JIGNESH S. DESAI, MUMBAI V. ITO 25(1)(1), MUMBAI

ITA 2805/MUM/2014

• Counselvise Citation: 280519914 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAVED AKHTAR DR
• Keywords: Unexplained cash credit; Condonation of delay
• Section: 6

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI . . , , BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER . / ITA NO.2805/MUM/2014 ( / ASSESSMENT YEAR : 2009-10 ) SHRI JIGNESH S. DESAI, B-501, MAHAVIR DARSHAN, I.T. ROAD, OPP. RAILWAY CROSSING, DAHISAR (E) MUMBAI-400068 .. / APPELLANT V/S ITO - 2 5 (1)(1) MUMBAI- .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER AACPD9842JP APPELLANT BY : NONE REVENUE BY : SHRI JAVED AKHTAR, (DR) ' # $ % & / DATE OF HEARING 27.07.2015 '( $ % & / DATE OF ORDER 30.07.2015 / ORDER . . , !' / PER R.C. SHARMA, A.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST ORDER DATED 18.02.2014, PASSED BY THE LEARNED COMMISSIONE R (APPEALS)35, MUMBAI, FOR THE ASSESSMENT PASSED UNDER SECTION 143 (3), FOR THE JIGNESH S. DESAI 2 ASSESSMENT YEAR 2004-05. THE ASSESSEE HAS REPRODUCE D FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) HAS ERRED IN TREATING ENTIRE CASH DEPOSIT OF RS.6,98,500/- AS UNEXPLAINED CASH CREDIT U/S.68 AND ADDED TO THE TOTAL INCOME OF THE ASSESEES. 2. THE LEARNED CIT(A) ERRED IN TREATING DIFFERENCE IN C APITAL WITHDRAWALS OF RS.90,087/- AS INCOME TO BE TAXED IN TH E HANDS OF ASSESSEE. 2. THE ASSESSEE HAS CHALLENGED THE ACTION OF THE AO, A S CONFIRMED BY CIT(A), IN MAKING ADDITION OF RS.6,98,500/- ON AC COUNT OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE AND RS.90 ,087/- ON ACCOUNT OF DIFFERENCE IN THE WITHDRAWALS. 3. BEFORE US, NONE-APPEARED ON BEHALF OF THE ASSESSE . IT IS SEEN FROM THE FILE THAT THE LAST NOTICE WAS SENT ON 29.06.20 15 FIXING FOR HEARING FOR 27.07.2015 BY RPAD. THE NOTICE HAS NOT COME BACK UNSERVED. IN THESE CIRCUMSTANCES, IT IS PRESUMED THA T NOTICE HAS BEEN SERVED UPON THE ASSESSEE ON THE ADDRESS GIVEN IN FO RM NO.36. IT IS FURTHER SEEN THAT NO APPEARANCE WAS MADE BY THE ASSESS EE BEFORE THE CIT(A) ALSO. IT IS SEEN FROM THE ORDER PASSED BY CIT (A) THAT THE CIT(A) FIXED THE CASE FOR HEARING ON 16.10.2012, 12.12.201 3, 16.12.2013 & 12.02.2014. HOWEVER, NONE-APPEARED BEFORE THE CIT(A) TO EXPLAIN THE CASE AND SUBSTANTIATE THE CLAIM IN RESPECT OF GROUND S OF APPEAL. THUS, UNDER THESE CIRCUMSTANCES I FIND THAT THERE IS NO OTHE R OPTION BUT TO JIGNESH S. DESAI 3 PROCEED WITHOUT ANY ASSISTANCE ON THE PART OF THE ASS ESSEE. IT IS SEEN FROM THE DEFECT NOTICE ISSUED THAT THERE IS DELAY OF 4 DAYS IN FILING OF APPEAL BY THE ASSESSEE. THIS FACT WAS PUT BEFORE THE LD. DR. HE WAS FAIR ENOUGH TO CONVEY HIS NO OBJECTION IN CONDONATION OF DELAY IN THE INTEREST OF JUSTICE, THE DELAY IS CONDONED AND THE AP PEAL IS ADMITTED. 4. BEFORE US, THE LD. DR SUPPORTED THE ADDITIONS MAD E BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A) AND SUBMI TTED THAT IN FACT NO EVIDENCES HAVE BEEN GIVEN BY THE ASSESSEE EITHER BEFORE THE AO OR BEFORE THE CIT(A). HE FURTHER SUBMITTED THAT IT APPEAR S THAT THE ASSESSEE HAS IN FACT NO EVIDENCES IN ITS POSSESSION AND HE IS NOT IN A POSITION TO SUBSTANTIATE ITS CLAIM AND THEREFORE, THE ASS ESSEE HAS NOT CHOSEN TO APPEAR EITHER BEFORE THE CIT(A) OR BEFORE THE TRIBUNAL. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AND WE HAVE AL SO GONE THROUGH THE STATEMENT OF FACTS FILED BEFORE THE CIT(A) BY THE ASSESSEE ALONG WITH THE APPEAL MEMO. WE HAVE ALSO GONE THROUG H THE STATEMENT OF FACTS FILED BEFORE THE TRIBUNAL ALONG WIT H FORM NO.36. THE STATEMENTS OF FACTS ARE REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE: JIGNESH S. DESAI 4 STATEMENT OF FACTS FILED BEFORE THE CIT(A) THE LEARNED ITO HAS TREATED ENTIRE CASH DEPOSIT OF RS . 698500/- AS UNEXPLAINED CASH CREDIT BY WILLFULLY IGNORING FOLLO WING FACTS A) THE OPENING CASH ON HAND AS ON 01/04/2008 B) THE CASH WITHDRAWALS MADE DURING THE YEAR FROM BANK. THE APPELLANT HAS GIVEN ENTIRE YEARS BANK STATEMENT W HICH CLEARLY SHOWS SEVERAL CASH WITHDRAWALS DURING THE YEAR AND A SSESSES HAS EXPLAINED THAT CASH DEPOSITS IN BANKS WERE OUT OF OP ENING CASH ON. HAND AND CASH WITHDRAWALS MADE DURING THE YEAR. HOW EVER THE LEARNED ITO CHOSE TO IGNORE AND OVERLOOK THAT FACT BROU GHT TO THE NOTICE OF ITO VIDE LETTER DTD. 11/11/11. 2. THE ASSESSES CAPITAL A/C SHOWS DRAWING OF RS. 138842 /- AGAINST RS. 48755/- AS ALLEGED BY THE LEARNED ITO. THEREFORE THESE IS NO QUESTION OF TREATING DIFFERENCE OF RS. 90087/- AS INC OME OF THE ASSESSES ON MISSTATEMENT OF FACTS. STATEMENT OF FACTS FILED BEFORE THE TRIBUNAL. 1. THE LEARNED CIT (APPEAL) HAS TREATED ENTIRE CASH DE POSIT OF RS. 6,98,500/- AS UNEXPLAINED CASH CREDIT BY WILLFU LLY IGNORING FOLLOWING FACTS. A) THE OPENING CASH ON HAND AS ON 01/04/2008 B) THE CASH WITHDRAWALS MADE DURING THE YEAR FROM BA NK. THE APPELLANT HAS GIVEN ENTIRE YEARS BANK STATEMENT WH ICH CLEARLY SHOWS SEVERAL CASH WITHDRAWALS DURING THE YEAR AND AS SESSES HAS EXPLAINED THAT CASH DEPOSITS IN BANKS WERE OUT OF OPEN ING CASH ON HAND AND CASH WITHDRAWALS MADE DURING THE YEAR. 2. THE ASSESSEE CAPITAL A/C SHOWS DRAWINGS OF RS. 1, 38,842/- AGAINST RS. 48,755/- AS ALLEGED BY THE LEARNED CIT. THEREFORE, THERE IS NO QUESTION OF TREATING DIFFERENCE OF RS. 90, 087/- AS INCOME OF THE ASSESSEE ON MISSTATEMENT OF FACTS. 5. IN MY CONSIDERED OPINION, THE PERUSAL OF THESE S TATEMENTS OF FACTS INDICATES THAT THERE IS SOME SUBSTANCE IN THE CLAI M OF THE ASSESSEE AND THE GROUND RAISED BY THE ASSESSEE CANNOT BE DISMISSED WITHOUT VERIFICATION OF THESE AFORESAID FACTS WHICH AR E VERY CRUCIAL FOR APPROPRIATE ADJUDICATION. THEREFORE, KEEPING IN VIEW ALL THE FACTS AND JIGNESH S. DESAI 5 CIRCUMSTANCES AND TO MEET THE ENDS OF JUSTICE, BOTH OF THESE GROUNDS ARE SENT BACK TO THE FILE OF THE ASSESSING OFFICER AND THE LD. AO IS DIRECTED TO GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND LD. AO SHALL ALSO CONSIDER ASSESSEES LETTER DATED 11 .11.2011 AS HAS BEEN MENTIONED BY THE ASSESSEE IN THE AFORESAID STATEME NTS OF FACTS AND SHALL ALSO CONSIDER WHATEVER FURTHER DETAILS AND E VIDENCES ARE PLACED BEFORE THE AO BY ASSESSEE. THE AO IS FURTHER DIRECTED TO ISSUE AND SERVE THE NOTICE, KEEPING IN VIEW THE PROVISIONS OF SECTION 282 OF THE INCOME TAX ACT 1961 READ WITH RELEVANT PROVISIONS O F CODE OF CIVIL PROCEDURE 1908 AS HAS BEEN REFERRED TO THE SAID SECTI ON. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF JULY 2015. SD/- . . , R.C. SHARMA ACCOUNTANT MEMBER MUMBAI, #$ DATED: 30 .07.2015 PATEL JIGNESH S. DESAI 6 $ %)* +*% / COPY OF THE ORDER FORWARDED TO : (1) , % / THE ASSESSEE; (2) - / THE REVENUE; (3) ' .%( ) / THE CIT(A); (4) ' .% / THE CIT, MUMBAI CITY CONCERNED; (5) *12 %3, & 3 , ' # / THE DR, ITAT, MUMBAI; (6) 25 6# / GUARD FILE. *% % / TRUE COPY ' / BY ORDER 7 / 8 - / (DY./ASSTT. REGISTRAR) & 3 , ' # / ITAT, MUMBAI