Shri Ganpatlal Manroopji Soni, Ahmedabad V. The Income Tax Officer, Ward-6(1)(4), Ahmedabad

MA 344/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1478 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 04-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT JAIN
• Keywords: Corroborative evidences
• Section: 143(3); 254(2); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (VIRTUAL COURT) BEFORE: SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEM BER GANPATLAL MANROOPJI SONI, 203, SAGAR APARTMENTS, B/H GHANSIRAM CHOUDHARI BHUVAN, SHAHIBAUG, AHMEDABAD PAN: AFSPS6696D (APPELLANT) VS THE ITO, WARD:6(1)(4), ROOM NO. 108, 1 ST FLOOR, NARAYAN CHAMBER, ASHRAM ROAD, AHMEDABAD-380006 (RESPONDENT) REVENUE BY: SHRI LALIT JAIN, SR. D.R. ASSESSEE BY: SHRI DHAVAL SHAH, A.R. DATE OF HEARING : 16-10-2020 DATE OF PRONOUNCEMENT : 09-12-202 0 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THE ASSESSEE HAS FILED THE INSTANT MISCELLANEOUS AP PLICATION IN RESPECT OF ITAT ORDER VIDE ITA NO. 547/AHD/2017 DAT ED 29 TH JULY, 2019. 2. BRIEFLY STATING THAT THE PRIMARY BASIS OF CONFIR MING THE ADDITION THAT THE PARTY HAS NOT APPEARED IS CONTRARY TO THE FACTS AND EVIDENCES WHICH WERE ALREADY AVAILABLE ON RECORD, THE PART OF THE MISCEL LANEOUS APPLICATION FILED BY THE ASSESSEE IS AS UNDER:- M.A. NO. 344/AHD/2019 (IN ITA NO. 547/AHD/2017) ASSESSMENT YEAR 2012-13 M.A. NO. 344/AHD/2019 (I.T.A NO. 547/AHD/2017) A.Y . 2012-13 PAGE NO GANPATLAL MANROOPJI SONI VS. ITO 2 3. ON PERUSAL OF THE ABOVE, IT CAN BE SEEN THAT TH E ADDITION OF UNSECURED LOAN HAS BEEN CONFIRMED BY HON'BLE TRIBUNAL PRIMARILY ON THE GROU ND THAT LENDERS HAVE NEITHER APPEARED NOR MADE COMPLIANCE IN RESPONSE TO THE SUMMONS ISSUED U /S 131 OF THE ACT ISSUED BY THE ASSESSING OFFICER. ACCORDINGLY, THE HON'BLE TRIBUNAL HAS CONF IRMED THE ADDITION OF UNSECURED LOANS IN THE HANDS OF THE APPELLANT. 4. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT THE RE IS A MISTAKE APPARENT ON RECORD IN THE PRESENT ORDER WHICH HAS A DIRECT BEARING ON THE FIN AL DECISION OF HON'BLE TRIBUNAL. THE SAME IS EXPLAINED AS UNDER : THE OBSERVATION, THAT LENDERS HAVE NOT APPEARED IS FACTUALLY INCORRECT. ALL THE LENDERS HAVE APPEARED AND FILED THE DETAILS BEFORE ASSESSING OFF ICER. 5. DURING THE COURSE OF HEARING BEFORE HON'BLE TRIB UNAL, IT WAS EXPLAINED THAT THE ASSESSING OFFICER AND LD. CIT(A) HAVE INCORRECTLY STATED THAT LENDERS HAVE NEITHER APPEARED NOR FILED DETAILS BEFORE THE ASSESSING OFFICER IN RESPONSE TO NOTICE U/S 131 OF THE ACT. IN THIS REGARD, IT IS SUBMITTED THAT DURING THE COURSE OF HEARING, THE APPLICANT HA D REFERRED TO THE PAPER BOOK FILED BEFORE HON'BLE TRIBUNAL ON 05.07.2019 WHEREIN THE COPY OF SUMMONS ISSUED TO ALL THE PARTIES AND THEIR RESPECTIVE REPLY WERE ALREADY ON RECORD BEFORE THE ASSESSING OFFICER. 6. FOR INSTANCE, THE APPLICANT HAD DRAWN ATTENTION TO PG. 38 OF PAPER BOOK WHICH IS SUMMONS ISSUES TO ONE PARTY NAMELY DHANPAL SONI AND THE LETTER FILED BY THE LENDER IN RESPONSE TO NOTICE U/S 131 OF THE ACT PLACED AT PAGE 37 OF PAPE R-BOOK. IT WAS EXPLAINED THAT IDENTICAL SUMMONS WERE ISSUED TO ALL LENDERS AND ALL THE LEND ERS HAVE FILED THEIR RESPECTIVE REPLY ALONG WITH EVIDENCES BEFORE THE ASSESSING OFFICER DIRECTLY. TH E COPY OF SUMMONS AND REPLY THERETO FILED BY ALL THE PARTIES ARE ENCLOSED AT VARIOUS PAGES OF THE PAPER BOOK AS UNDER: SR. NO. NAME OF PARTY PAGE NO. OF PBK SHOWING EVID ENCES OF SUMMONS U/S. 131 ISSUED AND THEIR COMPLIANCE BY LENDERS 1 DHANPAL SONI 37-38 2 HITESH SONI 46-47 3 JAYSHREE SONI 55-56 4 KARUNA SONI 65-66 5 MAJULABEN SONI 73-74 6 RINA SONI 81-82 7. FURTHER, AT THE TIME OF HEARING, A CHART OF VARI OUS EVIDENCES FILED BEFORE ASSESSING OFFICER AND LD. CIT(A) WAS ALSO PLACED ON RECORD GIVING PAG E WISE DETAILS OF ALL THE EVIDENCES FILED INCLUDING THE AFORESAID DETAILS OF COMPLIANCE TO SU MMONS ISSUED BY ASSESSING OFFICER. 8. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE P RIMARY BASIS OF CONFIRMING THE ADDITION BEING THAT THE PARTY HAS NOT APPEARED IS CONTRARY T O THE FACTS AND EVIDENCES WHICH WERE ALREADY AVAILABLE ON RECORD AND HAS THEREBY CONSTITUTED A M ISTAKE APPARENT ON RECORD WHICH HAS DIRECT BEARING ON THE ULTIMATE OUTCOME OF THE APPEAL. 9. THE APPLICANT NEXT SUBMITS THAT ONE OF THE ISSUE RAISED DURING THE COURSE OF HEARING HAS BEEN LEFT TO BE ADJUDICATED WHEREIN IT WAS EXPLAINE D THAT THE SIMILAR LOAN TRANSACTIONS GIVEN BY ONE OF THE LENDER TO THE APPLICANT IN THE SUBSEQUEN T YEAR HAS BEEN ACCEPTED AS GENUINE IN THE ASSESSMENT PROCEEDING IN CASE OF SMT. RINA SONI FOR A.Y. 2013-14 AND THEREFORE THE LOAN GRANTED DURING THE YEAR UNDER APPEAL CANNOT BE DOUBTED. THE ASSESSMENT ORDER OF RINA SONI PASSED U/S 143(3) OF THE ACT DATED 09.09.2015 ALONG WITH OTHER RELEVANT EVIDENCE WERE FILED BEFOR E HON'BLE BENCH AT THE TIME OF HEARING. THE AFORESAID ISSUE H AS NOT BEEN ADJUDICATED IN THE PRESENT ORDER AND HENCE WILL CONSTITUTE MISTAKE APPARENT ON RECOR D. 10. IT IS NEXT SUBMITTED THAT IN THE ORDER OF HON'BLE T RIBUNAL, REFERENCE IS MADE TO THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF PAVANKUMA R M. SANGHVI V. ITO [404 ITR 601], THE SAID DECISION IS DISTINGUISHABLE ON FACTS. FURTHER, THE AFORESAID DECISION WAS NOT CONFRONTED TO THE APPLICANT AT THE TIME OF HEARING. NO OPPORTUNITY WA S GRANTED TO THE APPLICANT TO REBUT THE M.A. NO. 344/AHD/2019 (I.T.A NO. 547/AHD/2017) A.Y . 2012-13 PAGE NO GANPATLAL MANROOPJI SONI VS. ITO 3 APPLICABILITY OF THE SAID DECISION IN THE FACTS OF THE PRESENT CASE. ON THE OTHER HAND, THE APPLICANT HAD FILED NUMBER OF JUDICIAL PRECEDENTS WHEREIN ON IDENTICAL FACTS, THE ADDITIONS HAVE BEEN DELETED. 11. IN VIEW OF THE ABOVE, IT IS HUMBLY PRAYED WITH FOLDED HANDS THAT THE PRESENT ORDER OF THE HONBLE TRIBUNAL BY KINDLY RECALLED AND THAT THE AP PLICANT BE GRANTED A FRESH OPPORTUNITY OF THE HEARING IN THE PRESENT APPEAL. 3. HEARD BOTH THE SIDES AND PERUSED THE MATERIA L ON RECORD. DURING THE COURSE OF ASSESSMENT THE ASSESSING OFFICER HAS NOTI CED THAT ASSESSEE HAS OBTAINED UNSECURED LOAN TO THE AMOUNT OF RS. 74,96, 389/-. SINCE THERE WAS INCOMPLETE INFORMATION THEREFORE THE ASSESSING OFFI CER HAS ISSUED SUMMON U/S. 131ON 7 TH JANUARY, 2015 FOR RECORDING THEIR STATEMENTS ON TH E DATE OF ATTENDANCE FIXED ON 16 TH JANUARY, 2015 IN RESPECT OF FOLLOWING PERSONS:- (I) MANJULABEN GANPATLAL SONI (II) REENA HITESHBHAI SONI (III) HITESH GANPATLAL SONI (IV) KARUNABEN BHOJRAJBHAI SONI (V) JAYSHRIBEN DHANPALBHAI SONI (VI) DHANPAL GANPATLAL SONI 4. THE ASSESSEE HAS FILED REPLY. ON VERIFICATIO N OF THE DETAIL, THE ASSESSING OFFICER NOTICED THAT THERE WERE CASH DEPOSITS IN TH E BANK ACCOUNT BEFORE ISSUING THE CHEQUES TO THE ASSESSEE THEREFORE THE C REDITWORTHINESS OF THE LENDERS WERE NEITHER PROVED BY THE ASSESSEE NOR LEN DER HAVE PERSONALLY APPEARED TO PROVE THE CREDITWORTHINESS AS REQUIRED U/S. 68 OF THE ACT. THE ASSESSING OFFICER HAS FURTHER NOTICED THAT LENDERS WERE THE CLOSE RELATIVES OF THE ASSESSEE. THE DETAIL OF LOAN TRANSACTION AND D EPOSITING OF CASH DEPOSITS IN THE ACCOUNT OF THE LENDERS ARE ELABORATED BY THE ASSESSING OFFICER AT PAGE NO. 4 & 5 OF THE ASSESSMENT ORDER. THE PRIMARY IS SUE ON WHICH ADDITION MADE WAS THAT THE DEPOSITORS CAPACITY TO RAISE SUC H CASH AMOUNT WAS NOT ESTABLISHED BY THE ASSESSEE AND THE INFORMATION FUR NISHED BY THE DEPOSITORS M.A. NO. 344/AHD/2019 (I.T.A NO. 547/AHD/2017) A.Y . 2012-13 PAGE NO GANPATLAL MANROOPJI SONI VS. ITO 4 COULD NOT SUBSTANTIATE THE CREDITWORTHINESS OF THE DEPOSITORS. THEREAFTER, DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE L D. CIT(A), THE LD. CIT(A) HAS ELABORATED IN DETAIL IN HIS FINDING AT PARA 7 T O 10 OF HIS ORDER THAT CREDITWORTHINESS OF THE LENDER WAS NOT PROVED THERE FORE ADDITION OF RS. 8,90,000/- WAS SUSTAINED BY THE LD. CIT(A). IT IS CLEAR FROM THE FACTS AND MATERIAL ON RECORD THAT THE CREDITWORTHINESS OF THE LENDERS COULD NOT BE PROVED WITH RELEVANT SUPPORTING EVIDENCES THEREFORE LD. CIT(A) HAS RIGHTLY STATED THAT LENDERS WHO HAVE MADE UNSECURED LOAN TO THE ASSESSEE WERE THE CLOSE RELATIVES OF THE ASSESSEE AND THE ASSESSEE HA S ALSO NOT MADE ANY INITIATIVE TO PRODUCE THE LENDERS FOR VERIFICATION AND TO PROVE CREDITWORTHINESS OF THE THOSE LENDERS. IN THE LIG HT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE CONSIDER THAT THE POWER OF RECTIF ICATION U/S. 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SUBJECT TO BE RECTIFIED IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FRO M RECORD AND NOT A MISTAKE WHICH IS REQUIRED TO BE ESTABLISHED BY ARGU MENT AND LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY C ONCEIVABLY BE TWO OPINION. IN THE LIGHT OF FACTS AND CIRCUMSTANCES , WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AN D THE SAME IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09-12-2020 SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 09/12/2020 M.A. NO. 344/AHD/2019 (I.T.A NO. 547/AHD/2017) A.Y . 2012-13 PAGE NO GANPATLAL MANROOPJI SONI VS. ITO 5 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,