Noshire Dara Mody, Goa V. Asst. Commissioner of Income tax Cir. 2 (1), Goa

CO 2/PAN/2014

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9766 (ITAT-PANAJI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B BARTHAKUR LD
• Keywords: Additional evidence; Corroborative evidences
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 379/PNJ/2013 (ASSESSMENT YEAR - 20 09 - 10 ) THE ASSISTANT COMMISSIONER OF INCOME - TAX, CIRCLE - 2(1), PANAJI, GOA. (APPELLANT) VS. NOSHIRE DARA MODY FRENDRA SALMONA WADDO, SALIGAO, BARDEZ - GOA PAN:AJTPM8205D (RESPONDENT) C.O NO. 02 /PNJ/2014 ARISING OUT OF ITA NO.379/PNJ/2013 (ASSESSMENT YEAR - 2009 - 10) NOSHIRE DARA MODY FRENDRA SALMONA WADDO, SALIGAO, BARDEZ - GOA PAN:AJTPM8205D(OBJECTOR) VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CIRCLE - 2(1), PANAJI, GOA. (RESPONDENT) APPELLANT BY : SMT. B. BARTHAKUR , LD. DR. RESPONDENT BY : SHRI RAHUL KHARE, A DV . DATE OF HEARING : 29/05 /2014 DATE OF PRONOUNCEMENT : 27 /06 /2014 O R D E R PER: D.T. GARASIA THIS APPEAL HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A) - PANAJI, DATED 26.09 .2 013 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE FOLLOWING GROUND IS RAISED IN THIS APPEAL AS UNDER: - 1. THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE LIABILITY EXISTING IN THE BALANCE SHEET WIT H SUPPORTING EVIDENCES. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE AO HAS RIGHTLY ADDED THESE 2 . ITA NO. 379 /PNJ/ 2013 & C.O. NO. 02/PNJ/2014 (A.Y.2009 - 2010) CREDITORS SINCE THE ASSESSEE DID NOT FURNISH ANY CONFIRMATION LETTERS NEITHER BEFORE THE AO NOR BEFORE THE CIT(A). 2.1 THE ASSESSEE HAS FILED E - RETURN OF INCOME ON 30.07.2009 DECLARING AN INCOME OF RS.1,58,89,070/ - . THE RETURN WAS PROCESSED U/S. 143(1). DURING THE COURSE OF ASSESSMENT PROCEEDING, T HE ASSESSEE WAS REQUESTED TO FILE CONFIRMATION FOR ADVANCE APPEARING FOR BALANCE SHEET. THE ASSESSEE HAS NOT FILED CONFIRMATION IN FOLLOWING THREE CASES THE DETAIL FOR WHICH THE CONFIRMATI ON ARE NOT FILED ARE AS UNDER: - 1 SUNDARY CREDITORS/ADVANCES RS.30, 00,000/ - 2 CAPTAIN BHAT RS.1,00,000/ - 3 ARJAN RESORTS RS.1,03,712/ - TOTAL RS. 32,03,712/ - IN SPITE OF SUFFICIENT OPPORTUNITY GIVEN TO THE ASSESSEE, THE CONFIRMATIONS ARE NOT FILED FOR THE ABOVE AMOUNTS. IF THE ABOVE ADVANCES ARE NOT PAYABLE BY THE ASSESSEE DUE TO DISPUTES OR FOR ANY OTHER REASON, THE SAME AMOUNTS TO BENEFIT OR PERQUISITE WHETHE R CONVERTIBLE INTO MONEY OR NOT ARISING FROM BUSINESS OR THE EXERCISE OF PROFESSION U/S 28(IV) OF I.T. ACT, AND TAX IS PAYABLE UNDER THE HEAD INCOME. ACCORDING TO THE AMOUNT OF RS. 32,03,712/ - IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 2.2 . THE MATTER CARRIED TO CIT(A) AND CIT(A) HAS DELETED THIS AMOUNT BY OBSERVING AS UNDER: 6.3. I HAVE GONE THROUGH THE ASSESSMENT ORDER, SUBMISSION OF THE APPELLANT AND HAVE PERUSED THE RELEVANT LETTERS AND DOCUMENTS. THE A.O. ADDED THESE CREDITORS STATING THAT SINCE THE ASSESSEE DID NOT FURNISH CONFIRMATION LETTERS, HE PRESUMED THAT THE LIABILITY HAD CEASED TO EXIST AND THEREFORE IT WAS INCOME OF THE ASSESSEE. OBVIOUSLY, ADDITIONS MADE ON THE BASIS OF SUCH PRESUMPTIONS CANNOT BE SUSTAINED. THE A.O. HAS NEITHER MADE AN Y EFFORT TO TEST THE VERACITY AND GENUINENESS OF THESE TRANSACTIONS NOR COST ANY ASPERSIONS ON THE SAME. IN VIEW OF THE ABOVE, THE A.O. IS DIRECTED TO DELETE THE ADDITION AMOUNTING TO RS.32,03,712/ - MADE ON THIS ACCOUNT. THIS GROUND OF APPEAL OF THE APPELL ANT IS ALLOWED ACCORDINGLY. 2.3. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS NOT PRODUCED THE CONFIRMATION IN RESPECT OF THREE ADVANCE IN SPITE OF SEVERAL OPPORTUNITIES WERE MADE. THE LEARNED CIT(A) HAS WITHOUT VERIFYING THE FACTS DELETED THE ADDITIO N. 3 . ITA NO. 379 /PNJ/ 2013 & C.O. NO. 02/PNJ/2014 (A.Y.2009 - 2010) 2.4. THE LEARNED AR RELIED UPON THE ORDER OF REVENUE AUTHORITIES. 2.5 . WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS PRODUCED THE EVIDENCE THE COPY OF BALANC E SHEET AS ON 31.3.2008 AND 31.03.2009 WHICH WAS VERIFIED BY JCIT. WHILE COMPLETING THE ASSESSMENT FOR A.Y. 2008 - 09, THIS EVIDENCE WAS PRODUCED BEFORE AO. IN RESPECT OF ADVANCE OF CAPTAIN G.M. BHAT IS CONCERNED, ASSESSEE HAS FILED THE LETTER WHEREIN HE HAS STATED THAT RS.3,00,000/ - WAS REC EIVED FROM HIM AND COPY OF ACCOUNT WITH PAN NO. WAS DULY FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE FIND THAT THE CIT(A) HAS VERIFIED THIS EVIDENCE AND AFTER VERIFYING THIS EVIDENCE THE CIT(A) HAS DELETED THIS AM OUNT. THEREFORE, OUR INTERFERENCE IS NOT REQUIRED. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. \ C.O. NO. 0 2/PNJ/2014 FOR A.Y.2009 - 10 3 . THE ASSESSEE HAS FILED THE CROSS OBJECTION ON THE GROUND THAT LEARNED CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.19,88,000/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS, WHICH IS NOT ONLY BAD IN LAW BUT ALSO AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3 .1. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE HAS DEPOSITED THE AMOUNT OF RS.42, 00,000/ - ON VARIOUS DATED IN THE BANK WHICH READ AS UNDER: 1 14/05/2008 RS. 10,00,000/ - 2 15/05/2008 RS. 10,00,000/ - 3 27/05/2008 RS. 5,00,000/ - 4 27/05/2008 RS. 5,00,000/ - 5 02//06/2008 RS. 10,00,000/ - 6 19/03/2009 RS. 2,00,000/ - TOTAL RS.42,00,000/ - THE ASSESSEE WAS REQUESTED TO EXPLAIN THE SOURCE OF THIS CASH DEPOSITS IN THE BANK. THE ASSESSEE WAS ABLE TO EXPLAIN THE CASH DEPOSIT OF RS.25,32,856/ - . THE ASSESSEE COULD NOT FILE THE CONFIRMATION IN RESPECT OF CASH LOANS OF RS.5,20,8 56/ - . S IMILAR LY 4 . ITA NO. 379 /PNJ/ 2013 & C.O. NO. 02/PNJ/2014 (A.Y.2009 - 2010) ASSESSEE COULD NOT EXPLAIN THE DEPOSIT OF RS.14,67,144/ - AND THE ASSESSEE COULD NOT FILE CONFIRMATION, THEREFORE, IT WAS ADDED TO THE TOTAL IN COME OF AS UNEXPLAINED CASH DEPOSITS/ CR EDITS U/S. 68 OF THE IT. ACT. THE CIT(A) HAS CONFIRMED THE SAME. 3.2 . DURING THE COURSE OF HEARING LEARNED AR HAS REQUESTED FOR FILING THE ADDITIONAL EVIDENCE UNDER RULE - 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULE S . IN RESPECT OF THIS ADDITION THE ASSESSEE HAS PRODUCED THE COPY OF CONFIRMATION OF MR. AMIT PHAKE, MOREOVER, COPY OF CASH ACCOUNT IN THE BOOKS OF ASSESSEE FOR A.Y.2009 - 10 AND HE REQUESTED THAT ASSESSEE COULD NOT FILE THIS EVIDENCE BEFORE THE LOWER AUTHORITY, THER EFORE, HE REQUESTED FOR ADMITTING THIS ADDITIONAL EVI DENCE. 3 . 3 . HAVING HEARD THE LEARNED DR WE ARE OF THE VIEW THAT THE ASSESSEE HAS FILED THE CONFIRMATION FROM MR. AMIT PHAKE. THE ASSESSEE HAS ALSO REQUESTED US DURING TH E COURSE OF HEARING THAT IF THE MATTER IS RESTORE TO THE AO, THE ASSESSEE WILL BE ABLE TO JUSTIFY AND FILE THE CONFIRMATION IN RESPECT OF THIS UNEXPLAINED DEPOSIT. AFTER HEARING BOTH THE PARTIES WE ARE OF THE VIEW THAT ASSESSEE WANT TO FILED THE CONFIRMAT ION LETTER BEFORE AO, THEREFORE, ONE MORE OPPORTUNITY WAS GIVEN TO ASSESSEE IN THE INTEREST OF JUSTICE AND WE RESTORE THIS MATTER BACK TO THE FILE OF AO. AO IS DIRECTED TO DECIDED AFTER RECEIVING THE CONFIRMATION AS PER LAW AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3 .4. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED AND C.O. IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED I N THE OPEN COURT ON 27 .06. 2014. SD/ - SD/ - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 27 . 0 6 .2014 P.S. - *PK* 5 . ITA NO. 379 /PNJ/ 2013 & C.O. NO. 02/PNJ/2014 (A.Y.2009 - 2010) COPY TO : ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) CONCERNED ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY, BY ORDER