ITO 25(2)(1), MUMBAI V. KAUSHIK B. THAKER, MUMBAI

ITA 2502/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2233 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-11-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 13-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DARSI SUMAN RATNAM
• Keywords: Unexplained cash credit
• Section: 143(3); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI , , BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAJESH KUMAR, AM ./ ITA NO. 2502/MUM/2012 ( !'#! / ASSESSMENT YEAR: 2003-04) INCOME TAX OFFICER - 25(2)(1) $%& /APPELLANT ROOM NO. 106, C - 11 BLDG. P.K. BHAVAN, BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400051 / VS. SHRI KAUSHIK B. THAKER '(%& / RESPONDENT GANESH NIWAS, GROUND FLLOR GANJAWALA LANE, BORIVALI (W) MUMBAI 400092 % ./ PAN - AAFPT8778D $%&)* / APPELLANT BY: DR. DARSI SUMAN RATNAM '(%&)* / RESPONDENT BY: NONE )+ / // / DATE OF HEARING : 18.11.2015 ,-#')+ /DATE OF PRONOUNCEMENT : 27.11.2015 / O R D E R PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER OF CIT(A) ON FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE 2 ITA NO. 2502/MUM/2012 SHRI KAUSHIK B. THAKER ADDITION MADE BY THE A.O. AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT IN RESPECT OF LOAN OF RS.17,50,000/- TAKEN FROM SHRI HARESH D. ASHAR WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAS FAILED TO DISCHARGE THE PRIMARY ONUS OF PROVIDING THE GENUINENESS OF THE LOAN. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION AND ACCEPTING THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE HAS PROVED THE GENUINENESS OF THE PERSON, GENUINENESS OF LOAN TRANSACTION AND ABILITY TO GIVE LOAN BY THE LOAN CREDITOR SHRI HARSH D. ASHAR. 2. ASSESSEE, AN INDIVIDUAL ENGAGED IN THE BUSINESS OF COMMISSION AND BROKERAGE OF PROPERTIES HAS FILED RE TURN OF INCOME ON 20.211.2003 ADMITTING TOTAL INCOME OF ` 1,05,750/- WHICH WAS ACCEPTED UNDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS REOPENED UNDER S ECTION 148 OF THE ACT BY ASSESSING OFFICER AND SELECTED FO R SCRUTINY AND COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT ` 19,75,750/- BY MAKING ADDITION TO ASSESSEES INCOME ON ACCOUNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. 3 ITA NO. 2502/MUM/2012 SHRI KAUSHIK B. THAKER 2.1 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY WHEREIN VARIOUS CONTENTIONS WERE RAISED O N BEHALF OF THE ASSESSEE AND HAVING CONSIDERED THE SA ME CIT(A) GRANTED RELIEF TO ASSESSEE. SAME HAS BEEN OP POSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA, SUBMITT ING THAT CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION M ADE BY THE ASSESSING OFFICER AS UNEXPLAINED CASH CREDIT U /S. 68 OF THE ACT IN RESPECT OF LOAN OF RS.17,50,000/- TAKEN FROM SHRI HARESH D. ASHAR WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAS FAILED TO DISCHARGE THE PRIMARY ONUS O F PROVIDING THE GENUINENESS OF THE LOAN. SO THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER B E RESTORED. NONE APPEARED ON BEHALF OF ASSESSEE. THER EFORE THE MATTER IS BEING DECIDED EXPARTE ON THE BASIS OF THE ARGUMENTS OF THE LEARNED DEPARTMENTAL REPRESENTATIV E AND THE MATERIAL ON RECORD. 2.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD WE FIND THAT THE QUANTUM ADDITION WAS MAD E OF ` 18,70,000/- BY ASSESSING OFFICER IN RESPECT OF SHRI 4 ITA NO. 2502/MUM/2012 SHRI KAUSHIK B. THAKER HARISH.D_ASHAR ( ` 17,50,000/-), TEHMI R MODY ( ` 50,000/-), AND SHRI D K SHAH ( ` 17,000/-). THE ISSUE OF LATTER TWO PARTIES IS NOT BEFORE US. SO THE ISSUE BEFORE US IS REGARDING CASH CREDIT OF ` 17,50,000/- TAKEN FROM SHRI HARESH D. ASHAR. ASSESSEE SUBMITTED COPY OF LOAN CONFIRMATION ALONG WITH COPY OF PAN CARD OF SHRI HARESH D ASHAR WITH A N INTENTION TO DISCLOSE LATEST ADDRESS AS PER INCOME TAX RECORDS. SINCE ASSESSEE WAS NOT DEALING WITH SHRI H ARESH D ASHAR ANY MORE, IT WAS NOT POSSIBLE PRODUCE HIM BEF ORE THE CONCERNED ASSESSING OFFICER. AFTER A LOT OF EFFORTS , ASSESSEE WAS ABLE TO TRACE HARESH D ASHAR WHO HAS GIVEN AN AFFIDAVIT IN RESPECT OF LOAN AMOUNT TRANSACTIONS AN D CONFIRMING THE SAME. IN THIS REGARD THE STAND OF TH E ASSESSEE HAS BEEN THAT THAT LOAN CONFIRMATIONS AND PAN CARD OF SHRI HARESH D ASHAR HAVE BEEN SUBMITTED SO THE ONUS WAS SHIFTED TO ASSESSING OFFICER TO USE HIS P OWER FOR TO MAKE FURTHER ENQUIRY. THUS ASSESSEE DISCHARGED H IS ONUS IN RESPECT OF LOAN OF RS.17,50,000/- FROM HARESH D ASHAR AND PROVED IDENTITY AND GENUINENESS OF THE PERSON. NOTHING 5 ITA NO. 2502/MUM/2012 SHRI KAUSHIK B. THAKER WAS BROUGHT ON RECORD BY REVENUE TO CONTRADICT THE CONTENTIONS OF ASSESSEE. IN VIEW OF THE ABOVE CIT(A ) WAS JUSTIFIED IN DELETING THE ADDITION MADE IN RESPECT OF THE LOAN TAKEN FROM HARESH D. ASHAR. WE UPHOLD THE ORDER OF THE CIT(A). 3. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . .'+/0)$ .0)0+1 ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER, 2015. 2),-#' 3/ 27.11.2015 -)4 SD/- SD/- ( RAJESH KUMAR ) ( SHAILENDRA KUMAR YADAV ) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, 3 DATED 27 TH NOVEMBER, 2015 2)'+$5#+ / COPY OF THE ORDER FORWARDED TO : 1. $%& / THE APPELLANT 2. '(%& / THE RESPONDENT 3. 226 ( ) / THE CIT(A) - 35, MUMBAI 4. 226 / THE CIT - 25, MUMBAI 5. 74'+ , , / DR, A BENCH ITAT, MUMBAI 6. 48!9 / GUARD FILE. / BY ORDER (+'+ //TRUE COPY// /ASSTT. REGISTRAR) , /ITAT, MUMBAI N.P.