KIRAN RAMNLAL PATEL, MUMBAI V. ITO WD 24(2)(1), MUMBAI

CO 30/MUM/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7514 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: DINESH R SHAH
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI I.P.BANSAL (J.M & SHRI B.RAMAKOTAIA H) ITA NO.4114/MUM/2011(A.Y.2006-07) THE ITO - 24 (2)(1), ROOM NO.606, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI 400 051. (APPELLANT) VS. MR. KIRAN RAMANLAL PATEL, 96, NEW MUNICIPAL MARKET, BEHIND FISH MARKET, STATION ROAD, MALAD (W), MUMBAI - 400 064 PAN: AAEPP 3132Q (RESPONDENT) C.O.NO.30/MUM/12(ARISING OUT OF ITA NO.4114/MUM/11 ) MR. KIRAN RAMANLAL PATEL, 96, NEW MUNICIPAL MARKET, BEHIND FISH MARKET, STATION ROAD, MALAD (W), MUMBAI - 400 064 PAN: AAEPP 3132Q (CROSS OBJECTOR) VS. THE ITO - 24 (2)(1), ROOM NO.606, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI 400 051. (APPELLANT IN APPEAL) REVENUE BY : SHRI P.K.B.MENON ASSESSEE BY : SHRI DINESH R. SHAH DATE OF HEARING : 07/06/2012 DATE OF PRONOUNCEMENT : 0 7/06/2012 ORDER PER I.P.BANSAL, J.M THIS APPEAL IS FILED BY THE REVENUE AND CROSS O BJECTION IS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY LD. CIT(A)-34, MUMBAI DATED 28/3/2011. GROUNDS OF APPEAL OF REVENUE IN ITS AP PEAL AND GROUNDS OF CROSS OBJECTION OF THE ASSESSEE ARE REPRODUCED AS U NDER:- GROUNDS OF APPEAL OF REVENUE: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING AN ADDITION OF RS. 11,56,000/- ITA NO.4114/MUM/2011(A.Y.2006-07) C.O.NO.30/MUM/12 2 MADE BY THE ASSESSING OFFICER U/S.68 BY IGNORING TH E FACT THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DOES NOT FALL WITHIN THE PURVIEW OF RULE 46A OF THE I.T.RULES, 1962 AS NUMER OUS OPPORTUNITIES HAVE BEEN PROVIDED TO ASSESSEE TO SUBMIT THE SAME E VIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE GROUND BE SET ASIDE AND MATTER MAY BE DECIDED ACCORDING TO LA W. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD NE W GROUND WHICH MAY BE NECESSARY. GROUNDS OF CROSS OBJECTION OF ASSESSEE: (1) CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE I.E. THE APPELLANT IS NON CONVERSANT WITH TAXATION AND ACCOU NTS AND HIS TAX CONSULTANT. WHO IS AGED PERSON WAS NOT MAINTAINING GOOD HEALTH AND HENCE THEIR WAS PARTIAL COMPLIANCE THE LEARNED CIT (A) CONSIDERING THE BOMBAY HIGH COURT DECISION IN CASE OF (1998) 23 1 ITR PAGE NO.1 ADMITTED AN ADDITIONAL EVIDENCE UNDER RULE 46A AND CIT (A) IS FULLY JUSTIFIED IN ADMITTING THE SAME. (2) THE ASSESSING OFFICER HAS VERIFIED ALL THE LOAN S AND THE A.O IS FULLY SATISFIED REGARDING THE IDENTITY GENUINENESS AND CR EDIT WORTHINESS OF THE LOAN AND HAS ACCEPTED IN PRINCIPLE AND RECOMME NDED THE ACCEPTANCE OF THE LOAN AND DELETION OF ADDITION ON ACCOUNT OF CASH CREDIT UNDER SECTION 68 OF I.T ACT 1961. (3) CONSIDERING THE FACTS AND CIRCUMSTANCES AND LEG AL POSITION THE INCOME TAX DEPARTMENT OUGHT NOT TO HAVE FILE SECOND APPEAL BEFORE THE INCOME TAX APPELLANT TRIBUNAL AND SAME BE DISMI SSED. (4) WITHOUT PREJUDICE TO OTHER GROUND OF APPEAL, WH ILE PASSING ORDER UNDER SECTION 144 OF I.T ACT 1961. THE A.O OUGHT TO HAVE CONSIDERED THE PAST RECORDS OF THE APPELLANT AND OTHER FAMILY MEMBERS CASES FOR THE A.Y. 2006-07 WHERE IN SIMILAR CIRCUMSTANCES LOA NS FROM SAME PARTY ARE ACCEPTED. 2. IT MAY BE MENTIONED THAT THE IMPUGNED ASSESSMENT ORDER IS DATED 20/11/2008 PASSED UNDER SECTION 144 OF THE INCOME T AX ACT, 1961 (THE ACT), WHEREIN A SUM OF RS. 11,56,000/- WAS ADDED T O THE INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT UNDER THE PROV ISIONS OF SECTION 68 OF ITA NO.4114/MUM/2011(A.Y.2006-07) C.O.NO.30/MUM/12 3 THE ACT. CERTAIN ADDITIONAL EVIDENCES WERE FILED BEFORE THE LD. CIT(A), WHICH WERE FORWARDED BY THE LD. CIT(A) TO THE AO. THE A O SUBMITTED HIS REPORT VIDE LETTER DATED 28/2/2011. THE AO OBJECTED TO TH E ADMISSION OF FRESH EVIDENCE, HOWEVER, EXAMINED THE MATTER ALSO ON MER ITS AND THE RELEVANT OBSERVATION OF THE AO IN THE REMAND REPORT IS REPRO DUCED IN THE ORDER OF LD. CIT(A) WHICH IS ALSO REPRODUCED BELOW. 5. WITHOUT PREJUDICE TO THE ABOVE REGARDING THE ME RITS OF THE ABOVE DOCUMENTS, IT IS SUBMITTED THAT THE ASSESSEE HAS GI VEN THE DETAILS OF CONFIRMATION IN RESPECT OF LOANS TAKEN FROM THE ABO VE MENTIONED PERSONS MENTIONING PAN, ADDRESS AND MODE OF PAYMENT S IN ALL THE PARTIES AND ADDITIONAL AFFIDAVIT IN CASE OF SHRI PA NKAJKUMAR V. PATEL, SMT. LILABEN R. PATEL AND SHRI RAMANLAL A. PATEL CO NFIRMING THE LOANS HAVE BEEN PUT ON RECORD. IN CASE OF M/S. DHIRAJ KU MAR & CO. AND MITUL AGENCY THE BANK STATEMENTS IS ALSO FILED, THE LOAN AMOUNT IS REFLECTED IN THE SAID BANK STATEMENTS. 6. REGARDING THE MERITS OF THE ABOVE DOCUMENTS, IT IS SUBMITTED THAT THE ASSESSEE HAS GIVEN THE DETAILS OF CONFIRMA TION IN RESPECT OF LOAN TAKEN FROM THE ABOVE MENTIONED PERSONS MENTION ING PAN, ADDRESS AND MODE OF PAYMENT HAS BEEN FILED. THE MA TTER, MAY, THEREFORE, BE DECIDED ON MERITS. IN VIEW OF THE AFOREMENTIONED REMAND REPORT LD. CIT (A) HAS DELETED THE ADDITION. 3. RELYING UPON THE GROUNDS OF APPEAL IT WAS PLEADE D BY LD. D.R THAT ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DO NOT FALL WITHIN THE PURVIEW OF RULE 46A OF THE INCOME TAX RULES, 1962 (THE RULES) AS REASONABLE OPPORTUNITIES WERE ALREADY PROVIDED BY THE AO TO TH E ASSESSEE. THEREFORE, LD. D.R SUBMITTED THAT LD. CIT(A) HAS WRONGLY ADMI TTED THE EVIDENCES AND DELETED THE ADDITION. 4. ON THE OTHER HAND, REFERRING TO PAGE 17 OF THE P APER BOOK IT WAS SUBMITTED BY LD. A.R THAT THE REASON FOR NOT FILING DETAILS WAS MENTIONED BEFORE THE LD. CIT(A), ACCORDING TO WHICH ITP OF T HE ASSESSEE WAS 75 YEAR OLD, THEREFORE, HE COULD NOT FILE FULL DETAILS DURI NG THE ASSESSMENT ITA NO.4114/MUM/2011(A.Y.2006-07) C.O.NO.30/MUM/12 4 PROCEEDINGS. HE SUBMITTED THAT IN THESE CIRCUMSTAN CES LD. CIT(A) ADMITTED THE EVIDENCES AND HAS CALLED FOR THE REMAND REPORT FROM THE AO VIDE LETTER DATED 20/8/2010, THE COPY OF WHICH IS PLACED AT PA GE 17 OF THE PAPER BOOK. LD. A.R SUBMITTED THAT AO AFTER GOING THROUGH THE ADDITIONAL EVIDENCES ALSO EXAMINED THE MATTER ON MERIT AND COULD NOT FIND AN Y DISCREPANCY IN THE EVIDENCE FILED BY THE ASSESSEE. HE, THEREFORE, PLE ADED THAT ORDER OF LD. CIT(A) SHOULD BE CONFIRMED. HE FURTHER SUBMITTED T HAT THE CROSS OBJECTION FILED BY THE ASSESSEE IS ONLY SUPPORTING THE ORDER OF CIT(A) AND IF THE ORDER OF CIT(A) IS CONFIRMED THEN CROSS OBJECTION FILED BY T HE ASSESSEE MAY BE TREATED AS INFRUCTUOUS. 5. IN THIS VIEW OF THE SITUATION, AFTER HEARING BO TH THE PARTIES AND CONSIDERING THE OBSERVATIONS OF AO ON MERITS IN TH E REMAND REPORT SUBMITTED BY HIM AND ALSO THE REASON OF ADMISSION O F ADDITIONAL EVIDENCE BY THE LD. CIT(A), WE FIND NO INFIRMITY IN THE FINDING S RECORDED BY LD. CIT(A), WE DECLINE TO INTERFERE. THE APPEAL OF THE DEPARTMENT IS DISMISSED. 6. AS THE DEPARTMENTAL APPEAL IS DISMISSED THE CROS S OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME IS ALSO DISMISSED. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED AND CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED ON THE GROUND OF IT HAVING BECOME INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON THE 7 TH DAY OF JUNE,2012 ON CONCLUSION OF THE HEARING. SD/- SD/- ( B.RAMAKOTAIAH ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 7 TH JUNE, 2012 ITA NO.4114/MUM/2011(A.Y.2006-07) C.O.NO.30/MUM/12 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.R A BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.