BHARAT KUMAR V. BALAR, BHIWANDI V. ITO WD 1(1), MUMBAI

ITA 1736/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3437 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 10-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 02-03-2011
• Court: TRIBUNAL
• Department Lawyers: K P R R MURTY
• Keywords: Unexplained cash credit; Gift; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A. NO.1736/M/2011 (ASSESSMENT YEAR: 2004 - 2005 ) SHRI BHARATKUMAR V. BALAR, 541, AASBIBI, 1 ST FLOOR, KALYAN ROAD, NEAR GUPTA TRANSPORT, BHIWANDI. / VS. INCOME TAX OFFICER, WARD 1(1), KALYAN. ./ PAN : AATPB8812C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRAKASH JHUNJHUNWALA / RESPONDENT BY : SHRI K.P.R.R. MURTY, DR / DATE OF HEARING : 10.03.2016 / DATE OF PRONOUNCEMENT : 17 .03.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 2.3.2011 IS AGAINST THE ORDER OF THE CIT (A) - 1, MUMBAI DATED 30.11.2010 FOR THE ASSESSMENT YEAR 2004 - 2005. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN TREATING THE GENUINE GIFT OF RS. 5,01,000/ - AS UNEXPLAINED CREDIT U/S 68 OF THE ACT WITHOUT CONSIDERING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD CIT (A) HAS ERRED IN ADDING A SUM OF RS. 16,740/ - AND RS. 83,702 AS 20% OF THE TELEPHONE EXPENSES AS VEHICLE EXPENSES AS PERSONAL EXPENSES WITHOUT CONSIDERING THE FACTS THAT THE SAME HAVE BEEN INCURRED FOR THE PURPOSE OF BUSINESS. 2. BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO FORM NO.35 FILED BEFORE THE CIT (A) AND READ OUT THAT THE ASSESSEE GAVE THE FOLLOWING ADDRESS FOR COMMUNICATION. THE SAID FORM NO.35 IS SCANNED AND PLACED AS UNDER: - 2 3. NOT FOLLOWING T HE SAME, THE CIT (A) PROCEEDED TO ISSUE THE NOTICE OF HEARING TO THE ASSESSEES ADDRESS AT BHIWANDI. AS A RESULT, THE ADJUDICATION OF APPEAL WAS DONE AT THE BACK OF THE ASSESSEE AND THE CIT (A) PASSED THE ORDER EXPARTE ON 30.11.2010. ON THESE FACTS, LD C OUNSEL FOR THE ASSESSEE REQUESTED FOR SETTING ASIDE THE ORDER OF THE CIT (A) AND REMAND THE ISSUE TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION ON THE ISSUES RAISED BEFORE US. 4. AFTER HEARING LD REPRESENTATIVES OF BOTH THE PARTIES, WE FIND MERIT IN THE ARGUMENT OF THE LD COUNSEL FOR ASSESSEE AND REMAND THIS ISSUE TO THE FILE OF THE CIT (A) WITH A DIRECTION TO PASS A SPEAKING ORDER ON EACH OF THE ISSUES RAISED BY THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 250(6) OF THE ACT. NEEDLESS TO MENTIONED THAT THE ASSESSEE SHALL BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARING TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2016. SD/ - SD/ - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; .3.2016 3 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI