AMARJIT SINGH KOHLI, MUMBAI V. ITO WD WD 10(3)(3), MUMBAI

ITA 248/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9290 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 10-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R C JAIN
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM ./ I.T.A. NO. 248/MUM/2011 ( / ASSESSMENT YEAR: 2006-07) AMARJIT SINGH KOHLI UNIT NO. 8, BRIGHTON TOWERS, 2 ND CROSS LANE, LOKHANDWALA COMPLEX, ANDHERI (W), MUMBAI-400 053 / VS. INCOME TAX OFFICER, WARD-10(3)(3), 4 TH FLOOR, AAYKAR BHAVAN, MUMBAI ' ./# ./PAN/GIR NO. ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) '$ ' ( / APPELLANT BY : SHRI R. C. JAIN %&'$ ' ( / RESPONDENT BY : SHRI ASGHAR ZAIN )* + ' , / DATE OF HEARING : 26.02.2015 -./ ' , / DATE OF PRONOUNCEMENT : 11.03.2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-22, MUMBAI (CIT(A) FOR SH ORT) DATED 20.10.2010, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2006-07 VIDE ORDER DATED 15.12.2008. 2. THE APPEAL RAISES TWO GROUNDS, AS UNDER, WHICH W E SHALL TAKE UP IN SERIATIM: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS.9,17,100/- U/S.69 OF THE I. T. ACT, 1961. 2 ITA NO. 248/MUM/2011 (A.Y. 2006-07) AMARJIT SINGH KOHLI VS. ITO 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDIT ION OF RS.94,545/- U/S.69 OF THE INCOME TAX ACT, 1961 AS UNEXPLAINED INVESTME NT. 3. THE FIRST GROUND CONTESTS AN ADDITION IN THE SUM OF RS.9,17,100/- IN RESPECT OF TWO BANK DEPOSIT/S IN THE ASSESSEES BANK ACCOUNT DURIN G THE RELEVANT PREVIOUS YEAR, AS UNEXPLAINED INVESTMENT U/S.69 OF THE ACT. THE ASSES SEES EXPLANATION FOR THE SAME WAS OF IT REPRESENTING REFUND FROM A BUILDER M/S. KAMDHENU REALTORS PVT. LTD. (KRPL). THE ASSESSEE HAD PAID THE SAID SUM ABOUT THREE YEARS AG O TO A BUILDER, M/S. CITY BUILDERS (CB). HOWEVER, AS THE PROJECT DID NOT TAKE OFF, THE ENTIRE SUM WAS REFUNDED BY KRPL, WHO HAD TAKEN OVER THE PROJECT FROM CB. THE ADDITIO N STANDS MADE AND CONFIRMED AS, IN THE VIEW OF THE REVENUE, THE ASSESSEE HAS BEEN UNAB LE TO SUBSTANTIATE ITS CASE. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE ISSUE, THUS, IS WHETHER THE ASSESSEE HAS BEEN ABLE TO PROVE ITS CLA IM OF THE IMPUGNED SUM AS BEING THE REFUND OF AN AMOUNT/S PAID EARLIER BY HIM. TOWARD T HIS, THE LD. AR WOULD DURING HEARING TAKE US THROUGH THE CONFIRMATION FROM THE BUILDER ( KRPL/PB PG. 14), AS WELL AS THE ASSESSEES LEDGER ACCOUNT IN ITS BOOKS OF ACCOUNT, REFLECTING A CREDIT IN THE ASSESSEES NAME FOR THE SAID AMOUNT ON 01.04.2004, I.E., UPON TAKING OVER THE PROJECT FROM CB, AND PAYMENT/S TO THE ASSESSEE VIDE TWO CHEQUES, I.E., F OR RS.5 LACS DATED 21.12.2005 AND RS.4.171 LACS DATED 28.12.2005 (PB PG. 15), DETAILS OF WHICH ARE ALSO SPECIFIED IN THE CONFIRMATION LETTER. THE LEDGER ACCOUNT, HOWEVER, I S NOT AUTHENTICATED, EVEN AS THE ACCOMPANYING LETTER IS. TWO, AS THE ASSESSEE HAD NO T MAINTAINED ANY BOOKS OF ACCOUNT (REFER PARA 4 OF THE ASSESSMENT ORDER), COPY OF THE ASSESSEES BANK STATEMENT OR SOME OTHER EVIDENCE TO SUBSTANTIATE THE PAYMENT OF THE S AID SUM BY THE ASSESSEE WOULD BE REQUIRED TO ESTABLISH THE NEXUS OF THE IMPUGNED REC EIPT WITH THE ASSESSEES CLAIM OF IT BEING THE REFUND THEREOF. THE ASSESSEE MAY, AT HIS OPTION, ALSO FURNISH ANY OTHER EVIDENCE, VIZ. AGREEMENT, DEED OF SETTLEMENT, ETC., IF ANY, T OWARD PROVING ITS CASE. THE MATTER IS, ACCORDINGLY, RESTORED TO THE FILE OF THE ASSESSING OFFICER (A.O.) FOR THE PURPOSE, AND WHO SHALL VERIFY THE ASSESSEES CLAIM/S, ALLOWING IT RE ASONABLE OPPORTUNITY OF HEARING, AND DECIDE PER A SPEAKING ORDER. WE DECIDE ACCORDINGLY. 3 ITA NO. 248/MUM/2011 (A.Y. 2006-07) AMARJIT SINGH KOHLI VS. ITO 5. THE SECOND ADDITION IS QUA THE SOURCE OF CREDIT CARD PAYMENTS TO AMERCIAN EXPRESS BANK AND STANDARD CHARTERED BANK, FOR AN AG GREGATE OF RS.94,545/- MADE DURING THE YEAR (AS LISTED AT PARA 5 OF THE ASSESSMENT ORD ER). THE SAME STANDS ADDED TO THE ASSESSEES INCOME U/S.69 C IN THE ABSENCE OF THE AS SESSEE BEING ABLE TO FURNISH PROOF OF PAYMENT IN ITS RESPECT. THE ASSESSEE, IN REITERATIO N OF HIS CLAIMS BEFORE THE AUTHORITIES BELOW, STATED THAT IT HAD EFFECTED PART PAYMENTS OF THE SAID SUMS, I.E., AS REPRESENTING ITS SHARE, WHILE THE BALANCE AMOUNT WAS BORNE BY OTHER PERSON/S, BEING ATTRIBUTABLE TO THEIR SHARE. THE ONUS, HOWEVER, TO EXHIBIT SO IS ONLY ON THE ASSESSEE. AS WE HAVE RESTORED THE MATTER QUA THE PRINCIPAL ADDITION OF RS.9.17 LACS TO THE FILE OF THE A.O., WE ONLY CONSIDER IT FIT AND PROPER TO DO SO FOR THIS ADDITION AS WEL L, IF ONLY TO ALLOW THE ASSESSEE ANOTHER OPPORTUNITY TO SUBSTANTIATE ITS CASE. WE DECIDE AC CORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 0/ 1 )2 30 ' 4' 567 8 * 9 ' :; ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 11, 201 5 SD/- SD/- (AMIT SHUKLA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER <+ MUMBAI; =) DATED : 11.03.2015 *.)../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. @*A B %)C2 , , C2/ , <+ / DR, ITAT, MUMBAI 6. B D3 E + / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , <+ / ITAT, MUMBAI