ON THE RATIO OF HON'BLE SUPREME COURT JUDGEMENT IN CASE OF CIT V. ORISSA CORPORATION PVT. LTD. 159 ITR 78 WHEREIN IT WAS HELD THAT IF THE PAN OF A DEPOSITOR IS FURNISHED BY AN ASSESSEE, IT IS UPTO THE AO TO MAKE FURTHER INQUIRIES. IN ABSENCE OF ANY INQUIRY BY AO, HE CANNOT MAKE AN ADDITION U/S 68 ON AN ARBITRARY BASIS. THEREFORE, LD COUNSEL POINTED OUT THAT THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN CASE OF CIT V. ORISSA CORPORATION PVT. LTD(SUPRA) HAS NOT BEEN FOLLOWED BY THE TRIBUNAL HENCE THERE IS MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL, WHICH MAY BE RECTIFIED. PAGE | 3 MA NO.179/AHD/201 7 ASSESSMENT YEAR.2007-08 RAKESH S KAPADIA 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SUBMITTED THAT TRIBUNAL HAS CONSIDERED THE ENTIRE FACTS OF THE ASSESSEE`S CASE. THE ASSESSEE HAS NOT SUBMITTED INCOME TAX PERMANENT ACCOUNT NUMBERS (PAN) OF 4 DEPOSITORS THEREFORE, THE JUDGEMENT OF THE HON`BLE SUPREME COURT IN THE CASE OF ORISSA CORPORATION PVT. LTD. (SUPRA) DOES NOT APPLY TO ASSESSEE. THEREFORE, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE SUBMISSIONS PUT FORTH ON BEHALF OF THE ASSESSEE. WE NOTE THAT TRIBUNAL IN ITS ORDER DATED 09.12.2016 VIDE PARA NO. 15, HAS CONSIDERED THE FACTS OF THE ASSESSEE AND REACHED ON THE CONCLUSION AS FOLLOWS: 15. WE FIND THAT THERE IS NOTHING ON RECORD TO SHOW GENUINENESS OF THESE TRANSACTIONS OR MEANS OF THESE PERSONS. ALL THE TRANSACTIONS ARE IN CASH AND OF SOMEWHAT SIMILAR AMOUNT WHICH IS FIRST WITHIN THE LIMIT OF PERMISSIBLE CASH TRANSACTIONS. THESE FACTORS, TAKEN TOGETHER, INSPIRE LITTLE CREDENCE TO THE EXPLANATION OF THE ASSESSEE. WE, THEREFORE, CONFIRM THE ACTION OF THE AUTHORITIES BELOW AND DECLINE TO INTERFERE IN THE MATTER. HAVING GONE THROUGH THE ABOVE FINDINGS (RATIO) OF THE TRIBUNAL, WE NOTICED THAT TRIBUNAL HAS CONSIDERED ALL FACTS OF THE ASSESSEE`S CASE. NO PAN NUMBERS WERE SUBMITTED BEFORE THE ASSESSING OFFICER (VIDE PARA 13 OF TRIBUNAL ORDER). THE TRIBUNAL NOTED THAT NOTHING ON RECORD TO SHOW GENUINENESS OF THESE TRANSACTIONS OR MEANS OF THESE PERSONS. ALL THE TRANSACTIONS WERE IN CASH AND OF SOMEWHAT SIMILAR AMOUNT WHICH IS FIRST WITHIN THE LIMIT OF PERMISSIBLE CASH TRANSACTIONS. THESE FACTORS, TAKEN TOGETHER, INSPIRE LITTLE CREDENCE TO THE EXPLANATION OF THE ASSESSEE. THEREFORE, WE NOTE THAT TRIBUNAL HAS CONSIDERED THE FACTUAL POSITION OF THE ASSESSEE`S CASE, HENCE THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. THEREFORE, WE DISMISS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION (IN MA NO. 179/AHD/2017 FOR AY.2007-08) FILED BY THE ASSESSEE IS DISMISSED. PAGE | 4 MA NO.179/AHD/201 7 ASSESSMENT YEAR.2007-08 RAKESH S KAPADIA ORDER IS PRONOUNCED ON 21/12/2020, AS PER RULE 34 OF INCOME TAX APPELLATE TRIBUNAL, RULE 1963. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE: 21/12/2020 SAMANTA, PS COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT