The ITO, Ward-6(3),, Surat v. Shri Ravibhai Vithhalbhai Patel,HUF, Surat

ITA 1139/AHD/2007 | 1999-2000
Pronouncement Date: 12-02-2010 | Result: Allowed

Appeal Details

RSA Number 113920514 RSA 2007
Bench Ahmedabad
Appeal Number ITA 1139/AHD/2007
Duration Of Justice 2 year(s) 10 month(s) 26 day(s)
Appellant The ITO, Ward-6(3),, Surat
Respondent Shri Ravibhai Vithhalbhai Patel,HUF, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 12-02-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted C
Tribunal Order Date 12-02-2010
Date Of Final Hearing 11-02-2010
Next Hearing Date 11-02-2010
Assessment Year 1999-2000
Appeal Filed On 16-03-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI D.C. AGRAWAL A.M.) I.T.A. NO. 1138/AHD./2007 ASSESSMENT YEAR : 1999-2000 INCOME TAX OFFICER WARD-6(3) SURAT -VS.- SHRI R AVIBHAI VITHALBHAI PATEL SURAT (APPELLANT) (RESPONDENT) & I.T.A. NO. 1139/AHD./2007 ASSESSMENT YEAR : 1999-2000 INCOME TAX OFFICER WARD-6(3) SURAT -VS.- SHRI R AVIBHAI VITHALBHAI PATEL (HUF) SURAT (APPELLANT) (RESPONDENT) ASSESSEE BY : N O N E DEPARTMENT BY : SHRI M.C. PANDIT SR. D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THESE TWO APPEALS FILED BY THE REVENUE ARE AGAINST THE TWO SEPARATE ORDERS BOTH DATED 03.01.2007 OF LEARNED COMMISSIONER OF INCOME TAX(AP PEALS)-IV SURAT FOR THE ASSESSMENT YEAR 1999-2000. 2. VARIOUS GROUNDS RAISED IN THE CASE OF SHRI RAVIB HAI VITHALBHAI PATEL (INDIVIDUAL) ARE AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) SURAT HAS ERRED IN DELETING THE ADDITION OF RS.14 34 128/- MADE ON ACC OUNT OF UNEXPLAINED INVESTMENT U/S. 69 OF THE I.T. ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. C.I.T.(A) HAS ERRED IN DIRECTING THE ASSESS ING OFFICER TO DELETE THE ADDITION OF RS.2 15 772/- AND INTEREST OF RS.49 840/- MADE U/S. 68 OF THE I.T. ACT. 3. THE LD. C.I.T.(A) HAS NOT APPRECIATED THE FACT T HAT SHRI PANKAJ DANAWALA HAS ADMITTED THE MODUS OPERANDI OF MANIPULATING THE OPENING BALANCE OF CAPITAL AND CREATING BOGUS G IFTS OR INTEREST ON 2 ITA NOS. 1138-1139/AHD/ 2007 LOAN TO THE CAPITAL ACCOUNT AND THE SAME HAS BEEN A PPLIED IN THE CASE OF THE ASSESSEE. 4. THE LD. C.I.T.(A) HAS ERRED IN NOT APPRECIATING THE STATEMENT OF AFFAIRS I.E. PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FILED BY THE ASSESSEE WITH THE RETURN OF INCOME ARE BOOKS OF ACC OUNTS WITHIN THE MEANING OF SECTION 68 OF THE ACT BECAUSE THEY ARE N OT LOOSE SHEETS SCRAP PAPERS ETC. 5. THE LD. C.I.T.(A) HAS ERRED IN DELETING THE ADDI TION MADE ON ACCOUNT OF INVESTMENTS U/S. 69 TREATING THE ADDITIO N MADE U/S. 68 OF THE I.T. ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. C.I.T.(A) SURAT OUGHT TO HAVE UPHELD THE O RDER OF THE ASSESSING OFFICER. 7. IT IS THEREFORE PRAYED THAT THE ORDER OF THE L D. C.I.T.(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 2.1. VARIOUS GROUNDS RAISED IN THE CASE OF SHRI RAV IBHAI VITHALBHAI PATEL (HUF) ARE AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) SURAT HAS ERRED IN DELETING THE ADDITION OF RS.14 10 651/- MADE ON ACC OUNT OF UNEXPLAINED INVESTMENT U/S. 69 OF THE I.T. ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. C.I.T.(A) HAS ERRED IN DIRECTING THE ASSESS ING OFFICER TO DELETE THE ADDITION OF RS.2 36 108/- AND INTEREST OF RS.49 690/- MADE U/S. 68 OF THE I.T. ACT. 3. THE LD. C.I.T.(A) HAS NOT APPRECIATED THE FACT T HAT SHRI PANKAJ DANAWALA HAS ADMITTED THE MODUS OPERANDI OF MANIPULATING THE OPENING BALANCE OF CAPITAL AND CREATING BOGUS G IFTS OR INTEREST ON LOAN TO THE CAPITAL ACCOUNT AND THE SAME HAS BEEN A PPLIED IN THE CASE OF THE ASSESSEE. 4. THE LD. C.I.T.(A) HAS ERRED IN NOT APPRECIATING THE STATEMENT OF AFFAIRS I.E. PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FILED BY THE ASSESSEE WITH THE RETURN OF INCOME ARE BOOKS OF ACC OUNTS WITHIN THE MEANING OF SECTION 68 OF THE ACT BECAUSE THEY ARE N OT LOOSE SHEETS SCRAP PAPERS ETC. 3 ITA NOS. 1138-1139/AHD/ 2007 5. THE LD. C.I.T.(A) HAS ERRED IN DELETING THE ADDI TION MADE ON ACCOUNT OF INVESTMENTS U/S. 69 TREATING THE ADDITIO N MADE U/S. 68 OF THE I.T. ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. C.I.T.(A) SURAT OUGHT TO HAVE UPHELD THE O RDER OF THE ASSESSING OFFICER. 7. IT IS THEREFORE PRAYED THAT THE ORDER OF THE L D. C.I.T.(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 3. ON THE DATE FIXED FOR HEARING NEITHER ANYBODY A PPEARED FROM THE SIDE OF THE ASSESSEES NOR AN APPLICATION FOR ADJOURNMENT RECEIVED. WE TH EREFORE PROCEED TO DECIDE BOTH THE APPEALS ON THE BASIS OF THE SUBMISSIONS MADE BY THE LD. D.R . AND THE MATERIAL AVAILABLE ON RECORD. 4. AT THE TIME OF HEARING SHRI M.C. PANDIT SR. D. R. APPEARING ON BEHALF OF THE REVENUE CONTENDED THAT ASSESSMENTS FOR BOTH THE ASSESSMENT YEARS WERE COMPLETED UNDER SECTION 144 READ WITH SECTION 147 WHERE ADDITIONS UNDER SECTION 68 WERE MADE. BEFORE THE A.O. THE ASSESSEE HAS NOT FURNISHED THE NECESSARY EVIDENCES AS REQUIRED U NDER SECTIONS 68 & 69 OF THE INCOME TAX ACT 1961. THEREFORE THE A.O. MADE THE ADDITION IN RESP ECT OF BOTH THE YEARS. BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BOTH THE ASSES SEES FURNISHED THE FRESH EXPLANATION/ EVIDENCES. THE LEARNED COMMISSIONER OF INCOME TAX(A PPEALS) ACCEPTED THE EXPLANATION OF THE ASSESSEES WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE A.O. THUS THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS NOT COMPLIED WITH THE PR OVISIONS CONTAINED IN RULE 46A(3) OF THE INCOME TAX RULES 1962. THE LD. D.R. ACCORDINGLY SU BMITTED THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN BOTH THE APP EALS BE SET ASIDE AND BOTH THE APPEALS BE RESTORED TO HIM WITH THE DIRECTION THAT HE SHOULD R E-DECIDE BOTH THESE APPEALS AFTER GIVING OPPORTUNITY OF BEING HEARD TO A.O. 5. HAVING HEARD THE LD. DEPARTMENTAL REPRESENTATIVE WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. FROM THE RECORD WE FI ND THAT THE A.O. ASKED THE ASSESSEE TO PRODUCE THE PARTIES FROM WHOM HE HAS RECEIVED THE GIFTS WIT H IDENTITY OF THE DONORS THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S. THE A.O. ALSO ASKED THE ASSESSEE (INDIVIDUAL) TO EXPLAIN THE NATURE AND SOURCE OF OP ENING BALANCE OF RS.14 34 128/- SHOWN IN THE 4 ITA NOS. 1138-1139/AHD/ 2007 CAPITAL ACCOUNT AND SUPPORTING EVIDENCE IN RESPECT OF INVESTMENT MADE BY HIM. THE SIMILAR REQUIREMENT/ REQUEST WAS MADE BY THE A.O. IN THE CA SE OF THE ASSESSEE (HUF) TO EXPLAIN THE NATURE AND SOURCE OF OPENING BALANCE OF RS.14 10 65 1/- SHOWN IN THE CAPITAL ACCOUNT AND SUPPORTING EVIDENCE IN RESPECT OF INVESTMENT MADE B Y HIM.. BEFORE THE A.O. THE ASSESSEE NEITHER PRODUCED THE DONORS FROM WHOM GIFTS WERE RECEIVED B Y HIM NOR ANY SUPPORTING EVIDENCE IN RESPECT OF GIFTS SHOWN BY HIM. AS A MATTER OF FACT BEFORE THE A.O. THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES. IN THESE CIRCUMSTANCES IT WAS A DUTY OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) TO LOOK FORWARD WHATEVER EXPLANATION S UBMITTED BY THE ASSESSEE TO THE A.O. FOR HIS COMMENTS/ REMAND REPORT. ADMITTEDLY THIS HAS N OT BEEN DONE. WE THEREFORE SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) AND RESTORE THE MATTER BACK TO THE FILE OF A.O. WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH THE NECESSARY DETAILS. HE WILL ALSO PRODUCE THE DONORS FOR EXAMINATION AS REQUIRED BY T HE A.O. THE A.O. WILL CONDUCT NECESSARY ENQUIRY AS REQUIRED UNDER SECTION 68 /69 OF THE ACT AND RE-ADJUDICATE THE VARIOUS ADDITIONS AFRESH IN RESPECT OF BOTH THE ASSESSEES IN ACCORDANCE WITH LAW. 6. IN THE RESULT FOR STATISTICAL PURPOSES BOTH TH E APPEALS OF THE REVENUE ARE TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 12.02.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12/ 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.