SOLVAY PHARMA INDIA LTD, MUMBAI V. ADDL CIT RG 7(2), MUMBAI

ITA 270/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2964 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 18-09-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 11-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K L KANAK
• Keywords: Corroborative evidences
• Section: 69C; 2; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER / I .T.A. NO.2310/MUM/2014 ( / ASSESSMENT YEAR:2009-10 SHASHANK RAKESH AGRAWAL, B-102, 10 TH FLOOR, ORCHID WOODS, OPP. DIVYA BHASKAR PRESS, PRAHLADNAGAR CORPORATE ROAD, AHMEDABAD, GUJARAT - 380 051 / VS. THE ITO, WARD-11(3)(3), AAYAKAR BHAVAN, MUMBAI-400 020 ./ ./ PAN/GIR NO. : AFWPA 4640M ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SATISH R. MODY / RESPONDENT BY: SHRI K.L. KANAK / DATE OF HEARING : 29.09.2015 ! / DATE OF PRONOUNCEMENT : 07.10.2015 '# / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-2, MUMBAI DATED 4.12.2013 PERTAININ G TO ASSESSMENT YEAR 2009-10. 2. THE GRIEVANCE OF THE ASSESSEE IS TWO-FOLD. THE FIRST GRIEVANCE RELATES TO THE ADDITION OF RS. 10,00,000/- U/S. 68 OF THE ACT AND THE ITA. NO.2310/M/2014 2 SECOND GRIEVANCE OF THE ASSESSEE RELATES TO THE ADD ITION OF RS. 5.63 LAKHS U/S. 68 OF THE ACT. 3. THE ASSESSEE IS AN ADVOCATE BY PROFESSION. RETU RN FOR THE YEAR WAS FILED ON 31.7.2009 DECLARING TOTAL INCOME AT RS . 1,09,320/-. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AS PER CASS DETAILS. 3.1. DURING THE COURSE OF THE SCRUTINY ASSESSMENT P ROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF TOTAL CASH DEPOSITED AMOUNTING TO RS. 13.80 LAKHS IN ABN AMRO BANK, MUMB AI. THE ASSESSEE VIDE HIS LETTER DATED 14.11.2011 SUBMITTE D THE LIST OF PERSONS FROM WHOM CASH IS RECEIVED. THE ASSESSEE W AS ASKED TO GIVE INFORMATION FOR CASH DEPOSITS WITH ADDRESS OF PERSO NS AND SUPPORTING EVIDENCE AND CREDIT WORTHINESS. ON RECE IVING NO PLAUSIBLE REPLY, THE ASSESSING OFFICER TREATED THE CASH DEPOSIT AT RS. 10,00,000/- AS UNEXPLAINED. 3.2. ON FURTHER SCRUTINY, THE AO NOTICED THAT THE A SSESSEE HAS RECEIVED RS. 32,83,481/- AS REIMBURSEMENT OF EXPENS ES FROM G.M.S. USA. THE ASSESSEE FURNISHED THE RELEVANT DETAILS F ROM WHICH THE AO NOTICED THAT ADVANCE OF RS. 5.63 LAKHS HAVE BEEN SH OWN FOR WHICH THE ASSESSEE HAS NEITHER FILED ANY CONFIRMATION LETTER NOR FILED FOREIGN INWARD REMITTANCE CERTIFICATE INDICATING THIS AMOUN T AS ADVANCE. THE SAME WAS TREATED AS UNDISCLOSED INCOME U/S. 69C OF THE ACT. 4. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATT ER BEFORE THE LD. CIT(A) BIUT WITHOUT ANY SUCCESS. HOWEVER, IN S O FAR AS THE ADDITION OF RS. 5.63 LAKHS IS CONCERNED, THE LD. CI T(A) WAS OF THE OPINION THAT THE AO HAS WRONGLY INVOKED SEC. 69C AN D ACCORDINGLY DIRECTED THE AO TO MAKE THIS ADDITION U/S. 68 OF TH E ACT. ITA. NO.2310/M/2014 3 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY SUBM ITTED THAT THE CASE OF THE ASSESSEE COULD NOT BE DEFENDED PROPERLY DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. THE LD. COUN SEL FURTHER STATED THAT THE ASSESSEE HAS GOT EVERY DETAIL. IN SUPPORT OF ITS CLAIM, THE LD. COUNSEL DREW OUR ATTENTION TO THE VARIOUS DOCUMENTA RY EVIDENCES FURNISHED IN THE FORM OF A PAPER BOOK. IT IS THE S AY OF THE LD. COUNSEL THAT EACH AND EVERY DEPOSIT IS EXPLAINED IN THE BOO KS OF ACCOUNT METICULOUSLY AND REGULARLY MAINTAINED BY THE ASSESS EE. THE LD. COUNSEL PLEADED THAT THE ISSUE MAY BE RESTORED TO T HE FILE OF THE AO FOR THE VERIFICATION OF THE DOCUMENTARY EVIDENCES A ND THE BOOKS OF ACCOUNT. 7. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY OB JECTED TO THIS CLAIM OF THE COUNSEL. IT IS THE SAY OF THE LD. DR THAT THE DOCUMENTS WERE TRANSMITTED TO THE AO BY THE LD. CIT(A) CALLIN G FOR REMAND REPORT AND AFTER RECEIVING THE REMAND REPORT, THE L D. CIT(A) HIMSELF HAS VERIFIED THE DETAILS AND CONFIRMED THE ADDITION . THEREFORE, THERE IS NO REASON FOR GIVING ANOTHER OPPORTUNITY TO THE ASSESSEE. 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH CAREFULLY T O THE ORDERS OF THE AUTHORITIES BELOW. IN OUR CONSIDERED OPINION, PRIMA FACIE IT APPEARS THAT THE BOOKS OF ACCOUNTS HAVE NOT BEEN PR OPERLY EXAMINED BY THE REVENUE AUTHORITIES. THEREFORE, IN THE INTE REST OF JUSTICE AND FAIR PLAY, WE RESTORE THE ENTIRE ISSUE TO THE FILE OF THE AO. THE ASSESSEE IS DIRECTED TO PRODUCE WITHOUT FAIL THE BO OKS OF ACCOUNTS ITA. NO.2310/M/2014 4 WITH ALL THE RELEVANT DOCUMENTARY EVIDENCES IN SUPP ORT OF HIS CLAIM. THE AO IS DIRECTED TO VERIFY THE SAME AND DECIDE TH E ISSUE AFRESH AS PER THE PROVISIONS OF THE LAW. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH OCTOBER, 2015 SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) $% ' /JUDICIAL MEMBER ' / ACCOUNTANT MEMBER & ' MUMBAI; (' DATED : 7 TH OCTOBER, 2015 . % . ./ RJ , SR. PS !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+, %%-. , -.! , & ' / DR, ITAT, MUMBAI 6. ,/0 1 / GUARD FILE. $ / BY ORDER, * % //TRUE COPY// % / $& ' (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI