SAMEER MAVJI PATEL, MUMBAI V. DCIT CIR 19(1), MUMBAI

ITA 2508/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71937 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 19-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 31-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI . . , , !'# , $ % BEFORE SHRI I.P. BANSAL, JM AND SHRI N.K. BILLAI YA, AM ./ I.T.A. NO.2508/MUM/2011 ( & & & & / ASSESSMENT YEAR :2007-08 SHRI SAMEER MAVJI PATEL, DEAL CLOTHING, PLOT NO. 1, GHANSHYAM INDL. ESTATE, NEAR YASHRAJ STUDIO, VEER DESAI MARG, ANDHERI(W), MUMBAI-400 058 THE DCIT, CIR 19(1), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400 012 ' $ ./ () ./PAN/GIR NO. : AHGPP 0885K ( '* /APPELLANT ) .. ( +,'* / RESPONDENT ) '* - / APPELLANT BY : ` SHRI VIJAY MEHTA +,'* . - /RESPONDENT BY : SMT. PARMINDER . /0$ / DATE OF HEARING :19.12.2013 12& . /0$ / DATE OF PRONOUNCEMENT : 19.12.2013 3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-30, MUMBAI DT.18.01.2011 PERTAINING TO A.Y. 2007-08. 2. THE ASSESSEE HAS RAISED 10 SUBSTANTIVE GROUNDS O F APPEAL. GROUND NO. 1 TO 7 RELATE TO THE ADDITION MADE ON ACCOUNT O F ALLEGED DISCREPANCIES ITA NO.2508/M/2011 2 IN RESPECT OF STOCK FOUND AT THE TIME OF SURVEY VIS --VIS STOCK AS PER BOOKS. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE LOWER AUTHORITIES HAVE NOT PROPERLY APPRECIATED THE ALLEGED DIFFERENCE WHICH THE ASSESSEE TRIED TO RECONCILE BY FILING VAR IOUS STATEMENTS DURING THE COURSE OF THE ASSESSMENT AND APPELLATE PROCEEDI NGS. IT IS THE SAY OF THE LD. COUNSEL THAT THE ENTIRE STOCK FOUND AT THE TIME OF SURVEY AND THE STOCK AS PER BOOK IS FULLY RECONCILABLE. THE LD. C OUNSEL PLEADED THAT IF AN OPPORTUNITY IS GIVEN TO THE ASSESSEE, THE ASSESS EE WOULD RECONCILE THE ENTIRE ALLEGED DIFFERENCE IN THE STOCK. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCE DED TO THIS SUBMISSION OF THE LD. COUNSEL. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES. AS BOTH PARTIES HAVE AGREED THAT THIS BEING A FACTUAL MATTER AND HAS TO BE VERIFIED AT THE ASSESSMENT STAGE. WE, ACCORDINGLY, RESTORE THIS ISSUE BACK TO THE FILES OF THE AO. THE ASSESSEE IS DIRECTED T O RECONCILE THE STOCK DISCREPANCY. THE AO IS DIRECTED TO VERIFY AND DECI DE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO. 1 TO 7 TAKEN TOGETHER ARE ALLOWED FOR ST ATISTICAL PURPOSE. 6. GROUND NO. 8 RELATES TO THE REJECTION OF THE BOO KS OF ACCOUNT. THE BOOKS OF ACCOUNTS HAVE BEEN REJECTED MAINLY BECAUSE OF THE DISCREPANCIES IN THE STOCK AT THE TIME OF SURVEY. AS WE HAVE RE STORED THIS MATTER BACK TO THE FILES OF THE AO, THE AO IS ALSO DIRECTED TO DECIDE THIS ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO. 8 IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.2508/M/2011 3 7. GROUND NO. 9 RELATES TO THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH. IT IS THE SAY OF THE LD. COUNSEL THAT AT THE TIME OF SURVEY, CASH IN HAND WAS FOUND TO BE AT RS. 2,14,000/- AND THE CASH AS PER BOOKS OF ACCOUNT WAS AROUND 52 LAKHS. AFTER GIVING SET OFF OF THE ALLEGED DIFFERENCE IN STOCK, ADDITION OF RS. 7,11,647/- HAS BEEN MADE AS UNEXPLAINED CASH. THIS ISSUE NEEDS TO BE DECIDED A FRESH AS WE HAVE SET ASIDE THE MATTER RELATING TO THE ALLEGED DISCREPANC Y IN THE STOCK. IT IS THE SAY OF THE LD. COUNSEL THAT THE PHYSICAL CASH IN HA ND WAS MUCH LOWER THAN THE CASH IN HAND AS PER BOOKS THEREFORE, THE D IFFERENCE CANNOT BE TREATED AS UNEXPLAINED CASH. THE AO IS ALSO DIRECT ED TO LOOK INTO THE MATTER FROM THIS ANGLE ALSO. IF THE ACTUAL CASH IN HAND WAS LESSER THAN THE CASH IN HAND AS PER BOOKS, THE ASSESSEE WOULD GET T HE BENEFIT TO CARRY FORWARD THE CASH IN HAND ONLY TO THE EXTENT OF CASH FOUND AT THE TIME OF SURVEY. GROUND NO. 9 IS ALLOWED FOR STATISTICAL PU RPOSE. 8. THE LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED GROUND NO. 10 THEREFORE IT IS DISMISSED AS NOT PRESSED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19.12.2013 . 3 . 2& $ 4 56 19.12.2013 2 . 7 SD/- SD/ (I.P. BANSAL ) (N. K. BILLAIYA) /JUDICIAL MEMBER $ / ACCOUNTANT MEMBER MUMBAI; 5 DATED 19/12 /2013 . . ./ RJ , SR. PS ITA NO.2508/M/2011 4 3 . +/ 8 &/ 3 . +/ 8 &/ 3 . +/ 8 &/ 3 . +/ 8 &/ / COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- 4. 9 / CIT 5. :7 +/ , , / DR, ITAT, MUMBAI 6. 7; < / GUARD FILE. 3 3 3 3 / BY ORDER, , / +/ //TRUE COPY// = == = / > ( > ( > ( > ( (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI