ITO 15(3)(4), MUMBAI V. SHOLY ANTONY ALLUKARAN, NAVI MUMBAI

ITA 1195/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101078 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 19-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER ITA NO. 1852 /MUM/2012 (ASSESSMENT YEAR: 2008 - 09) SHRI SHOLY ANTONY ALLUKARAN, B/102, GIRIRAJ, SECTOR 44, NEAR VASH MOTORS, NERUL, NAVI MUMGAI - 400706. APPELLANT PAN: AFXPA0 58 1 N VS. INCOME - TAX OFFICER 15(3)(4), MUMBAI. RESPONDENT AND ITA NO.1195/MUM/201 2 (ASSESSMENT YEAR: 2008 - 09) (BY REVENUE) A SSESSEE BY : NONE. REVENUE BY: SHRI SUMIT KUMAR (DR). DATE OF HEARING: 19 /08/2015 . DATE OF PRONOUNCEMENT : : 1 6 / 0 9 /2015 O R D E R PER VIJAY PAL RAO, JM: THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 5/12/2011 OF THE CIT(A) - I, MUMBAI, FOR THE ASSESSMENT YEAR 2008 - 09. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THESE APPEALS WERE CALLED FOR HEARING DESPITE NOTICES FOR HEARING WERE ISSUED THROUGH RPAD AND SERVED ON THE ASSESSEE. IT TRANSPIRES ITA NO . 1852 & 1195/MUM/2012 SHRI SHOLY ANTONY ALLUKURAN PAGE 2 OF 5 FROM THE RECORD THAT THE ASSESSEE HAS NOT BEEN APPEARING IN THESE APPEALS DESPITE REPEATED NOTICES ISSUED THROUGH RPAD. ACCORDINGLY, WE PROPOSE TO HEAR AND DISPOSE OF THESE APPEAL S EXPARTE. 3. BOTH THE ASSESSEE AND THE REVENUE HAVE RAISED COMMON ISSUES IN THESE APPEALS. THE GROUNDS RAISED BY THE ASSESSEE AS WELL AS REVENUE ARE AS UNDER: GROUNDS RAISED BY THE A SSESSEE: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LA W, THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT IS INVALID AND BAD IN LAW. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN PARTLY SUSTAINING THE ADDITION MADE BY THE LEARNED A.O. AND THAT TOO WITHOUT GIVING F ULL AND PROPER OPPORTUNITY BEING HEARD IN THE MATTER. III. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN PARTLY SUSTAINING THE ADDITION MADE BY THE LEARNED A.O. AND THAT TOO WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS OF THE CASE. IV. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN SUSTAINING THE ADDITION MADE TO THE EXTENT OF RS.11,62,000/ - OUT OF THE ADDITION MADE OF RS. 25,12,200/ - AS UNEXPLAINED CASH. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OR ALL OF THE GROUNDS OF APPEAL AT ANY TIME. GROUNDS RAISED BY THE REVENUE: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ITA NO . 1852 & 1195/MUM/2012 SHRI SHOLY ANTONY ALLUKURAN PAGE 3 OF 5 ADDITION TO THE EXTENT OF RS.13,50,000/ - OUT OF THE TOTAL ADDITION OF RS . 25,12,000/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH CREDIT AND NOT APPRECIATING THE FACT, THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE SOURCE OF THESE CASH CREDITS.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION TO THE EXTENT OF RS.13,50,000/ - OUT OF THE TOTAL ADDITION OF RS. 25,12,000/ - MADE BY THE ASSESSING OFFICER BY ADMITTING _FRESH EVI DENCE OF CASH SUMMARY BY THE ASSESSEE AND NOT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER U NDER RULE 46A OF THE INCOME - TAX RULES, 1962.' 3.'THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMEND AND TO MODIFY ANY GROUND OF APPEAL. 4. ON THE BASIS OF INFORMATION RECEIVED REGARDING CASH DEPOSIT OF RS.25,12,000/ - IN THE BANK ACCOUNT, AO ASKED THE ASSESSEE TO EXPLAIN NATURE AND SOURCE OF THIS CASH DEPOSIT. THE AO HAS RECORDED IN THE ASSESSMENT ORDER THAT THE AR OF THE ASSESSEE ATTENDED THE ASSES SMENT PROCEEDINGS BUT THE ASSESSEE COULD NOT EXPLAIN THE NATURE AND SOURCE OF TH IS CASH DEPOSIT. ACCORDINGLY, THE AO MADE AN ADDITION OF THE SAID AMOUNT OF RS.25,12,000/ - AS UNEXPLAINED CASH DEPOSIT IN THE BANK. 5. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE CIT(A) AND SUBMITTED THE CASH SUMMARY AS ADDITIONAL EVIDENCE UNDER RULE 46A TO EXPLAIN THE SOURCE OF DEPOSIT MADE INTO THE BANK. THE CIT(A) RESTRICTED THE DISALLOWANCE TO RS.11,62,000/ - OUT OF TOTAL CASH DEPOSIT OF RS.25,12,200 / - AND THEREBY DELETED THE ADDITION TO THE EXTENT OF RS.13,50,000/ - . THUS BOTH THE ASSESSEE AS WELL AS THE REVENUE ARE AGGRIEVED BY THE ORDER OF THE CIT(A) AND FILED THE PRESENT APPEALS. ITA NO . 1852 & 1195/MUM/2012 SHRI SHOLY ANTONY ALLUKURAN PAGE 4 OF 5 6. WE HAVE HEARD THE LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. DR HAS SUBMITTED THAT THE CIT(A) HAS RESTRICTED THE ADDITION BY ACCEPTING THE ADDITIONAL EVIDENCE AND FURTHER ON THE ASSUMPTION THAT MAJOR CASH WITHDRAWAL AMOUNTING TO RS.13,50,000/ - WOULD BE SOURCE OF CASH DEPOSIT WITHOUT EXAMINING THE FACT OR EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE. THUS, THE LD. DR HAS SUBMITTED THAT THE CIT(A) HAS GIVEN THE FINDING WITHOUT EXAMINING THE RELEVANT EVIDENCE AND MERELY BY ACCEPTING THE SUBMISSIONS OF THE ASSESSEE AS WELL AS FRESH EVIDENCE. THE REFORE THERE IS A VIOLATION OF RULE 46A OF THE IT RULES. 7. WE FIND THAT THE CIT(A) HAS RECORDED IN THE IMPUGNED ORDER THAT THE ASSESSEE SUBMITTED CASH SUMMARY AS ADDITIONAL EVIDENCE UNDER RULE 46A. THEREFORE UNDISPUTEDLY THE CIT(A) HAS CONSIDERED FR ESH MATERIAL WHICH WAS NOT AVAILABLE WITH THE AO AND IN ABSENCE OF OPPORTUNITY TO THE AO TO REBUT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, THERE IS VIOLATION OF RULE 46A. WE FURTHER NOTE THAT THE CIT(A) HAS GIVEN PART RELIEF ONLY ON ASSUMPTION OF FAC T THAT CASH WITHDRAWAL MAY BE REROUTED IN SUBSEQUENT CASH DEPOSITS WITHOUT VERIFYING THE ITEM TO ITEM AND ENTRY TO ENTRY FROM THE RECORD. SINCE BOTH THE ASSESSEE AND REVENUE ARE IN APPEALS AGAINST THE IMPUGNED ORDER, THEREFORE, IN THE FACTS AND CIRCUMSTAN CES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND REMIT THIS ISSUE TO THE FILE OF THE AO FOR VERIFICATION AND EXAMINATION OF ITA NO . 1852 & 1195/MUM/2012 SHRI SHOLY ANTONY ALLUKURAN PAGE 5 OF 5 THE RELEVANT RECORD FILED BY THE ASSESSEE AND THEN DECIDE THE MATTER AS PER LAW. N EEDLESS TO SAY THE ASSESSEE BE GIVEN AN OPPORTUNITY OF HEARING. 8. T HE APPEALS OF BOTH THE ASSESSEE AS WELL AS THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 1 6 TH SEPTEMBER , 2015. S D / - S D / - (N.K.BILLAIYA) (VIJAY PAL RAO) ACCOUNANT MEMBER JUDICIAL MEMBER EKSRINIVASULU, SR.PS COPY TO: 1. A PPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, MUMBAI. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL MUMBAI