THE ACIT 25(3), Mumbai V. SHRI UDAY M. ACHARYA, Mumbai

ITA 1942/MUM/2005

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55646 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-09-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 14-03-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NO.1942/ MUM/2005 ASSESSMENT YEAR: 1999-2000 ACIT, 25(3) .. APPELLANT C-11, R.N.308, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-51. VS SHRI UDAY M ACHARYA, .. RESPONDEN T E-2, GR. FLOOR, DUPLEX BUNGLOW, ZARNA ENCLAVE, OPP. DATTANI PARK, NEAR ASHA NAGAR GATE, WESTERN EXPRESS HIGHWAY, KANDIVALI(E), MUMBAI-101. PA NO.AAAPU 3695 B APPEARANCES: PRAVIN VARMA, FOR THE APPELLANT AARTI SATHE , FOR THE RESPONDENT DATE OF HEARING : 5.10.2011 DATE OF PRONOUNCEMENT : 25 -10-2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CALL ED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 16 TH DECEMBER, 2004, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, F OR THE ASSESSMENT YEAR 1999- 2000 ON THE FOLLOWING GROUNDS: 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.31,65,7 1,983 ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK BY HOLDING THAT THE ASSESSEE COULD NEITHER FURNISH ANY DOCUMENTARY EVIDENCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO PROVE THAT THE DEPOSITS IN BANK ACCOUNTS WERE RECEIVED FROM DEPOSITORS NOR ANY EVIDENCE WAS FOU ND DURING THE COURSE OF SEARCH TO ESTABLISH THAT DEPOSITS WERE MADE BY GENUINE DEPOSITORS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.6,47,36, 900 ON ACCOUNT OF UNEXPLAINED DEPOSITS IN DEVELOPMENT CREDIT BANK (C U MARKETING) BY HOLDING THAT THE ASSESSEE COULD NEITHER FURNISH ANY DOCU MENTARY EVIDENCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO P ROVE THAT THE DEPOSITS IN BANK ACCOUNTS WERE RECEIVED FROM DEPOSI TORS NOR ANY EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH TO ESTAB LISH THAT DEPOSITS WERE MADE BY GENUINE DEPOSITORS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.58,61,8 4,400 FAILING TO APPRECIATE THE FACT THAT THE ASSESSEE COULD NEITHER SUB STANTIATE ITS CLAIM NOR ESTABLISH ANY NEXUS TO SHOW THAT THESE INVESTME NTS EMANATED FROM EARNINGS MADE FROM GAINFUL DEPLOYMENT OF DEPOSITS. 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEARN ED COUNSEL FOR THE ASSESSEE SUBMITTED THAT OTHER CASES OF THE ASSESSEE HAVE BEEN REMIT TED BACK TO THE FILE OF THE ASSESSING OFFICE FOR FRESH ADJUDICATION, VIDE ORDER DATE D 14 TH MARCH, 2006 PASSED BY A COORDINATE BENCH OF THIS TRIBUNAL, AND SHE HAS NO OB JECTION IF THIS MATTER IS ALSO REMITTED TO THE FILE OF THE ASSESSING OFFICER. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE WAS PASSING THROUGH A DIFFICULT TIME AND WAS ARRE STED FOR SOME TIME, AND IS, THEREFORE, UNABLE TO PRODUCE ALL THE REQUISITE DOCUM ENTS. 3. LEARNED DEPARTMENTAL REPRESENTATIVE JOINED THE LE ARNED COUNSEL IN PRAYING THAT THE MATTER BE RESTORED TO THE FILE OF THE AO. HE FAIRLY ACCEPTED THAT SUCH A COURSE OF ACTION WILL BE IN ACCORDANCE WITH THE STAND TAKEN BY THE COORDINATE BENCH IN THE CASES OF THE ASSESSEE. 4. IN VIEW OF THE ABOVE DISCUSSIONS, AND RESPECTFULLY FO LLOWING THE STAND TAKEN BY THE COORDINATE BENCH, WE HEREBY REMIT THE MATTER TO THE FILE OF THE ASSESSING 3 OFFICER FOR ADJUDICATION DENOVO IN ACCORDANCE WITH THE LAW, BY WAY OF A SPEAKING ORDER AND AFTER GIVING A FAIR AND REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PUR POSES. PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2011 SD/- (D.MANMOHAN) VICE PRESIDENT SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 25 TH OCTOBER, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),XXV, MUMBAI 4. COMMISSIONER OF INCOME TAX,XXV , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI