DCIT -19(1), MUMBAI V. HARIRAM S. BISHNOI, MUMBAI

ITA 3136/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0160 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 11-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence; Set aside
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI M. BALAGANESH , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 3136/MUM/2018 ( / ASSESSMENT YEAR: 2012 - 13 ) DCIT - 19(1) ROOM NO.203, 2 ND FLOOR MATRU MANDIR TARDEO ROAD MUMBAI - 400 007 / VS. HARIRAM S BISHNOI PROP: RAJHANSH METAL SYNDICATE OFFICE NO.20, 1 ST FLOOR,MATKA BUILDING 3 RD KUMBHAWADA MUMBAI - 400 004. / . / . PAN/GIR NO. : AFGPB8257B ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 19.06.2019 / DATE OF PRONOUNCEMENT : 26 .06.2019 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 22.02.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 30 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 201 2 - 13 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1 WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF RS. 69,36,000/ - CREDITED TOT EH CAPITAL ACCOUNT OF T HE ASSESSEE IN THE BOOKS OF M/S. ASSESSEE BY : SHRI SATISH R MODY REVENUE BY: SHRI B. YADAGIRI (DR) ITA. NO. 3136 /M/201 8 A.Y. 201 2 - 13 2 RAJHANS METAL SYNDICATE EVEN WHEN THE SOURCES OF FUND IN THE BANK ACCOUNT OF THE ASSESSEE WERE STILL NOT KNOWN AND ADMITTING ADDITIONAL EVIDENCE WITHOUT CALLING FOR THE REMAND REPORT FROM THE ASSESSING OFFICER, THUS VIOLATI NG RULE 46A OF THE INCOME TAX ACT, 1961? 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR AD A NEW GROUND WHICH MAY BE NE CESSARY. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN INCOME FOR AY 2012 - 13 ON 26.09.2012 DECLARING TOTAL INCOME TO THE TUNE OF RS. 40,23,098/ - . THE ASSESSEE IS AN INDIVIDUAL AND RUNS BUSINESS UNDER THE NAME, M/S RAJHANS METAL SY NDICATE. THE ASSESS MENT WAS SELECTED FOR SCRUTINY. THEREFORE, NOTICES UNDER SECTION 143(2) & 142(1) WERE ISSUED AND SERVED UP ON THE ASSESSEE. SHRI. MANGILAL BISHNOI , C.A ATTENDED THE PROCEEDING OF THE ASSESSMENT . O N PERUSAL O F RECORD , IT WAS FOUND THAT THERE WAS AN ADDITION IN THE ASSESSEES CAPITAL ACCOUNT IN SUM OF RS. 69,36,000/ - . THEREFORE , NOTICE WAS GIVEN BUT THE ASSESSEE DID NOT FILED ANY REPLY , THEREFORE , AN AMOUNT OF RS. 69,36,000/ - WAS TREATED AS UNEXPLAINED CASH CREDIT IN THE BOOKS OF ACCOUNTS. THEREFORE, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE U/S 68 OF THE I.T. ACT, 1961. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED IN SUM OF RS. 1,23,16,041/ - . FEELING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE CIT(A) WHO ALLOW ED T HE CLAIM OF THE ASSESSEE. THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 ITA. NO. 3136 /M/201 8 A.Y. 201 2 - 13 3 4 . U NDER THIS ISSUE THE REVENUE HAS CHALLENGED THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE IN CONNECTION WITH THE ADDITION IN SUM OF RS. 69,36,000/ - CREDITED TO THE CAPITAL ACCOUNT. THE LD. REPRESENTATIVE OF THE REVENUE HAS ARGUED THAT THE CIT(A) HAS ADMITTED THE ADDITION AL EVIDENCE WITHOUT CALLING THE REMAND REPORT OF THE AO AND THUS VIOLATED THE RULE 46 A OF THE I.T. ACT, 1961. HENCE, THE CLAIM OF THE ASSESSEE IS LIABLE TO BE DISALLOWED IN THE INTEREST OF THE JUSTICE. ON THE OTHER HAND THE LD. REPRESENTATIVE OF THE ASSESSEE HAS STRONGLY RELIED UPON THE ORDER PASSED BY THE CIT ( A) IN QUESTION. BEFORE GOING ON FURTHER WE DEEM IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD: - 10.4 I HAVE CAREFULLY GONE THROUGH THE SUBMISSIONS OF THE AR. THE ASSESSING OFFICER HAS NOT DEALT WITH THIS MATTER IN DETAIL. IT APPEARS THAT ON 12. 03.2015 THE ASSESSEE WAS ASKED TO EXPLAIN THE CREDIT TO THE ASSESSEES CAPITAL ACCOUNT AMOUNTING TO RS. 69,36,000/ - . THE DATE OF COMPLIANCE WAS 16.03.2015 AND THE ORDER WAS PASSED ON 20.03.2015 IN THE ABSENCE OF SUBMISSION MADE BY THE ASSESSEE. THE A.O. HA S NOT GIVEN DUE CONSIDERATION TO THE ENTIRE FACTS OF THE MATTER. THE AR HAS CORRELATED ALL THE ITEMS APPEARING IN THE LEDGER ACCOUNTS IN THE 2 SETS OF BOOKS OF ACCOUNTS. 5 . ON APPRAISAL THE ABOVE MENTIONED FINDING OF THE CIT ( A), WE NOTICED THAT THE AO CALLED THE EXPLANATION IN CONNECTION WITH THE ADDITION IN SUM OF RS. 69,36,000/ - IN ASSESSEES CAPITAL ACCOUNT. THE ASSESSEE COMPLIED THE DIRECTION OF THE AO BY VIRTUE OF LETTER DATED 16/03/2015 WHICH WAS NOT GONE THROUGH AND DIS CUSS BY THE AO. THE ITA. NO. 3136 /M/201 8 A.Y. 201 2 - 13 4 AO PASSED THE ORDER ON 20/03/2015 STATING THEREIN THAT THE ASSESSE E FAILED TO FILE AN EXPLANATION IN CONNECTION WITH THE QUERY RAISED BY HIM. THE ASSESSEE FURNISHED THE EXPLANATION BEFORE THE CIT ( A) THAT HE WAS MAINTAINING TWO ACCOUNTS VIDE WHICH ONE ACCOUNT WAS MAINTAINED BY THE ASSESSEE AS PROPRIETOR OF M/S RAJHANS METAL SYNDICATE A ND THE OTHER ACCOUNT WAS MAINTAINED BY THE ASSESSEE AS INDIVIDUAL HARIRAM S. BISHNOI. THE TRANSFER WAS ONE ACCOUNT TO ANOTHER WHICH COULD NOT BE ASSESSE D AS INCOME OF THE ASSESSE E . THE AMOUNT SO CREDITED IN THE ASSESSEES ACCOUNTS IN THE BOOK S OF RAJHANS METAL SYNDICATE ARE REFLECTED BY THE WAY OF DEBIT TO RAJHANS METAL SYNDICATE ACCOUNT IN THE BOOK S OF HARIRAM S. BISHNOI. NO DOUBT THIS EXPLANATION HAS BEEN CONSIDERED AND ACCORDINGLY THE CLAIM OF THE ASSESSEE WAS ALLOWED. IT IS ALSO ON RECORD THAT CIT(A) HAS N EITHER CALLED THE REMAND REPORT NO R GIVEN AN OPPORTUNITY TO THE AO TO VERIFY THE CLAIM OF THE ASSESSEE. THUS THE CIT(A) HAS FLOUTED THE RULE 4 6A OF THE I.T. ACT, 1961. ACCORDINGLY, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND RESTORED THE ISSUE BEFORE THE AO TO EXAMINING THE CLAIM OF THE ASSESSEE AFRESH IN THE LIGHT OF THE EVIDENCE ADDUCE BY ASSESSEE BY GIVING AN OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, WE DECIDE THIS ISSUE IN FAVOR OF THE REVENUE AGAINST THE ASSESSEE . ITA. NO. 3136 /M/201 8 A.Y. 201 2 - 13 5 6 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 JUNE, 2019 SD/ - SD/ - ( M. BALAGANESH ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 26 .06.2019 THIRUMALESH / 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