ITO 25(3)(4), MUMBAI V. VIRAL P MODI, MUMBAI

ITA 128/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3703 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 08-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKUNDRAJ M CHATE
• Keywords: Unexplained cash credit; Unexplained investment; Additional evidence; Tax effect
• Section: 40A(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI JASON P. BOAZ (AM) AND SHRI SANDEEP GOS AIN (JM) ITA NO. 128 /MUM/2013 ASSESSMENT YEAR: 2009-10 THE ITO 25(3)(4), C-10, R.NO. 307, PRATYAKSH KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA(EAST), MUMBAI- 400051. VS. SHRI. VIRAL P. MODI, A-603, VEENA STAR, OPP. PANCHSHEEL ARCED, MAHAVIR NAGAR, KANDIVALI (WEST), MUMBAI- 400067. PAN : ALCPM6957H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. MUKUNDRAJ M.CHATE RESPONDENT BY : NONE DATE OF HEARING: 03/03/2016 DATE OF PRONOUNCEMENT: 03/03/2016 O R D E R PER JASON P. BOAZ, AM THE AFORESAID APPEAL HAVE BEEN FILED BY THE RE VENUE AGAINST THE IMPUGNED ORDERS DATED 11/10/2012, PASSED BY THE CIT (A)-35, MUMBAI IN RESPECT OF THE ORDER OF ASSESSMENT PASSED U/S 144 O F THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2009-10 ON THE FOLLOW ING GROUNDS:- I) 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE ADDITI ON TO RS. 19,37,319/- UNEXPLAINED CASH CREDIT U/S 68 INSTEAD OF RS. 45,32,523/- WITHOUT GIVING ANY BASIS FOR ARRIVING A T SUCH A FIGURE. 2 ITA NO. 128/MUM/2013 ASSESSMENT YEAR: 2009-10 II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN ARRIVING AT A FIGURE O F RS. 19,17,913/- ON THE BASIS OF RECAST TRADING & PROFIT & LOSS A/C FILED BY THE APPELLANT WITHOUT GIVING AN OPPORT UNITY TO THE A.O. TO EXAMINE THE ADDITIONAL EVIDENCE PRODUCE D BY THE ASSESSEE IN VIOLATION OF PROVISIONS OF RULE 46A OF THE I.T.RULES, 1962. III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ACCEPTING ASSESSEES V ERSION THAT CASH WITHDRAWAL FROM UNDISCLOSED BANK IS FOR THE PURPOSE OF PURCHASES ETC. WITHOUT VERIFYING ITS IMP LICATION UNDER THE PROVISIONS OF SECTION 40A(3) OF THE I.T.A CT-1961. IV) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING AN AMOUNT OF RS.2,00,000/- AS UNEXPLAINED INVESTMENT WITHOUT BRI NGING ANYTHING ON RECORD NOR GIVING ANY COGENT REASONS FO R DOING SO. V) THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CI T (A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO B E RESTORED. VI) THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER A NY GROUND OR ADD A NEW GROUND. 2. AT THE OUTSET, IT IS NOTICED THAT, THE DISPUTE D ISSUE IN THIS APPEAL IS ONLY RS. 25,88,934/- AND THE TAX EFFECT ON THIS AMOUNT I S MUCH BELOW THE 3 ITA NO. 128/MUM/2013 ASSESSMENT YEAR: 2009-10 SPECIFIED MONETARY LIMIT OF RS. 10 LAKHS. AS PER TH E LATEST CBDT CIRCULAR NO. 21 OF 2015, DATED 10 TH DECEMBER, 2015, NEW GUIDELINES OF MONETARY LIMIT F OR FILING OF APPEALS BY THE DEPARTMENT HAS BEEN ISSUED , WHEREBY THE TAX EFFECT FOR FILING OF APPEAL BEFORE THE ITAT HAS BEEN PRESC RIBED AT RS. 10 LAKHS. IN THE SAID CIRCULAR, IT HAS BEEN SPECIFICALLY CLARIFIED T HAT THE SAID INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS. A CCORDINGLY, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND ARE DISMISSE D IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD MARCH, 2016 SD-/ SD/- ( SANDEEP GOSAIN ) (JASON P.BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 03/03/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA