Shri Ghanshyam D.Aswar, Baroda v. The ACIT.,Cent.Circle-1,, Baroda

ITA 2224/AHD/2008 | 1999-2000
Pronouncement Date: 06-08-2010 | Result: Allowed

Appeal Details

RSA Number 222420514 RSA 2008
Assessee PAN ABJPA6577E
Bench Ahmedabad
Appeal Number ITA 2224/AHD/2008
Duration Of Justice 2 year(s) 1 month(s) 25 day(s)
Appellant Shri Ghanshyam D.Aswar, Baroda
Respondent The ACIT.,Cent.Circle-1,, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 06-08-2010
Date Of Final Hearing 28-07-2010
Next Hearing Date 28-07-2010
Assessment Year 1999-2000
Appeal Filed On 11-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.2224-2230/AHD/2008 ASSESSMENT YEARS:1999-00 TO 2005-06 DATE OF HEARING:28.7.10 DRAFTED:28.7.10 SHRI GHANSHYAM D ASWAR A/1 KASHIVISHWESHWAR TOWNSHIP JATALPUR ROAD BARODA PAN NO.ABJPA6577E V/S . ASSTT.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1 BARODA (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI S.N.SOPARKAR SR-AR REVENUE BY:- SHRI B.S.SANDHU CIT-DR O R D E R PER BENCH:- THESE SEVEN APPEALS BY THE ASSESSEE ARE ARISING OU T OF THE ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV AHMEDABAD IN APPEAL NOS.CIT(A)- IV/341-335B/CC.1/06-07 OF EVEN DATE 01-02-2008. THE ASSESSMENTS WERE FRAMED BY ACIT CENTRAL CIRCLE-1 BARODA U/S.153 R.W.S 143 (3) OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS DIF FERENT ORDERS OF EVEN DATE 27-12-2006 FOR ASSESSMENT YEARS 1999-00 TO 2005-06 RESPECTIVEL Y. 2. SINCE ALL THESE APPEALS CONTENTS COMMON ISSUES HENCE THEY ARE CLUBBED TOGETHER HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. THE GROUNDS RAISED IN ALL THE APPEALS ARE COMMON AND FACTS BEING EXACTLY IDENTICAL EXCEPT AMOUNT. WE WILL RE-PRODUCE THE GROUNDS FROM ITA NO.2224/AHD/2008 FOR THE ASSESSMENT YEAR 1999-00:- 1. THE LD. CIT(A)-IV AHMEDABAD HAS ERRED IN LAW A ND IN FACTS IN NOT ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46A O F THE INCOME TAX RULES DESPITE THE FACT THAT THE LD. A.O. HAD NOT OBJECTED TO SUCH ADMISSION AND THAT ITA NO.2224-2230/AHD/2008 A.YS 99-00 TO 05-06 SH. GHANSHYAM D ASWAR V. ACIT CC-1 BRD PAGE 2 SUCH EVIDENCES BEING VERY RELEVANT IN THE ADJUDICAT ION OF APPEAL OUGHT TO HAVE BEEN ADMITTED BY THE LD. CIT(A)-IV AHMEDABAD. THE LD. CIT(A) MAY PLEASE BE DIRECTED TO ADMIT THE ADDITIONAL EVIDENCE S IN THE ADJUDICATION OF THE APPEAL. 2. THE LD. CIT(A)-IV AHMEDABAD HAS ERRED IN LAW AN D IN FACTS IN CONFIRMING THEISM MADE BY THE LD. ACIT CENTRAL CIRCLE 1 BARO DA IN ASSESSING THE INCOME OF THE APPELLANT AT RS.11 90 777/- AS AGAINS T THE RETURNED INCOME OF RS.1 93 591/-. THE ASSESSMENT OF INCOME AT RS.11 90 777/- BEING ERRONEOUS IN LAW AND IN FACTS DESERVES TO BE CANCELLED AND TH E APPELLANTS INCOME MAY PLEASE BE DIRECTED TO BE DETERMINED AT RS.1 93 591/ - BEING THE RETURNED INCOME. 3. THE LD. CIT(A)-IV AHMEDABAD HAS ERRED IN LAW AN D IN FACTS IN CONFIRMING THE ACTION OF THE LD. A.O IN THE ADDITION OF RS.9 9 7 186/- BEING THE ALLEGED INVESTMENT MADE BY THE APPELLANT IN THE NAME OF VAR IOUS BENAMI ACCOUNTS. THE ADDITION OF RS.9 97 186/- IS IN COMPLETE DISREG ARD OF THE AVAILABLE FACTS AND THE LAW AND THEREFORE DESERVES TO BE DELETED. 4. THE LD. CIT(A)-IV AHMEDABAD HAS ERRED IN LAW AN D IN FACTS IN CONFIRMING THE ACTION OF THE LD. A.O IN LEVYING INTEREST U/S. 234A AND 234B OF THE I.T. ACT WHICH IS BEING UNJUSTIFIED IN LAW DESERVES CANCELLA TION. 3. AT THE OUTSET LD. SR COUNSEL FOR THE ASSESSEE S HRI S.N.SOPARKAR STATED THAT THE CIT(A) HAS REFUSED TO ADMIT ADDITIONAL EVIDENCE S UNDER RULE 46A OF I.T. RULES 1962 BY STATING IN PARA-3.0 & 3.1 AS UNDER:- 3.0 THE APPELLANT ALSO FILED UNDER RULE-46A OF INC OME TAX RULES 1962 ADDITIONAL EVIDENCE I.E. PHOTOCOPIES OF RETURNS BA NK STATEMENTS ETC. ON THE GROUND THAT THESE SHOULD BE ALLOWED TO BE ADMITTED FOR THE SAKE OF COMPLIANCE WITH LAW WHICH ARE RELEVANT IN THE APPEL LANTS CASE. 3.1 I HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE APPELLANT AS WELL AS OF THE ASSESSING OFFICER REGARDING ADMISSIBILITY OF AD DITIONAL EVIDENCES. IT HAS BEEN NOTICED THAT THE APPELLANT WAS NOT PREVENTED B Y SUFFICIENT CAUSE FROM PRODUCING THESE EVIDENCES BEFORE THE ASSESSING OFFI CER. FURTHER THE APPELLANT WAS HAVING INCOME TAX RETURNS BANK STATE MENTS ETC. IN HIS POSSESSION EVEN BEFORE CONDUCTING OF SEARCH 04.03.2 005 AND ASSESSMENT PROCEEDINGS. THE REASONS CITED BY LD. COUNSEL THAT THESE EVIDENCES SHOULD BE ADMITTED FOR THE SAKE OF COMPLIANCE WITH LAW WHI CH ARE RELEVANT IN THE APPELLANTS CASE IS NOT CONVINCING BECAUSE THE APPE LLANT IS NOT IN THE HABIT OF RESPECTING THE LAW FROM THE DAY OF CONDUCTING OF TH E SEARCH IN THE PRESENT CASE. HENCE THE CONDITIONS LAID DOWN UNDER RULE-46 A ARE NOT FULFILLED IN THE PRESENT CASE. THEREFORE I AM FULLY SATISFIED & CON VINCED THAT THE APPELLANT WAS NOT PREVENTED FOR ANY REASON WHATSOEVER FROM PRODUCING THESE EVIDENCES BEFORE THE ASSESSING OFFICER AND THEREFO RE THE EVIDENCES NOW FURNISHED CANNOT BE ADMITTED UNDER RULE-46A OF INCO ME TAX RULES 1962. KEEPING IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE CASE THE CONTENTIONS OF LD. COUNSEL REGARDING ADMISSION OF A DDITIONAL EVIDENCES ARE ITA NO.2224-2230/AHD/2008 A.YS 99-00 TO 05-06 SH. GHANSHYAM D ASWAR V. ACIT CC-1 BRD PAGE 3 HEREBY REJECTED AND DISMISSED. ACCORDINGLY THE ADD ITIONAL EVIDENCES NOW FURNISHED AT THE APPELLATE STAGE FOR THE FIRST TIME ARE NOT ADMITTED FOR ADJUDICATION ON MERITS IN THE PRESENT CASE. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ADDITI ONAL EVIDENCES FIELD BEFORE CIT(A) ARE ALREADY AVAILABLE ON THE RECORDS OF THE DEPARTM ENT AND THESE EVIDENCES ARE VERY RELEVANT IN ADJUDICATION OF THE ISSUES AND THESE SH OULD HAVE BEEN ADMITTED BY CIT(A). HE STATED THAT NO DOUBT THAT THESE EVIDENCE S WERE NOT CONSIDERED EITHER BY THE ASSESSING OFFICER OR BY CIT(A) BUT THESE ARE VI TAL EVIDENCES FOR THE ADJUDICATION OF THESE ISSUES HENCE THESE SHOULD BE TAKEN INTO CONSIDERATION BY THE BENCH NOW FOR PROPER ADJUDICATION OF THESE ISSUES RAISED BY T HE ASSESSEE IN THESE APPEALS. THE LD. COUNSEL FOR THE ASSESSEE FURTHER STATED THAT TH E AO HAS TAKEN INTO ACCOUNT ALL THE BANK ACCOUNTS IN THE NAME OF FAMILY MEMBERS OR RELA TIVES FOUND DURING THE COURSE OF SEARCH THE CREDIT ENTRIES AND CASH DEPOSITS WHILE FRAMING ASSESSMENT U/S.153A OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY ARGUED THAT THE BENCH SHOULD DECIDE THE ISSUES ON MERITS AND HE FILED THE ADDITI ONAL EVIDENCES AS WELL AS OTHER EVIDENCES IN THE PAPER BOOKS FOR ALL THESE ASSESSME NT YEARS. 4. ON THE OTHER HAND THE LD-CIT DR RELIED ON THE A SSESSMENT ORDERS AS WELL AS THE ORDERS OF CIT(A) AND HE STATED THAT DURING THE COURSE OF SEARCH CERTAIN TONE PAPERS WERE RETRIVED FROM THE BED ROOM COMMODE OF THE ASSESSEE. THESE PAPERS SEIZED AS ANNEXURE-A/1 CONTAINS THE DETAILS OF CERT AIN ACCOUNTS IN THE NAME OF THE ASSESSEE AND HIS FAMILY MEMBERS AND OTHERS. ACCORDI NG TO LD. CIT-DR WHEN THE DETAILS OF ALL SUCH ACCOUNTS WERE CALLED IT WAS RE VEALED THAT ALL THE ACCOUNTS WERE OPEN ON THE SAME DAY I.E. 27-04-1998 AND AT THE ADD RESS OF THE ASSESSEE. IN ALL THESE ACCOUNTS HUGE CASH WERE DEPOSITED BUT IMMEDI ATELY ON THE NEXT DAY OF SEARCH THE CASH WAS WITHDRAWN BY THE FAMILY MEMBER S FROM THESE ACCOUNTS. ACCORDING TO HIM IT IS APPARENT ALL THESE ACCOUNTS OPENED WERE BENAMI AND DEPOSITS IN THESE BANK ACCOUNTS WERE FROM UNACCOUNTED SOURCE S OF THE ASSESSEE AS HELD BY LOWER AUTHORITIES. THE LD. CIT-DR ARGUED THAT THESE ISSUES NEED NOT BE REMITTED TO THE FILES OF THE LOWER AUTHORITIES BUT THESE SHOULD BE DECIDED ON MERITS. ON QUERY FROM THE BENCH THE LD. CIT-DR ADMITTED THAT THESE EVIDENCES WERE NOT ADMITTED BY CIT(A) BUT ARGUED THAT THE ASSESSEE WAS HAVING THES E EVIDENCES AT THE TIME OF FRAMING OF ASSESSMENT ALSO AND HE HAS NOT BROUGHT T HESE TO THE NOTICE OF THE ITA NO.2224-2230/AHD/2008 A.YS 99-00 TO 05-06 SH. GHANSHYAM D ASWAR V. ACIT CC-1 BRD PAGE 4 ASSESSING OFFICER REASONS BEST KNOWN TO HIM. ACCORD ING TO HIM THE CIT(A) HAS RIGHTLY NOT ADMITTED THESE EVIDENCES. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSI NG OFFICER HAS ADDED THE TOTAL CREDITS AND CASH DEPOSITS IN THE BANK ACCOUNTS FOUN D FROM THE ASSESSEES BED ROOM BATHROOM CAMODE AND ADDED TO THE UNDISCLOSED INCOME OF THE ASSESSEE BY FRAMING ASSESSMENT U/S.153A OF THE ACT AS UNDER:- SR. NO. NAME OF THE PERSON NAME OF THE BANK BANK A/C TOTAL CREDITS (RS.) CASH DEPOSITS (RS) 1. DEVISINH G ASWAR SYNDICATE BANK ALKAPURI BRANCH 712 62 20 766 2 07 431 2. INDUMATIBEN N ASWAR DENA BANK SUBHANPURA BRANCH 5186 70 35 532 4 95 730 3. G.D.ASWAR SYNDICATE BANK ALKAPURI BRANCH 714 33 85 324 7 54 025 4. J.N.PARMAR SYNDICATE BANK ALKAPURI BRANCH 716 30 97 517 4 07 103 5. RITABEN G PARMAR SYNDICATE BANK ALKAPURI BRANCH 717 13 36 587 0 6. PRATAPSINGH G ASWAR DENA BANK SUBHANPURA BRANCH 5170 15 42 619 4 97 625 7. MADHAVSINGH G ASWAR DENA BANK SUBHANPURA BRANCH 5172 14 93 045 5 66 044 8. DHIRUBHAI G ASWAR SYNDICATE BANK ALKAPURI BRANCH 721 7 55 054 3 52 841 9. A.G. ASHWAR SYNDICATE BANK ALKAPURI BRANCH 715 9 04 770 3 99 956 10. RANJIT A ASWAR SYNDICATE BANK ALKAPURI BRANCH 719 4 16 252 2 67 742 11. DHANUBA G ASWAR DENA BANK SUBHANPURA BRANCH 5205 1 04 140 82 318 12. R.A.ASWAR SYNDICATE BANK ALKAPURI BRANCH 718 31 303 5 000 13. B.D.ASWAR SYNDICATE BANK ALKAPURI BRANCH 720 20 610 0 14. DIRUBHAI G ASWAR SHREE SATYANARAYANA CO-OP. CR. SOC.LTD. GORWA RD. BARODA 80 5 966 0 15. JAYABEN D ASWAR SHREE SATYANARAYANA CO-OP. CR. SOC. LTD. GORWA RD. BARODA 12 3 792 0 16. VISHWAJITSINH G ASWAR SYNDICATE BANK ALKAPURI BRANCH 834 3 555 0 17. BALVANTSINGH M ASWAR DENA BANK SUBHANPURA BRANCH 5187 8 54 759 0 18. BHAVNA DHIRSINH ASWAR SYNDICATE BANK ALKAPURI BRANCH 720 0 0 19. D.G.ASWAR DENA BANK SUBHANPURA BRANCH 5183 0 0 TOTAL 2 72 11 591 40 35 815 ITA NO.2224-2230/AHD/2008 A.YS 99-00 TO 05-06 SH. GHANSHYAM D ASWAR V. ACIT CC-1 BRD PAGE 5 THESE BANK ACCOUNTS WERE FOUND DURING THE COURSE OF SEARCH ACTION U/S.132 OF THE ACT CARRIED OUT ON 04-03-2005 ON THE GROUP CASES OF KABHAI CHAUHAN GROUP. BUT NOW THE QUESTION ARISES WHETHER WE CAN DECIDE THE I SSUE ON THE BASIS OF EVIDENCES FILED ADDITIONALLY BEFORE CIT(A) AND EVEN NOW BEFOR E US WHICH WAS NEVER CONSIDERED BY THE LOWER AUTHORITIES. IN OUR OPINION THE DOCUM ENTS FILED NOW BEFORE US IN THE SHAPE OF RETURNS OF THE FAMILY MEMBERS OF THE ASSES SEE BANK STATEMENTS AND THE DOCUMENTS TO PROVE THE SOURCES OF BANK ENTRIES ARE ADDITIONAL EVIDENCES REQUIRED TO BE ADMITTED AS THESE ARE VITAL FOR THE DECISION ON THESE ISSUES ACCORDINGLY AFTER ADMITTING THESE EVIDENCES FILED IN THE SHAPE OF PAP ER BOOKS IN ALL THE ASSESSMENT YEARS WE SET ASIDE ALL THESE APPEALS TO THE FILE O F ASSESSING OFFICER FOR ADJUDICATION OF THE ENTIRE ASSESSMENT IN ALL THESE ASSESSMENT YE ARS. THE ASSESSING OFFICER WILL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE AND THE ASSESSEE WILL LEAD ALL EVIDENCES BEFORE HIM FOR ADJUDICATION THES E ISSUES AND WILL CO-OPERATE WITH HIM IN THE ASSESSMENT PROCEEDINGS. ACCORDINGLY ALL THESE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED A BOVE. 7. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 06/08/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED : 06/08/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-IV AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD