YOGRENDRAKUMAR J SHAH, MUMBAI V. ITO 26(2)(1), MUMBAI

ITA 244/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8654 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 19-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGHLADR
• Assessee Lawyers: KEYURI DESAI
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.244/MUM/2012 ASSESSMENT YEAR: 2007-08 MR. YOGENDRA J. SHAH, 202, VINAYAK SADAN, M.G. ROAD, NEAR VHORA COLONY, KANDIVALI-(WEST), MUMBAI-400056 / VS. INCOME TAX OFFICER-26(2)(1), MUMBAI ( !'# /ASSESSEE) ( / REVENUE) PAN. NO . AFEPS0741R % & ' / DATE OF HEARING : 19/01/2017 & ' / DATE OF ORDER: 20/01/2017 !'# ! / ASSESSEE BY MISS KEYURI DESAI ! / REVENUE BY MISS. ANUPAMA SINGHLA-DR ITA NO.244/MUM/2012 MR. YOGENDRAKUMAR J. SHAH 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 14/11/2011 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, CONFIRMING THE ASSESSMENT ORDER, TREATING THE ENTIR E CASH DEPOSIT IN THE BANK AS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUND. BEFORE US, THE CRUX OF ARGUMENT ADVANCED BY MISS. K EYURI DESAI, LD. COUNSEL FOR THE ASSESSEE IS THAT PROPER/ ADEQUATE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. ON THE OTHER HAND, MISS ANUPAMA SINGHLA, LD. DR, DEFENDED THE ADDITION SUSTAINED BY THE LD. COMMISSI ONER OF INCOME TAX (APPEAL) ON THE GROUND THAT THE ASSESSEE WAS PROVIDED OPPORTUNITY BUT KEPT ON ASKING ADJOURNMENT , THEREFORE, THERE WAS NO OPTION WITH THE FIRST APPEL LATE AUTHORITY BUT TO CONFIRM THE ADDITION MADE BY THE L D. ASSESSING OFFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.2,16,47 6/- IN HIS RETURN FILED ON 17/07/2007, WHICH INCLUDES INCO ME FROM SALARY. THERE WAS AN AIR INFORMATION WITH THE DEPAR TMENT THAT THERE WAS A CASH DEPOSIT OF RS.12,55,000/- IN THE BANK ITA NO.244/MUM/2012 MR. YOGENDRAKUMAR J. SHAH 3 ACCOUNT MAINTAINED A JOINT ACCOUNT WITH HIS WIFE M/ S. NEETA Y. SHAH IN SHAMRAO VITHAL COOPERATIVE BANK. AS PER THE ASSESSEE, THE CASH ALSO BELONGING TO THE WIFE OF TH E ASSESSEE, WHO IS DOING PRIVATE COACHING INVESTMENT IN TRADING IN SHARES AND DEBENTURES. THE CASH WAS CLAIMED TO BE ACCUMULATED OVER A PERIOD OF SEVERAL YEARS AND WAS PROPERLY SHOWN IN THE BANK BALANCE SHEET. IT WAS CLAIMED BY THE LD. COUNSEL FOR THE ASSESSEE THAT PROPER AND ADEQUATE OPPORTUNITY WERE NOT PROVIDED TO THE ASSESSEE AND T HE ASSESSMENT WAS FRAMED HURRIEDLY ADDING THE CASH U/S 68 OF THE ACT. 2.2. WE FIND THAT THE ASSESSEE CHALLENGED THE ADDI TION BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THE ASSESSEE WAS EXPLAINED TO BE A TEACHER IN THE COLLE GE. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) ALSO, IT WAS CLAIMED THAT THE CASH DEPOSIT WAS OUT OF EARLIE R SAVINGS/TUITION AND HAS ALREADY SUFFERED TAX. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS ALSO OBSERV ED THAT THE ASSESSEE COULD NOT SUBSTANTIATE HIS CLAIM AND T HE CLAIM OF TUITION IS MERELY AN AFTERTHOUGHT AND SIMPLY TO ESCAPE THE TAX, THE ASSESSEE HAS TAKEN THIS PLEA. THE LD. COUN SEL FOR THE ASSESSEE ALSO CLAIMED THAT ADDITIONAL EVIDENCE WAS FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), WHICH WAS NOT ADMITTED AND GOES TO THE ROOT OF THE CONTRO VERSY. THE LD. DR OBJECTED TO THE CLAIM OF THE ASSESSEE WI TH RESPECT TO NON-SERVICE OF NOTICE U/S 143(2) OF THE ACT. THE LD. DR ALSO SHOWED FROM THE RECORD THAT THIS NOTICE WAS SE RVED ITA NO.244/MUM/2012 MR. YOGENDRAKUMAR J. SHAH 4 UPON THE ASSESSEE. AT THIS STAGE, THE LD. DR DID NO T PRESS HIS GROUND OF NON-SERVICE OF NOTICE, THEREFORE, SO FAR AS, THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE WITH R ESPECT TO NON-SERVICE OF NOTICE IS DISMISSED AS NOT PRESSED. HOWEVER, SO FAR AS, MERITS OF THE ISSUE IS CONCERNED, KEEPIN G IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, WE ADMIT THE ADDI TIONAL EVIDENCE AND REMAND THE SAME TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH ADJUD ICATION, IN ACCORDANCE WITH LAW. THE ASSESSEE IS AT LIBERTY TO FURNISH THE ADDITIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR WHICH DUE OPPORTUNITY BE GI VEN TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM. THUS, THE A PPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURP OSES. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT I N THE PRESENCE OF THE LD. REPRESENTATIVE OF BOTH SIDES ON THE CONCLUSION OF HEARING ON 19/01/2017. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 20/01/2017 F{X~{T? P.S/. . . ITA NO.244/MUM/2012 MR. YOGENDRAKUMAR J. SHAH 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1 ( + ) / THE CIT, MUMBAI. 4. 0 0 1 / CIT(A)- , MUMBAI, 5. 34 .! , 0 +' ! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. ! / BY ORDER, /3+ . //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI