NANJI RANCHHOD PATEL, MUMBAI V. ITO 19(2)(4), MUMBAI

ITA 2861/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2316 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, M UMBAI BEFORE SHRI A.K. GARODIA, AM ./ I.T.A. NO.2861/MUM/2014 ( / ASSESSMENT YEAR: 2009-10) NANJI RANCHHOD PATEL. R. NO. 05, AMAR KUNJ, BESANT ROAD, SANTACRUZ-WEST, MUMBAI-400 054. / VS. COMMISSIONER OF INCOME TAX (APPEAL-18). R. O. 20, 3 RD FLOOR, B-WING, MITTAL COURT, NARIMAN POINT, MUMBAI-400021. ./ ./PAN/GIR NO. AADPK 8375K ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI B.S.BIST / DATE OF HEARING : 30/11/2015 !'# / DATE OF PRONOUNCEMENT : 04.12.2015 $% / O R D E R PER AK GARODIA, A. M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 09/12/2013 OF COMMISSIONER OF INCOME TAX (APPEALS)-18, MUMBAI (HE REINAFTER CALLED AS THE CIT(A) ) FOR ASSESSMENT YEAR 2009-10.THE ASSESSEE H AS RAISED FOLLOWING GROUND OF APPEAL: 1. THE LEARNED ASSESSING OFFICER 12(3)(2), MUMBAI ERRE D IN LAW AND ON FACTS ON RECORD IN ASSESSING THE TOTAL INCOME AT RS.13,57 ,710/- AS AGAINST THE 2 ITA NO. 2861/MUM/2014 (A.Y: 2009-10) NANJI RANCHHOD PATEL. VS.CIT RETURNED INCOME OF RS.1,42,569/- AND THEREBY ERRED IN RAISING THE TOTAL DEMAND OF RS.4,70,640/-. 2. THE INCOME TAX OFFICER HAS ERRED IN LAW AND FACTS O N RECORD IN INVOKING THE PROVISIONS OF U/S 69A OF THE I.T. ACT BY TREATING A S UNEXPLAINED MONEY AND THEREBY ERRED IN MAKING THE ADDITION (ON PROTECTIVE BASIS) OF RS.12,15,138/- BEING THE ACCUMULATED PROFIT OF MR. NANJI RANCCHOD PATEL. 3. THE INCOME TAX OFFICER HAS BRUSHED ASIDE THE APPELL ANTS LEGAL AND FACTUAL SUBMISSIONS, IN THIS REGARD (AS DETAILED IN THE ST ATEMENT OF FACTS), WITHOUT ASSIGNING ANY COGENT REASON FOR THE SAME. THIS LEAD S TO THE CONCLUSION THAT THE ADDITION IS NOT WARRANTED AT ALL. 4. THE HONOURABLE COMMISSIONER INCOME TAX (APPEAL)-30 IS SENDED US NOTICE TO ATTEND THE CASE AND ALSO SUBMISSION ALL THE DOCU MENTARY EVIDENCE TO PROVE GENUINENESS OF THIS TRANSACTION. THUS I AM FA ILED TO PRODUCE THE EVIDENCE BECAUSE OF THERE IS PROBLEM WITH MY ACCOUN TANT. 5. SO I ALSO SEND THE REQUEST LETTER TO HONOURABLE COM MISSIONER INCOME TAX (APPEAL)- 30 ON DATED 16 TH DECEMBER 2013 FOR READMIT MY APPEAL AND SEND THE FRESH DATE FOR SUBMISSION ALL EVIDENCE TO PROVE THE GENUINENESS OF THIS TRANSACTION. 6. SO I REQUEST TO HONOURABLE APPELLANT TRIBUNAL PLEAS E ADMIT MY APPEAL AND IF REMAND BACK TO HONOURABLE COMMISSIONER INCOME TA X (APPEAL)- 30. I PRODUCE ALL THE DOCUMENTARY EVIDENCE IN ONE DATE. T HERE IS NO ISSUE CREATE FROM MYSELF ON THIS MATTER. 2. THIS APPEAL WAS FIXED FOR HEARING EARLIER ALSO O N 25/06/2015 BUT NONE APPEARED ON BEHALF OF ASSESSEE. THE HEARING WAS ADJOURNED TO 27/07/2015 AND THE NOTICE WAS SENT THROUGH RPAD BUT ON THIS DATE ALSO, NONE APPEA RED ON BEHALF OF THE ASSESSEE AND THEREAFTER, THIS APPEAL WAS FIXED ON SEVERAL DATES AND ON THOSE DATES, THE BENCH DID NOT FUNCTION AND THE HEARING WAS ADJOURNED AND FINALLY THE APPEAL WAS FIXED ON 3 ITA NO. 2861/MUM/2014 (A.Y: 2009-10) NANJI RANCHHOD PATEL. VS.CIT 30/11/2015 AND NOTICE WAS SENT TO ASSESSEE BUT ON T HIS DATE ALSO, NONE APPEARED ON BEHALF OF ASSESSEE AND THEREFORE, I PROCEED TO HEAR THE APPEAL EX PARTE QUA THE ASSESSEE. 3. THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A) . 4. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DR OF T HE REVENUE AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. I FIND THAT THE AD DITION MADE BY THE AO OF RS.12,15,138/- IS ON THE BASIS OF AIR REPORT AS PER WHICH, THE ASSESSEE HAS DEPOSITED CASH IN TWO ICICI BANK ACCOUNTS OF RS.10,03,938/- AND RS.2,11,200 TOTALING TO RS.12,15,138/- AND THERE WAS A WRITTEN SUBMISSION F ILED BY THE ASSESSEE BEFORE CIT (A) AS REPRODUCED BY HIM IN PARA NO.2.2 OF APPELLAT E ORDER AS PER WHICH, IT WAS EXPLAINED BY THE ASSESSEE THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF COMMISSION AGENT FOR READYMADE GARMENTS AND THE BUYERS OF THE ASSESSEE WHO ARE ROAD SIDE VENDORS DEPOSITED CASH IN THE ASSESSEES BANK ACCOU NTS WHICH IS WITHDRAWN BY THE ASSESSEE IN CASH FROM THESE BANK ACCOUNTS AND AFTER DEDUCTING THE COMMISSION CHARGES OF THE ASSESSEE, SUPPLIERS OF THE ASSESSEE WERE PAI D IN CASH AND THIS WAS ALSO EXPLAINED BY THE ASSESSEE THAT THESE BANK ACCOUNTS WERE CLOSE D BEFORE 31/03/2009 AND THEREFORE, THESE TWO BANK ACCOUNTS WERE NOT SHOWN IN THE RETUR N OF INCOME FILED BY THE ASSESSEE. REGARDING THESE SUBMISSIONS OF ASSESSEE BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS STATED IN HIS ORDER THAT NO CONFIRMATION OR DOCUMEN TARY EVIDENCE WAS SUBMITTED TO SUBSTANTIATE THESE CLAIMS AND HE HAD BRUSHED ASIDE THE SUBMISSIONS OF THE ASSESSEE BEFORE HIM AND UPHELD THE ASSESSMENT ORDER. IN MY O PINION, THE EXPLANATION GIVEN BY THE ASSESSEE IN WRITTEN SUBMISSIONS FILED BEFORE TH E CIT(A) ARE REASONABLE EXPLANATIONS REGARDING THE CASH DEPOSIT IN THE ASSE SSEESS TWO BANK ACCOUNTS WITH THE ICICI BANK AND ASKING THE ASSESSEE TO OBTAIN CONFIR MATION FROM SUCH ROAD SIDE VENDORS IS NOT PROPER BEFORE BELIEVING THIS EXPLANA TION IN THE FACTS OF THE PRESENT CASE. REGARDING NON DISCLOSE OF THESE TWO BANK ACCOUNTS I N RETURN OF INCOME ALSO, IT WAS 4 ITA NO. 2861/MUM/2014 (A.Y: 2009-10) NANJI RANCHHOD PATEL. VS.CIT EXPLAINED BY THE ASSESSEE THAT THESE TWO BANK ACCOU NTS WERE CLOSED BEFORE 31-03- 2009, AND ,THIS IS NOT A CASE OF ANY BODY THAT HIS CONTENTION IS NOT CORRECT AND THESE TWO BANK ACCOUNTS WAS NOT CLOSED BEFORE 31-03-2009. I ALSO FIND THAT IN WRITTEN SUBMISSIONS, IT WAS SUBMITTED BY THE ASSESSEE BEFOR E THE CIT(A) THAT THE ASSESSEE WAS EARNING COMMISSION INCOME OF 5% TO 7% AND THEREFORE , THE INCOME DECLARED BY THE ASSESSEE UNDER THE HEAD OF INCOME FROM BUSINESS OF RS.71,915/- IS SUFFICIENT TO TAKE CARE OF COMMISSION INCOME ON THIS TRANSACTION OF TH E ASSESSEE WHICH IS REFLECTED IN THESE TWO BANK ACCOUNTS AMOUNTING OF RS.12,15,138/- . HENCE IN MY OPINION, THERE IS NO REASON TO APPROVE THE ACTION OF THE A.O. IN THE FACTS OF THE PRESENT CASE. THE ASSESSEE HAS PROPERLY EXPLAINED THE NATURE AND SOUR CES OF DEPOSITS IN THESE TWO BANK ACCOUNTS WITH ICICI BANK AND THE SAME WAS DISBELIEV ED BY THE LD. CIT(A) ON THIS BASIS THAT THE ASSESSEE COULD NOT FURNISH DOCUMENTA RY EVIDENCE. IN MY CONSIDERED OPINION, IN RESPECT OF SUCH CASH DEPOSIT BY ROAD SI DE VENDORS, ASKING THE ASSESSEE TO OBTAIN CONFIRMATION FROM THOSE ROAD SIDE VENDORS IS NOT PROPER AND REASONABLE IN THE FACTS OF THE PRESENT CASE AND THEREFORE, I DELETE T HE ADDITION MADE BY THE AO AND CONFIRMED BY CIT (A). IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DECEMBER, 2015 SD/- (A.K. GARODIA) $ / ACCOUNTANT MEMBER & ' MUMBAI; ($ DATED : 04.12.2015 PS. ASHWINI GAJAKOSH 5 ITA NO. 2861/MUM/2014 (A.Y: 2009-10) NANJI RANCHHOD PATEL. VS.CIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT - CONCERNED 5. ,-. //01 , 01# , & ' / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, & ' / ITAT, MUMBAI