Darshna H.Shah,, Ahmedabad v. The Income tax Officer,Ward-7(3),, Ahmedabad

ITA 3508/AHD/2004 | 2001-2002
Pronouncement Date: 29-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 350820514 RSA 2004
Assessee PAN ALRPS8966P
Bench Ahmedabad
Appeal Number ITA 3508/AHD/2004
Duration Of Justice 5 year(s) 1 month(s) 23 day(s)
Appellant Darshna H.Shah,, Ahmedabad
Respondent The Income tax Officer,Ward-7(3),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 29-01-2010
Date Of Final Hearing 28-01-2010
Next Hearing Date 28-01-2010
Assessment Year 2001-2002
Appeal Filed On 06-12-2004
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL C-BENCH AHMEDABAD. BEFORE: SHRI T.K. SHARMA JUDICIAL MEMBER AND SHRI A.N.PAHUJA ACCOUNTANT MEMBER. ITA NO.3508/AHD/2004 ASSESSMENT YEAR : 2001-2002 DARSHNA H. SHAH 5 ORIENT FLATS OPP. CHATURBHAIS HOSPITAL USMANPURA AHMEDABAD` I.T.O. WARD 7(3) AHMEDABAD. (APPELLANT) VERSUS (RESPONDENT) PAN: ALRPS 8966P FOR THE APPELLANT: SHRI S.N.DEVITIA FOR THE RESPONDENT SHRI. D.S.CHAUDHARY SR. D.R. ORDER PER T K SHARMA (JUDICIAL MEMBER): THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 16.09.2004 PASSED BY LD. CO MMISSIONER OF INCOME TAX(APPEALS)-XIII AHMEDABAD FOR THE ASSESS MENT YEAR 2001- 2002. 2. THE ONLY EFFECTIVE GROUNDS RAISED IN THIS APPEAL IS THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE FOLLOWING ADDITIONS/DISALLOWANCE. (A) LOAN FROM SHRI ASHWIN M. SHAH 50 000/- (B) LOAN FROM SHRI RAMESH M. SHAH 1 40 000/- (C) GIFT FROM SHRI DHARMENDRA JAIN 1 00 000/- (D) SALARY TO JAISUKHLAL SHAH 72 000/- 3. THE BRIEFLY THE FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL CARRYING ON BUSINESS OF TRADING IN SHARE AND SECURI TIES UNDER THE NAME OF M/S. MANSI INVESTMENT. FOR THE ASSESSMENT YEAR U NDER APPEAL HE FILED RETURN OF INCOME DECLARING TOTAL OF RS.1 61 439/-. THE ASSESSING 2 ITA NO.3508/AHD/2004 OFFICER FRAMED THE ASSESSMENT UNDER SECTION 143(3) WHEREIN HE MADE ADDITIONS OF UNEXPLAINED CASH CREDIT OF RS. 1 90 00 0/- CONSISTING OF RS.1 40 000/- FROM SHRI RAMESH M. SHAH AND RS. 50 0 00/- FROM SHRI ASHWIN M . SHAH. THE DEPOSITOR SHRI ASHVIN SHAH WAS PRODUCED BEFORE THE ASSESSING OFFICER AND HIS STATEMENT ON OATH WAS ALSO RECORDED ON 17.01.2004. THE ASSESSING OFFICER OBSERVED THAT PRI OR TO ISSUE OF CHEQUE TO THE ASSESSEE ON 17.01.2004 THE CASH OF RS.50 000/- HAS BEEN DEPOSITED ON 16.01.2001. THE ASSESSING OFFICER ASKED THE DEPOSITOR TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS.50 000/-. THE DEPOSITOR EXPLAINED THAT RS.21 000/- WAS RECEIVED A S LOAN FROM PF BALANCE WITH EMPLOYER RELIANCE INDUSTRIES AND THE B ALANCE AMOUNT OF RS.15 000/- TO 17 000/- WAS RECEIVED BY CASH FROM E MPLOYEES CREDIT SOCIETY OF RELIANCE. THE ASSESSING OFFICER OBSERVED THAT YEARLY INCOME OF THE DEPOSITOR DURING THE FINANCIAL YEAR 2000-01 WAS RS.56 155/- ONLY. THE ASSESSING OFFICER FURTHER OBSERVED THAT PF LOAN WAS CREDITED ON 21.03.2001 AND NOT ON 16.01.2001 I.E. AFTER THE LOA N CHEQUE WAS GIVEN TO ASSESSEE. TO SUM UP THE ASSESSING OFFICER OBSE RVED THAT DEPOSITOR HAS FAILED TO EXPLAIN THE SOURCES OF RS.50 000/- DE POSITED IN CASH ON 16.01.2001 THEREFORE THE DEPOSITOR HAS NO CAPACIT Y TO GIVE LOAN OF RS.50 000/-. HE ACCORDINGLY MADE THE ADDITION. ON APPEAL IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE SAME. 4. IN RESPECT OF LOAN FROM SHRI RAMESH SHAH OF RS .1 40 000/- ALSO THE DEPOSITOR WAS PRODUCED BEFORE THE ASSESSING OFF ICER AND HIS STATEMENT ON OATH WAS ALSO RECORDED. THE ASSESSING OFFICER OBSERVED THAT THERE WAS A CASH DEPOSIT OF RS.1 00 000/- IN H IS BANK ACCOUNT ON 11.04.2004. THIS WAS EXPLAINED BY THE DEPOSITOR AS SAVING OF LAST THREE MONTHS. BEFORE THE ASSESSING OFFICER DEPOSITOR ALS O EXPLAINED THAT AN AMOUNT OF RS.40 000/- WAS RECEIVED FROM HIS 4 RELAT IVES BUT DEPOSITOR COULD NOT GIVE THE NAME OF THE RELATIVES ON THE DAT E OF THE STATEMENT 3 ITA NO.3508/AHD/2004 RECORDED ON OATH. TO SUM UP IN RESPECT OF THIS DEP OSITOR ALSO THE ASSESSING OFFICER OBSERVED THAT CREDITWORTHINESS PR OVED THEREFORE HE TREATED RS.1 40 000/- AS UNEXPLAINED UNDER SECTION 68 OF THE INCOME TAX ACT 1961. 5. ON APPEAL BEFORE THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) THE AUTHORISED REPRESENTATIVE OF THE ASS ESSEE CONTENDED THAT IT IS NOT THE DUTY OF THE ASSESSEE TO EXPLAIN SOURCES OF SOURCE. THE AUTHORISED REPRESENTATIVE ALSO RELIED ON THE DECISI ON OF ROHINI BUILDERS VS. DCIT REPORTED IN 76 TTJ 521 (AHD) AND SUBMITTED THAT THE ADDITION IS NOT SUSTAINABLE UNDER SECTION 68 OF INCOME TAX A CT 1961 AS INTEREST WAS ALSO PAID BY THE ASSESSEE ON SUCH DEPOSIT THIS WAS ALLOWED BY ASSESSING OFFICER AND BOTH THE DEPOSITORS HAS SHOWN THE INTEREST IN THEIR RETURN OF INCOME. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ACTION OF THE ASSESSING OFFICER FOR THE DETAILS GIVEN IN PARA. 2.2 WHICH IS READS AS UNDER:- 2.2 I HAVE CONSIDERED THE SUBMISSION OF THE AUTHOR ISED REPRESENTATIVE CAREFULLY AND HAVE GONE THROUGH THE DETAILS SUBMITTED BY THE AUTHORISED REPRESENTATIVE. IT IS F OUND THAT SHRI ASHWIN SHAH WAS HAVING INCOME OF RS.46 155/- FOR TH E ASSESSMENT YEAR 2001-02 AND SHRI RAMESH M. SHAH WAS HAVING INCOME OF RS.40 984/- FOR THE A.Y. 2001-02 AND THRO UGH THEY ARE ASSESSED TO INCOME TAX AND THEIR PERMANENT ACCOUNT NUMBERS HAVE BEEN FURNISHED BUT IT ONLY PROVED THEIR IDENTI TY. AS REGARDS THE CREDITWORTHINESS OF THE DEPOSITORS THE ASSESSIN G OFFICER HAS CLEARLY OBSERVED THAT THERE WERE CASH DEPOSITS PRIO R TO THE CHEQUES ISSUED TO THE APPELLANT AND THE DEPOSITS CO ULD NOT EXPLAIN THE SOURCE OF CASH DEPOSITS IN THEIR BANK A CCOUNTS. THEY BOTH HAVE MEAGRE SALARY AND THEY DO NOT HAVE SUFFIC IENT SOURCE FOR THE CASH DEPOSIT OF RS.50 000/- BY SHRI ASHWIN SHAH AND CASH DEPOSIT OF RS.1 00 000/- BY SHIR RAMESH SHAH PRIOR TO THE ISSUE OF CHEQUES TO THE APPELLANT. IN VIEW OF THE ABOVE F ACTS I AGREE WITH THE OBSERVATIONS OF THE ASSESSING OFFICER THA T THE CREDITWORTHINESS OF THE DEPOSITORS HAVE NOT BEEN PR OVED. THEREFORE I CONFIRM THE FINDING OF THE ASSESSING O FFICER AND CONFIRM THE ADDITION OF CASH CREDITS. 4 ITA NO.3508/AHD/2004 7. AT THE TIME OF HEARING ON BEHALF OF THE ASSESS EE SHRI S.N.DEVETIA APPEARED AND CONTENDED THAT THE ASSESSE E HAS PROVED THE IDENTITY GENUINENESS OF THE TRANSACTION. BOTH THE LEARNED DEPARTMENTAL REPRESENTATIVE OF AUTHORITIES BELOW TREATED THE CAS H CREDIT AS UNEXPLAINED ON THE GROUND THAT THE CREDITWORTHINESS OF BOTH THE DEPOSITORS IS NOT PROVED BY THE ASSESSEE. COUNSEL O F THE ASSESSEE EXPLAINED THAT SUBSEQUENTLY AN AMOUNT OF LOAN IS REFUNDED TO BOTH THE CREDITORS. THE LOAN FROM BOTH THE DEPOSITORS WAS ON INTEREST. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS ALLOWED THE INTEREST PAID. IN CASE THE DEPOSITOR COULD NOT EXPLAINED THE SOURC ES OF DEPOSIT TO THE SATISFACTION OF ASSESSING OFFICER. HE SUBMITTED THA T IT MAY BE A GOOD GROUND FOR MAKING ADDITION UNDER SECTION 68 IN THEI R INDIVIDUAL ASSESSMENT. IN SUPPORT OF THIS THE COUNSEL OF THE ASSESSEE RELIED ON THE DECISION OF THE ITAT AHMEDABAD BENCH IN THE C ASE OF ROHINI BUILDERS (SUPRA). HE FURTHER EXPLAINED THAT VIEW TA KEN IN THE CASE OF ROHINI BUILDERS IS UPHELD BY THE HON'BLE HIGH COURT OF GUJARAT. 8. ON THE OTHER HAND SHRI D.S.CHAUDHARY APPEARED F OR THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BEL OW. THE LEARNED DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE CR EDITWORTHINESS OF BOTH THE DEPOSITORS ARE NOT PROVED THEREFORE THE ADDITION WAS RIGHTLY MADE BY INVOKING PROVISIONS CONTAINED IN SECTION 68 OF INCOME TAX ACT 1961. 9. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOT E THAT THE ASSESSEE HAS DISCHARGED INITIAL ONUS WHICH LAY ON HER IN TERMS O F SECTION 68 OF INCOME TAX ACT 1961. ACCORDING TO BOTH THE LEARNED DEPART MENTAL AUTHORITIES THE ASSESSEE HAS NOT PROVED THE CREDITWORTHINESS. I N THIS CONNECTION IT IS PERTINENT TO NOTE THAT THE LOAN FROM BOTH THE PA RTIES WAS RECEIVED ON INTEREST. THE INTEREST PAID IS ALLOWED BY ASSESSING OFFICER. THE AMOUNTS 5 ITA NO.3508/AHD/2004 OF LOANS WERE RECEIVED BY CHEQUE AND ALSO SUBSEQUEN TLY RETURNED BY THE CHEQUE. BOTH THE DEPOSITORS HAVE SHOWN INTEREST INCOME IN THEIR RETURN OF INCOME. IN THESE CIRCUMSTANCES ADDITION MADE UNDER SECTION 68 IS NOT SUSTAINABLE AS HELD BY ITAT AHMEDABAD BEN CH IN THE CASE OF ROHINI BUILDERS VS. DCIT. APART FROM THIS IF AT AL L ANY ACTION IS REQUIRED TO BE TAKEN THAT SHOULD HAVE BEEN TAKEN IN HANDS OF DEPOSITORS. IN VIEW OF THIS ADDITION OF RS.1 90 000/- MADE IN RESPECT OF TWO CASH CREDITS IS DELETED. 10. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER ALSO MADE ADDITION OF RS.1 00 000/- IN RESPECT OF GIFT RECEIV ED FROM SHRI DHARMENDRA JAIN. THE ASSESSING OFFICER OBSERVED THA T DONOR SHRI DHAMENDRA JAIN IS NOT RELATIVE OF THE ASSESSEE. IN THE STATEMENT RECORDED. THE DONOR STATED THAT HE RECEIVED RS.1 00 000/- FROM ARIHANT TEXTILE WITH WHOM HE HAS DEPOSITED AN AMOUNT ON VAR IOUS DATES IN THE PAST AND HIS ANNUAL INCOME WAS RS.60 000/- ONLY. TH E ASSESSING OFFICER MADE AN INQUIRY FROM SOCIAL COOPERATIVE SOC IETY AHMEDABAD FROM WHICH CHEQUE OF RS.1 00 000/- WAS ISSUED BY DO NOR SHRI DHARMENDRA JAIN ON 22.04.2000. THE ASSESSING OFFICE R FOUND THAT ON THE SAME DATE AN AMOUNT OF RS.1 00 000/- WAS DEPOS ITED BY TRANSFER ENTRY. THE ASSESSING OFFICER ACCORDINGLY OBSERVED T HAT CHEQUE OF RS.1 00 000/- CREDITED TO DHARMEDNRA JAINS ACCOUNT IS NOT CAME FROM ROHIT TEXTILE AS CLAIMED BY THE DONOR BUT HAS CAME FROM DURGA TRADING COMPANY AND THERE WAS A CASH DEPOSIT OF RS. 2 00 000/- ON 22.04.2000 IN ACCOUNT OF DURGA TRADING COMPANY I.E. THE DATE OF ISSUE OF CHEQUE BY THE DONOR. THE ASSESSING OFFICER ACCOR DINGLY OBSERVED THAT THE DONOR SHRI DHARMENDRA JAIN HAS NO CAPACITY TO GIVE GIFT OF RS.1 00 000/- LOOKING TO HIS SMALL INCOME AND FURT HER IT IS STATED THAT HE HAS NEVER GIVEN IN THE PAST EVEN A SMALL GIFTS TO H IS REAL RELATIVES. CONSIDERING THESE FACTS THE ASSESSING OFFICER HELD THAT GIFT OF RS.1 00 000/- WAS NOT GENUINE AND ADDED THE SAME AS UNEXPLAINED 6 ITA NO.3508/AHD/2004 CASH CREDIT TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL IN THE IMPUGNED ORDER LEARNED COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE ACTION OF THE ASSESSING OFFICER FOR THE DETAILS GIVEN IN PARA.3.2 READS AS UNDER:- '3.2. I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTH ORISED REPRESENTATIVE CAREFULLY. I FIND THAT THE DONOR IS NOT RELATED TO THE APPELLANT AND THE DONOR HAS NOT GIVEN ANY GIFT IN T HAT YEAR OR IN EARLIER YEARS TO ANY OF HIS RELATIVES AND THERE IS NO OCCASION IN THE FAMILY OF THE APPELLANT FOR SUCH GIFT AND FURTHER T HE DONOR HAS NOT CREDITWORTHINESS AS THE ANNUAL INCOME OF THE DONOR WAS ONLY RS.60 000/- AND IT IS QUITE IMPROBABLE FOR A PERSON HAVING INCOME OF RS.60 000/- TO GIVE GIFT OF RS.1 00 000/- OUT OF HIS SMALL INCOME WHICH CANNOT BE SUFFICIENT FOR HIS LIVING AND HOUSE HOLD EXPENSES AND NOBODY WOULD LIKE TO UTILIZE HIS HARD EARNED SA VINGS FOR MAKING A GIFT TO AN OUTSIDER UNLESS THERE IS ANY MO TIVE OF FINANCIAL GAIN. HE HAS GIFTED RS.1 00 000/- TO UNKNOWN PERSON WHO IS NOT HIS RELATIVE WITHOUT ANY OCCASION. FURTHER BEFORE T HE CHEQUE OF RS.1 00 000/- HAS BEEN ISSUED TO THE APPELLANT CAS H DEPOSIT OF RS.2 00 000/- HAS BEEN MADE IN THE ACCOUNT OF DURGA TRADING CO. ON 22.04.2000 FOR WHICH THE DONOR HAS NO EXPLAN ATION. CONSIDERING ALL THESE FACTS AND CIRCUMSTANCES THE CLAIM OF GIFT IS NOT ACCEPTED AND IT IS HELD THAT THE ASSESSING OFFI CER HAS RIGHTLY TREATED THE SAME AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE APPELLANT AND THE ADDITION MADE BY THE ASSESSING OF FICER IS CONFIRMED.' 11. BEFORE US COUNSEL OF THE ASSESSEE SUBMITTED TH AT MERE FACT THAT DONOR COULD NOT EXPLAIN THE SOURCE OF DEPOSIT IS N O GROUND TO MAKE THE ADDITION. HE SUBMITTED THAT AMOUNT WAS RECEIVED BY CHEQUE. THE ASSESSEE HAS DISCHARGED THE ONUS UNDER SECTION 68 T HEREFORE ADDITION MADE BE DELETED. 12. ON THE OTHER HAND DEPARTMENTAL REPRESENTATIVE RELYING ON THE DECISION OF PUNJAB AND HARYANA HIGH COURT IN THE CA SE OF TIRTH RAM GUPTA VS. CIT (2008) 304 ITR 145 (P&H) WHEREIN IT WAS CONTENDED THAT THE MERE IDENTIFICATION AND SHOWING MOVEMENT T HROUGH BANKING CHANNEL IS NOT SUFFICIENT TO HOLD THAT GIFT WAS GEN UINE. HE FURTHER SUBMITTED THAT THERE WAS NO OCCASION FOR THE ALLEGE D DONOR TO HAVE 7 ITA NO.3508/AHD/2004 GIFTED RS.1 00 000/- WHEN HIS ANNUAL INCOME IS ONLY ABOUT RS.60 000/-. DONOR IS ALSO NOT RELATED TO THE ASSESSEE. 13. LEARNED DEPARTMENTAL REPRESENTATIVE ALSO RELIED ON THE DECISION OF THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF JASPAL SINH VS. CIT 290 ITR 306 (P&H) WHEREIN IT IS HELD THAT ASSES SEE IS ALSO REQUIRED TO ESTABLISH THAT THE DONOR HAS A MEANS AND THE GIF T WAS GENUINE FOR NATURAL LOVE AND AFFECTION. THE RELIANCE WAS ALSO P LACED ON THE DECISION OF THE ITAT DELHI BENCH IN THE CASE OF ACIT VS. RA JIV TANDAN (2007) 294 ITR (AT) 219 (DELHI) WHEREIN IT WAS HELD THAT GENUINENESS OF THE GIFT TRANSACTION CANNOT BE DETERMINED WITHOUT LOOKI NG INTO ASPECT OF HUMAN PROBABILITIES RELATIONSHIP OF DONOR AND DONE E OCCASION FOR MAKING THE GIFT AND EXISTENCE OF RECIPROCACY IF AN Y. IN CASE ASSESSEE FAILED TO ESTABLISH ANY ONE OF THESE THE GIFT AMOU NTS RECEIVED BY THE ASSESSEE CAN BE TREATED AS THE ASSESSEE'S INCOME FR OM UNDISCLOSED SOURCES REPRESENTING THE ASSESSEES OWN MONEY INTR ODUCED IN THE GARB OF THE GIFT BY THE ASSESSEE. 14. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO N OTE THAT IN THIS CASE ASSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF GIFT TRANSACTIONS KEEPING IN VIEW THE TEST OF HUMAN PROBABILITIES RE LATIONSHIP OF THE DONOR AND DONEE THERE WAS NO OCCASION OF MAKING THE GIFT AND EXISTENCE OF RECIPROCACY IF ANY. WE HAVE CAREFULLY GONE THROUGH THE STATEMENT OF DONOR RECORDED ON OATH. AFTER CAREFULLY GOING THROU GH THE SAME. WE ARE CONVINCED THAT CLAIM OF GIFT IS RIGHTLY REJECTED BY BOTH THE DEPARTMENTAL AUTHORITIES BELOW BECAUSE DONOR HAS NO CREDITWORTH INESS HIS ANNUAL INCOME IS ONLY RS.60 000/- AND IT IS QUITE IMPROBAB LE FOR THE PERSON HAVING INCOME OF RS.60 000/- TO GIVE GIFT OF RS.1 0 0 000/- OUT OF A SMALL INCOME WHICH IS NOT EVEN SUFFICIENT FOR HIS LIVING AND HOUSEHOLD EXPENSES. UNDER SECTION 68 OF THE INCOME TAX ACT 1 961 THE ONUS OF 8 ITA NO.3508/AHD/2004 ESTABLISHING GENUINENESS OF THE GIFT IS HEAVIER AS COMPARE TO ESTABLISHING GENUINENESS OF CASH CREDIT. THE REASON S ARE THAT IN CASE OF CASH CREDIT CREDITOR ALWAYS HAS RIGHT TO RECOVER T HE MONEY GIVEN TO THE ASSESSEE WHEREAS IN CASE OF GIFT THE DONOR LOSES T HE LIEN OVER THE GIFTED AMOUNT FOREVER. WE THEREFORE INCLINED TO U PHELD THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFI RMING THE ADDITION OF RS.1 00 000/-. 15. IN THE ASSESSMENT ORDER ASSESSING OFFICER DISA LLOWED THE SALARY PAID TO JAISUKHLAL SHAH AMOUNTING TO RS.72 000/- BY INVOKING THE PROVISIONS CONTAINED IN SECTION 40A(2) OF THE I.T.A CT 1961. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE SALARY PAID IS NEIT HER EXCESSIVE NOR UNREASONABLE BECAUSE LAST YEAR IT WAS RS.7 000/- PE R MONTH. THIS YEAR ASSESSEE PAID RS.10 000/- PER MONTH. ON THE OTHER H AND LEARNED DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT SALARY PAYMENT MADE TO SHRI J.H.SHAH FATHER OF THE ASSESSEE IS NOT COMMENS URATE WITH THE LEGITIMATE BUSINESS NEEDS AND NOT COMMISERATE WITH THE SERVICES RENDERED BY HIM LOOKING TO EDUCATIONAL QUALIFICATIO N. THEREFORE THE SALARY ALLOWED BY THE ASSESSING OFFICER RS.48 000/- I.E. @ RS.4 000/- PER MONTH IS REASONABLE. 16. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW. IT IS TRUE THAT LAST YEAR ASSESSEE CLAIMED S ALARY PAID @ RS.7 000/- PER MONTH. IT IS NOT KNOWN WHETHER THAT ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF IT ACT. BE THAT IT M AY BE AT THE RELEVANT PARAS COMPUTER TRAINED COMMERCE GRADUATES WERE AVA ILABLE FOR RS.3 000/- PER MONTH. THE FATHER OF THE ASSESSEE IS ONLY MATRICULATE. THE ACCOUNTS OF THE AS ARE MAINTAINED ON COMPUTER. THERE IS NO EVIDENCE THAT SHRI J.H.SHAH IS COMPUTER TRAINED. TH ERE IS ONE MORE EMPLOYEE WHO WAS PAID SALARY OF RS.14 400/- PER ANN UM. KEEPING IN VIEW THE PROVISION CONTAINED IN SECTION 40A(2) OF T HE I.T.ACT IN OUT 9 ITA NO.3508/AHD/2004 OPINION IT WILL MEET THE ENDS OF JUSTICE IF THE SA LARY PAID TO THE EXTENT OF RS.6 000/- PER MONTH IS TREATED AS FAIR AND REASONA BLE. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ALLOW THE SALARY TO THE EXTENT OF RS.72 000/-. THE ADDITION TO THE EXTENT OF RS.48 00 0/- IS UPHELD. 17. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DATED 29 TH JANUARY 2010. SD/- SD/- (A.N.PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED: 29/01/2010 PARAS# COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED 4. THE CIT 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// ASSTT. REGISTRAR/ DEPUTY REGISTRAR ITAT AHMEDABAD BENCHES AHMEDABAD.