Shivani Gunvantbhai Dave, Ahmedabad v. The Income tax Officer, Ward-7(3),, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI A.N. PAHUJA A.M.) I.T.A. NO. 2146/AHD./2007 ASSESSMENT YEAR : 2001-2002 SHIVANI GUNVANTBHAI DAVE AHMEDABAD -VS.-INCOME TA X OFFICER WARD-7(3) AHMEDABAD (PAN : ADGPO 3179 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAKAR SHARMA C.A. RESPONDENT BY : SHRI ANAND MOHAN SR . D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 01.03.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XIII AHMEDABAD FOR THE ASSESSMENT YEAR 2001-02. 2. GROUND NO. 1 OF THIS APPEAL READS AS UNDER :- THE LEARNED CIT.(A) ERRED ON FACTS AND IN LAW IN H OLDING THAT THE APPELLANT IS LIABLE TO BE ASSESSED AND TAX IN RESPE CT OF THE UNAUTHORIZED TRANSACTIONS DONE BY SHRI PARANTAP RAMANLAL PATEL W ITHOUT ANY AUTHORITY AND KNOWLEDGE IN THE NAME OF THE APPELLANT. 3. AT THE TIME OF HEARING BEFORE US ON BEHALF OF A SSESSEE SHRI SAKAR SHARMA C.A. APPEARED AND CONTENDED THAT THE A.O. RECORDED THE STATEMENT OF SHRI PARANTAP RAMANLAL PATEL (TO WHOM THE ASSESSEE ISSUED THE POWER OF ATTORNEY) WHO ADM ITTED THAT THE PROPRIETORSHIP CONCERN SAMPARK ADVERTISING BELONGED TO HIM AND NOT TO TH E ASSESSEE. THE LD. COUNSEL OF THE ASSESSEE ACCORDINGLY CONTENDED THAT SINCE THE ASSESSEE IS NO T THE OWNER OF THE PROPRIETORSHIP CONCERN M/S. SAMPARK ADVERTISING THEREFORE IT MAY BE HELD THAT INCOME OF THE SAID PROPRIETORSHIP CONCERN WAS BELONGED TO SHRI PARANTAP RAMANLAL PATEL AND NO T TO THE ASSESSEE. 4. THE AFORESAID PLEA OF THE LD. COUNSEL OF THE ASS ESSEE WAS STRONGLY OBJECTED BY SHRI ANAND MOHAN SR. D.R. APPEARED ON BEHALF OF THE REVENUE O N THE GROUND THAT THIS APPEAL IS AGAINST THE ASSESSMENT ORDER UNDER SECTION 144 READ WITH SECTIO N 263 OF THE INCOME TAX ACT. THE ORIGINAL ASSESSMENT WAS FINALIZED UNDER SECTION 144 ON 08.03 .2004 WHEREIN THE A.O. HAS NOT EXAMINED THE UNSECURED LOANS IN THE NAME OF SHRI PARANTAP RA MANLAL PATEL (POWER OF ATTORNEY-HOLDER) 2 ITA NO. 2146/AHD/200 7 AMOUNTING TO RS.13 42 650/- AND SECURED LOANS OF RS .21 79 150/- ON WHICH THE ASSESSEE HAS CLAIMED THE INTEREST OF RS.3 71 661/- AND ALLOWED T HE SAME WITHOUT VERIFICATION OF THE CLAIM. THE LD. CIT AHMEDABAD-III VIDE ORDER UNDER SECTION 263 DATED 02.03.2006 SET ASIDE THE ASSESSMENT ORDER UNDER SECTION 144 FOR THE ASSESSMENT YEAR UND ER APPEAL TO THE EXTENT WITH A DIRECTION TO A.O. TO EXAMINE THE FACTS OF THE UNSECURED AND SECU RED LOAN AND INTEREST CLAIMED ON SECURED LOAN AND MAKE THE ASSESSMENT ORDER AFRESH IN ACCORDANCE WITH LAW AFTER BRINGING ON RECORD ALL NECESSARY EVIDENCE AND GIVING SUFFICIENT OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. HE ACCORDINGLY CONTENDED THAT THE ISSUE RAISED IN THE AFORESAID GROUND CANNOT BE AGITATED IN THE PRESENT APPEAL THEREFORE THIS GROUND OF APPEAL BE REJECTED. 5. WE FOUND CONSIDERABLE FORCE IN THE SUBMISSIONS M ADE BY THE LD. DEPARTMENTAL REPRESENTATIVE. ADMITTEDLY THE POWER OF A.O. WHILE FRAMING THE ASSESSMENT IN PURSUANCE OF DIRECTION OF LD. CIT IN ORDER UNDER SECTION 263 IS RESTRICTED TO ENQUIRY OF LOANS AND INTEREST PAID THEREON. THEREFORE THE ISSUE NOW RAISED IN THIS GR OUND OF APPEAL CANNOT BE AGITATED BY THE ASSESSEE. THIS GROUND OF APPEAL IS ACCORDINGLY REJE CTED. 6. GROUND NO. 2 OF THIS APPEAL READS AS UNDER :- THE LD. CIT.(A) ERRED ON FACTS AND IN LAW IN CONFI RMING ADDITION OF RS.13 42 650/- IN THE NAME OF SHRI PARANTAP RAMANLA L PATEL BY INVOKING PROVISIONS OF SECTION 68 OF THE ACT. 7. WITH REGARD TO ADDITION OF RS.13 42 650/- MADE B Y THE A.O. UNDER SECTION 68 ON ACCOUNT OF UNSECURED LOANS THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE LOANS OBTAINED FROM SHRI PARANTAP RAMANLAL PATEL IN THE PREVIOUS YEAR RELEVA NT TO THE ASSESSMENT YEAR UNDER APPEAL IS RS.1 80 000/-. THIS ADDITION WAS ALREADY MADE IN TH E ORIGINAL ASSESSMENT THEREFORE THE ADDITION TO THE EXTENT OF RS.11 62 650/- MADE BY THE A.O. IN THE ASSESSMENT ORDER UNDER SECTION 143(3) READ WITH SECTION 263 BE DELETED. 8. IN SUPPORT OF THIS THE LD. COUNSEL OF THE ASSES SEE PRODUCED BEFORE US THE BALANCE-SHEET AND ANNEXURE-2 (CLAUSE 24A) BEING SCHEDULE OF DEPOS IT AND/OR LOAN ACCEPTED UNDER SECTION 44AB OF THE INCOME TAX ACT 1961. FROM THE SCHEDULE THE LD. COUNSEL POINTED OUT THAT IN THE 3 ITA NO. 2146/AHD/200 7 PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL THE ASSESSEE OBTAINED LOAN OF RS.1 80 000/- ONLY THEREFORE NO FURTHER ADDITION IS CALLED FOR. 9. ON THE OTHER HAND THE LD. D.R. POINTED OUT THAT THIS PLEA WAS NEVER RAISED BEFORE ANY OF THE AUTHORITIES BELOW. THEREFORE AT THIS STAGE TH IS PLEA CANNOT BE RAISED. IN ANY CASE THIS NEEDS VERIFICATION AT THE END OF A.O. 10. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW ON THIS ISSUE AND PERUSED THE MATERIAL PLACED BEFORE US. PRIMA FACIE IT APPEARS THAT AS PER SCHEDULE 2 OF AUDIT REPORT UNDER SECTION 44AB FRES H LOAN OBTAINED FROM SHRI PARANTAP R. PATEL IS RS.13 42 650/-. OUT OF THIS ADDITION OF RS.1 80 00 0/- WAS MADE IN THE ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) DATED 08.03.2004. IN THE IMPUG NED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER REDUCING THE SAID ADDITIO N RESTRICTED THE ADDITION OF RS.13 42 650/- TO RS.11 62 650/-. IN CASE REMAINING AMOUNT OF LOAN I.E. RS.11 62 650/- IS NOT OBTAINED BY THE ASSESSEE FROM SHRI PARANTAP R. PATEL IN THE PREVIOU S YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL NO ADDITION IS CALLED FOR. THIS NEEDS VERIF ICATION FROM THE ASSESSMENT RECORD OF LAST YEAR. WE THEREFORE RESTORE THE ADDITION OF RS.11 62 650 /- TO THE FILE OF ASSESSING OFFICER WHO WILL MAKE NECESSARY VERIFICATION FROM THE ASSESSMENT REC ORD AND RE-ADJUDICATE THIS ADDITION AFRESH KEEPING IN VIEW OUR DIRECTION CONTAINED HEREINABOVE . 11. IN THE RESULT FOR STATISTICAL PURPOSES THE AP PEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. THE ORDER WAS PRONOUNCED IN THE COURT ON 09.04.2010 . SD/- SD/- (A.N. PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 09/ 04 /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.