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2015 (2) TMI 584 - ITAT AHMEDABADAddition u/s.68 - reopening of assessment - contention of learned AR is that in a situation when the impugned addition was based upon the action taken in A.Y. 2004-05, now stood deleted by the Tribunal then this Appeal should also be decided on the same lines - Held that:- We find force in this submission of learned AR; primarily because of the reason that one bench of the Tribunal should respectfully follow the decision of an another Co-ordinate Bench pronounced on identical facts. In addition to the view taken by ITAT Ahmedabad in assessee’s own case we have also noted that the fact about the issuance of cheque by the assessee in favour of M/s. Bharat Jari Works has not been denied. The doubt was that the power of attorney holder Sri Rajesh Kapadia has expired on 16th of August, 2001 and proprietor of Bharat Jari Works Smt. Kailashben expired on 8th May, 2002 then how the bank transaction was carried out. The explanation of the assessee before the AO was that through cheque no.M004308 the impugned amount was transacted in favour of M/s. Bharat Jari Work on 12th of January, 2002 and on that the proprietor Smt. Kailashbank was alive. Therefore it is relevant to comment that although some doubts were raised by the Revenue Department about the said transaction but the direct evidence of the execution of transaction through bank cannot be altogether brushed aside. A suspicion or doubt howsoever strong cannot replace the evidence. There was also a doubt in respect of an affidavit of a third party, namely, Chandrakant Raghunath Patil, but that affidavit was in respect of criminal proceedings and therein he has mentioned the figures of advance as well as the date which have not tallied with the actual figure and the date as mentioned in the ledger account. But the purpose of that affidavit was not to establish the correctness of this transaction but the purpose of the said affidavit was in respect of some bail application pertaining to a criminal case where the bank was the complainant against some bank officer. It transpires form the said affidavit that the proceedings were carried out against the alleged fraud stated to be committed by a public servant, i.e., an officer of the bank. We, therefore, hold that such third party mistakes should not adversely affect the facts as stated by the assessee, therefore, to conclude we hereby hold that in a situation when on identical facts in the past a view has been taken by Respected Co-ordinate Bench in A.Y.2004-05 in assessee’s own case, therefore, we have no reason to take any other view but to follow the view already taken; hence in the result we hereby reverse the findings of the authorities below and direct to delete the addition. - Decided in favour of assessee
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