SANDEEP SHIVKUMAR TEKRIWAL, BANGALORE V. ASST CIT CEN CIR 38, MUMBAI

ITA 2958/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0353 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 25-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JANARDHANAN
• Assessee Lawyers: M A C SURESH MUTHUKRISHNAN
• Keywords: Gift; Opportunity of being heard
• Section: 80C

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.2958/MUM/2017 : ASST.YEAR 2010-2011 SHRI SANDEEP SHIVAKUMAR TEKRIWAL 3006, 2 ND FLOOR, 12 TH B MAIN HAL 2 ND STAGE BANGALORE 560 038. PAN : ABGPT9885P. / VS. ASST.COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 38 MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI M.A.C.SURESH MUTHUKRISHNAN /RESPONDENT BY : SHRI V.JANARDHANAN / DATE OF HEARING : 05.07.2017 / DATE OF PRONOUNCEMENT : 16.08.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 13.12.2016 AND PERTAINS TO ASSESSMENT YEAR 2010-2011. 2. THE ISSUE RAISED IS THAT THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.7,95,000 IN AS MUCH AS HE HAS FAILED TO APPRECIATE THAT THESE ARE AMOUNTS RECEIVED AS TEMPORARY LOANS FROM THE ASSESSEES RELATIVES AND THE ADDITION MADE BY THE LEARNED AO BY TREATING THE SAME AS UNEXPLAINED INCOME IS MERELY ON SUSPICION AND SURMISE AND DEVOID OF MERIT. 3. THE ASSESSEE HAS FURTHER RAISED FOLLOWING ADDITIONAL GROUND:- WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AO OUGHT TO HAVE ALLOWED THE DEDUCTION U/S 80C OF THE ACT TO THE EXTENT OF ITA NO.2958/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 2 RS.1,00,000/- WHILE COMPUTING THE INCOME OF THE APPELLANT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. IN THIS CASE THE ASSESSING OFFICER MADE DISALLOWANCE OF A SUM OF RS.2,38,128 CLAIMED TO BE REMITTANCE OF US$ 4,975 IN ITS ICICI BANK NRE ACCOUNT FROM HIS OWN ACCOUNT HELD ABROAD. FURTHERMORE, THE ASSESSING OFFICER OBSERVED FOLLOWING FURTHER AMOUNT RECEIVED IN HIS ACCOUNT:- SHRI SANJAY TEKRIWAL RS.2,80,000 SMT. NEETI TEKRIWAL RS.4,05,000 SHRI SANJAY AND SUNIL TEKRIWAL RS.1,10,000 ----------------- RS.7,95,000 ========== 5. THE ASSESSING OFFICER ASKED THE DETAILS OF THE SUM RECEIVED BY THE ASSESSEE. IN ABSENCE OF DETAILS, HE HELD THAT THESE SUMS ARE NOT IN THE NATURE OF NON-TAXABLE GIFTS NOR ANY LOAN / LIABILITY. HENCE HE HELD THE SAME AS INCOME FROM OTHER SOURCES. UPON ASSESSEES APPEAL, THE LEARNED CIT(A) DELETED THE FIRST ADDITION OF RS.2,38,128 HOLDING THAT THE DOCUMENTS REVEALED THAT THE AMOUNT HAS BEEN TRANSFERRED FROM ASSESSEES BANK ACCOUNT IN JAKARTA IN HIS BANK ACCOUNT IN MUMBAI. HOWEVER, AS REGARDS THE ADDITION OF OTHER AMOUNTS, THE LEARNED CIT(A) HELD THAT ASSESSEE HAS NOT PRODUCED ANY CONFIRMATION FROM THESE PARTIES TO SUPPORT THE VIEW THAT THESE REPRESENT LOAN TAKEN FROM THESE PARTIES. HE HELD THAT IN ORDER TO TREAT AS VALID CREDIT ENTRIES FROM THESE PARTIES, IT IS NECESSARY TO FOR THE ASSESSEE TO PROVE THE SOURCE OF CREDIT AND THE CREDITWORTHINESS OF THE PERSONS FROM WHOM THESE LOANS HAVE BEEN TAKEN. HENCE, THE LEARNED CIT(A) AFFIRMED THE ADDITION. ITA NO.2958/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 3 6. AGAINST THIS ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 7. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT COPY OF ICICI BANK ACCOUNT STATEMENT OF THE ASSESSEE WHEREIN THE AFORESAID SUMS RECEIVED ARE DULY REFLECTED IN PAPER BOOK PAGES 35 AND 36. WHEN THE SAID SUMS HAVE BEEN RECEIVED FROM THE CONCERNED PERSONS AND THE SAME ARE REFLECTED IN THE ASSESSEES BANK STATEMENT, THE ASSESSEES CONTENTION THAT THE SAME ARE LOANS, DESERVES DUE CONSIDERATION. HENCE, I DEEM IT APPROPRIATE TO REMIT THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE VERACITY OF THE DOCUMENTS SUBMITTED AND GRAND NECESSARY RELIEF AS REQUIRED AFTER GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD. 8. AS REGARDS THE ISSUE OF ADDITIONAL GROUND WITH REFERENCE TO DEDUCTION U/S 80C IS CONCERNED, IT IS TRITE LAW THAT ASSESSEE IS ENTITLED TO RELIEF AS DULY ACCRUING TO HIM, HENCE THE ASSESSING OFFICER SHALL EXAMINE THIS ASPECT ALSO AND DECIDE AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 16 TH DAY OF AUGUST, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 16 TH AUGUST, 2017. DEVDAS* ITA NO.2958/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.