Shri Dipak Gunvantrai Patel (HUF),, Ahmedabad v. The Income Tax Officer, Ward-10(2),, Ahmedabad

ITA 1696/AHD/2014 | 2010-2011
Pronouncement Date: 27-11-2017 | Result: Allowed

Appeal Details

RSA Number 169620514 RSA 2014
Assessee PAN AABCA8332P
Bench Ahmedabad
Appeal Number ITA 1696/AHD/2014
Duration Of Justice 3 year(s) 5 month(s) 24 day(s)
Appellant Shri Dipak Gunvantrai Patel (HUF),, Ahmedabad
Respondent The Income Tax Officer, Ward-10(2),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted B
Tribunal Order Date 27-11-2017
Date Of Final Hearing 04-10-2017
Next Hearing Date 04-10-2017
First Hearing Date 04-10-2017
Assessment Year 2010-2011
Appeal Filed On 02-06-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV JUDICIAL MEMBER AND SHRI AMARJIT SINGH ACCOUNTANT MEMBER DIPAK GUNVANTRAI PATEL (HUF) 54 SARDAR PATEL NAGAR B/H SHAMBHU COFFEE BAR HL COLLEGE ROAD ELISBRIDGE AHMEDABAD - 380006 PAN: AABCA8332P (APPELLANT) VS THE ITO WARD - 10(2) AHMEDABAD (RESPONDENT) REVENUE BY : S H RI MUD IT NAGPAL SR. D . R. ASSESSEE BY: S H RI U.S. BHA T I & ABHIMANU SINGH BHATI A.R. DATE OF HEARING : 20 - 11 - 2 017 DATE OF PRONOUNCEMENT : 27 - 1 1 - 2 017 / ORDER P ER : AMARJIT SINGH ACCOUNTANT MEMBER : - THIS ASSESSEEE S APPEAL FOR A.Y. 2010 - 11 AR ISES FROM ORDER OF THE CIT(A) - XVI AHMEDABAD DATED 28 - 03 - 2014 IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - I T A NO . 1696 / A HD/20 14 A SSE SSMENT YEAR 2010 - 11 I.T.A NO. 1696 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DIPAK G UNVANTRAI PATEL (HUF) VS. ITO 2 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS BAD IN LAW ILLEGAL BEING IN VIOLATION OF PRINCIPLES OF NATURED J USTICE AND FAIRNES S INASMUCH AS : - (A) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN DECLINING TO ADMIT ADDITIONAL EVIDENCES ON MERE TECHNICALITY THAT THERE IS NO WRITTEN REQUEST BY THE APPELLATE UNDER RULE.46 A OF THE ACT. (B) THE LEARNED COM MISSIONER OF INC OME TAX (APPEAL ) HAS GROSSLY ERRED IN ADOPTING SUCH A SHORTCUT ROUTE WHEN THERE IS NO STANDARD PROFORMA (APPLICATION) UNDER RULE 46 A HE OUGHT TO HAVE ADMITTED EVIDENCES SO PRODUCED THROUGH APPELLANT'S PRAYER IN THE FORM OF LETTER DATED 9 /12/2013. (C) WITHOUT PREJUDICE THAT INSPITE OF THE PROVISIONS OF RULE 46A(1) THE PROVISIONS OF SEC. 250 ENABLES THE COMMISSIONER OF INCOME TAX (APPEALS) TO ACCEPT ADDITIONAL EVIDENCE IN APPROPRIATE CASES WHICH POWERS HAS BEEN PRESERVED BY SUB RULE (4) OF RULE 46 A ALSO. THUS THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN REFUSING TO ADMIT ADDITIONAL EVIDENCES AT THE APPELLATE STAGE. 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS GROSSLY ERRED IN SUSTAINING THE IMPUGNED ADDITION OF RS. 8 11 020/ - ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOUNT WITHOUT GIVING INDEPENDENT FINDING. 3. IN THIS CASE RETURN OF INCOME DECLARING INCOME OF RS. 3 89 067/ - WAS FILED ON 8 TH DECEMBER 2010. SUBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S. 143(2) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT AS PER THE INFORMATION AVAILABLE ON THE RECORD THE ASSESSEE HAS MADE CASH D EPOSIT EXCEEDING RS. 10 LACS ON VARIOUS DATES IN THE BANK ACCOUNT MAINTAINED WITH YES BANK AT C.G. ROAD AHMEDABAD. THEREFORE THE ASSESS EE WAS SHOW CAUSED TO EXPLAIN THE SOURCE CASH DEPOSIT OF RS. 33 19 000/ - . THE DETAIL S OF AFORESAID CASH DEPOSIT APPEARI NG IN THE BANK ACCOUNT IS REPRODUCED AS UNDER: - DATE ON WHICH CASH DEPOSITED AMOUNT DEPOSITED (RS.) 04/04/2009 70 000/ - 1 6/05/2009 3 00 000/ - 01/06/2009 2 40 000/ - 29/09/2009 4 00 000/ - 05/10/2009 2 20 000/ - I.T.A NO. 1696 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DIPAK G UNVANTRAI PATEL (HUF) VS. ITO 3 16/10/2009 3 50 000/ - 04/11 /2009 3 05 000/ - 05/11/2009 6 35 000/ - 15/02/2010 3 00 000/ - TOTAL 33 19 000/ - THE EXPLANATION FURNISHED BY THE ASSESSEE AS REPORTED IN THE ASSESSMENT ORDER IS REPRODUCED AS UNDER : - DATE ON WHICH CASH DEPOSITED AMOUNT SOURCE OF FUND FOR DEPOSIT IN BANK 04/04/2009 70000 FROM OP ENING BALANCE AVAILABLE AND CASH WITHDRAWAL FROM BHUJ MERC. CO - OP. BANK LTD. DATED 03/04/2009 OF RS. 10 000/ - 1 6/05/2009 300000 CASH WITHDRAWAL FROM BHUJ MERC. CO - OP. BANK LTD. DATED 05/04/2009 OF RS.5 00 000/ - 01/06/2009 240000 CASH WITHDRAWAL FROM BHUJ MERC. CO - OP. BANK LTD. DATED 05/04/2009 OF RS.5 00 000/ - AND BALANCE FROM OPENING BALANCE 29/09/2009 400000 CASH WITHDRAWAL FROM YES BANK LTD. DATED 22/06/2009 OF RS.4 00 000/ - 05/ 10/2009 220000 CASH WITHDRAWAL FROM BHUJ MERC. CO - OP. BANK LTD. DATED 24/09/2009 OF RS.3.40 LAKHS 16/10/2009 3 50 000 CASH WITHDRAWAL FROM BHUJ MERC. CO - OP. BANK LTD. DATED 13/10/2009 OF RS.4.96 LAKHS AND LOAN RETURN FROM PUSHPABEN PATEL OF RS.65 000 / - 04/11/2009 3 05 000 05/11/2009 635000 CASH WITHDRAWAL FROM YES BANK DATED 27/1 0/2009 OF RS.2 LAKHS. CASH WITHDRAWAL FROM YES BANK DATED 24/ 1 1 /2009 OF RS.2.50 LAKHS. LOAN RETURN FROM PUSHPA P. PATEL OF RS.77 0 00/ - LOAN RETURN FROM RANCHHODBHAI MAFA TBHAI PATEL OF RS. 1 04 000/ - PLUS RS.4000/ - FROM OPENING BALANCE. I.T.A NO. 1696 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DIPAK G UNVANTRAI PATEL (HUF) VS. ITO 4 15/02/2010 300000 OTHER INCOME OF RS.30 000/ - AS PER RETURN INCOME AND LOAN FROM FAMILY MEMBERS. THE ASSESSING OFFICER STATED THAT AFTER EXAMINATION OF THE STATEMENT OF VARIOUS PERSONS RECORDED U/S. 131 OF THE ACT AS WELL AS DOCUMENTARY EVIDENCES RETURN OF INCOME FOR ASSESSMENT YEAR 2009 - 1 0 2010 - 11 INCLUDING STATEMENT OF THE ASSESSEE THE SOURCE OF DEPOSIT TO THE EXTENT OF RS. 25 07 980/ - OUT OF THE TOTAL DEPOSIT OF RS. 33 19 000/ - WAS EXPLAINED. THEREAFTER T HE ASSESSING OFFICER HELD THAT ASSESSE HAS FAILED TO FURNISH COGENT OR CONCRETE EVIDENCES IN RESPECT OF CASH DEPOSIT TO THE EXTENT OF RS. 8 11 020 / - . T HIS AMOUNT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENTS. 4. AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS SUSTAINED THE ADDITION BY OBSERVING AS UNDER: - 2.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E IN THE LIGHT OF SUBMISSIONS MADE BY THE APPELLANT THE ARGUMENTS TAKEN BY THE ASSESSING OFFICER & MATERIAL AVAILABLE ON RECORDS. IT IS THE CASE OF THE APPELLANT THAT THE ID . A O HAS NOT APPRECIATED THE FACTS OF THE CASE CORRECTLY. IT IS SUBMITTED THAT A O HAS TAKEN WRONG FIGURES OF DEPOSIT IN T HE BANK ACCOUNT AT RS. 33 19 000/ - AS THE SAME WAS RS. 28 20 000 / - . THE APPELLANT ALSO ATTEMPTED TO FILE SOME EVIDENCES COMPRISING PHOTO COPY OF SALE DEED CONFIRMATIONS ETC . OF TWO PARTIES SO AS TO JUSTIFY THE CASH DEPOSITS. ACCORDINGLY A REMAND REPORT WAS CALLED FOR FROM A O VIDE THIS OFFICE LETTER NO CIT(A) - XVI/REMAND REPORT/DGP/2012 - 13 DT 17 - 12 - 2013. THE A O SUBMITTED HIS REMAND REPORT VIDE LETTER NO ITOAA/D.10(2)/REMAND REPORT/DGP - HUF/2013 - 14 DT 27 - 12 - 2013. IN THE IMPUGNED REMAND REPORT THE A O SUBMITTED THAT THERE IS NO CONTROVERSY REGARDING THE AMOUNT OF DEPOSIT AS THE SAME STOOD AT RS. 33 19 000 / - . (INC LUSIVE OF AMOUNT OF RS. 4 99 000 / - DEPOSITED ON 4 - 11 - 2009). THE A O SUBMITT ED THAT THE APPELLANT WAS GIVEN SUFFICIENT OPPORTUNITIES TO EXPLAIN THE SOURCES OF CASH DEPOSITS AND THEREFORE THE EVIDENCES NOW REQUESTED FOR ADMISSION CANNOT BE ADMITTED. IN ITS COUNTER THE APPELLANT HAS AGAIN TRIED TO FIND FAULT WITH THE OBSERVATIONS OF THE A O BY RAISING CERTAIN TEC HNICAL ISSUES. THE ADDITIONAL EVIDENCES WHICH ARE NOW REQUESTED FOR ADMISSION CANNOT BE ADMITTED AS NO WRITTEN REQUEST HAS BEEN MADE BY THE APPELLANT UNDER RULE 46A. IT IS A SETTLED LAW THAT ADDITIONAL EVIDENCE CAN ONLY BE ADMITTED BY THE CIT(A) SUBJECT T O SATISFACTION OF ALL ACCOMPANYING CONDITIONS PROVIDED A WRITTEN REQUEST IS MADE. IN THE INSTANT CASE NO SUCH REQUEST WAS MADE AND THEREFORE THE IMPUGNED EVIDENCES CANNOT BE ADMITTED. WITHOUT PREJUDICE TO THE ABOVE IT IS ALSO NOTED THAT THE ID A O HAS P OINTED OUT IN ITS REMAND REPORT THAT EVEN THE IMPUGNED ADDITIONAL EVIDENCES SUFFER FROM SERIOUS DISCREPANCIES AND DEFICIENCIES. CONSEQUENTLY AS THE I.T.A NO. 1696 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DIPAK G UNVANTRAI PATEL (HUF) VS. ITO 5 SOURCES OF CASH DEPOSIT OF RS. 8 11 020/ - REMAINS UNEXPLAINED THE ADDITION MADE BY THE ID A O IS CONFIRMED AND THE GROUND OF APPEAL RAISED IS DISMISSED. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US THE ASSESSEE HAS FILED REVISED GROUND S OF APPEAL STATING THAT THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE IT RULE 1962 WAS NOT ADMITTED BY THE LD. CIT(A) WITHOUT ANY JUSTIFICATION. HE FURTHER CONTENDED THAT THE LD. CIT(A) HAS IGNORED THIS FACT THAT ASSESSING OFFICER HAD NOT ALLOWED PROPER OPPORTUNITY TO EXPLAIN THE AFORESAID ADDITION. ON THE OTHER HAND LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE LD. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US LD. COUNSEL HAS ALSO FURNISHED A PAPER BOOK CONTAINING INFORMATION ON SUBMISSION MADE BEFORE THE ASSESSING OFFICER AND LD. CIT(A) AND COPY OF SUBMISSION MADE FOR ADMITTING ADDITIO NAL EVIDENCES BEFORE THE LD. CIT(A) ETC. 6. WE HAVE HEARD BOTH THE SIDES A N D PERUSED THE MATERIAL ON RECORD. IT IS CONTENDED BY THE LD. COUNSEL THAT ASSESSEE WAS NOT ASKED TO FURNISH EVIDENCES IN RESPECT OF SOURCE OF DEPOSIT CLAIMED BY THE ASSESSEE FR OM AGRICULTURISTS AND CASH IN HAND . WE HAVE GONE THROUGH THE PAPER BOOK FILED BY THE ASSESSEE PARTICULARLY PAGE NO. 8 TO 152 REGARDING ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A) .WE OBSERVED THAT ASSESSEE HAS PLACED CORRESPONDING EVIDENCES PERTAINI NG TO SOURCES OF CASH OF RS. 8 11 020/ - WHICH REMAINED TO BE EXAMINED BY THE ASSESSING OFFICER . THE LD. CIT(A) HAS DECLINED TO ADMIT THE ADDITIONAL EVIDENCES UNDER RULE 46A STATING THAT ASSESSEE HAS NOT MADE A WRITTEN REQUEST. IN THIS CONNECTION WE HAVE NOTICED I.T.A NO. 1696 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DIPAK G UNVANTRAI PATEL (HUF) VS. ITO 6 FROM LETTER DATED 9 TH DECEMBER 2013 ADDRESSED TO LD. CIT(A) PLACED IN THE PAPER BOOK REGARDING THE ADDITIONAL EVIDENCES IN RESPECT OF SOURCE OF CASH DEPOSIT OF RS. 8 11 020/ - WE HAVE FURTHER NOTICED THAT ASSESSING OFFICER VIDE HIS LETTE R DATED 27.12.2013 ADDRESSED TO LD.CIT(A) HAS MENTIONED THAT THE ADDITIONAL GROUNDS MADE BEFORE THE CIT(A) MAY NOT BE CONSIDERED. WE OBSERV ED THAT TH ESE FACTS DEMONSTRATE THAT ASSESSEE COULD NOT GET PROPER OPPORTUNITY TO EXPLAIN THE REMAINING UNEXPLAINE D CASH DEPOSIT. A FTER CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES WE ARE OF THE OPINION THAT IT WILL BE APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE IT ON MERIT BECAUSE RESTORING IT TO CIT(A) WILL MULTIPLY THE LITIGATION WORK AT THE LEVEL OF CITA) AND FURTHER REMAND REPORT WORK AT THE LEVEL OF ASSESSING OFFICER. THEREFORE WE SET ASIDE THE ABOVE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE IT DE NOVO AFTER TAKING IN TO CONSIDERATION THE AD DITIONAL EVIDENCES AS ELABORATED ABOVE AND AFTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 27 - 11 - 201 7 SD/ - SD/ - ( RAJPA L YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 27 /11 /2017 I.T.A NO. 1696 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DIPAK G UNVANTRAI PATEL (HUF) VS. ITO 7 / COPY OF ORDER FO RWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER/ /