I.T.O. 22(2)1, NAVI MUMBAI V. KOKILABEN N. PATEL, MUMBAI

ITA 2869/MUM/2012

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7526 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 27-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO 2869 /MUM/2012 ( / ASSESSMENT YEAR: 2007 - 08 ) ITO 22(2 )(1 ) , R. NO. 419, 4 TH FLOOR, TOWER NO. 6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400705. / VS. KOKILABEN N. PATEL 1, SANDEEP PARK, OPP. DEVNAR BUS DEPOT, SION - TROMBAY ROAD, CHEMBUR MUMBAI - 400088 . ./ ./ PAN NO. AA FPP9121L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI M. C. OMI NINGSHEN, DR / RESPONDENTBY : NONE / DATE OF HEARING : 12.04 .1 8 / DATE OF PRONOUNCEMENT : 24.04.18 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 33 , MUMBAI DATED 2 1.02.2012 F OR AY 20 07 - 08 ON THE GROUNDS MENTIONED HEREIN BELOW: - 2 I.T.A. NO. 144 /MUM/201 2 KOKILABEN N. PATEL 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD CIT(A) ERRED IN CONCLUDING THAT THE APPEAL WAS ALLOWED IN RELATION TO GROUND NO 5 OF THE GROUNDS OF APPEAL, THOUGH THE LD. CIT(A) HAS CONCURRED WITH THE FINDINGS OF THE ASSESSING OFFICER IN RESPECT OF THE ADDITION OF RS. 59,38 , 723/ - BEING AMOUNT PAYABLE TO SHRI V.H. PATE L, THEREBY RENDERING THE ORDER OF THE LD CIT(A) INCONSISTENT AND INCOMPATIBLE WITH ITS OWN FINDINGS' 2. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONCLUDING THAT THE APPEAL WAS ALLOWED IN RELATION TO GROUND NO, 5 OF T HE GROUNDS OF APPEAL, THOUGH THE LD. CIT(A) HAS CONCURRED WIT H T HE FINDINGS OF THE ASSESSING OFFICER IN RESPECT OF THE ADDITION OF RS. 20,25.520/ - BEING SUNDRY CREDITORS FOR WHICH NO COGENT EXPLANATION WAS GIVEN BY THE ASSESSEE , THEREBY RENDERING THE ORDER OF THE LD. CIT(A) INCONSISTENT AND INCOMPATIBLE WITH ITS OWN FINDINGS. 3, 'ON THE FACTS A ND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERREDIN HOLDING THAT CREDIT SHOWN AGAINST THE FORMER PARTNER CANNOT BE ADDED U/S. 68 OF THE ACT, DISREGARDING THE PROVISIONS OF THE ACT AND THE FACTS OF THE CASE. 3 I.T.A. NO. 144 /MUM/201 2 KOKILABEN N. PATEL 4 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERREDIN ALLOWING THE GROUND RELATING TO THE ADDITION OF RS. 20,25520/ - PERTAINING TO UNEXPLAINED CREDITS ADDED U/S. 68 OF THE ACT, DISREGARDING THE FACT THAT NO SATISFACTORY EXPLANATION HAS BEEN OFFERED BY THE ASSESSEE IN RESPECT OF THESE CREDITS.' 5. 'THE APPELLANT PRAYS THAT THE O RDER OF THE CIT(A) ON THE ABOVE GROUNDS BEREVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED.' 6. 'THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEWGROUND WHICH MAY BE NECESSARY'. 2. THE B RIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED ON 31ST OF OCTOBER 2007 DECLARING TOTAL INCOME AT RS. 2, 78, 850 AND THE ASSESSMENT WAS COMPLETED U/S 144 OF THE INCOME TAX ACT DETERMINING TOTAL INCOME AT RS. 1, 63, 56, 710 / - ON 21ST OF DECEMBER 2009. AGGRIEVED BY THE ORDER OF AO UNDER SECTION 144 OF THE INCOME TAX A CT, THE ASSESSEE PREFERRED THE APPEAL BEFORE LD. CIT 4 I.T.A. NO. 144 /MUM/201 2 KOKILABEN N. PATEL AND THE LD. CIT (A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE REVENUE HAS F ILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREINABOVE. GROUND NO. 1 TO 5. 3. SINCE A LL THE GROUNDS RAISED BY THE REVENUE ARE INTER - RELATED AND INTER - CONNECTED AND RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN CONCLUDING THAT THE APPEAL WAS ALLOWED IN RELATION TO GROUND NO 5 OF THE GROUNDS OF APPEAL, THOUGH THE LD. CIT(A) HAS CONCURRED WITH THE FINDINGS OF THE ASSESSING OFFICER IN RESPECT OF THE ADDITION OF RS. 59,38,723/ - BEING AMOUNT PAYABLE TO SHRI V.H. P ATEL, THEREBY RENDERING THE ORDER OF THE LD CIT(A) INCONSISTENT AND INC OMPATIBLE WITH ITS OWN FINDINGS. THEREFORE , WE THOUGHT IT FIT TO DECIDE ALL THE ABOVE GROUNDS OF THE PRESENT CONSOLIDATED ORDER. 4. WE HAVE HEARD THE COUNSEL FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS 5 I.T.A. NO. 144 /MUM/201 2 KOKILABEN N. PATEL PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS, W E FIND THAT THE LD. CIT(A) HAS RECORDED CONTRADICTORY FINDINGS IN ITS ORDER. BASIC ALLY THE ADDITION S WERE MADE BY ASSESSING OFFICER ON ACCOUNT OF BUSINESSES RECEIPTS, LOANS, SUNDRY CREDITORS AND THE LD. CIT(A) DURING APPELLATE PROCEEDINGS HAD CATEGORICALLY MENTIONED THAT THERE WAS NO RESOLUTION THE PUBLIC DESIGNATION CERTIFICATE OR SUPP ORTING OF DOCUMENTS AND THE ENTIRE CASE OF THE ASSESSEE IS BASED ON DECORATION WHICH HAS BEEN SUBMITTED BY ONE MR MILLER OPERATIVE, CLAIMED TO BE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SHIMMER THE CADILA MAIN PERTAIN AND THE SAID STATEMENT OF MR MULL MI LLA PATEL HAS NO SIGNIFICANCE AND THEREFORE ASSESSEE FAILED TO SUPPORT THE PLEA THAT ALL THE UNSECURED LOANS AND SUNDRY CREDITORS ARE CARRIED FORWARD FROM THE EARLIER YEARS. WE HAVE CONSIDERED THE FACTS OF THE PRESENT CASE AND ALSO HEARD THE LD. AR AND AFT ER HEARING THE ARGUMENTS AND OF THE RECORDS WE ALSO FIND THAT THERE ARE CONTRADICTORY FINDINGS RECORDED B Y LD. CIT (A) AS ON THE ONE HAND THE LD. CIT(A) APPEAL HAS CATEGORICALLY MENTIONED THAT THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE ARE NOT RELIABLE AND THUS AGREED WITH THE FINDINGS RECORDED BY THE ASSESSING OFFICER. LD. CIT(A) HAS 6 I.T.A. NO. 144 /MUM/201 2 KOKILABEN N. PATEL ALSO CATEGORICALLY MENTIONED THAT THE SUNDRY CREDITORS, THE FIGURES AS REFLECTED TO THE OPENING BALANCE AT ZERO, MEANING THEREBY THAT ALL THE CREDITORS HAVE NEVER BEEN IN EXISTENCE AS THAT OF PROPRIETORSHIP CONCERN FOR THIS, THE ASSESSEE HAS TAKEN A PLEA THAT ADDITIONS CANNOT BE MADE IN SECTION 68 FOR BENCH THE LD. CIT(A) HAD AGREED. THE LD. CIT(A) HAS ON THE ONE SIDE AGREED THE FINDINGS RECORDED BY AO THAT THERE WAS NO LO NGER MISSIONS FROM THE PERTAIN BUT ON THE OTHER HAND HELD THAT SINCE THE AMOUNT PAYABLE TO RETIRED PARTNER AND THE FINAL BENEFITS THEREFORE THE SAME CANNOT BE TAKEN AS UNSECURED L OAN OF SECTION 68 OF I.T. ACT . PLEASE CONTRADICTORY FINDINGS LEADS U S TO B ELI EVE T HAT L D. CIT(A) HAS M ISDIRECTE D ITSELF WHILE REACHING TO THE C ONCLUSION THEREFORE UNDER THESE C IRCUMSTANCES WE ARE OF THE CONSIDERED VIEW T HAT THE FINDINGS RECORDED BY LD. CIT(A) ARE BAD IN L AW AND IS STANDS SET ASIDE . RESULTANTLY, THESE GROUNDS RAISED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES . GROUND NO. 6 5 . THIS GROUND IS GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. 7 I.T.A. NO. 144 /MUM/201 2 KOKILABEN N. PATEL 6 . IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH APRIL , 2018 SD/ - SD/ - ( R . C. SHARMA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 24 . 04 .201 8 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI