IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 1409 /MUM/201 7 ( / ASSESSMENT YEAR: 20 1 2 - 13 ) RAVI BHASKAR BANGAR 118, SHIV CENTRE, SECTOR - 17, PL OT 72, NAVI MUMBAI - 400703 . / VS. ACIT CIRCLE - 2 2 ND FLOOR, MOHAN PLAZA, WAYALAE NAGAR, KHADAKPADA, KALYAN (W). ./ ./ PAN/GIR NO. : AEOPB4944A ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 09 / 0 5 / 201 9 / DATE OF PRONOUNCEMENT : 22 / 05 / 201 9 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 27 . 12 .201 6 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 12 - 1 3 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - I ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED CIT - A HAS ERRED IN DISMISSING APPEAL OF THE APPELLANT WITHOUT GIVING SUFFICIENT OPPORTUNITY AND CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER. THE APPELLATE PROCEEDING COULD NOT BE ATT ENDED DUE TO THE PROLONG ILLNESS OF THE APPELLANT. IN VIEW OF THE ABOVE, NECESSARY DIRECTION SHOULD BE GIVEN IN THIS REGARD. ASSESSEE BY : NONE REVENUE BY: SHRI S. K. MITRA ITA NO. 1409 / M/201 7 A.Y.20 12 - 13 2 2 ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED COMMISSIONER OF INCOME TAX APPEALS (14. CIT - (A)) HAS ERRED IN UPHOLDING THE DECISION OF ADDITION OF ITS. 5,50,0001 - BEING LOAN FROM AWN SHIVAJI BANGAR MADE BY THE LEARNED ASSESSING OFFICER WITHOUT ISSUANCE OF SHOW CAUSE NOTICE AND WITHOUT CONSIDERING THE FACTS THAT SAID LENDER PARTY IS ASSESSED TO TAX. THE ADDITION OF RS.5,50,000/ - SHOULD THEREFORE BE DELETED. 3 ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED COMMISSIONER OF INCOME TAX APPEALS (LD. C1T - (A) ) HAS ERRED IN CONFIRMING THE ADDITION OF RS.3,44,49,600/ BEING ADVANCES TAKEN DURING THE C OURSE OF BUSINESS, ADDED BY THE LEARNED ASSESSING OFFICER WITHOUT ISSUANCE OF SHOW CAUSE NOTICE BY INVOKING SECTION 68 OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE FACT THAT THEY WERE ADVANCES. THE ADDITION OF RS. 3,44,49,600/ - SHOULD THEREFORE BE D ELETED. 4 ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED CIT - A HAS FURTHER ERRED IN SUSTAINING THE ADDITION OF RS 11,53,000/ - , BEING CASH DEPOSITS DURING THE YEAR IN BANK ACCOUNTS, ADDED BY THE LEARNED ASSESSING OFFICER WITHOUT ISSUANC E OF SHOW CAUSE NOTICE BY INVOKING SECTION 68 OF THE INCOME TAX ACT, 1961 WITHOUT VERIFYING AVAILABILITY OF CASH IN THE BOOKS OF ACCOUNTS. THE ADDITION OF RS.11,53,000/ - SHOULD THEREFORE BE DELETED. 5 THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER, MODIFY, AMEND OR WITHDRAW ANY OF THE GROUNDS OF APPEAL BEFORE OR DURING THE HEARING. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETU RN OF INCOME ON 27 . 09 .201 2 DECLARING TOTAL INCOME TO THE TUNE OF RS.25,18,367 / - . THEREAFTER, THE CASE WAS SELE CTED FOR SCRUTINY UNDER CASS . NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS WITH THE NAME OF STYLE OF M/S. DIVYA PROPERTIES AND ALSO DERIVED INCOME FROM H OUSE PROPERTY AND INCOME FROM OTHER SOURCES AND INTEREST. THE ASSESSEE TOOK THE LOAN FROM SHRI ARUN SHIVAJI BANGAR OF RS.5,50,000/ - BUT FAILED TO CONFIRM THE SAME, THEREFORE, THE SAID AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDI T U/S 68 OF THE ACT. THE APPELLANT ALSO SHOWED THE ADVANCE R ECEIVED IN SUM OF RS.3.44.49.600/ - . THE APPELLANT ITA NO. 1409 / M/201 7 A.Y.20 12 - 13 3 FAILED TO SUBMIT THE CONFIRMATION IN CONNECTION WITH THE AMOUNTS TO RS.3,44,49,600/ - , THEREFORE, THE SAID AMOUNT WAS ALSO ADDED TO THE INCOME OF T HE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE ASSESSEE ALSO DEPOSITED THE SUM OF RS.6,53,000/ - IN COSMOS BANK AND A SUM OF RS.5,00,000/ - IN SHYAM VITTHAL CO - OP. BANK LTD. THE EXPLANATION WAS NOT GIVEN, THEREFORE, THE SAID AMOUNT WAS ALSO AD DED TO THE INCOME OF THE ASSESSEE. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.3,86,70,970/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE IN VIEW OF THE PROVISIONS OF SECTIO N 249(4)(A) OF THE ACT, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NOS. 1 & 2 4. WE HAVE HEARD ARGUMENT ADVANCED BY THE L D. REPRESENTATIVE OF THE DEPARTMENT AND HAS GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE FAILED TO APPEA R BEFORE US TO DESPITE ISSUANCE OF REPEATEDLY NOTICES. THE FIRST GROUND WHICH HAS BEEN TAKEN BY ASSESSEE IS IN CONNECTION WITH THE NO N PROVIDING THE SUFFICIENT OPPORTUNITY. UNDOUBTEDLY, THE CIT(A) HAS PASSED THE ORDER EXPARTE BUT NO PLAUSIBLE EXPLANATION I S ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE ASSESSEE HAS FAILED TO APPEAR BEFORE THE CIT(A) ON ACCOUNT OF ILL - NESS AS CONTENDED, THEREFORE, THE CONTENTION RAISED BY ASSESSEE IN HIS GROUND NO.1 IS NOT JUSTIFIABLE. WITH REGARD TO THE SECOND GROUND, THE A SSESSEE HAS CHALLENGED THE ADDITION IN SUM OF RS.5,50,000/ - . THE ASSESSEE HAS SHOWN THE LOAN FROM SHYAM VITTHAL CO - OP. BANK LTD. BUT THERE IS NO PLAUSIBLE EXPLANATION IN THIS REGARD . T HERE IS NO CONFIRMATION FROM THE PARTY CONCERN ED WHO PROVIDED THE LOAN. SINCE THE SAID AMOUNT IS ITA NO. 1409 / M/201 7 A.Y.20 12 - 13 4 UNEXPLAINED, THEREFORE, THE SAID AMOUNT HAS RIGHTLY BEEN ADDED TO THE INCOME OF THE ASSESSEE. ACCORDINGLY, BOTH THE ISSUES ARE DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE. ISSUE NO. 3 5. ISSUE NO. 3 IS IN CONNECTION WITH THE CONFIRMATION OF THE ADDITION IN SUM OF RS.3,44,49,600/ - . THE ASSESSEE HAS SHOWN THE ADVANCES IN SUM OF RS.3,44,49,600/ - . THE OPENING CREDIT BALANCE WAS IN SUM OF RS.3,22,51,000/ - . THE ADVANCE IN CREDIT RECEIVED DURING THE YEAR WAS OF RS.4,30,99,600/ - . THE FOUR CREDITORS CONFIRMED THE ADVANCES IN SUM OF RS.86,50,000/ - . THE REMAINING IN SUM OF RS.3, 44,49,600/ - WAS NOT CONFIRMED , THEREFORE, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. THE FACTS ARE NOT DISTINGUISHABLE AT THIS STAGE. EVEN BEFORE THE CI T AS WELL AS BEFORE US, NO COGENT AND CONVINCING EVIDENCE HAS BEEN PRODUCED , THEREFORE, IN THE SAID CIRCUMSTANCES, FINDING NO EVIDENCE IN SUPPORT OF CLAIM OF THE ASSESSEE, WE CONFIRM THE SAID ADDITION. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE RE VENUE AGAINST THE ASSESSEE. ISSUE NO.4 6. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF THE ADDITION IN SUM OF RS.11,53,000/ - . THE ASSESSEE DEPOSIT ED THE CASH IN SUM OF RS.11,53,000/ - IN HIS BANK ACCOUNT LIES AT COSMOS CO - OP BANK LTD. VA SHI BRANCH IN THE ACCOUNT BEARING NO.0296100108433 AND WITH THE SHYAM VITTHAL CO - OP BANK LTD . T HE ASSESSEE NOWHERE EXPLAINED THE SAID DEPOSIT . NO COGENT AND CONVINCING EVIDENCE PRODUCED ON RECORD E VEN BEFORE THE CIT AS WELL AS BEFORE US. T HEREFORE, WE ARE OF THE VIEW THAT THE ITA NO. 1409 / M/201 7 A.Y.20 12 - 13 5 CIT(A) HAS RIGHTLY CONFIRM THE SAID ADDITION. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE. ISSUE NO.5 7 . ISSUE NO. 5 IS GENERALLY IN NATURE WHICH NOWHERE REQUIRED FOR ADJUDICATION. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 22 /05 /2019 . SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 22 /05 /2019 V IJAY / 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// (SR. PRIVATE SECRETARY) , / ITAT, MUMBAI