Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, AHMEDABAD “C” BENCH
Before: SHRI WASEEM AHMED & SHRI MAHAVIR PRASAD
PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. These two appeals are being filed by the Assessee are directed against the order of the Ld. CIT(A)-XX, Ahmedabad dated 04.02.2014 pertaining to A.Y. 2010- 11 and appellant has taken solely ground that ld. CIT(A) has erred in law and
ITA Nos. 1270/Ahd/14 & 1922/Ahd/2016 2 . A.Y. 2010-11 on facts in confirming the addition of Rs. 15,00,000/- originally made by the A.O. by invoking the provisions of Section 68 of the Act.
Facts of the case are that during the course of assessment proceedings, it was seen from various details filed by the assessee that the assessee has borrowed an amount of Rs. 15,00,000/- from Shri Dipin G. Patel (Prop. Of M/s. Deepak Enterprise) during the Financial Year 2008-09.
In order to further examine the case find our more facts, summons was issued to Shri Dipin Patel, Prop, of M/s. Deepak Enterprise and his statement on oath was recorded u/s. 131(1) of the Act. As per Shri Dipin Patel, he is in the business of giving entries and anyone who approaches him with cash and wants a bank entry, cash is deposited in one of his accounts and the same is given back to the party in the form of cheque or demand draft of RTGS or funds transfer. He also stated that he routes the cash given by his clients through his various bank accounts and also make cheque payments to other parties on behalf of his clinets. For this, he charges a commission of Rs. 25/- to Rs. 50/- per one lakh. He categorically denied having given any loan to M/s. Shree Balaji Trading Co. and stated that since his books of accounts are seized on 12.08.2010 due to conduct of search, he is not in a position to state whether he has given any loan to the assessee.
Like appellant in question Shri Dipin Patel has given an entry to one Smt. Bintal D. Baxi, Bhavnagar who has taken accommodation entry from Shri Dipin G. Patel. But ld. A.O. was not agreed with the contention of the appellant and held that cash credits shown in the books of the appellant in the
ITA Nos. 1270/Ahd/14 & 1922/Ahd/2016 3 . A.Y. 2010-11 name of Shri Dipin Patel is no more genuine cash credits for the reasons discussed above and the addition u/s. 68 was made by the A.O.
Thereafter, appellant filed an appeal before the First Appellate Authority but to no avail and he confirmed the order of the ld. CIT(A).
We have gone through the relevant record in the impugned order. Ld. A.R. cited an order of Co-ordinate Bench in ITA Nos. 920, 921 & 922/Ahd/2014 and case titled as Smt. Bintal D. Baxi Vs. ITO pronounced on 01.05.2017 wherein in similar circumstances, Co-ordinate Bench has set aside the order of the ld. CIT(A) and remanded this matter back to the file of the A.O. with following observation:- 20. The ld.CIT(A) has discussed this issue in little detail, but devoted much energy in reproduction of CIT(A)'s order passed in the case of Shri Dipin G. Patel. The ld.CIT(A) also reproduced the finding of the AO, submissions made by the assessee. While making an analysis of the statement given by Shri Dipin G. Patel, the ld.CIT(A) just reiterated replies given by him. But he has not analysed inference required to be drawn from those replies. Basically, the ld.CIT(A) was of the opinion that it is the onus upon the assessee to prove source of loan and its nature. Once the assessee failed to file confirmation from creditor, then it will be construed that she failed to discharge onus. As observed earlier, in the normal circumstances, the ld.CIT(A)'s action could be appreciated. But, it is to be seen in the context that when a creditor turn hostile, then whether an assessee should be given an opportunity to prove his case with the help of circumstantial evidence or not. The role of the AO is not only of prosecutor, rather he is an adjudicator also. It is for the Revenue to provide a platform to the assessee where with the help of statutory powers of the AO, she could explain her position for not visiting her with tax liability.
ITA Nos. 1270/Ahd/14 & 1922/Ahd/2016 4 . A.Y. 2010-11 21. Looking into these facts and circumstances, we are of the view that impugned orders deserves to be set aside because the assessee was not granted sufficient opportunity at the level of the AO. These appeals are remitted to the file of the AO for re-adjudication. The ld.AO shall examine the ledger account of the assessee exhibiting details of loans received by the assessee through account payee cheque, and thereafter he would direct the bank for providing bank statement of the creditor during those periods. He would supply all incriminating materials to the assessee for giving an explanation. The assessee will be at liberty to submit any explanation or details in support of her defence.
The observations made by us will not impair or injure the case of the AO and will not cause any prejudice to the defence/explanation of the assessee.
In the result all appeals of the assessee are allowed for statistical purpose.
Since in identical fact and circumstances, Co-ordinate Bench has set aside the order of the ld. CIT(A) remanded this matter back to the file of the A.O. Respectfully following the Co-ordinate Bench decision, we also set aside order of the ld. CIT(A) and remanded this matter back to the file of the A.O. and A.O. shall examine the ledger account all the details pertaining to transaction to be filed by the appellant and thereafter he will decide the matter in accordance with the law and assessee is also directed to cooperate with the Assessing Officer and will appear as and when called by the ld. Assessing Officer.
In the result, appeal filed by the appellant is allowed for statistical purpose.
So far in ITA No. 1922/Ahd/2016 is concerned in quantum appeal, we have set aside the order of the ld. CIT(A) remanded this matter back to the files of
ITA Nos. 1270/Ahd/14 & 1922/Ahd/2016 5 . A.Y. 2010-11 the A.O. to decide de novo and case in hand is a penalty appeal arising out of the ITA No. 1270/Ahd/2014. Thus, we also set aside the order of the ld. CIT(A). In this present case, we remanded this matter back to the file of the A.O. to decide along with quantum appeal in ITA No. 1270/Ahd/2014.
In the result, the appeal filed by the Assessee is allowed for statistical purpose.
Order pronounced in Open Court on 11- 05- 2018
Sd/- Sd/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad: Dated 11/05/2018 Rajesh Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) – 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER
Deputy/Asstt.Registrar ITAT,Ahmedabad