CITIBUILDERS & DEVELOPERS, NAVI MUMBAI V. ITO 22(3)(1), NAVI MUMBAI

ITA 1495/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3390 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-06-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 21-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 133(6); 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.1495/MUM/11 ( / ASSESSMENT YEAR: 1996-97) CITI BUILDERS & DEVELOPERS 211, THAPER COMPLEX, 2 ND FLOOR, PLOT NO.51, CBD BELAPUR, NAVI MUMBAI - 400614 / VS. INCOME TAX OFFICER WARD 22(3)(1) TOWER 6, 3 RD FLOOR, VASHI RLY. STATION, NAVI MUMBAI - 400703 ./ ./ PAN/GIR NO. : AACFC7080N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 17.12.2015 /DATE OF PRONOUNCEMENT: 23.03.2016 !' / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL AGAINST THE ORDER DATED 28.12.20 10 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-33, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] FOR THE A SSESSMENT YEAR 1996-97. 2. THE ASSESSEE HAS RAISED THE FIVE GROUNDS IN HIS APPEAL BUT EFFECTIVELY THE ASSESSEE HAS RAISED ONLY ONE GROUND WHICH IS IN CONNECTION WITH THE DISCONFIRMATION OF DISALLOWANCE TO THE TUNE OF ASSESSEE BY: SHRI DHARMESH SHAH DEPARTMENT BY: SHRI AKHILENDRA P. YADAV I.T.A. NO.1495/MUM/11 A.Y. 1996-97 2 RS.36,50,000/- MADE BY THE ASSESSING OFFICER U/S.68 OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT). THE APPELLANT HAS SHOWN THE RECEIPT OF LOAN OF THE AMOUNT TO THE TUNE OF RS.36, 50,000 FROM THE THREE PARTIES I.E. M/S. ARCHIES CONSULTANTS, M/S. B LUE HEAVEN BUILDERS P. LTD. & M/S. V.V. CONSULTANTS P. LTD. T HE SAID PARTIES WERE NOT TRACED BY THE ASSESSING OFFICER EVEN AFTER ISSUANCE OF NOTICE U/S. 133(6) OF THE ACT AND THE SAID PARTIES ARE ALSO NOT PRODUCED BY THE ASSESSEE. THE LEARNED REPRESENTATI VE OF THE ASSESSEE HAS ARGUED THAT HE HAS PRODUCED THE CONFIR MATION LETTER OF M/S. ARCHIES CONSULTANTS WHICH HAS BEEN PRODUCED AT PAGE 27 OF THE PAPER BOOK AND CONFIRMATION LETTER OF M/S. BLUE HEAVEN BUILDERS P. LTD. WHICH HAS BEEN PRODUCED AT PAGE 34 OF THE PAPER BOOK AND CONFIRMATION LETTER OF & M/S. V.V. CONSULT ANTS P. LTD. WHICH HAS BEEN PRODUCED AT PAGE 40 OF THE PAPER BOO K AND ALSO ATTACHED THE COPY OF CHEQUES RECEIVED FROM PARTIES WHICH HAS BEEN PRODUCED AT PAGE 27 TO 45 OF THE PAPER BOOK. IT IS ALSO ARGUED BY THE LEARNED REPRESENTATIVE OF THE ASSESSEE THAT THE ASSESSEE HAS GIVEN THE NAMES OF THE PARTIES AND THEIR PAN NUMBER S AND THEIR ADDRESSES AND THEIR BANKS NAMES AND ACCOUNT NUMBERS , THEREFORE, IN THE SAID CIRCUMSTANCES THE ASSESSEE HAS DISCHARG ED THE LIABILITY AND NOW IT IS UP TO THE ASSESSING OFFICER TO REJECT THE CLAIM OF THE ASSESSEE WITH GENUINE REASON WHICH HAS NOT BEEN DON E BY THE ASSESSING OFFICER THEREFORE THE CLAIM OF ASSESSEE I S LIABLE TO BE ALLOWED IN THE INTEREST OF JUSTICE AND ADDUCIBLE U/ S. 68 OF THE ACT IS LIABLE TO BE DELETED. IN SUPPORT OF HIS CLAIM THE ASSESSEE HAS PLACED RELIANCE UPON LAW SETTLED IN [2014] 42 TAXMANN.COM 473 I.T.A. NO.1495/MUM/11 A.Y. 1996-97 3 (GUJARAT) IN CASE TITLED AS COMMISSIONER OF INCOME TAX 1 VS. APEX THERM PACKAGING (P.) LTD. AND [2012] 21 TAXMAN N.COM 159 (GUJ.) IN CASE TITLED AS COMMISSIONER OF INCOME TAX VS. RANCHHOD JIVABHAI NAKHAVA AND [2009] 121 ITD 525 (I TAT AGRA BENCH) THIRD MEMBER IN CASE TITLED AS KALYAN M EMORIAL & CHARITABLE TRUST VS. ASSISTANT COMMISSIONER OF IN COME TAX RANGE 1, MORAR. HOWEVER, LEARNED DEPARTMENTAL REPRESENTATIVE HAS ARGUED THAT THE BANK FURNISHED THE LETTER DATED 07.10.204 ON RECORD WHICH SPEAKS THAT THE ABOVE SAID PARTIES I.E . M/S. ARCHIES CONSULTANTS, M/S. BLUE HEAVEN BUILDERS P. LTD. & M/ S. V.V. CONSULTANTS P. LTD. DO NOT HAVE ANY SUCH ACCOUNTS IN THEIR BRANCH AND MOREOVER THE ASSESSEE HAS FAILED TO PRODUCE THE PARTIES, THEREFORE, THE LEARNED CIT(A) HAS RIGHTLY PASSED TH E ORDER IN QUESTION HENCE THE APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED. APPARENTLY, THE CLAIM OF THE ASSESSEE IS IN CONNECT ION WITH THE ADDITION MADE TO THE TUNE OF RS.36,50,000/- AS UNEX PLAINED CASH CREDITS. THE ASSESSEE HAS EXPLAINED THAT HE HAS RE CEIVED THE SAID AMOUNT TO THE TUNE OF RS.36,50,000 FROM I.E. M/S. A RCHIES CONSULTANTS, M/S. BLUE HEAVEN BUILDERS P. LTD. & M/ S. V.V. CONSULTANTS P. LTD. AND ALSO FILED THE CONFIRMATI ON LETTERS AS WELL AS COPY OF THE CHEQUE ON THE PAPER BOOK AT PAGE 27 TO 45. THE SAID CONFIRMATION AND CHEQUE BOOKS ISSUED BY THE STATE B ANK OF TRAVANCORE, MULUND (W) THESE DOCUMENTS DOES SEEM TO BE FALSE AND FABRICANT DOCUMENTS. RATHER THE LETTERS PRODUC ED BY THE CONCERNED BANK SEEM DOUBTFUL EVEN WITHOUT PROPER VE RIFICATION. HENCE WE ARE OF THE VIEW THAT AT THE SAME TIME THE VERIFICATION OF I.T.A. NO.1495/MUM/11 A.Y. 1996-97 4 THESE DOCUMENTS ARE NECESSARY IN THE LIGHT OF LETTE R PRODUCED BY THE BANK. THERE IS NO DISPUTE WITH REGARD TO THE LAW R ELIED BY THE APPELLANT IS CONCERNED BUT THE FACTUAL POSITION WHI CH HAS BEEN MENTIONED ABOVE IS REQUIRED TO BE VERIFIED FROM THE CONCERNED BANK THEREFORE IN THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ORDER OF LEARNED CIT(A) IS WRONG AGAINST LAW AND FA CTS AND IS HEREBY ORDERED TO BE SET ASIDE WITH A DIRECTION TO THE ASSESSING OFFICER THAT THE TRANSACTIONS WHICH HAS BEEN MENTIO NED ABOVE IS LIABLE TO BE VERIFIED AGAIN BY GIVING THE FULL OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCO RDINGLY, WE REMAND THE CASE FOR FURTHER VERIFICATION AND APPEAL OF THE ASSESSEE IS HEREBY ALLOWED ACCORDINGLY. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MARCH , 2016. SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) ! / ACCOUNTANT MEMBER $% ! /JUDICIAL MEMBER & ' MUMBAI; (! DATED : 23 RD MARCH, 2016 MP MP MP MP I.T.A. NO.1495/MUM/11 A.Y. 1996-97 5 !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+, %%-. , -. , & ' / DR, ITAT, MUMBAI 6. ,/0 1 / GUARD FILE. / BY ORDER, * % //TRUE COPY// % / & ' (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI