KAVITA JIVAN KALLE, MUMBAI V. ITO WD 11(2)(4), MUMBAI

ITA 2205/MUM/2013

• Counselvise Citation: 220519914 RSA 2013
• Duration Of Justice: 2 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV PUNGLIYA
• Assessee Lawyers: RISHABH S HAH
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO. 2205/MUM/2013 / ASSESSMENT YEAR 2009-10 MS. KAVITA JIVAN KALLE, 7,MUNSH COLONY, MAHAKALI CAVES ROAD, ANDHERI (EAST), MUMBAI 400 093 / VS. INCOME TAX OFFICER, WARD 11(2)(4), MUMBAI. ./ ./ PAN/GIR NO. : AGTPK 2828D ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI R I SHABH SHAH RESPONDENT BY : SHRI SANJIV PUNGLIYA # $ % / DATE OF HEARING : 18/06/2015 # $ % / DATE OF PRONOUNCEMENT : 18/06/2015 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-3, MUMBAI DATED 7/2/2013 FOR A SSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LEARNE D ASSESSING OFFICER IN TREATING THE UNSECURED LOAN OF RS.4,63,600/- AS ALLEGED UNEX PLAINED CASH CREDIT U/S.68 OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING TH E FACTS AND CIRCUMSTANCES OF THE CASE. . / ITA NO. 2205/MUM/2013 / ASSESSMENT YEAR 2009-10 2 2. CREDIT BALANCE OUTSTANDING IN THE BALANCE SHEET OF THE ASSESSEE AGGREGATING TO A SUM OF RS.4,63,600/- HAS BEEN ADDE D TO THE INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE INCOME TAX ACT, 19 61(THE ACT) ON ACCOUNT OF NON-FILING OF CONFIRMATION AND ON ACCOUNT OF UNPROV ED CREDIT WORTHINESS OF THE CREDITOR. THE DETAILS IS AS FOLLOWS: SR. NO. NAME OF THE PARTY AMOUNT (RS.) 1. ANAND MORE 18,000 2. CHANDRASHEKHAR G. RANE 15,000 3. DURGESHG KAUR 17,000 4. GEETA MISTRA 13,000 5. DAYANAND SHETTY 18,000 6. KALPANA GALA 18,000 7. KIRIT GALA 18,000 8. MANINDERKAUR KHALORODA 18,000 9. NAVINCHANDRA KHIMJI STORES 17,000 10. NISHA S. BHATT 12,000 11. NITYANAND VAISHNAV 25,600 12. RAJNIKANT MEHTA 19,000 13. RANJITKUMAR KHALORODA 16,000 14. RAVINDRA SARANL 18,000 15. SANJEEV KALLE 1,00,000 16. SHEELA S. GALA 15,000 17. SHIVENDRA SHRIVASTAV 15,000 18. SONAWALA ENTERPRISES 18,000 19. SUNIL BHATT 18,000 20. SURESH K. GALA 15,000 21. TARA J. MEHTA 15,000 22. SAMEER TRADERS 25,000 TOTAL 4,63,600 2.1 THE AFOREMENTIONED ADDITION IS CONTESTED BY THE ASSESSEE ON THE GROUND THAT EXCEPT A SUM OF RS.5600/-, ALL THE ABOVE CRED ITS ARE OPENING BALANCES. ONLY A SUM OF RS.5600/- IN THE NAME OF NITYANAND VA ISHNAV WAS CREDITED DURING THE YEAR, WHEREAS THE SAID PERSON WAS HAVING OPENING BALANCE OF RS.20,000/-. THE DETAILS REGARDING OPENING BALANC E OF THE CREDITORS IS ALSO FILED AT PAGE 10 OF THE PAPER BOOK AND IT WAS ALSO FILED BEFORE AO VIDE LETTER DATED 4/7/2011, COPY OF WHICH IS FILED AT PAGE 9 OF THE PAPER BOOK. IT WAS THE MAIN ARGUMENT OF LD. AR THAT OPENING BALANCE COULD NOT BE ADDED UNDER . / ITA NO. 2205/MUM/2013 / ASSESSMENT YEAR 2009-10 3 SECTION 68 OF THE ACT AND THE ADDITION, IF ANY, COU LD BE MADE IN THE YEAR WHEN THEY WERE CREDITED TO THE BANK ACCOUNTS. IT IS ALS O THE CASE OF THE ASSESSEE THAT ALL THE CONFIRMATIONS WERE FILED WHICH HAVE BEEN IG NORED BY THE AO AS WELL AS LD. CIT(A). THUS, IT WAS CLAIMED THAT THE ADDITION HAS WRONGLY BEEN SUSTAINED BY LD.CIT(A) AND SHOULD BE SET ASIDE AND DELETED. 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. ACCORDING TO THE DETAILS FILED BY THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, OUT OF TOTAL AMOUNT OF RS.4 ,63,600/- A SUM OF RS.4,58,000/- WAS OPENING BALANCE AND THIS FACT IS ALSO RECORDED IN THE ORDER PASSED BY LD. CIT(A) IN PARA 1.2. THEREFORE, KEEPI NG IN VIEW THIS FACT, WE ARE OF THE OPINION THAT ADDITION HAS WRONGLY BEEN SUSTAINE D BY LD. CIT(A) AS THE CREDIT TO THIS EXTENT IS NOT DURING THE YEAR UNDER CONSIDERATION. THEREFORE, THE SAID AMOUNT CANNOT BE ADDED UNDER SECTION 68 OF TH E IT ACT. THE REMAINING AMOUNT OF RS.5600/- IS A PALTRY SUM AND WITHOUT B RINGING ANY CONTRARY MATERIAL ON RECORD WE DO NOT CONSIDER THAT THIS SMA LL AMOUNT MAY BE CONSIDERED TO BE UNEXPLAINED INCOME OF THE ASSESSEE , THEREFORE, WE DELETE THE ENTIRE ADDITION AND ALLOW THE APPEAL FILED BY THE A SSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/06/201 5 # + , - 18/06/2015 # SD/- SD/- ( . . / B.R.BASKARAN ) . . /I.P.BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; , DATED 18/06/2015 . / ITA NO. 2205/MUM/2013 / ASSESSMENT YEAR 2009-10 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /$ ( ) / THE CIT(A)- 4. /$ / CIT 5. 01 $23 , % 23 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, 0$ $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS