AMIT KUMAR GANGULY, MUMBAI V. ITO 11(1)(1), MUMBAI

ITA 2453/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4069 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAKTA CHOWDHURY
• Keywords: Unexplained cash credit; Additional evidence; Reasonable cause
• Section: 143(3); 68

Judgement Text

IT A 2453 /MUM/20 13 ITA 2487/MUM/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI , , BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RA MIT K OCH AR , ACCOUNTANT MEMBER IT A:. 2 4 53 /MUM/20 13 (ASSESSMENT YEAR: 2006 - 07 ) IT A:. 2487 /MUM/20 13 (ASSESSMENT YEAR: 2005 - 06) SHRI AMIT KUMAR GANGULY , GOURI KUNJ, KALAKAR KISHORE KUMAR GANGULY MARG, JUHU TARA ROAD, MUMBAI - 400 049 .: PAN: AAIPG 3538 M VS IT O - 11(1)( 1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAMOD KUMAR PARIDA & MS SANJAKTA CHOWDHURY RESPONDENT BY : SHRI GANESH BARE /DATE OF HEARING : 21 - 0 1 - 201 6 / DATE OF PRONOUNCEMENT : 03 - 02 - 2016 ORDER : . . : PER AMIT SHUKLA , JM : T HE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST SEPARATE IMPUGNED ORDER S DATED 1 5 . 0 3 .20 11 FOR THE ASSESSMENT YEAR 2006 - 07 F OR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) AND ORDER DATED 27.12.2012 PASSED FOR THE ASSESSMENT YEAR 2005 - 06 FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3)/147 BY THE CIT(A) - III, MUMBAI. IN BOTH THE APPEALS THE COMMON ISSUE INVOLVED IS , ADDITION ON AC COUNT OF CASH CREDIT S IN THE BANK ACCOUNT OF THE ASSESSEE WHICH HAS BEEN ADDED UNDER SECTION 68 , FOR SUM S AGGREGATING RS. 20,35,000/ - FOR THE ASSESSMENT YEAR 2006 - 07 AND RS. 14,46,567/ - FOR THE ASSESSMENT YEAR 2005 - 06. IT A 2453 /MUM/20 13 ITA 2487/MUM/2013 2 2. AT THE OUTSET, THE APPEAL FOR TH E ASSESSMENT YEAR 2006 - 07 BEING ITA NO. 2847/MUM/2013 IS TIME BARRED BY 654 DAYS. IN S UP P OR T OF THE PETITION FOR CONDONATION OF DELAY, SWORN AFFIDAVIT OF THE ASSESSEE HAS BEEN FILED STA T ING THE DETAIL REASONS FOR DELAY IN FILING OF THE APPEAL. THE ENTIRE D ELAY HAS BEEN STATED TO BE ON ACCOUNT OF NON - COMMUNICATION OF ORDER AND NON - COORDINATION BY THE AUTHORIZED REPRESENTATIVE WHO WAS LOOKING AFTER THE MATTER BEFORE THE APPELLATE AUTHORITY . IT HAS BEEN STATED THAT , ASSESSEE HAS APPOINTED A CHARTERED ACCOUNTAN T WHO WAS RESIDING AT RAJKOT AND IN TURN HE HAS ENTRUSTED THE ASSIGNMENT TO ANOTHER CA IN MUMBAI , WHO DID N OT CONSULT THE ASSESSEE D URING THE COURSE OF THE ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS NO R TENDER ANY ADVICE FOR FILING F OR FILING OF THE APPEA L. FURTHER, THE ASSESSEE H A D SUFFER ED W AS SUFFERING WITH SERIOUS AILMENT AND WAS DIAGNOSED WITH TWO BLOCKAGES IN HEART AND WAS ADMITTED IN THE HOSPITAL FOR ANGIOGRAPHY AND LATER ON ALSO HE HAD MEDICAL PROBLEMS. IT WAS FOR THIS REASON THAT THE ASSESSEE COUL D NOT PU RSU E THE MATTER FOR FILING OF APPEAL. THUS, IT HAS BEEN PLEADED IN THESE CIRCUMSTANCES DELAY SHOULD BE CONDONED . 3. AFTER HEARING BOTH THE PARTIES AND ON FAVOURABLE CONSIDERATION OF FACTS AND CIRCUMSTANCES AS MADE OUT IN THE A VERMENTS OF THE ASSES SEE IN THE SWORN AFFIDAVIT , WE FIND THAT THERE WAS A BONA FIDE AND REASONABLE CAUSE IN NOT FILING THE APPEAL IN TIME, THEREFORE, THE DELAY OF 654 DAYS IS CONDONED. 4. BEFORE US, THE LD. COUNSEL , SHRI PRAMOD KUMAR PARIDA SUBMITTED THAT , THE ADDITIONS HAS BEEN M A D E IN BOTH THE YEAR S ON ACCOUNT OF UNEXPLAINED CASH CREDIT APPEARING IN THE BANK ACCOUNT OF THE ASSESSEE IN HDFC BANK, KANDIVALI (EAST), MUMBAI. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, I T H AS BEEN ALLEGED BY THE AO THAT THE ASSESSEE HAS FAI LED TO PRODUCE THE NECESSARY DETAILS AND IT WAS STATED THAT THE MONEY HAS BEEN DEPOSITED OUT OF PROFESSIONAL FEES RECEIVED BY THE ASSESSEE WHICH COULD NOT BE IN CORPORATED IN THE REGULAR BOOKS OF ACCOUNT. THE AO AFTER DETAILED IT A 2453 /MUM/20 13 ITA 2487/MUM/2013 3 ENQUIRY FROM THE BANK AND WITH OUT THERE BEING ANY PROPER EXPLANATION FROM THE ASSESSEE SUPPORTED BY ANY EVIDENCE ADDED THE AGGREGATE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF RS. 14,46,567/ - IN THE ASSESSMENT YEAR 2005 - 06 AT RS. 20,30,000/ - DEPOSITED DURING THE ASSESSMENT YEAR 2006 - 07 , U NDER SECTION 68. T HE LD. CIT(A) TOO HAS CONFIRMED THE ADDITION AFTER CALLING FOR THE REMAND REPORT ON THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND OBSERVED THAT , THE ASSESSEE WAS NOT ABLE TO ESTABLISH ITS CASE. 5. THE LD. COUNSEL BEFORE US, SUBMITT ED THAT THE ASSESSEE ALL THROUGHOUT WAS NOT REPRESENTED WELL AND DURING THE COURSE OF THE ENTIRE ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS, THE ASSESSEE WAS NEITHER CON FRONTED NOR WAS ASKED TO FURNISH ANY DETAILS BY HIS CA . THE CHARTERED ACCOUNTANT REPRESENTING THE CASE HAS FILED THE DETAILS WITHOUT CONS U L T ING THE APPEALS AND, THEREFORE, THERE WAS NO PROPER COMPLIANCE ON THE VARIOUS DATES FIXED BY THE CIT(A). THUS IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE MATTER SHOULD BE RESTORED TO THE FILE OF TH E AO TO ENABLE HIM TO FILE PROPER REPRESENTATION AND EVIDENCES. HE FURTHER SUBMITTED THAT ASSESSEE WAS SUFFERING FROM HEART AILMENT AND WAS SUFFERING FR OM OTHER AILMENTS ALSO FOR LAST SEVERAL YEARS AND THIS HAS ALSO REFLECTED IN HIS EARNING OF PROFESSIONAL INCOME. THUS, UNDER THE FACTS AND CIRCUMSTANCES , HE PLEADED THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO REPRESENT ITS CASE PROPERLY. ALL THESE FACTS HAVE BEEN NARRATED BY THE ASSESSEE BY WAY OF AVERMENT S MADE IN THE AFFIDAVIT FILED BEFORE US. 6 . ON THE OTHER HAND, LD. DR SUBMITTED THAT ALREADY VARIOUS OPPORTUNITIES HAVE BEEN GIVEN BY THE CIT(A) AND HAS CALL ED FOR THE REMAND REPORT . AFTER CONSIDERING ALL THE FACTS AND MATERIALS ON RECORD HE HAS CONFIRMED THE ADDITION ON THE GROUND THAT ASSESSEE C OULD NOT SUBSTANTIATE THE CASH DEPOSITS IN THE BANK ACCOUNT PROPERLY. IT A 2453 /MUM/20 13 ITA 2487/MUM/2013 4 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND ALSO PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS. THE ASSESSEE I S A SINGER BY PROFESSION AND IS A SON OF LEGENDARY SINGER , L ATE SHRI KISHORE KUMAR. THE ASSESSEES CASE WAS REPRESENTED THROUGH AUTHORIZED REPRESENTATIVE BEFORE THE CIT(A) WHO STATED THAT, ASSESSEE HAD RECEIVED ADVANCE ON ACCOUNT OF AGREEMENT TO SALE OF HIS FLAT AND IN THIS REGARD CONFIRMATION OF THE BUYER WAS ALSO FIL ED. FURTHER, THERE WERE HUGE WITHDRAWALS FROM THE BANK WHICH ARE DEPOSITED FROM TIME TO TIME. VARIOUS OTHER DOCUMENTS AND DETAILS WERE ALSO FILED. HOWEVER, IN THE COURSE OF THE REMAND PROCEEDINGS, THE ASSESSEE COULD NOT SUBSTANTIA TE BY PRODUCING CERTAIN PE RSONS ALONG WITH THEIR DETAILS. THUS, THE ADDITION WAS CONFIRMED ON THE GROUND THAT ASSESSEE COULD NOT SUBSTANTIATE IT S CASE . BEFORE US, IT HAS BEEN PLEADED THAT DURING THE ENTIRE PROCEEDINGS RIGHT FROM THE STAGE OF ASSESSMENT TO FIRST APPELLATE STAGE, ASS ESSEE WAS NOT CONS U LTED BY THE CHARTERED ACCOUNTANT WHO WAS REPRESENTING THE CASE AND, THEREFORE, THE ENTIRE EXPLANATION AND EVIDENCES COULD NOT BE PUT FORTH IN THE PROPER PERSPECTIVE. THIS WAS MORE S O FOR THE REASON THAT THE ASSESSEE HIMSELF WAS NOT KEEPI NG WELL AND HAD TO UNDERGO ANGIOGRAPHY IN 2011. 8. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND ALSO THE QUANTUM /REQUEST MADE BEFORE US BY THE ASSESSEE WHO WAS ALSO PRESENT AT THE TIME OF HEARING, WE FIND THAT IN THE INTEREST OF SUBS TANTIAL JUSTICE THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE AO TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE SO THAT ASSESSEE CAN FURNISH PROPER EVIDENCES TO SUBSTANTIATE THE CREDITS APPEARING IN THE BANK ACCOUNT. ACCORDINGLY , THE WHOLE ISSUE OF ADDITION ON ACCOUNT UNEXPLAINED CREDIT IN THE BANK ACCOUNT IS SET ASIDE TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH AND ASSESSEE WOULD BE AT LIBERTY TO FILE ALL SUCH NECESSARY DOCUMENTS / EVIDENCES AND SUBSTANTIATE ITS EXPLANATION . AO SHALL EXAMINE THE SAME AFRESH AND DECIDE THE IT A 2453 /MUM/20 13 ITA 2487/MUM/2013 5 ISSUE IN ACCORDANCE WITH THE LAW AND AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE WILL ALSO ENSURE THAT THIS TIME REPRESENTATION SHOULD BE MADE PROPERLY BEFORE THE DEPARTMENTAL AUTHORITIES. W ITH THIS DIRECTION THE GROUNDS RAISED BY THE ASSESSEE FOR BOTH THE YEARS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 R D FEBRUARY , 201 6. SD/ - SD/ - ( ) ( ) ( RAMIT KOCHAR ) ( AMIT SHUKLA ) ACCOUNTANT ME MBER JUDICIAL MEMBER MUMBAI, DATE: 3 RD FEBRUARY , 2016 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 3 , MUMBAI . 4 ) THE COMMISSIONER OF INCOME TAX - 11 , MUMBAI . 5 ) , , / THE D.R. A BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS