HIRALAL NANDLAL GOYAL, ULHASNAGAR V. DCIT CIR 22(3), NAVI MUMBAI

ITA 2324/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2505 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 19-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C KANOJIA
• Assessee Lawyers: DR P DANIEL
• Keywords: Onus to prove
• Section: 142(1); 133A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH H ,MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2324/MUM/2012 (ASSESSMENT YEAR : 2006-07) HIRALAL NANDLAL GOYAL C/O MADHU BATHIJA, AMIT ASHIANA, GROUND FLOOR, NEAR BRAHAMAKUMARIS ASHRAM, GOL MAIDAN, ULHASNAGAR-421002. PAN: AFAPG2215E VS. ACIT-22(3), 3 RD FLOOR, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DR. P. DANIEL (AR) REVENUE BY : SHRI K.C. KANOJIA (DR) DATE OF HEARING : 19.10.2016 DATE OF PRONOUNCEMENT : 21.10.2016 O R D E R PER PAWAN SINGH, JM: 1. THIS APPEAL U/S 253 OF THE INCOME-TAX ACT IS DIRECT ED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-33, MUMBAI DATED 19.01.2012 FOR ASS ESSMENT YEAR (AY) 2006-07. THE ASSESSEE HAS RAISED AS MANY AS FOUR GR OUNDS OF APPEAL, HOWEVER AS PER OUR CONSIDERED VIEW THE ONLY SUBSTANTIAL GROUN D OF APPEAL IS THAT WHETHER THE LD. CIT(A) ERRED ON FACTS AND LAW IN CONFIRMIN G THE DISALLOWANCE/ADDITION OF RS. 51,64,000/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE NOTICE U/S 142(1) DATED 21.02.2007 WAS SERVED UPON THE ASSESSEE FOR RELEVANT AY FOR CALLIN G UPON THE ASSESSEE TO FILE RETURN OF INCOME, AS NO RETURN OF INCOME WAS FILED BY THAT DATE, THEREAFTER, SUMMONS WERE ISSUED TO THE ASSESSEE ON 21.11.2007 F OR FILING THE DETAILS OF INCOME AFFIDAVIT REGARDING HOLDING OF BANK ACCOUNTS , PAN OF SELF, & AOP AND ITS MEMBERS, NOTE OF FORMATION OF AOP, BANK SUMMARY OF ALL ACCOUNTS, 2 ITA NO. 2324/M/2012- HIRALAL NANDLAL GOYAL ANTECEDENT HISTORY STATEMENT OF ASSESSEE, SUMMARY O F TAX PAYMENTS MADE TILL DATE CONSEQUENT TO SURVEY U/S 133A AND COPY OF ACQU ISITION DEED OF PLOT SOLD. IN RESPONSE TO THE SUMMON THE ASSESSEE ATTENDED THE PROCEEDING ON VARIOUS DATES AND FURNISHED THE INFORMATION. HOWEVER, AS P ER AO THE COMPLETE INFORMATION AND DETAILS WERE NOT FILE IN RESPONSE T O THE QUERY WITH REGARD TO ANTECEDENT OF HISTORY STATEMENT, THE ASSESSEE CONTE NDED THAT HE DO NOT HAVE INCOME CHARGEABLE TO TAX UP TO 31.03.2007. THE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT AND ASSESSED THE INCOME OF ASSES SEE AS UNDER; INCOME FROM BUSINESS 95,640 INCOME FROM OTHER SOURCES (I) UNEXPLAINED ADVANCES IN CASH 1,57,90,844 (II) OPENING CAPITAL FROM UNDISCLOSED SOURCES 8,79,960 (III) CREDITS IN UNDISCLOSED BANK ACCOUNT 50,000 (IV) ON ACCOUNT OF LOW WITHDRAWAL 1,14,000 1,68,34,804 TOTAL INCOME 1,69,30,444 ROUNDED OFF 1,69,30,450 AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE FILED AP PEAL BEFORE THE LD. CIT(A) WHEREIN THE ASSESSEE WAS GRANTED PARTIAL RELIEF AND EXCEPT IN RESPECT OF DISALLOWANCE OF RS. 22,00,000/- RECEIVED FROM M/S GURUSAI CONSTRUCTION, RS. 23,14,000/- RECEIVED FROM ANIL RAJPUT, RS. 1,50, 000/- RECEIVED FROM H. N. GOYAL & OTHERS, AOP AND RS. 5,00,000/- RECEIVED F ROM UNIQUE CONSTRUCTIONS,. THUS, FURTHER AGGRIEVED THE ORDER OF AO, THE ASSESS EE FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE AR GUED THAT HE HAS FURNISHED THE CONFIRMATION OF ALL FOUR PARTIES WHICH ARE AVAILABL E AT PAGE NO. 18 TO 27 OF THE PAPER BOOK (PB). THE ASSESSEE ALSO FURNISHED THE BA NK PASSBOOK OF GURUSAI CONSTRUCTION, COPY OF WHICH IS AT (PAGE NO. 19 TO 2 5 OF PAPER BOOK) AND ASSESSEES BANK PASSBOOK SHOWING THE PAYMENT AS ON 30.03.2016 (AT PAGE NO. 26 OF THE PB), 3 ITA NO. 2324/M/2012- HIRALAL NANDLAL GOYAL IT WAS FURTHER ARGUED THAT ONLY REASON FOR DISALLOW ANCE WAS THAT PAN NUMBER GIVEN BY THE ASSESSEE WAS IN THE NAME OF AN INDIVID UAL SHRI JAGDISH RAMANLAL, WHO IS THE PARTNER OR PROPRIETOR OF THE FIRM. NEITH ER THE AO NOR LD. CIT(A) MADE ANY ENQUIRY. THE LD. AR OF THE ASSESSEE FURTHER ARG UED THAT LOAN CONFIRMATION FROM ANIL RAJPUT IS ALSO AVAILABLE AT ( PAGE NO. 29 AND 30 OF THE PB) ALONG WITH CASH SUMMARY AND THE SAME WAS NOT VERIFIED BY THE A UTHORITIES BELOW SIMILARLY LD. AR OF THE ASSESSEE ARGUED THAT CONFIRMATION OF SHRI HIRALAL GOYAL & ORS IS AVAILABLE AT PAGE NO. 45 TO 47 OF PB AND IN RESPECT OF UNIQUE CONSTRUCTION, THE LEDGER ACCOUNT AT PAGE NO. 48, COPY OF ASSESSEES B ANK ACCOUNT AT PAGE NO. 49 AND CREDITORS BANK STATEMENT AT PAGE NO. 50 OF PB. THE LD. AR OF THE ASSESSEE WOULD FURTHER ARGUE THAT DURING THE REMAND PROCEEDING DES PITE HIS REPEATED REQUEST, THE AO HAS NOT ISSUED SUMMON TO ALL THOSE PARTIES AS TH E PARTIES WERE NOT CO- OPERATING WITH THE ASSESSEE. ON THE OTHER HAND, LD. DR FOR THE REVENUE ARGUED THAT THE ONUS TO PROVE THE GENUINENITY OF TRANSACTI ON, IDENTITY AND CREDITWORTHINESS OF THE PARTIES WAS ON THE ASSESSEE AND ASSESSEE FAILED TO DISCHARGE HIS ONUS, THUS THE ASSESSEE IS NOT ENTITL ED FOR FURTHER RELIEF, HOWEVER, IT WAS FURTHER SUBMITTED BY THE LD. DR FOR THE REVENUE THAT HE HAS NO OBJECTION, IF THE MATTER IS REMANDED TO THE FILE OF AO FOR PROPER VERIFICATION AND EXAMINATION OF THE DOCUMENTS FURNISHED BY THE ASSESSEE DURING T HE FIRST APPELLATE STAGE. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. CONSIDERING THE CONTEN TION OF LD. AR OF THE ASSESSEE THAT THE AO HAS NOT ISSUED ANY SUMMON TO THE PARTIE S DURING THE REMAND PROCEEDING. THE AO COMPLETED THE ASSESSMENT ORDER U/S 144 OF THE ACT. THE ASSESSEE HAS SHOWN DOCUMENTARY EVIDENCE TO US WHICH REQUIRE PROPER VERIFICATION AND EXAMINATION AT THE END OF AO, THUS, WE DEEM IT APPROPRIATE TO RESTORE THE CASE TO THE FILE OF AO. THE AO SHALL EXAMINE THE DOCUMEN TS FURNISHED BY ASSESSEE AND WOULD PASS ORDER AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO FULLY CO-OPERATE AND FURNISH THE NECESSARY INFORMAT ION WHICH MAY REQUIRE BY THE AO. 5. WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 4 ITA NO. 2324/M/2012- HIRALAL NANDLAL GOYAL ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST OCTOBER, 2016 . SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 21/10/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/