SHRI. ARVIND AMARSINGH BAPNA , Mumbai V. CIT (A)-39, , Mumbai

ITA 1662/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2235 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 19-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALDLD
• Assessee Lawyers: AJAY SINGH LD
• Keywords: Unexplained cash credit
• Section: 143(3); 13; 68; 144

Judgement Text

ARVIND AMARSINGH BAPNA ITA NO.1662/MUM/2019 ASSESSMENT YEAR :2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJIT SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ ITA NO. 1662/MUM/2019 ( / ASSESSMENT YEARS: 2013-14) ARVIND AMARSINGH BAPNA 104, SUNRISE, YOGI HILLS MULUND (W), MUMBAI- 400 080 / VS. ITO - 29(1)(1) BANDRA KURLA COMPLEX MUMBAI 400 020 ! ./ ./PAN/GIR NO. AGDPB-6001-B ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : SHRI AJAY SINGH, LD. AR REVENUE BY : SHRI MICHAEL JERALD-LD. DR / DATE OF HEARING : 19/10/2020 / DATE OF PRONOUNCEMENT : 03/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR (AY) 2013- 2014 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOM E TAX (APPEALS)- 39, MUMBAI, APPEAL NO. CIT(A)-39/IT-10429/16-17 DAT ED 17/12/2018 ON FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-39, MUMBAI HAS GROSSLY ERRED IN UPHOL DING THE ADDITION MADE BY LD. ITO BY CONSIDERING THE AMOUNT OFRS.50,00,000/- AS UNEXPLAI NED CASH CREDIT WHICH WAS RECEIVED BY THE ASSESSEE THROUGH BANKING CHANNEL AS A LOAN IN T HE NATURE OF ADVANCE AGAINST PROPERTY AND THE SAME WAS REPAID THROUGH BANK. ARVIND AMARSINGH BAPNA ITA NO.1662/MUM/2019 ASSESSMENT YEAR :2013-14 2 AS EVIDENT, THE SOLE ISSUE THAT ARISES FOR OUR CONS IDERATION IS ADDITION OF UNEXPLAINED CASH CREDIT U/S 68 FOR RS.50 LACS. 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR ASSESS EE (AR), SHRI AJAY SINGH, ADVANCED ARGUMENTS TO SUBMIT THAT THE U NSECURED LOAN OF RS.50 LACS RECEIVED FROM A FIRM NAMELY M/S SAMBHAV ENTERPRISES WAS RECEIVED THROUGH BANKING CHANNELS AND THE AFORESAID PARTY WAS ALREADY ASSESSED TO INCOME TAX. DESPITE BEST EFFORTS BY ASS ESSEE, THE CONFIRMATION FROM THE SAID PARTY COULD NOT BE OBTAI NED. OUR ATTENTION HAS BEEN DRAWN TO THE FACT THAT THE LOAN HAS ULTIMATELY BEEN REPAID BY THE ASSESSEE WITHIN A SHORT SPAN OF TIME AND THEREFORE, THE ADDITIONS WERE NOT JUSTIFIED. THE WRITTEN SUBMISSIONS HAVE ALSO BE EN FILED ALONG WITH VARIOUS JUDICIAL PRONOUNCEMENTS TO SUPPORT THE ARGU MENTS, WHICH WE HAVE DULY CONSIDERED. THE LD. DR, SHRI MICHAEL JERALD, ON THE OTHER HAND, DRAWING ATTENTION TO THE ORDER OF LOWER AUTHORITIES, SUBMITTED THAT THE ASSESSEE MISERABLY FAILED TO PROVE THE FULFILMENT OF PRIMARY INGREDIEN TS OF SEC.68 AND THEREFORE, THE ADDITIONS WERE JUSTIFIED. 3. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING DOCUMENTS PLA CED IN THE PAPER- BOOK IN SUPPORT OF THE UNSECURED LOAN. OUR ADJUDICA TION TO THE SUBJECT MATTER OF APPEAL WOULD BE AS GIVEN IN SUCCEEDING PA RAGRAPHS. 4. THE MATERIAL FACTS ARE THAT AN ASSESSMENT WAS FR AMED U/S 143(3) ON 18/03/2016 FOR THE YEAR UNDER CONSIDERATION WHER EIN THE ASSESSEE WAS SADDLED WITH AN ADDITION OF UNEXPLAINED CASH CR EDIT U/S 68 FOR RS.50 LACS. THE SAME STEM FROM THE FACT THAT THE ASSESSEE RECEIVED ARVIND AMARSINGH BAPNA ITA NO.1662/MUM/2019 ASSESSMENT YEAR :2013-14 3 UNSECURED LOAN OF RS.50 LACS FROM AN ENTITY NAMELY M/S SAMBHAV ENTERPRISES ON 20/06/2012 AND ACCORDINGLY, OBLIGATE D TO PROVE THE IDENTITY OF THE LENDER, HIS CREDITWORTHINESS AND GE NUINENESS OF THE TRANSACTION IN TERMS OF SEC.68. THE ASSESSEE COULD MERELY SUBMIT PAN AND ADDRESS OF THE LENDER. THE NOTICE ISSUED U/S 13 3(6) AT THE GIVEN ADDRESS WAS RETURNED BACK UNSERVED BY THE POSTAL AU THORITIES. THE ASSESSEE COULD NOT PROVIDE THE NEW ADDRESS AND FAIL ED TO PRODUCE THE LENDER. NO CONFIRMATION OF ACCOUNTS COULD BE FILED. HOWEVER, THE ASSESSEE SUBMITTED THAT THE LOAN WAS REPAID IN SUBS EQUENT YEAR AND THEREFORE, THERE WOULD BE NO QUESTION OF TREATING T HE SAME AS UNEXPLAINED CASH CREDIT. THE SAID ARGUMENTS COULD N OT FIND FAVOR WITH LD. AO WHO ADDED THE SAME TO THE INCOME OF THE ASSE SSEE U/S 68. 5. THE LD. CIT(A), UPON PERUSAL OF CASE RECORDS FOR AY 2013-14 OF THE LENDER I.E. M/S SAMBHAV ENTERPRISE NOTICED THAT THE SAID PARTY WAS NOT TRACEABLE AND HIS ASSESSMENT WAS FRAMED ON BEST JUD GEMENT BASIS U/S 144 WHICH WOULD LEAD TO A CONCLUSION THAT THE SAID PARTY EXISTED ON PAPER ONLY. HENCE, THE LOAN COULD NOT BE TREATED AS GENUINE LOAN TRANSACTION. THE ASSESSEE FAILED TO DISCHARGE THE O NUS OF PROVING THE LOAN TRANSACTION. NO INTEREST WAS CHARGED ON THE LO AN. THEREFORE, THE ADDITIONS WERE CONFIRMED, AGAINST WHICH THE ASSESSE E IS IN FURTHER APPEAL BEFORE US. 6. UPON PERUSAL OF ASSESSEES BANK STATEMENT, WE FI ND THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.50 LACS FROM M/S SAMBHAV ENTERPRISES ON 20/06/2012. OUT OF THE SAID AMOUNT, AN AMOUNT OF RS.20 LACS EACH HAS BEEN TRANSFERRED IN THE NAME OF ANOTH ER ENTITY I.E. M/S BIJOUX ARGENT & THE ASSESSEE ARVIND BAPNA WHEREAS B ALANCE AMOUNT OF ARVIND AMARSINGH BAPNA ITA NO.1662/MUM/2019 ASSESSMENT YEAR :2013-14 4 RS.10 LACS HAVE BEEN TRANSFERRED IN THE NAME OF PIN KY BAPNA. THE PURPOSE OF THE LOAN AND THE CIRCUMSTANCES IN WHICH THE LOAN HAS BEEN OBTAINED HAS NOT BEEN BROUGHT ON RECORD. APPARENTLY , THE SAME IS NOT UNDER ANY WRITTEN AGREEMENT OR UNDERSTANDING. SO FA R AS THE REPAYMENT IS CONCERNED, THE ASSESSEE HAS SETTLED THE SAID LOA N THROUGH THE ACCOUNT OF M/S BIJOUX ARGENT ON 08/04/2013 AND IT APPEARS T HAT THERE IS NO DIRECT BANK TRANSFER BY THE ASSESSEE TO THE LENDER RATHER M/S BIJOUX ARGENT HAS SETTLED THE SAID LOAN. NO CONFIRMATION OF M/S BIJOU X ARGENT IS ON RECORD. THEREFORE, THE ARGUMENT ADVANCED BY LD. AR THAT THE LOAN WAS REPAID BY THE ASSESSEE, WAS NOT TO BE ACCEPTED. THE VARIOUS C ASE LAWS BEING RELIED UPON BY LD. AR WOULD, THEREFORE, HAVE NO APP LICABILITY TO THE FACTS OF THE CASE. 7. THEREFORE, ON THE GIVEN FACTS AND CIRCUMSTANCES, WE FIND THAT THE INITIAL ONUS CASTED ON ASSESSEE IN TERMS OF SEC.68 HAS REMAINED UNDISCHARGED. THE CREDITWORTHINESS AS WELL AS THE G ENUINENESS OF THE TRANSACTIONS REMAINS UNPROVED. KEEPING IN VIEW THE FACT THAT THE ASSESSEE IS AN INDIVIDUAL AND MADE EFFORTS TO TRACE THE LENDER, WE DEEM IT FIT TO PROVIDE ANOTHER OPPORTUNITY TO THE ASSESS EE TO PROVE THE SAID CREDITS IN TERMS OF SEC.68. THEREFORE, THE ISSUE ST AND REMITTED BACK TO THE FILE OF LD. AO WITH A DIRECTION TO THE ASSESSEE TO DEMONSTRATE FULFILMENT OF PRIMARY INGREDIENTS OF SEC.68 FAILING WHICH LD. AO SHALL BE AT LIBERTY TO RE-ADJUDICATE THE SAME ON THE BASIS O F MATERIAL ON RECORD. ARVIND AMARSINGH BAPNA ITA NO.1662/MUM/2019 ASSESSMENT YEAR :2013-14 5 8. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED IN OPEN COURT ON 03 RD DECEMBER, 2020. SD/- SD/- (AMARJIT SINGH) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 03/12/2020 SR.PS, JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,-$. , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.