M/S.CHAUBEY REALTIES (P) LTD, MUMBAI V. ITO WARD 12(1)(4), MUMBAI

ITA 2590/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6543 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Assessee Lawyers: A K SHARMA
• Keywords: Unexplained cash credit
• Section: 143(1); 68

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, ITA NO.2590/MUM/2018 ASSESSMENT YEAR: 2012-13 M/S C HAUBEY REALITIES (P) LTD. 104, 1 ST FLOOR, A-WINGH, RIDDHI SIDDHI COMPLEX, M.G. ROAD, BORIVLI (EAST), MUMBAI - 400066 / VS. INCOME TAX OFFICER - 12(1)(4), ROOM NO.-145-A, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO.AAECC4128L ' # $% ASSESSEE BY SHRI A. K. SHARMA - AR ' # $ / REVENUE BY SHRI CHAITNYA ANJARIA - DR % DATE OF HEARING 10/01/2019 $ / DATE OF ORDER: 10/01/2019 $ % O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 27/02/2018 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, CONFIRMING THE ADDITION MADE BY THE LD. ITA NO.2590/ MUM/2018 M/S CHAUBEY REALITIES (P) LTD. 2 ASSESSING OFFICER TREATING SHARE APPLICATION MONEY OF RS.20 LAKHS AS UNEXPLAINED CASH CREDIT UNDER SECTIO N 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI A. K. SHARMA, CONTENDED THAT ACTUALL Y THE IMPUGNED AMOUNT ARE SHARE APPLICATION MONEY AND NOT UNSECURED LOANS AS HAS BEEN MENTIONED IN THE ASSESSMENT ORDER. ON A QUESTIONING FROM THE BENCH W ITH RESPECT TO MODE OF PAYMENT, IT WAS FAIRLY AGREED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE PAYMENTS/SUBSCRIPTIONS WERE MADE IN CASH BY THE CONCERNED SUBSCRIBERS. THE LD. COUNSEL FURTHER STAT ED THAT THE ASSESSEE IS IN A POSITION TO PRODUCE THE SUBSCRIBERS/LOAN CREDITORS BEFORE THE LD. ASSESSING OFFICER, SO THAT THEY CAN BE EXAMINED TO HIS SATISF ACTION. THE LD. DR, SHRI CHAITANYA ANJARIA, CONTENDED THAT THE WHOLE ISSUE REQUIRES RECONSIDERATION, THOUGH THE AD DITION MADE BY THE LD. ASSESSING OFFICER WAS DEFENDED. ITA NO.2590/ MUM/2018 M/S CHAUBEY REALITIES (P) LTD. 3 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS PRIVATE LIMITED COM PANY ENGAGED IN THE BUSINESS OF CONSTRUCTION/REAL ESTATE , DECLARED INCOME OF RS.31,270/- ON 30/09/2012, WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ACCEP TING THE RETURN OF INCOME. DURING THE RELEVANT PERIOD, T HE ASSESSEE RECEIVED SHARE APPLICATION MONEY/LOAN CRED ITS AMOUNTING TO RS.20 LAKHS, WHICH WAS ADDED UNDER SECTION 68 OF THE ACT ON THE PLEA THAT THE NECESSAR Y DETAILS WERE NOT FURNISHED BY THE ASSESSEE. EVEN OTHERWISE, AS PER SECTION 68 OF THE ACT, ONUS IS UP ON THE ASSESSEE TO PROVE THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS. THE ONUS IS SQUAR ELY UPON THE ASSESSEE. WITHOUT GOING INTO MUCH DELIBERA TION, WE REMAND THIS APPEAL TO THE FILE OF THE LD. ASSESS ING OFFICER TO EXAMINE WHETHER THESE ARE UNSECURED LOAN S OR SHARE APPLICATION MONEY. SECONDLY, THE LD. ASSESSIN G OFFICER IS TO EXAMINE THE NATURE AND SOURCE OF SUCH DEPOSITS AND THEIR GENUINENESS. THE ASSESSEE IS DIR ECTED ITA NO.2590/ MUM/2018 M/S CHAUBEY REALITIES (P) LTD. 4 TO PRODUCE THE CONCERNED SHARE SUBSCRIBERS/LOAN CREDITORS(AS THE CASE MAY BE) BEFORE THE LD. ASSESS ING OFFICER. THE LD. ASSESSING OFFICER IS DIRECTED TO E XAMINE THE FACTUAL MATRIX AND DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEA RD AND TO SUBSTANTIATE ITS CLAIM WITH NECESSARY DOCUMENTARY EVIDENCE, IF ANY. THUS, THE APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/01/2019 SD/- (JOGINDER SINGH) '( ) / VICE PRESIDENT MUMBAI; ' DATED : 10/01/2019 F{X~{T? P.S / #$ $ ' *+,- .$-/, / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. ++ ,-%&. / THE CIT, MUMBAI. ITA NO.2590/ MUM/2018 M/S CHAUBEY REALITIES (P) LTD. 5 4. ++ , / CIT(A)- , MUMBAI 5. /01)#2+%&%#32 / DR, ITAT, MUMBAI 6. 145&/ GUARD FILE. $ / BY ORDER, '% (DY./ASSTT.REGISTRAR) / ITAT, MUMBAI