AIR INN SALES AND SERVICE, KALYAN V. ITO 3(2), MUMBAI

ITA 2758/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9243 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-12-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 08-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NATASHA MANGAT
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 2758 / MUM/ 20 1 1 ( ASSESSMEN T YEAR : 200 5 - 20 0 6 ) M/S AIR INN SALES & SERVICES, B - 4 - 5 ZOJWALA SHOPPING CENTRE, AGRA ROAD, KALYAN - 421 301 (MAHARASHTRA) VS. ITO - 3 (2), KALYAN (MAHARASHTRA) PAN/GIR NO. : A AJFA 4239 J ( APPELLANT ) .. ( RES PONDENT ) /ASSESSEE BY : MS. NATASHA MANGAT /REVENUE BY : MR. RAKESH RANJAN DATE OF HEARING : 1 3 TH DEC . , 2012 DATE OF PRONOUNCEMENT : 19 TH DEC. , 2012 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 15 - 12 - 2010 OF LEANED CIT(A) - I , THANE RELA TING TO THE ASSESSMENT YEAR 200 5 - 0 6 . 2 . THE ASSESSEE IS OBJECTING THE CONFIRMATION OF THE ADDITION OF RS. 2 LAKHS UNDER SECTION 68 OF THE AC T. 3 . THE ASSESSING OFFICER MADE ADDITION OF RS. 2 LAKHS IN THIS CASE BY OBSERVING THAT SINCE THE ASSESSEE WAS NOT ABLE TO FILE THE NON - CONFIRMATIONS ETC., THEREFORE, HE CAME FORWARD TO ADD THIS AMOUNT IN ITS ITA NO.2758/2011 2 INCOME SUBJECT TO NON - LEVY OF PENALTY ETC. THE REFORE, ADDITION OF RS. 2 LAKH WAS MADE. HOWEVER, THE PENALTY PROCEEDINGS UNDER SECTION 271(1) (C ) WERE ALSO INITIATED BY THE AO. 4 . B EFORE THE LEARNED CIT(A) , DETAILS OF THE LOANS, COPY OF THE CONFIRMATION LETTER AND COPY OF THE RETURN OF THAT PERIOD WAS F ILED ALONG WITH BALANCESHEET. HOWEVER, THE CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION AS IN HIS VIEW WHY THE ASSESSEE HAS SURRENDERED THIS AMOUNT BEFORE THE AO AND NOW HE IS FILING COPY OF CONFIRMATION ETC.. FILING OF RETURN OF THIRD PARTY IS NOT ULTIMA TE PROOF AND THE TRANSACTION THROUGH BANKING CHANNEL CANNOT BE SAID TO BE PROOF OF LOAN. MOREOVER, THE ASSESSEE HAS SURRENDERED BEFORE THE AO . THEREFORE, HE CONFIRMED THE ADDITION. NOW, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 5 . AFTER CONSIDER ING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, I FOUND THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING THE SAME AFRESH . THERE IS NO ESTOPPEL IN THE INCOME TAX PROCEEDING. THEREFORE, IF BY THE ASSESSEE DUE TO SOME REASONS AGREED TO ADD THE INCOME IN ITS HAND AND THEREAFTER IT FINDS THAT THIS INCOME CANNOT BE ASSESSED IN HANDS OF IT, THEREFORE, HE HAS FULL RIGHT TO FILE APPEAL BEFORE THE APPELLATE AUTHORITY. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) , WHO I NSTEAD OF VERIFYING THE DETAILS HAS CONFIRMED THE ORDER OF THE AO BY MAKING UNREASONABLE OBSERVATIONS I.E. FILING OF INCOME TAX RETURN PROOF IS NOT ULTIMATE PROOF AND TRANSACTION S THROUGH BANKING CHANNEL CANNOT BE SAID TO BE PROOF OF ITA NO.2758/2011 3 LOAN. IN MY CONSIDERE D VIEW THEY ARE ONLY THE EVIDENCES WHICH ARE REQUIRED TO BE FILED TO PROVE THE GENUINENESS OF THE TRANSACTION AND IF THE CIT(A) WAS NOT SATISFIED WITH THE DETAILS, HE COULD HAVE VERIFIED THROUGH THE AO OR BY CALLING THE PARTY DIRECTLY BEFORE HIM INSTEAD OF REJECTING THE CLAIM OF THE ASSESSEE. EVEN THE AO HAS NOT ACCEPTED THE CONDITIONAL SURRENDER AS HE HAS INITIATED PENALTY PROCEEDING UNDER SECTION 271(1)(C) . EVIDENCES FILED BEFORE THE CIT(A) THOUGH WERE ADDITIONAL EVIDENCES, WHICH COULD NOT BE FILED BEFORE THE AO. THEREFORE, HE COULD HAVE OBTAINED THE REMAND REPORT FROM THE AO BY GETTING VERIFIED THOSE DETAILS. 6 . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE TO PASS A FRESH ORDER AFTER TAKING INTO CONSIDERATION THE VARIOUS DETAILS FILED BEFORE THE CIT(A ) AND AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I ORDER ACCORDINGLY. 7 . IN THE RESULT, APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH D AY OF DEC. 2012. 2012 ITA NO.2758/2011 4 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 19 / 1 2 / 2012 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY O RDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI