D.F. INDUSTGRIES, MUMBAI V. ITO 20(2)(1), MUMBAI

ITA 1430/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84287 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-11-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 22-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M M PORWAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D B ENCH, MUMBAI , . . , BEFORE SHRI VJAY PAL RAO, JM AND SHRI N.K. BILLAIY A, AM ! './ I.T.A. NO. 1430/MUM/2010 ( / ASSESSMENT YEAR : 2003-04) M/S. D.F. INDUSTRIES 8 APURVA INDL. ESTATE 88 MAKWANA ROAD MAROL NAKA, ANDHERI (E) MUMBAI 400059 / VS. INCOME TAX OFFICER - 20(2)(1) PIRAMAL CHAMBERS MUMBAI $ ' . / PAN : AAAFD0925F ( ! $% / APPELLANT ) .. ( &'$% / RESPONDENT ) ! $% ( ) / APPELLANT BY : SHRI M.M. PORWAL &'$% ( ) / RESPONDENT BY : SHRI JEETENDRA KUMAR * + ( , - / DATE OF HEARING : 24.11.2014 ./01 ( , - / DATE OF PRONOUNCEMENT : 24.11.2014 2 / O R D E R PER SHRI N.K. BILLAIYA: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE CIT(A)-31, MUMBAI DATED 30.11.3009 PERTAINING TO AY 2003-04. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE CIT(A) ERRED IN DISALLOWING THE CAPITAL INTRODUCED BY THE PARTNER OF ` 3,60,000/-. THE ASSESSEE IS FURTHER AGGRIEVED BY THE FACT THAT THE CIT(A) FILED TO CONSIDER THE DOCUMENTARY EVIDENCE PROVIDED TO THE AO DURING THE REMAND PROCEEDINGS. 3. THE RETURN FOR THE YEAR WAS FILED ON 31.03.2003 DECLARING TOTAL INCOME OF ` 1,52,414/-. THE RETURN WAS SELECTED FOR SCRUTINY AS SESSMENT. STATUTORY NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT ONE OF THE PARTNER, SHRI RASIKLAL B. DODIA, HAS INTRODUCED CAPITAL AMOUNTING TO ` 3,60,000/-. IT WAS EXPLAINED BY THE ASSESSEE THAT THE CAPITAL HAS BEEN INTRODUCED BY WITHDRAWAL FROM OTHER PROPRIETARY FIRMS AND 2 FROM THE SAVING ACCOUNT OF THE PARTNER. THE AO OBSE RVED THAT THE ASSESSEE HAS NOT SUBMITTED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF IT S CLAIM. HE ACCORDINGLY TREATED ` 3,60,000/- AS INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BUT WITHOUT AN Y SUCCESS. 4. BEFORE US THE COUNSEL FOR THE ASSESSEE DRAW OUR ATTENTION TO PAGES 4 & 5 OF THE PAPER BOOK AND POINTED OUT THAT ` 3,60,000/- HAS BEEN DEPOSITED OUT OF THE WITHDRAWAL FROM HDFC BANK ACCOUNT. THE COUNSEL FURT HER POINTED OUT THAT THESE BANK STATEMENTS WERE SUBMITTED BEFORE THE AO WHEN T HE MATTER WAS REMANDED BY THE CIT(A). IT IS THE SAY OF THE COUNSEL THAT IF TH ESE DOCUMENTARY EVIDENCES HAD BEEN CONSIDERED BY THE REVENUE AUTHORITIES THERE WOULD N OT HAVE BEEN ANY REASON FOR MAKING THE ADDITION. 5. PER CONTRA THE LEARNED D.R. SUPPORTED THE ORDERS OF THE REVENUE AUTHORITIES. 6. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW AND THE RELEVANT DOCUMENTARY EVIDENCES PLACED BEFORE US AND REFERRED TO DURING THE COURSE OF HEARING. WE FIND THAT ` 3,60,000/- HAS BEEN WITHDRAWN FROM HDFC BANK AND WE FIND THAT THE SAME HAS BEEN DEPOSITED IN CANERA BAN K. IN THE INTEREST OF JUSTICE AND FAIR PLAY WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO VERIFY THESE BANK STATEMENTS OF THE HDFC BANK AND CANERA BANK AN D DECIDE THE ISSUE AFRESH AND IF THE FIRM SUCCEED IN EXPLAINING THE DEPOSIT O F ` 3,60,000/- AS CAPITAL INTRODUCED BY THE PARTNER, NO ADDITION IS TO BE MAD E IN THE HANDS OF THE PARTNERSHIP FIRM, WHICH IS THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. 3 1,4 563 , '7( 89: ; < , ( , = ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH NOVEMBER, 2014. . 2 ( ./01 * > ?'4 24.11.2014 / ( D+ SD/- SD/- (VIJAY PAL RAO) (N.K. BILLAIYA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER * '+ MUMBAI; ?' DATED: 24 TH NOVEMBER, 2014 N.P. 3 ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ! $% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. * E, ( ! ) / THE CIT(A)-31, MUMBAI 4. * E, / CIT, 20, MUMBAI 5. HD &,I5 , ! - !I5 1 , * ' + / DR, ITAT, MUMBAI 6. D6 J+ / GUARD FILE. ! ( / BY ORDER, ', &, //TRUE COPY// )/(* + (DY./ASSTT. REGISTRAR) , * '+ / ITAT, MUMBAI