ITO, Wd, 2(2), Pune, Pune V. Nandkumar H. Motwani, Pune

ITA 1282/PUN/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49977 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-07-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 06-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Unexplained cash credit; Unexplained expenditure; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 1282/PN/2009 : A.Y. 1998-99 I.T.O. WARD 2(2) PUNE APPELLANT VS. N.H. MOTWANI, 373 NEW RASTA PETH, PUNE ABNPM 7182 R RESPONDENT APPELLANT BY: SMT. ANN KAPTHUAMA RESPONDENT BY: SHRI NIKHIL PATHAK ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST T HE ORDERS OF THE CIT(A)-II PUNE DATED 12-8-2009 FOR A. Y. 1998- 99 ON THE POINT OF DELETION OF ADDITION OF RS. 33,2 5,540/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. 2. DURING THE PROCEEDINGS BEFORE US LD. COUNSEL FOR TH E ASSESSEE FILED A COPY OF ORDER OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF SHRI TRILOKCHAND T. KALANI IN ITA NO. 538 AND 539/PN/200 FOR A.Y. 1999-00 WHEREIN THE ISS UE WAS DECIDED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER: 2. DURING THE PROCEEDINGS BEFORE US, LD. COUNSEL F OR THE ASSESSEE FILED THE ORDER OF THE PUNE TRIBUNAL IN THE CASE OF SHRI BALB HIM DATTATRAY SHINDE AND OTHERS FOR THE A.Y 1998-99 DATED 31/08/2007 VIDE I TA NO. 1362 & 1364/PN/2005 AND REFERRED TO PARA 5 AND 6 WHEREIN, IT WAS HELD AS UNDER:- 5. AT THE TIME OF HEARING BEFORE US, NONE APPEARED FOR THE RESPONDENT ASSESSEE. WE HAVE HEARD THE LEARNED DR AND DULY CON SIDERED THE FACTUAL MATRIX OF THE CASES AS ALSO THE APPLICABLE LEGAL PO SITION. 6. ON PERUSAL OF THE ORDER OF THE CIT(A), IT IS EVI DENT THAT CIT(A) HAS MADE CATEGORICAL FINDINGS BEFORE THE DELETION OF TH E ADDITIONS MADE BY THE 2 ITA NO. 258/PN/2010 RDA HOLDINGS PVT.LTD. A.Y. 2003-04 AO ON ACCOUNT OF ALLEGED FACTITIOUS SALE PROCEEDS O F DIAMOND JEWELLERY AND ON ACCOUNT OF COMMISSION ON BILLS, VIZ., I) THE ADDITION ON ACCOUNT OF PROCEEDS FROM SALE OF JEWELLERY TO M/S. GALAXY EXP ORTS CANNOT BE SUSTAINED MERELY ON THE BASIS OF INVESTIGATION DONE IN THE CASE OF THE BUYER PARTY DURING THE COURSE OF SEARCH PROCEEDIN GS IN ITS CASE AS THE SAME HAS NO DIRECT RELEVANT TO THE APPELLATE PROCEE DINGS IN THE APPELLANTS CASE, II) ON THE CONTRARY, THE CONFIRMATIONS OF THE BUYER PARTY FILED BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS AS DIREC TLY RELEVANT IN THIS CASE AND THE AO HAS DONE NOTHING TO DISPROVE THE SAME, A ND II) THERE HAS BEEN A COMPLETE DENIAL OF THE PRINCIPLES OF NATURAL JUSTICE IN THIS CASE IN AS MUCH AS THE EVIDENCE FILED BY THE APPELLANT HAS NOT BEEN CONTROVERTED BY THE AO AND COMPLETE RELIANCE IS PLACED BY THE AO ON THE OUTCOME OF INVESTIGATION IN THE CASE OF A THIRD PARTY. IN ANY EVENT, THE HONBLE ITAT MUMBAI BENCH B (THIRD MEMBER) IN THE CASE OF UTTA MCHAND P. JAIN VS. ITO [2006] 103 ITD 1 HAS FOLLOWED THE RATIO LAID IN THE CASE OF MOHANLAL R. DAGA VS. ITO (SUPRA), ON WHICH THE RELIANCE PLAC ED BY THE ASSESSEE, WHILE DECIDING THE CASE IN FAVOUR OF THE ASSESSEE. ON SIMILAR IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASE. THE ISSUE IS THUS SQUARELY COVERED BY THE AFORESAID THIRD MEMBER DECISION. WE RESPECTFULL Y FOLLOW THE SAME IN VIEW OF THE DISCUSSIONS ABOVE, WE UPHOLD TH E ORDER OF THE CIT(A) IN DELETING THE ADDITIONS MADE ON ACCOUN T OF PROCEEDS FROM SALE OF JEWELER AND COMMISSION ON BILLS, IN TH ESE TWO APPEALS. THUS, THE GROUND NOS. 1 & 2 IN BOTH THE APPEALS RA ISED BY THE REVENUE ARE HEREBY DISMISSED. 3. RESPECTFULLY FOLLOWING THE ABOVE VIEW TAKEN BY T HE TRIBUNAL IN THE CASE OF SHRI BALBHIM DATTATRAY SHINDE AND OTHERS (SUPRA), W E UPHOLD THE ORDER OF THE CIT(A) IN DELETING THE ADDITIONS MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT AND UNEXPLAINED EXPENDITURE. FURTHER, THE ABOVE REFERRE D EXTRACT WAS DECIDED IN THE FACTUAL CONTEXT SALE OF JEWELER TO M/S. GALAXY EXPO RTS. WHERE AS THE PRESENT CASE INVOLVES SALE OF JEWELER TO DHANANJAY DIAMONDS. IT IS INFORMED THAT BOTH THE GALAXY EXPORTS AND DHANANJAY DIAMONDS BELONG TO K.K . JOHRI AND SHRI HARI OM SHARMA WHERE THE TRIBUNAL CONFIRMED THE GENUINENES S OF THESE CONCERNS. REVENUES APPEALS ON IDENTICAL FACTS, HAVE BEEN DIS MISSED IN PAST IN LARGE NUMBER OF CASES RELYING ON BOMBAY HIGH COURT DECISI ON IN THE CASE OF INDER V. NANLEANI ITA NO. 128 OF 2009 DATED 24-02-2009, WHOS E EXTRACT IS AT PAGES 171 TO 172 OF BCAJ FOR THE PROPOSITION RECEIPTS OF SALE PROCEEDS OF DIAMONDS AND THE RECEIPTS OF THE SAID CONSIDERATION BY CHEQUE INVOLV ING DECLARED ASSETS UNDER VDIS PROVISION DOES NOT AMOUNT TO UNDISCLOSED INCOM E. WE ALSO FID THE RATIO DECIDENDI IN THE CASE OF UTTAMCHAND P. JAIN 103 ITD 1 IS ALS O RELEVANT FOR IDENTICAL PROPOSITION. HOWEVER, THE GENUINENESS OF THE TRANSACTION OF THE SALE OF THE DECLARED ASSETS IN VDIS SHOULD NOT BE DOUBTED C ONSEQUENTLY THE CREDIT TRANSACTIONS APPEARED IN THE BOOKS OF ASSESSEE SHOU LD ALSO BE GENUINE AND NOT MERELY A PAPER TRANSACTIONS AS HELD BY THE REVENUE. CONSEQUENTLY, APPEALS OF THE REVENUE IN CASE OF TRILOKCHAND T. KALANI BOTH I N INDIVIDUAL AND HUF STATUS IS HELD COVERED IN FAVOUR OF THE ASSESSEE. ACCORDINGLY , THE GROUNDS RAISED BY THE REVENUE ARE HEREBY DISMISSED. 3. FACTS BEING SIMILAR, SO FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE DO NOT FIND ANY INFIRMITY IN THE O RDER OF 3 ITA NO. 258/PN/2010 RDA HOLDINGS PVT.LTD. A.Y. 2003-04 THE CIT(A) IN DELETING THE IMPUGNED ADDITION. ACCO RDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. DECISION WAS PRONOUNCED IN THE OPEN COURT IMMEDIATE LY AFTER CONCLUSION OF HEARING ON 29-7-2011. SD/- SD/- (D. KARUNAKARA RAO) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV JUDICIAL MEMBER PUNE DATED THE 29 TH JULY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)- II PUNE 4. THE CIT II PUNE 5. THE D.R, B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL