Appeal details
Counselvise Citation
[2012] 140 COUNSELVISE.COM (IT) 59767 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
9 month(s) 29 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-01-2012
Appeal Filed By
Department
Order Result
Allowed
Bench Allotted
A
Assessment Year
2007-2008
Appeal Filed On
22-03-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER) ITA NO.2219/MUM/2011 ASSESSMENT YEAR-2007-08 SHRI ABDUL KARIM KASIM SHAIKH, PROP. OF M.S. OVAC PRODUCTS, 117/9 BEHIND ESSEL STUDIO, S.T. ROAD, TROMBAY, MUMBAI-400 088 PAN-AAZPS 9664H VS. THE ITO 22(2)-1 MUMBAI (APPELLANT) (RESPONDENT) ITA NO.2314/MUM/2011 ASSESSMENT YEAR-2007-08 THE ITO 22(2)-1 MUMBAI VS. SHRI ABDUL KARIM KASIM SHAIKH, PROP. OF M.S. OVAC PRODUCTS, 117/9 BEHIND ESSEL STUDIO, S.T. ROAD, TROMBAY, MUMBAI-400 088 (APPELLANT) (RESPONDENT) ASSESSEE BY: MS. RITIKA AGARWAL MS. SNEHA R. SARBHUSHAN RESPONDENT BY: SHRI P.K.B. MENON DATE OF HEARING :11. 01.2012 DATE OF PRONOUNCEMENT: O R D E R PER B.R. MITTAL, JM : THESE CROSS APPEALS ARE FILED BY ASSESSEE AND DEPA RTMENT AGAINST ORDER OF LD. CIT(A) DT. 4.1.2011 FOR ASSESSMENT YEA R 2007-08 ON FOLLOWING GROUNDS: 2. GROUNDS OF APPEAL TAKEN BY ASSESSEE IN ITA NO. 2 219/M/11 WHICH ARE AS UNDER: ITA NOS.2219 & 2314/M/2011 2 1.1 LD. CIT(A) ERRED IN SUSTAINING AN ADDITION OF RS. 37,72,574/- PERTAINING TO 88 PARTIES REPRESENTING THE CREDITORS FOR PURCHASES AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT VIDE PARA 4.7 OF HER ORDER. 1.2. BECAUSE, THE ABOVE CREDITORS FOR PURCHASES WE RE BROUGHT FORWARD FROM EARLIER YEARS FOR A.Y. 2005-06 AND 20 06-07 AND WERE NOT CASH CREDITS DURING THE YEAR. 1.3. BECAUSE, LD. CIT(A) HAS FAILED TO CONSIDER THA T THE ABOVE CREDITORS STOOD REFLECTED IN THE BALANCE SHEET OF 31.3.2005 AND 31.3.2006 AND STOOD ACCEPTED IN THE ASSESSMENT FOR A.Y. 2005-06 AND THAT, IN ANY CASE N O SUCH AMOUNT HAS BEEN RECEIVED FROM THESE PERSONS DURING THE YEAR. 1.4. BECAUSE, THE CIT(A) HAS ERRED IN CONCLUDING TH AT IT IS NOT PROVED THAT THESE AMOUNTS REPRESENT OPENING BALANCE S ALTHOUGH SHE HAS HERSELF OBSERVED AT PARA 4.4. OF H ER ORDER THAT THE OPENING AND CLOSING BALANCES ARE THE SAME IN THESE ACCOUNTS IN THIS YEAR. 2.1 BECAUSE, LD. CIT(A) ERRED IN LAW AND ON FACTS I N TREATING THE FOLLOWING PARTIES AS UNEXPLAINED CASH CREDIT U /S. 68 OF THE ACT. SR. NO. NAME AMOUNT (RS.) 1. KEWALBHAI 1,00,000/ - 2. RAVI JAIN 1,00,000/ - 3. HANDICRAFTS PRODUCTS 2,24,526/ - 4. UTTAM (VEGA FOODS) 87,125/ - 5. SHREE KRISHNA SALES 24,950/ - TOTAL 5,36,601/ - 2.2. BECAUSE, THE ABOVE CREDITS WERE NOT THE CREDIT S DURING THE YEAR BUT WERE BROUGHT FORWARD FROM A.YT. 2005-0 6 AND HENCE SECTION 68 WAS NOT ATTRACTED. 2.3. BECAUSE, IN ANY CASE, THE DETAILS IN THE FORM OF CONFIRMATION ALONG WITH PAN NUMBERS FROM THE PARTIE S WERE DULY FURNISHED IN SUPPORT OF GENUINENESS OF CREDITS AND LD. AO NEVER ASKED FOR ANY FURTHER DETAILS. ITA NOS.2219 & 2314/M/2011 3 2.4 BECAUSE, IN SOME CASES, PROOF OF REPAYMENT WAS ALSO FILED, WHICH WAS IGNORED BY LD. CIT(A). 3. GROUNDS OF APPEAL TAKEN BY DEPARTMENT IN ITA NO. 2314/M/11 ARE AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING ADDITION OF RS. 15,31,953/- OUT OF PURCHASES FAILING TO APPRECIA TE THE FACT THAT THE ASSESSEE HAD NOT DISCHARGE THE ONUS OF PROVING THE GENUINENESS THEREOF. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED GRANTING RELIEF ON THE BASI S OF FRESH EVIDENCED WHICH IS IN CONTRAVENTION TO PROVISION S LAID IN RULE 46A OF THE ACT. 4. DURING THE COURSE OF HEARING, LD. AR SUBMITTED T HAT LD. CIT(A) HAS COMMITTED FACTUAL MISTAKE IN THE IMPUGNED ORDER PAS SED BY HIM. LD. AR SUBMITTED THAT ASSESSEE HAS FILED APPLICATION FOR R ECTIFICATION OF ORDER OF LD. CIT(A) DT. 12 TH MAY, 2011 AND REFER PAGES 55 TO 57 OF PAPER BOOK. LD. AR SUBMITTED THAT SAID FACTUAL MISTAKES COMMITTED BY L D. CIT(A) GO TO THE ROOT OF THE ORDER PASSED BY HIM. LD. AR FURTHER SUBMITTE D THAT ASSESSEE ADMITTEDLY FILED COPIES OF LEDGER ACCOUNT AND CERTA IN CONFIRMATION LETTERS FROM SUNDRY CREDITORS BEFORE LD. CIT(A) AND CIT(A) CONSIDERED THE SAME WITHOUT SEEKING REMAND REPORT FROM AO. 5. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED TH AT DEPARTMENT HAS ALSO DISPUTED ORDER OF LD. CIT(A) ON THE GROUND THA T LD. CIT(A) HAS CONSIDERED ADDITIONAL EVIDENCES WITHOUT SEEKING REM AND REPORT FROM AO AND IN VIOLATION OF RULE 46A OF I.T. RULE. HE SUBMITTED THAT DELETION MADE BY LD. CIT(A) AFTER CONSIDERING ADDITIONAL EVIDENCES FILED BY ASSESSEE BEFORE HIM IS NOT IN ORDER. 6. CONSIDERING ABOVE SUBMISSION OF LD. REPRESENTATI VES OF BOTH PARTIES, WE ARE OF THE CONSIDERED VIEW THAT MATTER SHOULD BE RESTORED TO LD. CIT(A) ITA NOS.2219 & 2314/M/2011 4 TO DECIDE THE ISSUE AFRESH AFTER CONSIDERING SUCH EVIDENCES AS MAY BE RELIED UPON BY THE PARTIES AND ALSO AFTER GIVING DUE OPPOR TUNITY OF HEARING AS PER LAW. HENCE, WE SET ASIDE ORDER OF LD. CIT(A) AND RESTORE THE MATTER IN RESPECT OF GROUNDS TAKEN BY BOTH PARTIES WITH A DIR ECTION TO DECIDE THE ISSUE AFRESH AFTER CONSIDERING REQUISITE DOCUMENTS AS MAY BE PLACED BEFORE HIM AND AFTER GIVING DUE OPPORTUNITY OF HEARING AS PER LAW. NEEDLESS TO STATE THAT LD. CIT(A) WHILE DECIDING THE ISSUES AFRESH, H E WILL ALSO CONSIDER THE FACTS CORRECTLY CONSIDERING THE APPLICATION FILED B Y ASSESSEE DT. 12 TH MAY, 2011. 7. IN THE RESULT, APPEALS FILED BY ASSESSEE AS WELL AS DEPARTMENT ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 20 TH DAY OF JANUARY, 2012 SD/- SD/- ( PRAMOD KUMAR) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 20 TH JANUARY, 2012 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI
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