The ACIT, Central Circle-3,, Surat v. Shri Ghanshyam B.Ghelani, Surat

ITA 3714/AHD/2008 | 2001-2002
Pronouncement Date: 13-01-2011 | Result: Dismissed

Appeal Details

RSA Number 371420514 RSA 2008
Assessee PAN AAPPG6113P
Bench Ahmedabad
Appeal Number ITA 3714/AHD/2008
Duration Of Justice 2 year(s) 1 month(s) 29 day(s)
Appellant The ACIT, Central Circle-3,, Surat
Respondent Shri Ghanshyam B.Ghelani, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 13-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 13-01-2011
Date Of Final Hearing 10-01-2011
Next Hearing Date 10-01-2011
Assessment Year 2001-2002
Appeal Filed On 14-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH C CC C BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI N NN N. .. .S. SAINI S. SAINI S. SAINI S. SAINI ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AND AND AND AND SHRI SHRI SHRI SHRI MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING : 10-1-11 DRAFTED ON: 10-1-2011 ITA NO. 3714 3715 /AHD/ 2008 ASSESSMENT YEARS :2001-02 2002-03 ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-3 ROOM NO.507 AAYAKAR BHAVAN MAJURA GATE SURAT. VS. SHRI GHANSHYAM B. GHELANI 2-A ANAND VILLA APARTMENT BEHIND L. B. CINEMA BHATAR ROAD SURAT. PAN/GIR NO. : AAPPG 6113 P (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI SHELLY JINDAL CIT (D.R.) RESPONDENT BY: SHRI M.K. PATEL. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -II AHMEDABAD IN APPEAL NO.CIT(A)-II/CC.3/770 & 771/2006-07 BOTH DATED 18-8 -2008 FOR THE ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY. 2. GROUND NO.1 OF APPEAL IN BOTH THE YEARS UNDER CO NSIDERATION IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) DELETING THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER OF `.14 89 310/- AND `.14 85 730/- IN THE ASSESSMENT YEAR 2001-02 AN D 2002-03 RESPECTIVELY ON ACCOUNT OF UNVERIFIABLE SUNDRY CREDITORS. 3. THE BRIEF FACTS AS STATED IN THE ASSESSMENT ORDE R ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS OBSERVED B Y THE LEARNED ASSESSING OFFICER THAT THE ASSESSEE HAS WORKED AS A LABOUR CO NTRACTOR TO SHANTIDEVI N. JAIN NIRANJANDAS K. JAIN AND RAJ CONSTRUCTION COMP ANY. THE ASSESSEE RECEIVED TOTAL LABOUR CHARGES OF `.28 50 000/- AND HAS DEBIT ED LABOUR EXPENSES OF PAGE 2 OF 10 `.16 63 650/- OUT OF WHICH OUTSTANDING LABOUR CHAR GES HAS BEEN SHOWN IN THE BALANCE SHEET AS SUNDRY CREDITORS AT `.14 89 310/- IN THE NAME OF VARIOUS PERSONS WHO CARRIED OUT THE LABOUR WORK. SIMILARLY IN THE ASSESSMENT YEAR 2002-03 THE ASSESSEE HAS WORKED AS A LABOUR CONTRAC TOR TO RAJ CONSTRUCTION COMPANY GHILANI CORPORATION AND RAM CORPORATION SU RAT AND HAS SHOWN RECEIPT OF TOTAL LABOUR CHARGES OF `.26 40 550/- AN D DEBITED LABOUR EXPENSES OF `.22 74 750/- OUT OF WHICH OUTSTANDING LABOUR CHARG ES HAS BEEN SHOWN IN THE BALANCE SHEET AS SUNDRY CREDITORS AS `.29 55 060/- IN THE NAME OF VARIOUS PERSONS WHO CARRIED OUT THE LABOUR WORK. IN THE NO RMAL COURSE THE LABOUR PAYMENTS ARE GENERALLY MADE WEEKLY OR FORTNIGHTLY H ENCE THERE IS NO REASON FOR LABOUR EXPENSES TO REMAIN OUTSTANDING. THEREFOR E THE ASSESSEE WAS ASKED TO PRODUCE THE LABOUR CONTRACTORS WHO WERE SHOWN AS OUTSTANDING IN SUNDRY CREDITS DURING THE COURSE OF ASSESSMENT PROCEEDINGS . THE ASSESSEE STATED THAT IT IS THE PRACTICE IN LABOUR CONTRACTOR BUSINESS T HAT THEY ARE USED TO PAY THEIR LABOUR ONLY TO THE EXTENT OF THEIR (LABOUR) DAILY N EED. HOWEVER AS AND WHEN LABOUR ARE USED TO GO TO THEIR NATIVE PLACE OR VILL AGE CONTRACTOR USED TO COLLECT THE AMOUNT FROM THE BUILDERS /ORGANIZER AND EFFECT PAYMENT TO THE LABOURS. THIS WAS THE MAIN REASONS THAT CONTRACTORS PAYMENT WAS OUTSTANDING. 4. THE LEARNED ASSESSING OFFICER DID NOT ACCEPT TH E ASSESSEES REPLY AS THE TOTAL LABOUR PAYMENTS DEBITED TO THE PROFIT AND LOS S ACCOUNT DURING THE ASSESSMENT YEAR 2001-02 WAS AT `.15 42 550/- AND T HE OUTSTANDING LABOUR PAYMENTS ARE SHOWN TO THE EXTENT OF `.14 89 310/-. THE LABOUR EXPENSES DEBITED TO THE PROFIT AND LOSS ACCOUNT AND LABOUR P AYMENTS OUTSTANDING ARE AS BELOW:- SR.NO. NAME OF THE PERSON AMOUNT OF LABOUR DEBITED AMOUNT OF LABOUR OUTSTANDING 1 NARAN MISTRY 861850 821610 2 HIRJI LAXMAN VANCHARA 49200 36200 3 SUBHASH GUNTHAR PANDIT 315750 315750 4 RAM PRATAP SAXENA 315750 315750 TOTAL 1542550 1489310 5. THE LEARNED ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES REPLY AS THE TOTAL LABOUR PAYMENTS DEBITED TO THE PROFIT AND LOS S ACCOUNT DURING THE PAGE 3 OF 10 ASSESSMENT YEAR 2002-03 WAS AT `.22 74 750/- AND T HE OUTSTANDING LABOUR PAYMENTS ARE SHOWN TO THE EXTENT OF `.29 55 060/-. THE LABOUR EXPENSES DEBITED TO THE PROFIT AND LOSS ACCOUNT AND LABOUR P AYMENTS OUTSTANDING ARE AS BELOW:- SR.NO. NAME OF THE PERSON AMOUNT OF LABOUR DEBITED AMOUNT OF LABOUR OUTSTANDING 1 NARAN MISTRY 485615 1092225 2 HIRJI LAXMAN VANCHARA 591250 433450 3 SUBHASH GUNTHAR PANDIT 592650 708400 4 RAM PR ATAP SAXENA 605235 720985 TOTAL 2274750 2955060 6. THUS THE LEARNED ASSESSING OFFICER OBSERVED THA T ALMOST 89.50 OF THE LABOUR PAYABLE HAS BEEN SHOWN AS OUTSTANDING WHICH IS NOT AT ALL POSSIBLE. THE ASSESSEE COULD NOT PRODUCE THE LABOUR CONTRACTORS O N THE PRETEXT THAT IT IS NOT POSSIBLE TO PRODUCE THEM AFTER CONSIDERABLE SPAN OF TIME. SIMILARLY IN THE ASSESSMENT YEAR 2002-03 THE LEARNED ASSESSING OFFI CER OBSERVED THAT ALMOST 130% OF THE LABOUR PAYABLE HAS BEEN SHOWN AS OUTSTA NDING WHICH IS NOT AT ALL POSSIBLE. THE ASSESSEE COULD NOT PRODUCE THE LABOUR CONTRACTORS ON THE PRETEXT THAT IT IS NOT POSSIBLE TO PRODUCE THEM AFTER CONSI DERABLE SPAN OF TIME. HENCE HE ADDED AS EXPENSES INCURRED OUT OF UNDISCLOSED SO URCES `.14 89 310/-IN ASSESSMENT YEAR 2001-02 AND `.14 13 730/-IN ASSESSM ENT YEAR 2002-03 RESPECTIVELY. 7. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) DELETED THE ADDITION BY OBSERVING AS FOLLOWS. 2.3. I HAVE CONSIDERED THE FACTS AND SUBMISSIONS O F THE CASE AND I FIND THAT THE APPELLANT IS DEALING WITH THE SUB-CONTRACT ORS WHO WERE IN TURN MAKING PAYMENT TO LABOURERS. THE CONFIRMATIONS FROM SUB-CONTRACTORS HAVE BEEN FILED AND SOME OF THEM ARE ASSESSED TO TA X. DURING THE SEARCH NO MATERIAL INDICATING ANY UNACCOUNTED LABO UR PAYMENT HAS BEEN FOUND. AS THE FACTS ARE THE SAME THE RATIO OF THE DECISION OF HONBLE ITAT. AHMEDABAD IN THE CASE OF SHRI SANJAY V. FAGANIA (SUPRA) IS APPLICABLE AND THE ASSESSING OFFICERS ACTION IS NO T JUSTIFIED AND THE APPELLANT GETS RELIEF ON THIS GROUND. PAGE 4 OF 10 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES IT IS EVIDENCED THAT THE ASSESSEE PAID THE LABOUR EXPENSES IN CASH OUT OF HIS UNDISCLOSED SOUR CES OF INCOME DURING THE YEAR BUT THE PAYMENTS ARE SHOWN OUTSTANDING TO BE S QUARED-UP ONLY WHEN THE CASH FLOW IS AVAILABLE. THE LABOUR EXPENSES OF ALMO ST 89.52% CANNOT REMAIN OUTSTANDING. IN THIS CASE MOST OF THE LABOUR CONTR ACTORS PAYMENTS REMAINS UNPAID. THEREFORE IT IS EVIDENCED THAT THE ASSESSE E HAS MADE THE PAYMENT OF LABOUR DURING THE YEAR OUT OF HIS UNDISCLOSED SOURC ES OF INCOME BUT THE SAME ARE SHOWN OUTSTANDING TO BE SQUARED UP ON AVAILABIL ITY OF CASH FLOW. THEREFORE THE LEARNED ASSESSING OFFICER HELD THAT THE OUTSTAN DING SUNDRY CREDITORS OF `.14 89 310/- ARE NOT GENUINE AND TAXED THE SAME IN ASSESSMENT YEAR 2001-02. AND SIMILARLY IN THE ASSESSMENT YEAR 2002-03.THERE FORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIF IED IN DELETING 9. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUPPORTED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS). 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT NO SPECIFIC ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) COULD BE POINTED OUT BY THE REVENUE. THE REVENUE COULD NOT BRING ANY MATERIAL WHICH WAS FOUND DURING THE COURSE OF THE SEARCH OR OTHERW ISE TO SHOW THAT ANY PAYMENT WAS ACTUALLY MADE BY THE ASSESSEE TO THE SU NDRY CREDITORS AND WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT. WE THER EFORE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED C OMMISSIONER OF INCOME TAX (APPEALS). THEREFORE THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 11. GROUND NO.2 OF THE APPEAL IN ASSESSMENT YEAR 20 01-02 AND GROUND NO.4 OF THE APPEAL IN ASSESSMENT YEAR 2002-03 ARE DIRECT ED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DIRECT ING THE LEARNED ASSESSING OFFICER TO ADOPT THE MUNICIPAL VALUATION AS ANNUAL LETTING VALUE WITHOUT CONSIDERING THE STANDARD RENT. 12. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE WAS HAVING ONE SHOP AT JOLLY SQUARE GHOD DOD ROAD RAM CHOWK SURAT IN RE SPECT OF WHICH HE WAS NOT SHOWING ANY PROPERTY INCOME ON THE THAT THE PROPERT Y WAS VACANT AND HE PAGE 5 OF 10 SHOULD BE GIVEN VACANCY ALLOWANCE UNDER SECTION 23( 1)(C) OF THE I. T. ACT AND NO PROPERTY INCOME IS ASSESSABLE. THE ASSESSING OFF ICER HAS HELD THAT WHEN THE PROPERTY IS VACANT THROUGHOUT THE YEAR NO VACANCY ALLOWANCE IS ALLOWABLE HENCE HE ESTIMATED THE SHOP RENT AT `.3 000/- PER MONTH AND TAKEN THE INCOME FROM HOUSE PROPERTY AT `.27 000/-. SIMILARLY IN ASS ESSMENT YEAR 2002-03 THE LEARNED ASSESSING OFFICER ESTIMATED THE SHOP RENT A T RS.3 000/- PER MONTH AND TAKEN THE INCOME FROM HOUSE PROPERTY AT `.25 200/-. 13. IN APPEAL THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) HELD AS UNDER:- I DO NOT AGREE WITH THE APPELLANTS VIEW. THE PROP ERTY WAS LYING VACANT AND NOT GIVEN ON RENT AT ALL HENCE INCOME HAS TO B E ASSESSED. THE ACTION OF THE LEARNED ASSESSING OFFICER IS UPHELD HOWEVER HE IS DIRECTED TO TAKE THE ANNUAL MUNICIPAL VALUE OF THE SHOP. AS THE FACTS ARE THE SAME THE ASSESSING OFFICER IS DIRECTED TO TAKE THE MUNIC IPAL VALUE IN RESPECT OF THIS PROPERTY AND RECALCULATE THE INCOME. 14. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORT ED THE ORDER OF THE LEARNED ASSESSING OFFICER WHEREAS THE LEARNED AUTHO RISED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS). 15. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT SECTION 23(1)(A) READS AS FOLLOWS:- ANNUAL VALUE HOW DETERMINED.(1) FOR THE PURPOSES OF SECTION 22 THE ANNUAL VALUE OF ANY PROPERTY SHALL BE DEEMED TO BE (A) THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR ; OR 16. IN THE INSTANT CASE AS THE PROPERTY IN QUESTION WAS NOT ACTUALLY LET OUT FOR ANY PERIOD DURING THE YEAR THEREFORE THE ANNUAL VA LUE UNDER SECTION 22 IS TO BE TAKEN AS THE VALUE FOR WHICH THE PROPERTY MIGHT BE EXPECTED TO BE LET OUT FROM YEAR TO YEAR. IN THE INSTANT CASE THE LEARNED ASSESSING OFFICER ESTIMATED SUCH ANNUAL VALUE AS `.36 000/- FOR WHICH NO BASIS WAS GIVEN. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE HEL D THAT THE ANNUAL VALUE DETERMINED BY THE MUNICIPALITY SHOULD BE TAKEN AS THE ANNUAL VALUE FOR WHICH THE PROPERTY IN QUESTION CAN BE EXPECTED TO BE LET OUT FROM YEAR TO YEAR. PAGE 6 OF 10 BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY MATERIAL TO SHOW THAT THE ANNUAL VALUE ASSESSED BY THE MUNICIPAL CORPORATION IN THE INSTANT CASE WAS NOT THE AMOUNT FOR WHICH TH E PROPERTY COULD BE EXPECTED TO BE LET OUT FROM YEAR TO YEAR. THUS WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS). IT IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 17. GROUND NO.3 OF THE APPEAL IN ASSESSMENT YEAR 20 01-02 AND GROUND NO.5 OF THE APPEAL IN ASSESSMENT YEAR 2002-03 IS DIRECTE D AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DELETI NG THE ADDITION OF `.55 000/- AND `.54 000/- RESPECTIVELY ON ACCOUNT O F LOW HOUSEHOLD EXPENSES. 18. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNE D ASSESSING OFFICER OBSERVED THAT IN THE STATEMENT OF SMT. KAVITABEN G. GHELANI WIFE OF THE ASSESSEE RECORDED AT THE TIME OF SEARCH ON22-12-200 4 IT WAS EXPLAINED BY HER THAT THE HOUSEHOLD EXPENSES ARE TO THE EXTENT OF`.1 2 000/- PER MONTH. THE LEARNED ASSESSING OFFICER ESTIMATED THE HOUSEHOLD E XPENSES FOR THE EARLIER PERIOD ON THIS BASIS AND MADE ADDITION OF `.55 000/ - IN ASSESSMENT YEAR 2001- 02 AND RS.54 000/- IN ASSESSMENT YEAR 2002-03 FOR L OW WITHDRAWALS FOR HOUSEHOLD EXPENSES. 19. IN APPEAL THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) DELETED THE ADDITION OBSERVING AS UNDER:- 4.2. I HAVE CONSIDERED THE FACTS AND SUBMISSIONS O F THE CASE. I AGREE WITH THE APPELLANTS VIEW. IN THE SEARCH PROCEEDING S NO MATERIAL HAS BEEN FOUND INDICATING THAT THE ASSESSEE HAS SUPPRES SED HOUSEHOLD EXPENSES OR INCURRED EXCESS EXPENSES. IN ABSENCE OF ANY EVIDENCE THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN MAKIN G THE ADDITION HENCE THE ADDITION IS DELETED. THE APPELLANT GETS THE REL IEF. 20. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE LEARNED ASSESSING OFFICER AND THE LEARNED AUTHORISE D REPRESENTATIVE OF THE ASSESSEE RELIED ON THE ORDER OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS). 21. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ADDITION WAS PAGE 7 OF 10 MADE ON THE BASIS OF ASSUMPTIONS AND PRESUMPTIONS O NLY. FURTHER THE ASSUMPTION WAS ALSO MADE ON THE BASIS OF STATEMENT OF THE ASSESSEES WIFE WHICH WAS RECORDED ON22-12-2004 WHICH HAS NO RELEVA NCE FOR THE AMOUNT OF HOUSEHOLD EXPENSES ACTUALLY INCURRED BY THE ASSESSE E DURING THE FINANCIAL YEARS 2000-01 AND 2001-02. NO SPECIFIC ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) COULD BE POINT ED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. WE THEREFORE DO NOT F IND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS). IT IS CONFIRMED AND THE GROUND OF APPEAL OF THE REV ENUE IS DISMISSED. 22. IN THE ASSESSMENT YEAR 2002-03 GROUND NO.2 RELA TES TO RESTRICTING THE ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN FU RNITURE AT `.1.50 000/- BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) I N PLACE OF `.2 50 000/- MADE BY THE LEARNED ASSESSING OFFICER. 23. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNE D ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS INCURRED EXPENDITURE OF `.2 5 0 000/- ON FURNITURE. THE ASSESSEE EXPLAINED THAT THE AMOUNT WAS INCURRED OUT OF CASH WITHDRAWAL FROM BANK ACCOUNT OF SELF AND WIFE. THE LEARNED ASSESSIN G OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AND MADE ADDITION OF `. 2 50 000/- AS UNEXPLAINED INVESTMENT. 24. IN APPEAL BEFORE THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) THE ASSESSEE SUBMITTED THAT ACTUAL COST OF FURNITUR E IS ONLY `.1 LACS WHICH HAS BEEN INCURRED BY HIS WIFE HENCE NO ADDITION IS CALL ED FOR AND THE SAME IS DELETED. 25. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE LEARNED ASSESSING OFFICER AND THE LEARNED AUTHORISE D REPRESENTATIVE OF THE ASSESSEE RELIED ON THE ORDER OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS). 26. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT NO MATERIAL WAS BROUGHT ON RECORD BY THE LEARNED ASSESSING OFFICER TO SHOW THAT DEPOSIT IN BANK ACCOUNT OF THE ASSESSEES WIFE WAS NOT MADE OU T OF THE ASSESSEES FUND. IN ABSENCE OF ANY SUCH MATERIAL WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE PAGE 8 OF 10 LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IT IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 27. GROUND NO.3 OF THE APPEAL IN ASSESSMENT YEAR 20 02-03 RELATES TO THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) DELETING THE ADDITION OF `.2 52 000/- MADE ON ACCOUNT OF UNACCOU NTED INVESTMENT IN SHOP. 28. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNE D ASSESSING OFFICER OBSERVED ON VERIFICATION OF BALANCE SHEET FOR THE Y EAR 2002 THAT THE PRICE OF THE SHOP PURCHASED IN JOLLY SQUARE AT `.4 17 000/- WAS SHOWN AT `.1 64 000/- AND HENCE HE MADE ADDITION FOR THE DIFFERENCE AMOUN T OF `.2 52 500/- AS UNEXPLAINED INVESTMENT IN SHOP. 29. IN APPEAL BEFORE THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) THE ASSESSEE SUBMITTED THAT THE SHOP SHOWN IN THE BALAN CE SHEET FOR THE YEAR 2002 WAS DIFFERENT SHOP THE VALUE OF WHICH WAS SHOWN AT `.1 64 500/- BUT SHOP AT JOLLY SQUARE IS A DIFFERENT WHICH WAS PURCHASED IN THE NAME OF HUF AND THE AMOUNT HAS BEEN TAKEN OUT FROM THE HUF BANK ACCOUNT IN THE CITY COOPERATIVE BANK LTD. COPY OF WHICH WAS GIVEN TO THE LEARNED A SSESSING OFFICER ALSO AND FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS). FURTHER THE PURCHASE DEAL WAS ALSO IN THE NAME OF HUF WHICH THE LEARNED ASSESSING OFFICER HAD NOT CONSIDERED HENCE THE LEARNED ASSESSING OFFI CER WAS NOT JUSTIFIED IN MAKING THE ADDITION. 30. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) AFTER CONSIDERING THE SUBMISSIONS HELD AS UNDER:- I HAVE CONSIDERED THE FACTS AND SUBMISSIONS OF TH E CASE. I AGREE WITH THE APPELLANTS VIEW. THE ASSESSING OFFICER HA S MISUNDERSTOOD THAT THERE IS ONLY ONE SHOP BUT IN FACT THIS WAS A DIFFE RENT SHOP PURCHASED IN THE HUF HAND AND ALSO SOURCE OF INVESTMENT WAS PROV ED. HENCE THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING THE AD DITION AND THE SAME IS DELETED. 31. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THERE IS SOME CONFUSION WITH REGARD TO THAT WHETHER THE SHOP WAS PURCHASED IN THE NAME OF THE ASSESSEE OR HIS HUF AND THEREFORE THE MATER SH OULD BE RESTORED BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR VERIF ICATION AND THEREAFTER READJUDICATING THE ISSUE. PAGE 9 OF 10 32. THE LEARNED AUTHORISED REPRESENTATIVE OF THE AS SESSEE RELIED ON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS). 33. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY MATERIAL ON RECO RD TO SHOW THAT THERE WAS ANY CONFUSION REGARDING THE SHOP PURCHASED BY THE A SSESSEE AND BY HUF. FURTHER NO MATERIAL WAS BROUGHT ON RECORD TO SHOW THAT THE BANK STATEMENT OF HUF FROM WHERE THE PAYMENT FOR SHOP WAS MADE BY THE ASSESSEE WAS NOT FILED BEFORE THE LEARNED ASSESSING OFFICER. WE THEREFORE DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS). IT IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSE D. 34. IN THE RESULT THE APPEALS OF THE REVENUE FOR B OTH THE YEARS UNDER CONSIDERATION ARE DISMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 13 TH DAY OF JANUARY 2011. SD/- SD/- ( MAHAVIR SINGH) (N.S. S AINI) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED: AHMEDABAD 13 TH DAY OF JANUARY 2011. COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-II SURAT. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD PAGE 10 OF 10 DATE INITIALS 1. DRAFT DICTATED ON 11-1-2011 -------------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 11-1-2011 ----- -------------- 3. DRAFT PROPOSED & PLACED 12-1-2011 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 12-1-2011 ---------- --------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- - -- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- - ------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- - ------------------- 9. DATE OF DISPATCH OF ORDER ---------------- - -- ------------------