SHREE FISCAL SERVICES P.LTD, MUMBAI V. ITO 2(3)(2), MUMBAI

ITA 289/MUM/2018

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5558 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 11-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPAIR
• Section: 201; 147; 68; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 289 /MUM/2018 ASSESSMENT Y EAR: 2011 - 12 SHREE FISCAL SERVICES PVT. LTD., 203, ACCORD CLASSIC, 2 ND FLOOR, AAREY ROAD, ABOVE ANUPAM STATIONERY, NEAR STATION, MUMBAI - 400063 PAN: AAFCS2531N VS. THE INCOME TAX OFFICER 2(3)(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NEELKANTH KHANDELWAL (AR) REVENUE BY : SHRI S.K. BEP AIR ( SR. D R) DATE OF HEARING: 14 /08 /201 8 DATE OF PRONOUNCEMENT: 09 / 11 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 01.11.2017 PAS SED BY THE COMMISSIONER OF INCOME TAX (APPEALS) (FOR SHORT THE CIT (A)) - 6 , MUMBAI , FOR THE A S S ESSMENT YEAR 2011 - 12 , WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3 ) READ WITH SECTION 147 O F THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. IN THE PRESENT CASE INFORMATION WAS RECEIVED THAT THE ASSESSEE HAD DEPOSITED RS. 3,05,000/ - IN AXIS BANK ON 04.01.2011. T HE ASSESSEE HAD NOT FILED THE RETURN. ACCORDINGLY, A FTER RECORDING THE REASONS , NO TICE U/S 148 WAS ISSUED TO THE ASSESSEE. IN RESPONSE THEREOF THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING NIL INCOME. FURTHER I N RESPONSE TO NOTICE U/S 143 (2) AND 142 (1), THE AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE APPEARED BEFORE THE AO. THE AR WAS CONFRONTED WITH THE SAID FACTS. T HE ASSESSEE VIDE LETTER DATED 2 IT A NO. 289 MUM/2018 ASSESSMENT YEAR: 2011 - 12 29.08.2016 SUBMITTED THE COPY OF BANK STATEMENTS AND STATED THAT RS. 3,05,000/ - DEPOSITED IN BANK ACCOUNT WAS OUT OF THE CASH WITHDRAWN ON 15.04.2010. THE AO REJECTED THE CONTENTION OF THE ASSESSEE AND MADE ADDITION OF THE SAID AMOUNT TO THE TOTAL INCOME AS UNDISCLOSED INVESTMENT U/S 69 OF THE ACT HOLDING THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE TRANSACTION . IN THE FIRST APPEAL, THE LD. CIT (A) DISMISSED THE APPEA L OF THE ASSESSEE AND CONFIRMED THE ASSESSMENT ORDER PASSED BY THE AO. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND S : - 1. THE INCOME TAX OFFICER - 2(3)(2), MUMBA I (HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER) ERRED IN ISSUING THE IMPUGNED NOTICE UNDER SECTION 148 OF THE ACT AND FRAMING THE CONSEQUENTIAL ASSESSMENT ORDER. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW , THE ASSESSING OFFICER OUGHT NOT TO HAVE ISSUED THE SAID NOTICE UNDER SECTION 148 AND FRAMED THE CONSEQUENT ASSESSMENT ORDER INASMUCH AS THE SAME IS BAD IN LAW AND NEEDS TO BE QUASHED. 2. THE APPELLANTS CONTEND THAT THE CIT (A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS. 3,05,000 AS UNDISCLOSED INCOME UNDER SECTION 68 OF THE ACT ON THE GROUND THAT THE APPELLANTS HAVE FAILED TO ESTABLISH THE GENUINENESS OF THE TRANSACTION. 3. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) OUGHT NOT TO HAVE UPHELD THE IMPUGNED ADDITION AS UNDISCLOSED INCOME UNDER SECTION 68 INASMUCH AS THE MONIES DEPOSITED INTO THEIR BANK ACCOUNT WERE OUT OF THE PREVIOUS CASH WITHDRAWALS MADE BY THE APPEL LANTS, AND HENCE THE IMPUGNED ADDITION REQUIRES TO BE DELETED. 3 IT A NO. 289 MUM/2018 ASSESSMENT YEAR: 2011 - 12 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DOES NOT WANT TO PRESS GROUND NO. 1 OF THE APPEAL. IN VIEW OF THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE A SSESSEE. GROUND NO. 1 OF THE APPEAL IS DISMISSED AS NOT PRESSED. 5. AS REGARDS GROUND NO. 2 AND 3, THE LD. COUNSEL SUBMITTED THAT THE CIT (A) HAS ERRED IN UPHOLDING THE ASSESSING OFFICER IN MAKING ADDITION OF RS. 3,05,000/ - AS UNDISCLOSED INCOME U/S 68 OF THE ACT ON THE GROUND THAT THE APPELLANT HAS FAILED TO ESTABLISHED THE GENUINENESS OF THE TRANSACTION. SINCE, THE DEPOSITS IN QUESTION WERE OUT OF THE PREVIOUS CASH WITHDRAWAL MADE BY THE APPELLANT, THE LD. CIT (A) HAS WRONGLY UPHELD THE ADDITION MADE BY THE AO. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL ON RECORD. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT (A) HAS WRONGLY CONFIRMED THE ADDITION OF RS. 3,05,000/ - MADE BY THE AO. WE NOTICE THAT THE ASSESSEE HAS S UBMITTED BEFORE THE LD. CIT (A) THAT THE RESPECTIVE BANK STATEMENTS ALONG WITH SUBMISSIONS LETTER DATED 29.08.2016 WAS SUBMITTED BEFORE THE ASSESSING OFFICER. THE CONTENTION OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW WAS THAT THE SOURCE OF THE DEPOSITS W AS THE WITHDRAWAL OF AMOUNT FROM THE SAME BANK ACCOUNT. AS PER THE ASSESSEE, THE AMOUNT WAS WITHDRAWN TO DEPOSIT SECURITY AND ADVANCE RENT TO LANDLORD FOR OBTAINING A PREMISE ON RENT. SINCE, THE DEAL COULD NOT BE MATERIALIZED, THE AMOUNT WAS AGAIN DEPOSITE D IN THE SAID ACCOUNT. THE AUTHORITIES BELOW HAVE NOT POINTED OUT ANY COGENT REASON OR EVIDENCE TO DISPROVE OR REBUT THE CONTENTION OF THE ASSESSEE. FURTHER T HE AUTHORITIES BELOW HAVE NOT POINTED OUT THAT THE AMOUNTS WITHDRAWN BY THE ASSESSEE FROM THE SAID ACCOUNT WERE UTILIZED FOR SOME OTHER PURPOSES OR THE SOURCE OF AMOUNTS IN QUESTION WAS DIFFERENT FROM THE WITHDRAWAL (S) MADE BY THE ASSESSEE . UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS OF THE LD. CIT (A) ARE NOT BASED ON TH E EVIDENCE ON RECORD. HENCE, THE IMPUGNED ORDER IS NOT BASED ON ANY COGENT 4 IT A NO. 289 MUM/2018 ASSESSMENT YEAR: 2011 - 12 REASON OR EVIDENCE ON RECORD. WE ACCORDINGLY ALLOW THE SOLE GROUND OF THE APPEAL OF ASSESSEE AND DIRECT THE AO TO DELETE THE ADDITION. IN THE RESULT, APPEAL FILED BY THE ASSESSE E FOR A SSESSMENT YEAR 20 11 - 2012 IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH NOV. , 2018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 09 / 11 / 201 8 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI