NILESH VERSHI NISAR, MUMBAI V. ITO 24(2)1), MUMBAI

ITA 2380/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8974 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 26-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MALTHI R SRIDHARAN
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 143(3)

Judgement Text

I.T.A NO.2380/ MUM/2010 NILESH VERSHI NISAR 1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH, MUMBAI. [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] I.T.A NO.2380/ MUM/2010 ASSESSMENT YEAR: 2006-07 NILESH VERSHI NISAR, .. APPELLANT RUSHABH APMT, F-401, A WING KURAR VILLAGE, MALAD (E), MUMBAI-400 097 PA NO.AEAPN 0672 B VS INCOME TAX OFFICER WARD 24(2)(1) ,. RESPONDEN T C-13, PRATYKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI-400 051 APPEARANCES: SAMEER DALAL, FOR THE APPELLANT MALTHI R SRIDHARAN, FOR THE RESPONDENT O R D E R 1. THE SHORT ISSUE THAT I AM REQUIRED TO ADJUDICATE IN THIS APPEAL IS WHETHER OR NOT THE CIT (A) WAS JUSTIFIED IN UPHOLDING THE D ISALLOWANCE OF ` .2,70,028 IN RESPECT OF, WHAT THE ASSESSING OFFICER TERMS AS, UN EXPLAINED CASH CREDIT. THE ASSESSMENT YEAR INVOLVED IS 2006-07 AND THE IMPUGNE D ASSESSMENT IS FRAMED U/S. 143(3) OF THE INCOME TAX ACT. 2. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. THE ASSESSEE IS A CIVIL CONTRACTOR. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS SHOWN CREDIT TO CAPIT AL ACCOUNT BY SALE OF GOLD I.T.A NO.2380/ MUM/2010 NILESH VERSHI NISAR 2 AMOUNTING TO ` .2,70,028. THE ASSESSING OFFICER DECLINED TO ACCEPT THIS RECEIPT AS EXPLAINED RECEIPT, ON THE GROUND THAT THE ACQUIS ITION OF GOLD BY THE ASSESSEE WAS NOT PROVED. THE ASSESSEES CLAIM OF LONG TERM CAPITAL LOSS OF ` .50,768 ON SUCH SALE OF GOLD WAS ALSO DECLINED BUT FOR THE PRE SENT PURPOSES, I AM NOT REALLY REQUIRED TO DEAL WITH THAT ASPECT OF THE MATTER, AS THAT ISSUE HAS NOT BEEN AGITATED BEFORE ME. AGGRIEVED BY ADDITION FOR THIS UNEXPLAINED CREDIT OF ` .2,70,028, ASSESSEE CARRIED THE MATTER IN APPEAL BE FORE THE CIT (A) BUT WITHOUT ANY SUCCESS. NOT SATISFIED, ASSESSEE IS IN SECOND APPEAL BEFORE ME. 3. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED THE FACTUAL MATRIX OF THE CASE AS A LSO THE APPLICABLE LEGAL POSITION. 4. I HAVE NOTICED THAT THE SALE OF GOLD JEWELLERY IS EVIDENCED BY A PROPER SALE BILL AND THE MONEY IS RECEIVED BY WAY OF AN ACCOUNT PAYEE CHEQUE. THE ONLY REASON OF TREATING IT AS UNEXPLAINED CREDIT IS THAT THE ASSESSEE DI D NOT HAVE EVIDENCE TO ESTABLISH ACQUISITION OF THE GOLD JEWELLERY. LOOKING TO THE QUANTUM OF GOLD SOLD, AND PREPONDERANCE OF PROBABILITIES, IT IS NOT A CASE WHER E THE ASSESSEES CLAIM CAN BE SIMPLY BRUSHED ASIDE. IN ANY EVENT, THE FACT OF SALE I S NOT IN DISPUTE NOR IS THERE ANY DISPUTE ABOUT ASSESSEE HAVING ACTUALLY RECEIVED MONEY ON SALE OF GOOD JEWELLERY. THE BILL FOR SALE AND OTHER SUPPORTING EVIDENCES HAVE ALSO BEEN DULY FILED. IN VIEW OF ALL THESE FACTORS, AS ALSO ENTIRETY OF THE CASE, I DEEM IT F IT AND PROPER TO DELETE THE IMPUGNED ADDITION OF ` .2,70,028. THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 5. IN THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARI NG I.E. ON 24TH JANUARY, 2011. (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 24 TH JANUARY, 2011 I.T.A NO.2380/ MUM/2010 NILESH VERSHI NISAR 3 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),34, MUMBAI 4. COMMISSIONER OF INCOME TAX, 24 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH SMC, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.2380/ MUM/2010 NILESH VERSHI NISAR 4