AMEY PRAVINBHAI BHAHMBHATT,AHMEDABAD vs. THE ITO, WARD-7(1)(5), AHMEDABAD

The brief facts of the case are that the return of income for A.Y. 2011-12 was filed on 18.07.2011 declaring income of Rs.3,87,630/-. Subsequently, an information was received by the AO that the assessee had made share transactions of Rs.49,10,402/- in penny stock scrip, namely M/s. Swarna Sarita Pravinbhai Brahmbhatt Vs. ITO] A.Y. 2011-12 - 2 – Gems Ltd., and that the assessee had obtained accommodation entry by trading in this share. It was further noticed that the assessee had made certain share transactions and income/loss arising on such transactions was not reflected in the return of income. Therefore, the AO recorded his reason for escapement of income and initiated proceeding u/s.147 of the Act. The re- assessment was completed u/s.144 r.w.s. 147 of the Act on 14.12.2018 at total income of Rs.11,05,630/-.

Aggrieved with the order of the AO, the assessee had filed an appeal before the First Appellate Authority, which has been decided vide the impugned order, wherein the assessee was allowed part relief.

Now, the assesse is in second appeal before us. The following grounds have been taken in this appeal:

The first ground taken by the assessee is against the addition of Rs.81,000/- on account of unexplained cash deposit. In the course of assessment, the AO had found that the assessee had made cash deposit of Rs.81,000/- in the account with Pravinbhai Brahmbhatt Vs. ITO] A.Y. 2011-12 - 3 – Corporation Bank, the source of which was not explained. It is found that the Ld. CIT(A) had allowed relief in respect of this addition made by the AO. A finding has been given by the Ld. CIT(A) that the assessee had withdrawn cash from his bank account and that the same amount was redeposited in the bank account. Considering the explanation and documentary evidences filed by the assessee, the Ld. CIT(A) had deleted the addition of Rs.81,000/- made by the AO on account of cash deposits. Since, Ld. CIT(A) has already allowed relief to the assessee in respect of cash deposits, the ground taken by the assessee in this regard is infructuous and is, therefore, dismissed.

The next ground pertains to addition of Rs.6,37,000/- on account of unexplained investment. In the course of assessment, the AO found that the assessee had paid sum of Rs.6,37,000/- to KIFS Trade Capital Pvt. Ltd. for transaction in shares. The assessee had not explained the source of this payment and the bank detail/statement relating to share transactions were also not furnished. Therefore, the AO had made the addition, which was upheld by the Ld. CIT(A). Shri Divyang Shah, the Ld. AR of the assessee submitted that the case was reopened by the AO to examine the alleged accommodation entry of Rs.49,10,402/- in respect of transaction in shares of M/s. Swarna Sarita Gems Ltd. However, no addition was made in respect of this transaction as the assessee had never entered into any such transaction. The Ld. AR submitted that where no addition was made by the AO on the ground on which case was reopened, it was not open for the AO to make addition in respect of any other ground which did not Pravinbhai Brahmbhatt Vs. ITO] A.Y. 2011-12 - 4 – form part of the reason as recorded by the AO. In this regard, he has placed reliance on the judgment of the Hon’ble Gujarat High Court in the case of CIT vs. Mohmed Juned Dadani (2013) 355 ITR 172 (Guj).

Per contra, Shri Sudhakar Verma, Ld. Sr. DR relied upon the orders of AO and Ld. CIT(A).

We have carefully considered the rival submissions. A copy of the reason for reopening u/s.147 of the Act has been brought on record. It is found that the case was reopened for escapement of income in respect of accommodation entry of Rs.49,10,402/- by entering into transaction in shares of penny stock of M/s. Swarna Sarita Gems Ltd. In the assessment order there is no discussion of alleged accommodation entry of Rs.49,10,402/- taken by the assessee and no such addition has been made by the AO. Under the circumstances, when the reason on which the case was reopened was found to be incorrect, the reopened assessment proceeding should have been dropped. The Hon’ble Jurisdictional High Court in the case of Mohd. Juned Dadani (supra) has categorically held that a very incongruent situation would come about if the Assessing Officer were to drop the ground on which notice for reopening had been issued but to chase some other grounds not so mentioned for issuance of the notice. Further that when on ground on which the reopening of assessment was based, no addition was made by the AO; he could not make addition on some other grounds which did not form part of the reasons recorded by him. Respectfully following the ratio of the said decision, we are of the considered opinion that the AO was not Pravinbhai Brahmbhatt Vs. ITO] A.Y. 2011-12 - 5 – correct in making addition in respect of unexplained investment in shares, which did not form part of the reason as recorded by the AO, particularly when no addition was made in respect of accommodation entry of Rs.49,10,402 for which the case was reopened and also for income/loss arising in share transactions. Accordingly, the addition of Rs.6,37,000/- in respect of unexplained investment is deleted. The ground taken by the assessee is allowed.

The next two grounds pertain to reopening the case u/s.147 of the Act. Since, the assessee has been allowed relief on merits, the grounds raised by the assessee are only academic in nature and are, therefore, not adjudicated.

In the result, the appeal of the assessee is partly allowed.