Siddhi Vinayak Construction, Surat vs Assessee

M/s. Siddhi Vinayak Vs The Dy. Commissioner of Construction, Income Tax, Circle-I, Siddhi Vinayak Ahmedabad. Apartment, Dada Bhagwan Mandir, Nansad Road, Tal. Kamrej, Surat. PAN: ABGFS 5714C (Appellant) (Respondent)

Revenue by : Smt. Sonia Kumar, Sr.D.R. Assessee(s) by : Shri M.K. Patel, A.R.

सुनवाई क तार ख/ Date of Hea ring : 21 /01/201 5 घोषणा क तार ख /Date of P ronouncement: 23/01/2015

आदेश /O R D E R

PER MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER

This is an Appeal filed by the Assessee arising from an order of the learned CIT(A)-IV, Surat dated 19.05.2010. The grounds raised are reproduced below:

"1. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred confirming the action of the learned Assessing Officer in confirming addition of Rs.1,50,740/- on account of application of section 44AD of the Act.

2. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred confirming the action of the learned Assessing Officer in making addition of Rs.10,00,000/- on account of alleged unexplained bogus credits u/s.68 of the I.T. Act, 1961."

ITA No.2114/Ahd/2010 M/s. Siddhi Vinayak Construction Vs. ITO, Ward-5(4), Surat For A.Y. 2007-08 -2-

2. At the outset, learned AR, Mr. M.K. Patel has stated at bar not to press Ground No.1. Hence dismissed being not pressed.

3. Apropos to Ground No.2, we have noted that while passing the order u/s.143(3) dated 31.12.2009, the AO has noted that as per the balance sheet drawn as on 31.03.2007, the Assessee had shown booking advance of Rs.10 lac from few parties, to whom notices u/s.133(6) were issued. The AO has listed the names with remarks as under:

Sr, Name Amount Remarks, No. 1 Bharatiben G. 1,81,000/- Notice u/s. 133(6) served but Mahida not responded 2. Damyanti S. Patel 70,000/- -DO- 3. Haresh M. Patel 1,91,000/- -DO- 4. Hitesh C. Gohil 25,000/- -DO- 5. Shantiben M. Dodiya 3,02,000/- -DO- 6. Siddharth R. Patil 2,31,000/- -DO- Total Rs.10,00,000/-

3.1 Finally, the impugned amount was taxed in the hands of the

Assessee by invoking provisions of Section 68 of IT Act.

4. When the matter was carried before the First Appellate Authority, learned CIT(A) has held as under:

"I have carefully considered both the position. I have also gone through the various documentary evidences furnished by the AR and also the assessment order. I find that none of the parties appeared before the AO. Nor did the appellant tried to produce them during the assessment proceedings or even during appellate proceedings. There are no confirmations obtained from these parties. Surely some kind of evidence could have been led before the AO in support of these claims of receipts of booking advances. Just giving names and addresses is not sufficient to justify the claim of receipts of Rs. 10,00,000/-. Even before me during appellate proceedings no such efforts have been made nor any further filing of any direct or indirect or relevant material promised to assist me to take any well informed decision. So although identity could have been established as claimed during assessment proceedings, the genuineness is totally absent in these cases. Therefore the ITA No.2114/Ahd/2010 M/s. Siddhi Vinayak Construction Vs. ITO, Ward-5(4), Surat For A.Y. 2007-08 -3- AO had no option but to add the amounts u/s.68 in the light of stark inadequacy of evidence and nor do I have any option but to confirm the addition for the same reason. In the light of above discussion I am fully satisfied that the assessee has not fully discharged his burden of proof and addition of Rs. 10,00,000 stands upheld and confirmed."

5. Learned Sr.D.R., Smt. Sonia Kumar has raised a vehement objection in respect of filing of accounts and supporting evidences of those parties in a paper book dated 16th of January, 2015. She has pointed out that admittedly these evidences were additional evidences; hence the Assessee should not be allowed to place reliance on these evidences which were not filed before the Revenue Authorities.

6. Learned AR has replied that those evidences were in fact filed during the proceedings initiated u/s.271(1)(c) before the AO and these evidences have direct impact on the facts of the case; therefore, deserve to be admitted as per Rule 29 of Appellate Tribunal Rules, 1963.

7. We have heard both the sides. We have perused the nature of these evidences in the light of the facts of this case. Our attention has been drawn on a reply dated 14.07.2010 filed before Income Tax officer, Ward-5(4), Surat in respect of penalty proceedings u/s.271(1)(c) of IT Act. In this reply, the Assessee has given a detailed chart giving the name of the party, the property allotted, amount received and the enclosures. Therefore it is correct that these evidences which are now filed in the paper book were filed before the AO, although in a different proceedings other than the assessment proceedings. An another evidence has also been brought to our notice that the notices u/s.133(6) have been served on those parties, which itself proved that those parties were in existence but they have chosen not to attend the proceedings before the AO. In that ITA No.2114/Ahd/2010 M/s. Siddhi Vinayak Construction Vs. ITO, Ward-5(4), Surat For A.Y. 2007-08 -4-

situation, the AO has more powers to summon them as prescribed u/s.131 of IT Act. Be that as it was, in the present situation we deem it proper to restore this ground back to the stage of the AO to be decided denovo after examining these evidence as per law. Since, these evidences have a direct bearing on the issue involved therefore deserve to be admitted but definitely require verification by the AO. Rather, considering all these points, the parties appearing before us have also suggested that this ground can be decided denovo by the AO after verifying the correctness of these evidences. Resultantly, this ground is restored back to be decided by the AO as per law; hence may be treated as allowed but for statistical purpose only.

8. In the result, the Appeal is partly allowed.

Sd/- Sd/- (ANIL CHATURVEDI) (MUKUL Kr. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 23/01/2015 Prabhat Kr. Kesarwani, Sr. P.S. आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आयु त / Concerned CIT

4. आयकर आयु त(अपील) / The CIT(A)-III, Ahmedabad

5. वभागीय त न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड फाईल / Guard file.

आदेशानुस ार / BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad