MR. BALA VITHAL KALE, MUMBAI V. ACIT - 2(3), MUMBAI

ITA 2640/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0510 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 28-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2013
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Non passing of speaking order
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2640/MUM./2013 & 4394/MUM/2014 (ASSESSMENT YEAR: 2009 - 10) BALA VITHAL KALE B - 903, WILLOW TOWER VASANT GARDEN SAPNA NAGRI, MULUND(W) MUMBAI 400080 PAN AAKPK4660L . APPELLANT V/S ACIT - 2(3) MUMBAI 400020 . RESPONDENT ASSESSEE BY : SHRI. GYANESHWAR KATARAM REVENUE BY : SHRI. KAILASH KANOJIYA DATE OF HEARING 02.05.2017 DATE OF ORDER - 30 .05.2017 O R D E R PER: SHAMIM YAHYA ITA NO. 2640/MUM/2013 THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LD. CIT - A DATED 29.01.2013 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. BEING AGGRIEVED BY THE ORDER PASSED BY THE LEARNED ASST. COMMISSIONER OF INCOME TAX THE APPELLANT PREFERS THE APPEAL ON THE FOLLOWING AMONGST OTHER GROUNDS WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER. BALA VITHAL KALE ITA NO.2 640/MUM./2013 2 2. THE LEARNED ASST.COMRN OFINCOME TAX /INCOME TAX OFFICER ERRED IN ADDING CASH DEPOSITS OF RS. 533075/ - IN CANARA BANK ALTHOUGH ALL SUPPORTING WERE PRODUCED AS INCOME ALTHOUGH ALL SUPPORTING BILLS VOUCHERS, DETAILS ETC WERE PRODUCED. 3. THE LEARNED ASST.COMM OF INCOME TAX /INCOME TAX OFFICER ERRED IN ADDI NG CASH DEPOSITS OF CASH DEPOSIT IN KNSB RS.264500/ - 4. THE LEARNED ASST.COMM OF INCOME TAX /INCOME TAX OFFICER ERRED IN ADDING CASH DEPOSITS OF CASH DEPOSIT RS. 81000/ - IN HDFC BILLS VOUCHERS, DETAILS ETC WERE PRODUCED. 5. THE LEARNED ASST.COMM OF INCOME TAX /INCOME TAX OFFICER ERRED IN ADDING PUNE HOUSE RENT RS. 25200/ - BILLS VOUCHERS, DETAILS ETC WERE PRODUCED. 6. THE LD. ACIT/INCOME TAX OFFICER ERRED IN ADDING RELIANCE ANTENNA RENT RS.1,38,000/ - BILLS, VOUCHERS, DETAILS ETC WERE PRODUCE. 7. THE APPELLAN T PRAYS THAT THE ORDER PASSED BY THE LD. ITO BE SET ASIDE AND THE BOOK RESULTS OF THE APPELLANT BE ACCEPTED. 8. THE APPELLANT PRAYS FOR LEAVE TO ADD/ALTER/AMEND THE GROUNDS OF APPEAL. 3. IN THE CASE THE A.O MADE THE FOLLOWING ADDITIONS. PAR T IC U L ARS AMOUNT ( RS .) TOTA L I NCOME A S PER RETUR N O F INC OME 4,63 .1 10 A D D : UNEX P L A IN ED CAS H DEP OSITS IN C ANARA B A NK 533075 ADD : UN E X P L A IN ED CASH D E P OSITS IN KNSB 2 6 45 0 0 A D D : UN E X P L A IN ED CAS H DEP OSITS IN HDFC BA NK 810 00 ADD: RENT INC O ME FR O M P UNE HOUSE 2 5 200 ADD : INCOME FR O M R E LI A NCE ANTENNA 138000 1 0 , 41 . 7 75 TOTA L T AXAB L E I NCOME 1 5 , 04 . 885 ROUNDED 15,04,890 BALA VITHAL KALE ITA NO.2 640/MUM./2013 3 4. UPON ASSESSEES APPEAL LD. CIT - A PASSED A NON - SPEAKING LACONIC ORDER AS UNDER: - 1. THE UNNUMBERED GROUNDS OF APPEAL PERTAINS TO: - (I) ADDITION OF CASH DEPOSITS OF: - (A) RS.5,33,075/ - IN CANARA BANK (B) RS.2,64,500/ - IN KNSB (C) RS,81,000/ - IN HDFC BANK (II) RENT INCOME OF PUNE HOUSE RS.25,200/ - (III) INCOME FROM RELIANCE ANTEENA RENT RS.1,38,000/ - 2. THE APPELLANT FAILED TO DISCHARGE ITS ONUS TO ESTABLISH IDENTITY OF LOAN CREDITORS, CAPACITY OF LOAN CREDITOR AND GENUINENESS OF TRANSACTIONS IN THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS IN THE APPEAL PROCEEDINGS. AS THE NATURE AND SOURCE OF CASH DEPOSIT S IN THE BANK ACCOUNTS WERE NOT SATISFACTORILY EXPLAINED, THE AO'S ACTION TO TREAT THE CASH DEPO SIT AS INCOME OF THE ASSESSEE U/ S 68 OF THE INCOME TAX ACT IS FOUND TO BE VALID. 3. THE APPELLANT HAS NOT DISCLOSED RENT RECEIPT FROM HIS HOUSE AT PUNE WHICH WAS DISCOVERED BY THE AO FR OM THE BANK STATEMENT AND THE AO 'S ACTION TO ADD RENT INCOME OF PUNE HOUSE, IS, THEREFORE, FOUND TO BE CORRECT. 4. THE AO DISCOVERED FROM THE BANK SUMMARY SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS BEEN REC EIVING RENT FROM RELIANCE ON ACCOUNT OF ANTENNA INSTALLED AT HIS PREMISES AND BALA VITHAL KALE ITA NO.2 640/MUM./2013 4 THE INCOME WAS NOT OFFERED FOR TAXATION, THE AO'S ACTION TO BRING THE INCOME FROM RELIANCE ANTENNA RENT IS VALID. 2. THE APPEAL IS DISMISSED. 5. A GAINST ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. AT TH E OUTSET WE NOTE THAT LEARNED CI T - A HAS PASSED A LACONIC AND ARE A NON SPEAKING ORDER. HE HAS FURTHER MENTIONED THAT A.O HAS MADE ADDITI ON AND NOT ACCEPTED ASSESSEES EXPL ANATION . SO LD. CIT - A HAS DISMISSED THE APPEAL. THERE IS NO ADJUDICATION BY LD. CIT - A HIMSELF. HONOURABLE A PEX COURT IN THE CASE OF SAHARA FARMS 300 ITR 403 HAS EXPOUNDED THAT EVEN ADMIN ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. ACCOR DING LY IN OUR CONSIDERED OPINION THE ASSESSEE DESERVES A SPEAKING APPELLATE ORDER FROM THE LEARNED CIT - A. HENCE WE REMIT THE ISSUES RAISED IN THIS APPEAL TO THE FILE OF LEARNED CIT - A. LEAR NED CIT - A IS DIRECTED TO PASS A SPEAKING ORDER AFTE R GIVING THE ASSE SSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 4393/MUM/2014 7. THE ABOVE APPEAL BY THE ASSESSEE IS AGAINST THE SAME ORDER OF LD. CIT(A) S MENTIONED IN ITA 2640 DEALT WITH ABOVE. THE GROUNDS OF APPEAL ARE ALSO THE SAME. BUT THERE IS A DELAY OF 440 DAYS IN BALA VITHAL KALE ITA NO.2 640/MUM./2013 5 FILING THIS APPEAL. IT SEEMS THAT THIS APPEAL HAS BEEN FILED AGAIN BY MISTAKE. MOREOVER AS WE HAVE ALREADY DEALT WITH THIS ASSESSEE GRIEVANCE IN ITA NO. 2640 ABOVE, TH IS APPEAL HAS BECOME INFRUCTUOUS. 8. ACCORDINGLY, THIS APPEAL IS BEING DISMISSED AS INFRUCTUOUS. 9. IN THE RESULT, ITA NO.2640/MUM/2013 IS ALLOWED FOR STASTICAL PURPOSES AND ITA NO.4394/MUM/2014 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 .0 5.2017 S D / - S D / - PAWAN SINGH SHAMIM YAHYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 3 0 .0 5 .2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE. BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI