SHRI PRAKASH PUKHRAJ JAIN, MUMBAI V. INCOME TAX OFFICER - 31(2)(5), MUMBAI

ITA 1119/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8155 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHATURVEDIDR
• Assessee Lawyers: RAVIKANT S PATHAKAR
• Keywords: Opportunity of being heard
• Section: 143(3); 143(1); 68; 2

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, ITA NO.1119/MUM/2018 ASSESSMENT YEAR: 2012-13 SHRI PRAKASH PUKHRAJ JAIN, E-602, GUNDECHA GARDEN, LALBAUG, MUMBAI-400012 / VS. INCOME TAX OFFICER-31(2)(5), PRATAYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, MUMBAI / ASSESSEE / REVENUE P.A. NO.AKCPS7310M ' # $ / ASSESSEE BY SHRI RAVIKANT S. PATHAK-AR ' # $ / REVENUE BY SHRI V. K. CHATURVEDI-DR / DATE OF HEARING 27/12/2018 $ / DATE OF ORDER: 27/12/2018 $ / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 16/10/2017 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, CONFIRMING THE ADDITION OF RS.4,50,000/- MA DE ITA NO.1119/ MUM/2018 PRAKASH PUKHRAJ JAIN 2 UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), BEING LOAN TAKEN FROM THE WI FE OF THE ASSESSEE. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI RAVI KANT S. PATHAK, ADVANCED ARGUME NTS, WHICH IS IDENTICAL TO THE GROUND RAISED BY SUBMITTI NG THAT THE WIFE OF THE ASSESSEE WAS DEALING IN HANDIC RAFT BUSINESS AND FOR ASSESSMENT YEAR 2011-12 AND 2013-1 4, THE LD. ASSESSING OFFICER ALLOWED THE CLAIM IN THE CASE OF WIFE OF THE ASSESSEE, THOUGH UNDER SECTION 143(1) O F THE ACT. IT WAS ALSO EXPLAINED THAT THE WIFE OF THE ASS ESSEE IS OF 55 YEARS OF AGE AND BELONGS TO A BUSINESS FAMILY . IT WAS PLEADED THAT ALL THE NECESSARY DOCUMENTS WERE F ILED BEFORE THE LD. ASSESSING OFFICER AS WELL AS BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). ON THE OTHER HAND, SHRI V. K. CHATRUVEDI, LD. DR, STRONGLY DEFEN DED THE IMPUGNED ORDER BY CONTENDING THAT MERELY COPY O F THE ACKNOWLEDGMENT WAS FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AND NOT THE COMPLETE DETAILS AS HAS BEEN CLAIMED BY THE ASSESSE E. IT ITA NO.1119/ MUM/2018 PRAKASH PUKHRAJ JAIN 3 WAS PLEADED THAT SO FAR ASSESSMENT YEAR 2011-12 AND 2013-14 ARE CONCERNED, THESE WERE MERELY SUMMARY ASSESSMENT AND NO ORDER UNDER SECTION 143(3) OF THE ACT WAS PASSED. IT WAS STRONGLY CONTENDED THAT THE CLAI M OF THE ASSESSEE REQUIRES VERIFICATION/EXAMINATION OF F ACTS. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSI NESS OF MANUFACTURING, WHOLESALE DEALING IN GOLD, GOLD JEWE LLERY, ORNAMENTS AS PROPRIETOR OF M/S SHREE PADMAVATI JEWELLERS, DECLARED, INCOME OF RS.8,49,194/-. THE T OTAL INCOME ALSO CONSISTING OF INCOME FROM BUSINESS AMOUNTING TO RS.9,56,040/-. WHILE FRAMING THE ASSESSMENT, IT WAS NOTICED BY THE LD. ASSESSING OFF ICER THAT THE ASSESSEE HAS CLAIMED UNSECURED LOAN OF RS.4,50,000/-, WHICH WAS FOUND TO BE DEPOSITED IN C ASH IN THE LENDERS ACCOUNT OUT OF WHICH THE LOAN WAS ADVANCED. THE LD. ASSESSING OFFICER, IN THE ABSENCE OF ANY SATISFACTORY EXPLANATION, MADE ADDITION UNDER SECTION 68 OF THE ACT OF THE IMPUGNED AMOUNT. ON ITA NO.1119/ MUM/2018 PRAKASH PUKHRAJ JAIN 4 APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE ADDITION WAS CONFIRMED. SO FAR AS, FA CTS ARE CONCERNED, THESE HAS BEEN ELABORATED IN ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ORDER. EVEN IN THE STATEMENT OF FACTS, THE ASSESSEE HAS MENTIONED THAT PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. IT IS ALSO NOTED THAT THE ASSESSEE, B EFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), MERELY FIL ED THE ACKNOWLEDGMENT OF THE RETURN AND NOT THE FULL D ETAILS SO THAT THE GENUINENESS OF THE DEPOSIT IN THE CASE OF THE WIFE OF THE ASSESSEE COULD NOT BE ESTABLISHED FROM WHERE LOAN WAS TAKEN BY THE ASSESSEE. THUS, CONSIDERING T HE TOTALITY OF FACTS, I DIRECT THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF CASH DEPOSITS IN THE ACCOUNTS OF THE WIFE OF THE ASSESSEE, FROM WHERE LOAN WAS OBTAINED BY THE ASSESSEE. THE ASSESSEE IS DIRECTED TO SUBSTANTIATE ITS CLAIM WITH DOCUMENTARY EVIDENCE, FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES ONLY. ITA NO.1119/ MUM/2018 PRAKASH PUKHRAJ JAIN 5 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 27/12/2018. SD/- (JOGINDER SINGH) '() / VICE PRESIDENT MUMBAI; ' DATED : 27/12/2018 F{X~{T? P.S / #$ $ ' *+,- .$-/, / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. ++ , ( %& ) / THE CIT, MUMBAI. 4. ++ , / CIT(A)- , MUMBAI 5. /01)# , +%&%#3 , / DR, ITAT, MUMBAI 6. 145& / GUARD FILE. $ / BY ORDER, '/ (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI