SHRI VIKRAM SHANTILAL PATEL,BARODA vs. THE INCOME TAX OFFICER, WARD-2(6), BARODA

PER Ms. MADHUMITA ROY - JM:

(A.Y. 2007-08) is taken as a lead case.

The Ld. DR, with all his fairness, though relied upon the order passed by the authorities below, not raised serious objection to such of the prayer made by the Ld. AR.

We have carefully considered the judgment passed by the Supreme Court in the matter of Basir Ahmed Sisodia vs. ITO wherefrom it appears that upon perusal of the explanation offered by way of an affidavit and the statement of the concerned unregistered dealers recorded during the penalty proceedings establishing their identity and creditworthiness, though penalty was imposed but no negative observation was made by the appellate authority, not only penalty was deleted but also the addition made under Section 68 of the Act towards cash credit amount shown against the name of &1095/Ahd/2015 Shri Vikram Shantilal Patel vs. ITO Asst.Years –2007-08 & 2008-09 - 4 - concerned unregistered dealers has been set-aside by the Hon’ble Apex Court. We have further carefully considered the judgment passed in the matter of Padam Lal Dua vs. ITO where denial of providing opportunity to produce the additional evidences though not through appropriate application under Rule 46A, has been termed as arbitrary. We, therefore, taking into consideration the entire aspect of the matter particularly the documents annexed to the Paper Book in support of the case made out by the assessee in respect of the unsecured loan obtained from 11 parties and the payment made to those parties and the ratio laid down by the judgments cited above, of the considered opinion for the ends of justice to remit the issue to the file of the Ld. AO to decide the same afresh in accordance with law, upon giving an opportunity of being heard to the assessee and upon taking into consideration the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter and also upon examining the parties as narrated hereinbefore, if required. Thus, this ground of appeal allowed for statistical purpose.

During the course of assessment proceeding, it appears, that the assessee has paid interest of Rs. 2,36,791/- to various persons. But the TDS whereupon was not paid; neither the details of TDS was filed by the assessee. Finally the AO disallowed Rs. 2,36,791/- as interest expenses under section 40(a)(ia) of the Act for non-fulfillment of TDS provision. In appeal the appellant filed copies of Form 15G received from those parties &1095/Ahd/2015 Shri Vikram Shantilal Patel vs. ITO Asst.Years –2007-08 & 2008-09 - 5 - for non-deduction of TDS as their income is below taxable limit; as such those parties were agriculturists and not assessed to Income Tax Act. However, the said copies of Form 15G since not filed before the AO the same was not accepted as additional evidences under Rule 46A by the Ld. CIT(A) and finally addition was confirmed.

In our considered opinion this is a fit case to send the issue to the file of the Ld. AO for deciding the same afresh in accordance with law by providing an opportunity of hearing to the assessee who has been denied justice without any cogent reason. We do not indulge the manner in treating the assessee by the Ld. CIT(A) in view of the ratio laid down by the Hon’ble Apex Court in the case of Basir Ahmed Sisodia vs. ITO as well as Hon’ble Delhi Bench in the case of Padam Lal Dua vs. ITO as already narrated hereinabove. We thus, taking into consideration the entire aspect of the matter, find it fit and proper to remit the issue to file of the Ld. AO to decide the same afresh in accordance with law, upon taking into consideration the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter and upon giving an opportunity of being heard to the assessee. This ground of appeal is, thus, allowed for statistical purpose.

(A.Y. 2008-09):- 9. The issue involved in the particular case is identical to that of the issue already decided by us in favour of the assessee in ITA No. &1095/Ahd/2015 Shri Vikram Shantilal Patel vs. ITO Asst.Years –2007-08 & 2008-09 - 6 - 1094/Ahd/2018 for A.Y. 2007-08 and in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, the same is allowed for statistical purpose.