ITO 22(3)1, NAVI MUMBAI V. DINESH SHIVAJIRAO GHADAGE, NAVI MUMBAI

ITA 2373/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7929 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2017
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 09-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2013
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KUMARDR
• Keywords: Additional evidence
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.2373/MUM/2013 ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER, WARD-22(3)-1, VASHI RLY. STATION COMPLEX, TOWER NO.6, 03 RD FLOOR, VASHI, NAVI MUMBAI. / VS. SHRI DINESH SHIVAJIRAO GHADGE, OFFICE NO.903, 9 TH FLOOR, BHUMIRAJ COXTRICA, PLOT NO.1 & 2, SECTOR-18, SANPADA, NAVI MUMBAI-400705 ( ' / REVENUE) ( #$ % /ASSESSEE) P.A. NO. ADFPG0345N #$ % / ASSESSEE BY SHRI RAJESH ATHAVLE ' / REVENUE BY SHRI PURUSHOTTAM KUMAR-DR * '+ , % - / DATE OF HEARING : 23/03/2017 , % - / DATE OF ORDER: 29/03/2017 DINESH SHIVAJIRAO GHADAGE ITA NO.2373/MUM/2013 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 31/01/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, DELETING THE ADDITION MADE U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AS UNEXPLAINED CASH CRED IT, MORE SPECIFICALLY WHEN THE ASSESSEE DID NOT PRODUCE ANY CONFIRMATION ON UNSECURED LOANS, WITHOUT PROVIDING OPPORTUNITY TO THE ASSESSING OFFICER IN CONTRAVENTI ON OF RULE-46A OF THE RULES. 2. DURING HEARING, THE LD. DR, SHRI PURUSHOTTAM KUMAR, ADVANCED ARGUMENTS, WHICH IS IDENTICAL TO TH E GROUND RAISED. IT WAS CONTENDED THAT THE ASSESSEE F ILED ADDITIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AND IN TURN, THE FIRST APPELLATE AUTHO RITY NEITHER PROVIDED OPPORTUNITY TO THE ASSESSING OFFIC ER NOR SOUGHT REMAND REPORT FROM HIM. OUR ATTENTION WAS IN VITED TO PARA 4.1 (PAGE-6 OF THE IMPUGNED ORDER). IT WAS ALSO EXPLAINED THAT IT IS VIOLATION OF PRINCIPLE OF NATU RAL JUSTICE AND CONTRAVENTION OF RULE-46A OF THE RULES. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE, SHRI RAJESH ATHAVLE, EXPLAINED THAT THE ASSESSEE TOOK ADVANCES TOWARDS B OOKING OF THE FLATS BUT FAIRLY AGREED THAT NO CONFIRMATION WAS FILED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE A LSO GONE THROUGH THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX DINESH SHIVAJIRAO GHADAGE ITA NO.2373/MUM/2013 3 (APPEAL) AND FIND THAT DURING APPELLATE PROCEEDINGS , BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE AS SESSEE FILED ADDITIONAL EVIDENCE AND MERELY CLAIM THAT IT WAS MERELY TRADE ADVANCES. THERE IS A FINDING IN PARA-4.1 OF THE IMPUGNED ORDER THAT DUE TO INADVERTENT MISTAKE THE AMOUNT OF RS.20 LAKH CONTRIBUTED BY RELIABLE DEVELOPER WAS SHOWN UNDER THE HEAD TRADE ADVANCES, WHEREAS, IT WAS CONT RIBUTION TOWARDS JOINT VENTURE. THESE DETAILS WERE NEITHER B EFORE THE ASSESSING OFFICER NOR SUCH PLEA WAS RAISED. LIKEWIS E, IN PARA-5 OF THE IMPUGNED ORDER, THERE IS AN ADDITION EVIDENCE, WHICH WAS ALSO NEITHER CONFRONTED TO THE ASSESSING OFFICER NOR ANY REMAND REPORT WAS SOUGHT. IDENTICAL IS THE SITUATION WITH RESPECT TO DEVELOPMENT AGREEMENT DAT ED 04/04/2005, WHICH IS ALSO ADDITIONAL EVIDENCE. ON CONSIDERATION OF FACTUAL MATRIX, WE ARE SATISFIED T HAT THE ADDITIONAL EVIDENCE FILED BEFORE THE LD. COMMISSION ER OF INCOME TAX (APPEAL) OR NEW PLEA RAISED BEFORE HIM W AS NEITHER CONFRONTED TO THE ASSESSING OFFICER NOR ANY REMAND REPORT WAS SOUGHT FROM HIM. IN SUCH A SITUATION, W E ARE IN AGREEMENT WITH THE ARGUMENT OF THE LD. DR, THAT THE RE IS A CONTRAVENTION OF THE RULE 46A OF THE RULES, THEREFO RE, WE REMAND THIS FILE TO THE FILE OF THE ASSESSING OFFIC ER TO EXAMINE THE CLAIM OF THE ASSESSEE AFRESH. THE ASSES SEE IS DIRECTED TO EITHER PRODUCE THE CONFIRMATION FROM TH E CONCERNED PARTIES OR PRODUCE THE PARTIES TO THE SAT ISFACTION OF THE ASSESSING OFFICER. THE ASSESSEE BE GIVEN OP PORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH NECE SSARY DINESH SHIVAJIRAO GHADAGE ITA NO.2373/MUM/2013 4 EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM. THUS, T HE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONL Y. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 23/03/2017. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER * + MUMBAI; / DATED : 29/03/2017 F{X~{T? P.S / 0' %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. 1234 / THE APPELLANT 2. 534 / THE RESPONDENT. 3. 6 6 * 7% ( 12 ) / THE CIT, MUMBAI. 4. 6 6 * 7% / CIT(A)- , MUMBAI 5. 8'9 % , 6 12- 1 , * + / DR, ITAT, MUMBAI 6. # ;+ / GUARD FILE. / BY ORDER, 582% % //TRUE COPY// / (DY./ASSTT. REGISTRAR) , * + / ITAT, MUMBAI,