HARSHAD DHIRAJLAL SHAH, MUMBAI V. ASST CIT 15(2), MUMBAI

ITA 3039/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5889 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 05-02-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 3039/MUM/2012 (ASSESSMENT YEAR: 2008-09) SHRI HARSHAD DHIRAJLAL SHAH A C I T - 15(2) 79, BHARATI BHAVAN, NEAR KHAR MATRU MANDIR, TARDEO PUPIL SCHOOL, S.V. ROAD VS. MUMBAI KHAR (W), MUMBAI 400052 PAN - AWIPS1399C APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: MS. NEERAJA PRADHAN DATE OF HEARING: 26.03.2014 DATE OF PRONOUNCEMENT: 26.03.2014 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL IS FILED AT THE INSTANCE OF THE ASSESSE E AND IT PERTAINS TO A.Y. 2008-09. AS PER FROM NO. 36 FILED ORIGINALLY T HE APPEAL IS BARRED BY LIMITATION BY 363 DAYS. WHEN THIS WAS POINTED OUT T O THE ASSESSEE A REVISED FORM NO. 36 WAS FILED TO SUBMIT THAT THE DATE OF CO MMUNICATION OF CIT(A)S ORDER WAS WRONGLY SHOWN AS 07.03.2011. IN FACT THE CIT(A) PASSED THE ORDER ON 17.02.2012 AND IT WAS RECEIVED BY THE ASSESSEE O N 07.03.2012 AND THE APPEAL HAVING BEEN FILED ON 03.05.2012 THERE IS NO DELAY IN FILING THE APPEAL. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE WE A RE OF THE VIEW THAT THERE IS NO DELAY IN FILING THE APPEAL AND WE PROCEED ACC ORDINGLY. 2. NOTICE WAS SENT TO THE ASSESSEE BY RPAD INFORMING T HAT THE CASE IS LISTED FOR HEARING ON 05.02.2014. SINCE THE BENCH D ID NOT FUNCTION ON THAT DATE, REGISTRY REFIXED THE CASE FOR HEARING ON 26.0 3.2014 AND ANNOUNCED THE DATE THROUGH NOTICE BOARD. HOWEVER, NONE APPEARED T ODAY FOR THE ASSESSEE. WE, THEREFORE, PROCEED TO DISPOSE OF THE APPEAL EXP ARTE, QUA ASSESSEE. ITA NO. 3039/MUM/2012 SHRI HARSHAD DHIRAJLAL SHAH 2 3. THOUGH THERE ARE FIVE GROUNDS OF APPEAL ANNEXED TO FORM NO. 36, THE ESSENTIAL ISSUE CENTRES ROUND THE ADDITION MADE BY THE AO AND ENHANCED BY THE CIT(A) UNDER SECTION 68 OF THE ACT. 4. WE HAVE HEARD THE LEARNED D.R. IN THIS REGARD AND C AREFULLY PERUSED THE RECORD. 5. ASSESSEE IS A TRADER IN SHARES AND SECURITIES. FOR THE YEAR UNDER CONSIDERATION HE DECLARED TOTAL LOSS OF ` 2.97 CRORES. THOUGH THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT IT WAS TA KEN UP FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) WAS ISSUED ON 17.08.200 9 AND THEREAFTER THE CASE WAS LISTED FOR HEARING FROM TIME TO TIME. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE ASSE SSEE INCURRED EXPENDITURE AND ALSO MADE INVESTMENTS APART FROM CA SH CREDIT, WHICH WAS NOT EXPLAINED. HE ACCORDINGLY MADE AN ADDITION OF ` 8,58,11,391/- REFERABLE TO UNEXPLAINED CASH CREDIT/UNEXPLAINED INVESTMENT A ND UNEXPLAINED EXPENDITURE. 6. AGGRIEVED, ASSESSEE CONTENDED BEFORE THE CIT(A) THA T THE ADDITIONS/ DISALLOWANCES MADE BY THE AO IS NOT IN ACCORDANCE W ITH LAW. WE ARE CONCERNED HEREIN WITH THE ADDITION OF ` 52,40,000/- AND ` 1,09,30,504/- UNDER SECTION 68 OF THE ACT. THE LEARNED CIT(A) OBS ERVED THAT THE INITIAL ONUS IS UPON THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE LENDERS AS WELL AS THE GENUINENESS OF LOANS WHEREAS IN THE INSTANT CASE THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE PROPER IDEN TITY AND CREDITWORTHINESS OF THE LENDERS EXCEPT IN THE CASE OF MS. JALPA K. S HAH. THE ASSESSEE HAD SHOWN LOAN LIABILITY OF ` 74,47,584/- OUT OF WHICH IT HAS SECURED LOAN OF ` 11,93,139/- FROM A BANK AND THE REMAINING AMOUNT OF ` 63,54,446/- WAS REFERABLE TO UNSECURED LOANS. THE ASSESSEE HAS ONLY GIVEN THE NAMES AND ADDRESS OF SOME PERSONS AND EVEN IN THE REMAND PROC EEDINGS THE LEARNED A.R. FAILED TO PRODUCE THE PAN OR CONFIRMATION LETT ERS FROM THESE PARTIES. THEREFORE, EXCEPT THE LOAN OF ` 4.6 LAKHS FROM MS. JALPA K. SHAH THE REST OF THE UNSECURED LOAN WAS TREATED AS UNEXPLAINED. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAS SHOWN SUCH LOANS TO THE EXTEN T OF ` 57 LAKHS OUT OF WHICH ONLY THE LOAN OF JALPA K. SHAH WAS PROVED WIT H THE HELP OF ITA NO. 3039/MUM/2012 SHRI HARSHAD DHIRAJLAL SHAH 3 CONFIRMATION LETTER AND, THEREFORE, FOR THE BALANCE MOUNT OF ` 52,40,000/- PROVISIONS OF SECTION 68 ARE ATTRACTED. HE FURTHER NOTICED THAT THE ASSESSEE HAD SHOWN CURRENT LIABILITY AND CREDITORS OF ` 6.33 CRORES OUT OF WHICH LIABILITIES OF ` 5.12 CRORES IS CONFIRMED BY SHRI VIRAJ SHAH AND AN AMOUNT OF ` 12 LAKHS WAS CONFIRMED BY MS. UMA NAVETIA AND, THER EFORE, FOR THE REST OF THE LIABILITY OF ` 1,09,30,504/- THERE IS NO PROOF WITH REGARD TO GENU INENESS AND CREDITWORTHINESS AND HENCE DESERVES TO BE ADDED UNDER SECTION 68 OF THE ACT. HE ACCORDINGLY DIRECTED THE AO TO ENHANCE THE DECLARED INCOME TO THIS EXTENT. 7. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US ON THESE TWO ADDITIONS. NONE APPEARED ON BEHALF OF THE ASSESSEE AND NO MATE RIAL, WHATSOEVER, WAS FILED BEFORE US TO CONTRADICT THE FINDINGS OF THE C IT(A). AS CAN BE NOTICED FROM THE ORDER PASSED BY THE LEARNED CIT(A), A REMA ND REPORT WAS OBTAINED FROM THE AO WHO IN TURN MIGHT HAVE OBTAINED EXPLANA TION FROM THE ASSESSEE AND PRESUMABLY BECAUSE OF THAT REASON THE ASSESSEE HAS NOT RAISED ANY SPECIFIC GROUND WITH REGARD TO THE VALIDITY OF ENHA NCEMENT OF INCOME EXCEPT MERELY CONTESTING ON MERITS THAT THE CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE BALANCE AMOUNT IS ASSESSABLE TO TAX UNDER SECTI ON 68 OF THE ACT. AS RIGHTLY POINTED OUT BY THE LEARNED D.R. NO MATERIAL , WHATSOEVER, WAS PLACED BEFORE US TO CONTRADICT THE FINDINGS OF THE LEARNED CIT(A) AND ALSO NO MATERIAL WAS FILED TO PROVE THE GENUINENESS AND CRE DITWORTHINESS OF THE CREDITORS. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE CIT(A) AND, THEREFORE, AFFIRM THE ACTION OF THE CIT (A). 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH, 2014. SD/- SD/- (RAJENDRA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 26 TH MARCH, 2014 ITA NO. 3039/MUM/2012 SHRI HARSHAD DHIRAJLAL SHAH 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 26, MUMBAI 4. THE CIT 15, MUMBAI CITY 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.