IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.2272/M/2013 ASSESSMENT YEAR: 2007-08 SHRI SASHIKANT BANWARILAL GUPTA, C/O. D.C. JAIN & CO., 75, BOMBAY MUTUAL BLDG.293, DR. D. NO. ROAD, FORT, MUMBAI - - 400 001 PAN: AADPG 4713D VS. DY. COMMISSIONER OF INCOME TAX 23(1), ROOM NO.108, 1 ST FLOOR, C-10, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (W), MUMBAI 400 051 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.C. JAIN, A.R. REVENUE BY : SHRI NEIL PHILIP, D.R. DATE OF HEARING : 29.06.2015 DATE OF PRONOUNCEMENT : 29.07.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREIN AFTER REFERRED TO AS THE CIT(A)] DATED 28.12.2012. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED C IT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.12,50,000/- MADE BY T HE ASSESSING OFFICER U/S. 68 OF I.T. ACT. 2) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CI T (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.1,30,906/- MADE BY TH E ASSESSING OFFICER OUT OF TRANSPORT CHARGES. 3) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CI T (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.45600/- MADE BY THE A SSESSING OFFICER BEING PLOT MAINTENANCE CHARGES. ITA NO.2272/M/2013 SHRI SASHIKANT BANWARILAL GUPTA 2 4) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CI T (APPEALS) ERRED IN PASSING THE APPEAL ORDER BASED OIL REMAND REPORT RE CEIVED FROM THE INCOME TAX OFFICER WHO HAS NO JURISDICTION OVER THE ASSESSMENT , AS THE ASSESSMENT ORDER WAS PASSED BY THE DY. COMMISSIONER OF INCOME TAX. 5) THE APPELLANTS CRAVES TO ADD, AMEND, ALTER, DELE TE THE GROUND/S OF APPEAL AT OR BEFORE THE HEARING OF APPEAL. 3. THE LD. AR OF THE ASSESSEE AT THE OUTSET HAS STA TED THAT THE IMPUGNED ORDER OF THE CIT(A) IS AN EX-PARTE ORDER. THE LD. C IT(A) HAS CONFIRMED THE ABOVE STATED ADDITIONS WITHOUT PROPERLY CONSIDERING THE EVIDENCES ON THE FILE. IN RELATION TO THE CONFIRMATION OF ADDITIONS OF RS. 12.50 LAKHS AS UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT, THE LD. AR HAS BROU GHT OUR ATTENTION TO THE PAGES NO. 24 TO 28 OF THE PAPER BOOK BEFORE US TO S HOW THAT THE ASSESSEE HAD FILED THE CONFIRMATIONS FROM THE RESPECTIVE PARTIES ALONG WITH PAN AND BANK STATEMENTS, COPIES OF THE LEDGER OF THE ASSESSEE IN THE ACCOUNTS OF THE CREDITORS AND COPIES OF RETURN OF INCOME OF THE CREDITORS. HO WEVER THE ADDITIONS WERE CONFIRMED BECAUSE THE ASSESSEE COULD NOT PRODUCE TH E CREDITORS BEFORE HIM. THE LD. AR HAS FURTHER SUBMITTED THAT CERTAIN LOANS HAD ALREADY BEEN PAID BACK BY THE ASSESSEE. HE HAS INVITED OUR ATTENTION TO PA GE 32 OF THE PAPER BOOK TO SHOW THAT THE LOAN OF RS. 2.50 LAKHS HAD BEEN PAID BACK TO THE PARTY LAXMI H. HARIA ON 27.3.2010 VIDE CHEQUE NO.146365 AND FURTHE R TO BRIJESH H. GALA OF RS. 2.50 LAKHS VIDE CHEQUE NO.141364. HE HAS, THERE FORE, STATED THAT NEITHER THE LD. CIT(A) NOR THE AO HAS RETURNED ANY FINDING IN T HIS RESPECT. THE LD. AR HAS FURTHER CONTENDED THAT THE EVIDENCES FURNISHED BY T HE ASSESSEE IN RELATION TO TRANSPORT EXPENSES AND IN RELATION TO EXPENDITURE O N MAINTENANCE OF PLOT USED FOR BUSINESS PURPOSES HAVE NOT BEEN PROPERLY CONSID ERED BY THE LOWER AUTHORITIES. 4. WE FIND FORCE IN THE CONTENTION OF THE LD. AR. IN OUR VIEW, THE MATTER NEEDS PROPER AND THOROUGH EXAMINATION OF THE EVIDEN CES. WE THEREFORE RESTORE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION T O DECIDE THE ISSUES RAISED IN ITA NO.2272/M/2013 SHRI SASHIKANT BANWARILAL GUPTA 3 THE ABOVE GROUNDS OF APPEAL AFRESH AFTER PROPER EXA MINATION OF THE EVIDENCES FURNISHED BY THE ASSESSEE. NEEDLESS TO SAY, THE AO WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.07.2015. SD/- SD/- (R.C. SHARMA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 29.07.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.