Shri Maheshkumar G. Mehta, Ahmedabad v. The ACIT.,Circle-15,, Ahmedabad

ITA 2356/AHD/2008 | 2004-2005
Pronouncement Date: 30-07-2010 | Result: Allowed

Appeal Details

RSA Number 235620514 RSA 2008
Assessee PAN ACLPM5369D
Bench Ahmedabad
Appeal Number ITA 2356/AHD/2008
Duration Of Justice 2 year(s) 1 month(s) 10 day(s)
Appellant Shri Maheshkumar G. Mehta, Ahmedabad
Respondent The ACIT.,Circle-15,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 22-08-2008
Date Of Final Hearing 28-07-2010
Next Hearing Date 28-07-2010
Assessment Year 2004-2005
Appeal Filed On 20-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER AND SHRI D.C. AGRAWAL ACCOUNTANT MEMBER DATE OF HEARING : 28/07/2010 DRAFTED ON: 28/ 07/2010 ITA NO.2356/AHD/2008 ASSESSMENT YEAR : 2004-05 MAHESHKUMAR G. MEHTA 13 MIRA MADHAV RESIDENCY OPP. INDIA COLONY B/H. BALESHWAR BUNGLOWS BOPAL-GHUMA ROAD AHMEDABAD VS. THE ITO WARD-15(2) AHMEDABAD PAN/GIR NO. : ACLPM 5369 D (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI MAHESH KR. G.GUPTA RESPONDENT BY: SHRI K.MADHUSUDAN SR.D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -XXI AHMEDABAD DATED 04/12/2007 PASSED FOR ASSESSMENT YEAR 2004- 05. 2. GROUND NO.1 IS REPRODUCED BELOW: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED AND WRONGLY MADE THE ADDITION OF RS.57 40 0/-. THE ASSESSEE HAS DEPOSITED RS.57 400/- IN HIS SAVIN G BANK ACCOUNT WITH VIJAYA BANK NAVRANGPURA BRANCH ON 23/04/2003. THE SOURCE OF THIS FUND WAS CASH RECEI VED ON SALE OF GOLD ORNAMENTS OF HIS WIFE AND SON. ITA NO.2356/AHD /2008 MAHESHKUMAR G.GUPTA VS. ITO ASST.YEAR 2004-05 - 2 - THE PROOF FOR THE WEIGHT OF THE GOLD ORNAMENTS THE KACHA BILL/SLIP OF THE VALUATION GIVEN BY M/S.P.MAHESHCHA NDRA & CO. HAS BEEN FURNISHED DURING THE COURSE OF ASSESSM ENT PROCEEDINGS BUT NO OPPORTUNITY OF CROSS-EXAMINATION HAS BEEN GIVEN TO THE ASSESSEE. THE AFFIDAVIT REGARDIN G THE FACTS HAS ALSO BEEN FILED DURING THE COURSE OF APPELLATE STAGE BUT THE SAME HAS NOT BEEN CONSIDERED BY THE HON'BLE CIT (A). 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDI NG ASSESSMENT ORDER PASSED U/S. 143(3) OF THE I.T. ACT 1961 DATED 21 /12/2006 WERE THAT THE ASSESSEE WAS EARLIER AN EMPLOYEE OF THE NEW INDIA ASSURANCE CO.LTD. HE HAD TAKEN VOLUNTARY RETIREMENT FROM SERVICE. I T WAS NOTICED BY THE ASSESSING OFFICER THAT A SUM OF RS.57 400/- WAS DEP OSITED IN HIS BANK ACCOUNT NO.8870 OF VIJAYA BANK NAVRANGPURA BRANCH AHMEDABAD ON 23/04/2003. THE EXPLANATION OF THE ASSESSEE ABOUT THE SOURCE OF THE SAID DEPOSIT WAS THAT THE GOLD ORNAMENTS OF WIFE OF THE ASSESSEE WERE SOLD TO A JEWELLER NAMELY P.MAHESHCHANDRA & CO. AHMEDABAD AND IN SUPPORT XEROX COPY OF THE JEWELLERS BILL WERE FILED. HO WEVER THE SAID CONTENTION OF THE ASSESSEE WAS FOUND INCORRECT BY T HE ASSESSING OFFICER. AS PER ASSESSING OFFICER THE JEWELLERS BILL HAVE NEVER BEEN PLACED ON RECORD. RATHER THE ASSESSING OFFICER HAS SENT A LETTER TO THE SAID JEWELLER TO CONFIRM THE TRANSACTION HOWEVER THE J EWELLER HAS DENIED THE SAID TRANSACTION. THE ASSESSEES REPLY THEREAFTER WAS AS UNDER:- I HAVE SOLD GOLD ORNAMENTS OF MY WIFE TO SHRI MAHE SHCHANDRA & CO. JEWELERS AND I HAVE RECEIVED RS.57 400/- IN CA SH FOR THAT SALE PROCEEDINGS BY MISTAKE I HAVE NOT TAKEN BILL OF SAI D SALE PROCEEDING FROM JEWELERS. ITA NO.2356/AHD /2008 MAHESHKUMAR G.GUPTA VS. ITO ASST.YEAR 2004-05 - 3 - SIR DUE TO LACK OF KNOWLEDGE ABOUT INCOME-TAX LAW I HAVE NOT TAKEN BILL OF SALE OF GOLD ORNAMENT. SIR IF MY IN TENTION IS MALAFIDE I COULD NOT DEPOSIT MY SAID AMOUNT IN MY BANK ACCOU NT. I AM RETIRED EMPLOYEE OF NEW INDIA ASSURANCE CO.LTD. AN D I HAVE NO OTHER INCOME EXCEPT SALARY INCOME THAT YOUR GOODSEL F ALSO SEEN FROM MY PASSBOOK. 3.1. THE ASSESSING OFFICER WAS NOT CONVINCED AND TH E ADDITION WAS MADE. 4. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY THE ACTION OF THE ASSESSING OFFICER WAS CONFIRMED B Y ASSIGNING THE FOLLOWING REASONS:- I HAVE CAREFULLY GONE THROUGH THE OBSERVATION MADE BY THE A.O. IN THE ASSESSMENT ORDER SUBMISSION MADE BY THE COU NSEL OF THE APPELLANT ALONGWITH AFFIDAVIT FILED DURING THE COUR SE OF APPELLATE PROCEEDINGS. I AM OF THE OPINION THAT APPELLANT HA S BEEN INCONSISTENT IN HIS CONDUCT BEFORE THE A.O. IN HI S REPLY DTD. 19.10.2006 HE IS REFERRING TO 6 ENCLOSURES WHEREAS THERE WAS NO SUCH BILL OF THE JEWELERS AS STATED BY THE APPELLAN T. THE STAND OF THE APPELLANT IS CHANGED IN HIS REPLY ON 11.12.2006 THAT HE HAS NOT TAKEN BILL FOR SALE OF GOLD ORNAMENTS. THE JEWELE R HAS ALSO DENIED THE TRANSACTION ALLEGED TO HAVE BEEN ENTERED BY THE APPELLANT. IN VIEW OF THIS THE CONTENTS OF THE AFFIDAVIT CANNOT BE ACCEPTED AS TRUTHFUL THEREFORE THE ACTION BY THE A.O. IN TREATI NG THE SUM OF RS.57 400/- UNEXPLAINED IS JUSTIFIED AND STAND OF T HE A.O. IS THEREFORE CONFIRMED. 5. ON THE DATE OF HEARING THE ASSESSEE HIMSELF IS P RESENT AND STATED WITH FULL SENSE OF RESPONSIBILITY THAT THE GOLD ORN AMENTS OF HIS WIFE WERE SOLD AND IN SUPPORT A KACHA BILL WAS PROCURED FROM THE JEWELLER. NOT ONLY THE SAID KACHA BILL THE JEWELLERY WAS ALSO WE IGHED ON THAT VERY DAY OF SALE AT THE TOLE NO KANTTO . IN SUPPORT RELEVANT PHOTOCOPY OF THE PROOF PLACED ON RECORD. IT WAS EXPLAINED THAT THE JEWELLE RY WAS FIRST WEIGHED ITA NO.2356/AHD /2008 MAHESHKUMAR G.GUPTA VS. ITO ASST.YEAR 2004-05 - 4 - BY A GOVERNMENT APPROVED WEIGHING SCALE ON 19/04/20 03 AND THEN THE IDENTICAL WEIGHT OF THE JEWELLERY WAS SOLD TO THE S AID JEWELER AS PER HIS HAND-WRITTEN BILL GIVEN TO ME; ANNEXUED. AN AFFIDA VIT ON OATH HAS ALSO BEEN FURNISHED WHEREIN THE FACTS WERE NARRATED AS F OLLOWS:- I WAS SERVED AS EMPLOYEE OF NEW INDIA ASSURANCE CO MPANY LTD DUE TO FINANCIAL REQUIREMENT IN OUR FAMILY WE HAVE DECIED TO SALE SOME JEWELLERY/ORNAMENT OF MY WIFE AND SON. ON 19 TH APRIL 2003 SATURDAY THIS IS A HOLIDAY FOR ME SO MY SELF & MY W IFE MRS. NALINI M.MEHTA BOTH HAD GONE BY SCOOTER TO MANEK CHOWK FRO M OUR RESIDENCE AT AALAP FLATS THELTAJ. FIRST WE REACHED TO OUR FAMILY JEWELERS MR. SANJAYB HAI OF M/S.KANUBHAI BHOGILAL JEWELERS AT RATANPOLE BUT NO CONCERN PERSON WAS AVAILABLE AT SHOP THAN WE HAD DECIDED TO CONTACT OTHER SHOP BEFORE THAT WE HAVE GONE TO SHRI CHOWKSHI MAH AJAN AHMEDABAD. TOLE NO KANTA THIS IS GOVERNMENT APPROVED/AUTHORIZED WEIGHING SCALE. I HAVE TAKEN WEIGHT OF ORNAMENT OF MY WIFE AND SON VIDE RECEIPT NO.009625 AND 009626 DATED 19/4/2003 RESPECTIVELY. THAN WE HAVE GONE TO NEAREST SHOP TO THIS KANTA M/S. P.MAHESHCHANDRA & CO. I HAVE DI SCUSSED WITH MAHESHBHAI AND GIVEN OUR ORNAMENT TO HIM MR.MAHESHB HAI HAS TAKEN THE WEIGHT OF THE OUR ORNAMENT THIS WEIGHT WA S ALMOST THE SAME AS TAKEN FROM GOVERNMENT APPROVAL KATA. THE G OLD PRICE/RATE ON 19 TH APRIL 2003 WAS RS.5100 PER TOLA. I HAVE ACCEPTED THE MARKET RATE. MR.MAHESHBHAI HAS WRITT EN COMPLETE DETAILS THAT IS ITEM WEIGHT PEORITY RATE AND AMO UNT ON A PAPER AND DRIVE THE VALUE OF ORNAMENT OF MY WIFE WAS RS.4 3500 AND ORNAMENT OF MY SON WAS RS.15500 TOTAL OF RS.59000. I HAVE CHECK THE PAPER AND SATISFIED WITH VALUATION OF ORNAMENT AND ACCEPTED/RECEIVED AMOUNT OF RS.59000/- ALONG WITH T HE VALUATION PAPER PREPARED BY MR. MAHESHBHAI HAS PROOF OF TRANS ACTION. I HAVE COUNTED THE AMOUNT OF RS.59000/- GIVEN BY MR. MAHESHBHAI AND KEPT IN PURSE OF MY WIFE THAN WE HAD COME BACK TO OUR HOME. 6. ON HEARING THE SUBMISSIONS OF BOTH THE SIDES AND IN THE LIGHT OF THE EVIDENCES SUCH AS AFFIDAVIT BANK ACCOUNT TOLE NO KATTO HAND- ITA NO.2356/AHD /2008 MAHESHKUMAR G.GUPTA VS. ITO ASST.YEAR 2004-05 - 5 - WRITING KACHA SALE BILL ETC AS WELL AS CONSIDERI NG THE SMALLNESS OF THE AMOUNT WE DEEM FIT TO GIVE THIS ASSESSEE THE BENEF IT OF DOUBT CONSIDERING THE HUMAN NATURE IN GENERAL AND THE ASSESSEES COND UCT IN PARTICULAR. THIS IS A FIT CASE IN WHICH THE PREPONDERANCE OF P ROBABILITIES CANNOT BE RULED OUT CONSIDERING THE DATE OF SALE OF JEWELLERY ON 19/04/2003 AND THE DEPOSIT OF THE ALLEGED SALE CONSIDERATION ON 23/04/ 2003. WITH THE RESULT WE HEREBY DIRECT TO DELETE THE ADDITION. GROUND AL LOWED. 7. GROUND NO.2 IS REPRODUCED BELOW:- 2. CROSS OBJECTION FOR RELIEF U/S.89(1) FOR AMOUNT OF RS.25 244/-. THE LD. CIT(A) HAS ALLOWED THE RELIEF U/S.89(1) BY CONSIDERING THE SIMILAR FACTS IN THE JUDICIAL DECISION OF MADRAS HI GH COURT IN THE CASE OF CIT V/S. M. RAMAN 245 ITR 856. 7.1. THE APPELLANT HAS RECEIVED EX-GRATIA PAYMENT LEAVE ENCASHMENT PRE-REQUISITE ETC. ON ADOPTING VRS UNDER SPECIAL V OLUNTARY RETIREMENT SCHEME-2004. DETAILS WERE FURNISHED BEFORE THE RE VENUE AUTHORITIES. THE ASSESSEE HAS CLAIMED RELIEF OF RS.4 96 846/- A S PRESCRIBED U/S.89(1) OF THE I.T. ACT 1961. THE LEARNED CIT(APPEALS) H AS EXAMINED THE FACTS AND THEREUPON PLACED RELIANCE UPON THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. M.RAMAN REPORTED AS ( 2002)245 ITR 856 (MAD.) AND DIRECTED TO GIVE THE RELIEF U/S.89(1) OF THE I.T. ACT 1961 IN THE FOLLOWING MANNER:- DURING THE COURSE OF APPELLATE PROCEEDINGS THE AP PELLANT HAS FILED SUBMISSION DATED 2 ND AUGUST 2007 WHEREIN RELIANCE IS PLACED ON THE JUDGMENT OF MADRAS HIGH COURT IN THE CASE OF CIT V/ S. M. RAMAN 245 ITR 856. THE HON'BLE MADRAS HIGH COURT IN THE ABOV E CITED CASE HAS HELD THAT RELIEF U/S.89 WAS ALLOWABLE IN ADDITION T O BENEFIT U/S.10(10C). I HAVE CAREFULLY GONE THROUGH THE OBSERVATION OF TH E A.O IN THE ASSESSMENT ORDER AND SUBMISSION MADE BY THE COUNSEL OF THE APPELLANT ITA NO.2356/AHD /2008 MAHESHKUMAR G.GUPTA VS. ITO ASST.YEAR 2004-05 - 6 - AND DECISION OF THE HON'BLE MADRAS HIGH COURT ON TH IS POINT. I FIND THAT DECISION OF HON'BLE MADRAS HIGH COURT IS DIREC T ON THE POINT. THEREFORE IN VIEW OF THIS JUDGMENT OF HON'BLE MADRA S HIGH COURT THE APPELLANT IS ENTITLED TO RELIEF U/S.89(1) AND ACCOR DINGLY THE DISALLOWANCE MADE BY THE A.O OF THE RELIEF U/S.89(1) IS HELD TO BE IMPROPER AND RELIEF U/S.89(1) IS ALLOWED. 8. ONCE THE RELIEF HAS ALREADY BEEN GRANTED BY THE LEARNED CIT(APPEALS) THEREFORE THIS GROUND OF THE ASSESSE E APPEARS TO BE ILL- FOUNDED. IN FACT THE ASSESSEE HAS MISTAKENLY MEN TIONED IN THE GROUND THAT HE IS RAISING A CROSS OBJECTION THROUGH THIS A PPEAL WHICH WAS ALTOGETHER A WRONG NOTION AND MISUNDERSTANDING OF T HE PROCEDURE OF FURNISHING OF APPEAL. HOWEVER BY IGNORING THE SA ID MISTAKE THIS GROUND OF THE ASSESSEE MAY BE TREATED AS REDUNDANT. 9. IN THE RESULT APPEAL IS ALLOWED AS PER THE T ERMS INDICATED ABOVE. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 30/ 07 /2010. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL KR. SH RAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 30 / 07 /2010 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2 . THE DEPARTMENT. 3. THE CIT CONCERNED. 4 . THE LD.CIT(APPEALS)-XXI AHMEDABAD 5. THE DR AHMEDABAD BENCH. 6 . THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD