Shri Vastupal H.Patwa,HUF,, Ahmedabad v. The Income Tax Officer,Ward-2,, Patan

ITA 3484/AHD/2015 | 2008-2009
Pronouncement Date: 27-09-2016 | Result: Allowed

Appeal Details

RSA Number 348420514 RSA 2015
Assessee PAN AACHP1859A
Bench Ahmedabad
Appeal Number ITA 3484/AHD/2015
Duration Of Justice 9 month(s) 16 day(s)
Appellant Shri Vastupal H.Patwa,HUF,, Ahmedabad
Respondent The Income Tax Officer,Ward-2,, Patan
Appeal Type Income Tax Appeal
Pronouncement Date 27-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 27-09-2016
Date Of Final Hearing 07-09-2016
Next Hearing Date 07-09-2016
Assessment Year 2008-2009
Appeal Filed On 11-12-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI S. S. GODARA JUDICIAL MEMBER AND SHRI MANISH BORAD ACCOUNTANT MEMBER. ITA. NO.3484/AHD/2015 (ASSESSMENT YEAR:2008-09) VASTUPAL H. PATWA HUF C/O. KETAN H. SHAH ADVOCATE 903 SAPPHIRE COMPLEX C.G. ROAD NAVRANGPURA AHMEDABAD APPELLANT VS. INCOME TAX OFFICER WARD (2) PATAN RESPONDENT PAN NO. AACHP1859A & ITA. NO.3485/AHD/2015 (ASSESSMENT YEAR:2008-09) SMT. PRIYANKA BINESHKUMAR PATWA C/O. KETAN H. SHAH ADVOCATE 903 SAPPHIRE COMPLEX C.G. ROAD NAVRANGPURA AHMEDABAD APPELLANT VS. INCOME TAX OFFICER WARD (2) PATAN RESPONDENT PAN NO. AGXPP3568P & ITA NO.3484 3485 3517 & 3519/AHD/2015 (VASTUPAL H . PATWA & 3 ORS.) A.Y. 2008-09 - 2 - ITA. NO.3517/AHD/2015 (ASSESSMENT YEAR:2008-09) HIRALAL C. PATWA HUF C/O. KETAN H. SHAH ADVOCATE 903 SAPPHIRE COMPLEX C.G. ROAD NAVRANGPURA AHMEDABAD APPELLANT VS. INCOME TAX OFFICER WARD (2) PATAN RESPONDENT PAN NO. AAHHP5886J & ITA. NO.3519/AHD/2015 (ASSESSMENT YEAR:2008-09) SMT. SUCHITABEN VASTUPAL PATWA C/O. KETAN H. SHAH ADVOCATE 903 SAPPHIRE COMPLEX C.G. ROAD NAVRANGPURA AHMEDABAD APPELLANT VS. INCOME TAX OFFICER WARD (2) PATAN RESPONDENT PAN NO. AMDPP1250E / BY ASSESSEE : SHRI K. H. SHAH A.R. / BY REVENUE : SHRI S. L. CHANDEL SR.D.R. /DATE OF HEARING : 07.09.2016 /DATE OF PRONOUNCEMENT : 27.09.2016 ORDER ITA NO.3484 3485 3517 & 3519/AHD/2015 (VASTUPAL H . PATWA & 3 ORS.) A.Y. 2008-09 - 3 - PER BENCH THESE FOUR DIFFERENT ASSESSEES HAVE FILED THE INSTA NT AS MANY APPEALS FOR ASSESSMENT YEAR 2008-09 AGAINST SE PARATE ORDERS; ALL DATED 18.08.2015 PASSED BY THE CIT(A) GANDHINAGAR IN CASE NOS. CIT(A)/GNR/156 158 162 & 155/2014-15 ; IN PROCEEDINGS U/S.143(3) R.W.S. 254 OF THE INCOME TAX ACT 1961 IN SHORT THE ACT. 2. A COMBINED PERUSAL OF ASSESSEES PLEADINGS REVEA LS THAT ALL OF THEM RAISED FOLLOWING IDENTICAL SUBSTANTIVE GROU ND IN CHALLENGING THE IMPUGNED CASH CREDIT ADDITIONS OF R S.7 00 000/- AS FOLLOWS: 1. IN CONFIRMING THE ADDITION OF RS.7 00 000/- INS PITE OF THE FAT THAT THE ASSESSEE HAS PROVIDED RELEVANT EVIDENCES AS WEL L AS COPY OF BANK ACCOUNT OF VISNAGAR NAGRIK SAHAKARI BANK FOR THE F. Y.2013-14 WHEREIN THE ADVANCE HAS BEEN GIVEN AND THEREFORE SINCE THE REPAYMENT IS MADE IN ASST. YEAR 2008-09 THERE IS N O QUESTION OF APPLYING SEC.68 AND THEREFORE IT IS PRAYED THAT T HE ADDITION MADE MAY PLEASE BE DELETED. 3. BOTH THE LD. REPRESENTATIVES AT THE OUTSET INFOR M US THAT THESE FOUR APPEALS CONTAIN IDENTICAL SET OF FACTS I N CHALLENGING THE IMPUGNED ADDITION. WE THUS TAKE UP ITA NO.3484/AHD /2015 IN CASE OF HUF VASTUPAL H. PATWA AS THE LEAD CASE. 4. THIS LEAD CASE FILE DEMONSTRATES THAT THE INSTAN T IS SECOND ROUND OF LITIGATION BETWEEN THE PARTIES ON THE VERY ISSUE. THE ASSESSEE IS AN HUF. IT DERIVES INCOME FROM HOUSE P ROPERTY RENT SHORT TERM CAPITAL GAINS AND INTEREST INCOME. IT F ILED RETURN ON 30.03.2009 STATING INCOME OF RS.1 76 890/-. THE SA ME WAS PROCESSED. THE ASSESSING OFFICER TOOK UP SCRUTINY. HE CAME ACROSS ASSESSEES BANK ACCOUNT MAINTAINED WITH A CO -OPERATIVE BANK REVEALING TOTAL 15 DEMAND DRAFT DEPOSITS OF RS .49000/- (ON ITA NO.3484 3485 3517 & 3519/AHD/2015 (VASTUPAL H . PATWA & 3 ORS.) A.Y. 2008-09 - 4 - 14 OCCASIONS) AND THE LAST ONE OF RS.14000/- ON 08. 09.2007. THE ASSESSEE HAS CLASSIFIED ALL THESE ENTRIES AS LOANS AND ADVANCES. THE ASSESSING OFFICER SUMMONED DEMAND DRAFTS RECORD S. HE FOUND ONE SHRI VIRAM MULLAJI TO HAVE APPLIED FOR AL L THESE DEMAND DRAFTS ON 08.09.2007 AGAINST TENDERING OF CA SH PAYMENTS. THE ASSESSING AUTHORITY FRAMED REGULAR A SSESSMENT ON 28.12.2010 TREATING ALL THESE DEPOSITS AS DUBIOU S ONCE FOLLOWED BY ASSESSEES ALLEGED FAILURE IN EXPLAININ G GENUINENESS/CREDITWORTHINESS THEREOF SO AS TO INVOK E SECTION 68 OF THE ACT. 5. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) IN HI S ORDER DATED 22.11.2012 UPHELD THE IMPUGNED ADDITION. THE ASSESSEE AND ALL HIS CONNECTED CASES APPELLANTS/FAMILY MEMBE RS FILED ITA NOS.494 TO 504/AHD/2013 BEFORE THIS TRIBUNAL. A CO ORDINATE BENCH IN ITS ORDER DATED 21.06.2013 REMITTED THE IS SUE BACK TO THE ASSESSING OFFICER AS FOLLOWS: 6. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES WE ARE OF THE CONSIDERED OPINION THAT CERTAIN FACTS HAVE YET TO B E ASCERTAINED IN RESPECT OF ALL THESE APPEALS. PRIMA FACIE ONE OF TH E PLEA OF THE ASSESSEE THAT IT IS NOT A CASE OF FRESH LOAN TAKEN FOR THE Y EAR UNDER CONSIDERATION BUT IT WAS SIMPLY A RETURN OF OLD ADVANCES WHICH HAD NOT BEEN VERIFIED BY THE AO. NOW THE ASSESSEE IS PLACING RELIANCE O N CERTAIN COMPUTER GENERATED ACCOUNTS BUT THE APPARENT FACTUAL POSITI ON IS THAT NO INVESTIGATION WAS CARRIED OUT BY THE AO TO VERIFY T HE CORRECTNESS AS ALSO THE TRUTHFULNESS OF THESE ACCOUNTS. FOR THIS P URPOSE AND VERIFICATION OF THESE ACCOUNTS NATURAL JUSTICE DEMANDS TO RESTO RE THIS ISSUE BACK TO THE STAGE OF THE AO SO THAT THE VERACITY CAN BE PRO VED. ALTHOUGH THE LEARNED DR HAS PLEADED THAT EVEN THE OPENING BALANC E CAN BE ADDED IN THE HANDS OF THE ASSESSEE BY PLACING RELIANCE ON TH E DECISION OF MANJIT SINGH KALRA VS. ITO ITA NO.3553/DEL/2011 DATED 26. RO.2012 AND A DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE O F C. PACKIRISAMY VS. ACIT 315 ITR 293 BUT THE NATURAL JUSTICE DEMANDS THAT A CLEAR FINDING SHOULD FIRST BE ON FACTS THAT WHETHER THERE WAS RET URN OF LOAN IN RESPECT OF IMPUGNED ENTRIES. FOR THAT PURPOSE THE ASSESSEE IS DUTY BOUND TO DISCHARGE THE PRIMARY ONUS AS PRESCRIBED UNDER LAW. WHILE RESTORING BACK THIS ISSUE TO THE STAGE OF THE ASSESSMENT WE HEREBY SPECIFICALLY DIRECT THESE APPELLANTS TO SUO MOTTO APPEAR BEFORE THE AO WITHIN 30 ITA NO.3484 3485 3517 & 3519/AHD/2015 (VASTUPAL H . PATWA & 3 ORS.) A.Y. 2008-09 - 5 - DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL ALONG WITH REQUISITE INFORMATION WITHOUT WAITING FOR ANY NOTICE OF HEARI NG FROM THE SIDE OF THE REVENUE DEPARTMENT. HOWEVER THE AO IS AT LIBER TY TO PROCEED WITH THE ASSESSMENT PROCEEDINGS AS PER LAW. WITH THESE D IRECTIONS THIS GROUND MAY BE TREATED AS ALLOWED FOR STATISTICAL PU RPOSE. 6. THE ASSESSING OFFICER TOOK UP CONSEQUENTIAL PROC EEDINGS. HE REAFFIRMED THE IMPUGNED ADDITION VIDE ORDER DATE D 30.06.2014 INTER ALIA ON THE GROUND THAT THE ASSESSEES BALANC E SHEET AND BANK STATEMENTS OF ASSESSMENT YEAR 2004-05 DO NOT R EFLECT THESE CREDIT ENTRIES SO AS TO BE REALIZED IN THE IMPUGNED ASSESSMENT YEAR NAMES OF THE CREDITORS ARE RATHER MENTIONED A S LOANS AND ADVANCES AND RELATIVE AND NO DETAILS OF THE OUTS TANDING LOAN AMOUNT HAVE BEEN FILED. THE CIT(A) CONFIRMS THE SA ME. 7. WE HAVE HEARD BOTH THE PARTIES. RELEVANT FACTS NARRATED IN THE PRECEDING PARAGRAPH ARE NOT REPEATED FOR THE SA KE OF BREVITY. LD. COORDINATE BENCH IN THE FIRST ROUND OF LITIGATI ON HAS ALREADY OBSERVED THAT THE ASSESSEES CLAIM STATING TO HAVE RECEIVED THE IMPUGNED SUMS OF RS.7LACS APPEARED TO BE PRIMA FACI E CORRECT. WE FIND THAT PAGE 2 OF THE PAPER BOOK CONTAINS TRIA L BALANCE FROM 01.04.2003 TO 31.03.2004 IN CASE OF SHRI VIRAM TO B E INVOLVING A SUM OF RS.7LACS. ASSESSEES BALANCE SHEET IN ASSET SIDE INCLUDES THE SAME. ALL THESE PAYMENTS OF RS.1.5 LACS EACH O N 05.07.2003 05.08.2003 AND 15.11.2003 MADE BY CHEQUE INVOLVE UN IFORM AMOUNT OF RS.1.5LACS EACH FOLLOWED BY THE LAST ONE DATED 10.10.2003 CONTAINING A FIGURE OF RS.2.5LACS. THE REVENUE FAILS TO DISPUTE CORRECTNESS THEREOF SINCE ATTAINED FINAL ITY MUCH EARLIER. WE FURTHER REITERATE THAT THIS TRIBUNAL I N CASE OF OTHER 7 CONNECTED ASSESSEE(SUPRA) HAS ALREADY DELETED IDENT ICAL ADDITIONS OF RS.7LACS EACH ON 15.04.2016. NO DISTINCTION ON FACT OR LAW IS POINTED THEREIN. WE ACCORDINGLY ACCEPT THESE ARGUM ENTS TO DELETE ITA NO.3484 3485 3517 & 3519/AHD/2015 (VASTUPAL H . PATWA & 3 ORS.) A.Y. 2008-09 - 6 - ADDITION OF RS.7LACS MADE BY THE LOWER AUTHORITIES BY INVOKING SECTION 68 OF THE ACT. ITA NO.3484/AHD/2015 SUCCEE DS. 8. SAME ORDER TO FOLLOW IN REMAINING 3 APPEALS ITA NOS. 3485 3517 & 3519/AHD/2015. 9. THESE FOUR ASSESSEES SUCCEED IN THEIR RESPECTIVE APPEALS. PRONOUNCED IN THE OPEN COURT ON THIS THE 27 TH DAY OF SEPTEMBER 2016. SD/- SD/- (MANISH BORAD) (S. S. GOD ARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 27/09/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + --. . /0 / DR ITAT AHMEDABAD 1 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0