RAMLAH IDRIS GHADIALY, MUMBAI V. ITO 16(3)(2), MUMBAI

ITA 3350/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4576 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 04-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2013
• Court: TRIBUNAL
• Department Lawyers: SU JIT BANGAR
• Keywords: Opportunity of being heard; Principle of natural justice; Peak credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER I.T.A. NO.3350/M/2013 (ASSESSMENT YEAR: 2008 - 2009 ) MS. RAMLAH IDRIS GHADIALY, 20/24, ASGAR MANZIL, FLAT NO.3A, PAVWALA LANE, MUMBAI 400 004. / VS. ITO - 16 (3)(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. ./ PAN : ABWPC4710G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI NISHIT GANDHI / RESPONDENT BY : SHRI SUJIT BANGAR, DR / DATE OF HEARING : 07.01.2016 / DATE OF PRONOUNCEMENT : 14 .01.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 30.4.2013 IS AGAINST THE ORDER OF THE CIT (A) - 27, MUMBAI DATED 25.2.2013 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL, ASSESSEE RAISED TWO GROUNDS AND THE SAME READ AS UNDER: 1. NATUAL JUSTICE 1.1 THE LD CIT (A) ERRED IN NOT GRANTING PROPER, SUFFICIENT AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE FRAMING THE APPELLANT ORDER. 1.2. IT IS THE SUBMITTED THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLATE ORDER SO FRAMED BE HELD AS BAD AND ILLEGAL, AS (I) THE SAME IS FRAMED IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE; AND (II) THE SAME IS PASSED WITHOUT APPLICATION OF MIND TO THE FACTS AND THE SUBMISSIONS BROUGHT ON RECORD BY THE ASSESSEE. WITHOUT PREJUDICE TO THE ABOVE 2.1. T HE LD CIT (A) ERRED IN CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF RS. 16,47,766/ - BEING CREDIT ENTRIES IN THE BANK ACCOUNT WITHOUT BOMBAY MERCANTILE CO - OPERATIVE BANK LTD BY TREATING THE SAME AS ALLEGED UNEXPLAINED CASH DEPOSITS U/S 68 OF THE IN COME TAX ACT, 1961. 2.2. IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, NO SUCH ADDITION WAS CALLED FOR. 2.3. WITHOUT PREJUDICE TO THE ABOVE, ASSUMING BUT NOT ADMITTING THAT ANY DISALLOWANCE WAS CALLED FOR, IT IS SUBMIT TED THAT THE COMPUTATION OF ADDITION MADE BY THE AO IS ARBITRARY, EXCESSIVE AND NOT IN ACCORDANCE WITH THE LAW. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO GROUND NO.1 AND SUBMITTED THAT THE SAID GROUND NEEDS TO BE REMANDED TO THE FILE OF THE AO 2 AS THE ASSESSMENT AND THE AND THE FIRST APPELLATE AUTHORITY PROCEEDINGS WERE COMPLETED WITHOUT GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WHILE PLEADING FOR REMANDING, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTI ON TO THE BANK STATEMENTS AND SUBMITTED THAT THE AO MADE ADDITION OF RS. 16,47,766/ - ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT WITH BOMBAY MERCANTILE CO - OPERATIVE BANK LTD BEARING THE ACCOUNT NO.50015. NARRATING THE DEPOSITS IN THE SAID BANK ACCOUNT, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE WITHDRAWALS OF CASH AS WELL AS T HE EXPENDITURE, CREDITS AND DEPOSITS AND THE FACTS AND CIRCUMSTANCES OF THIS CASE AND SUBMITTED THAT IT IS A CASE FOR MAKING PEAK CREDITS ADDITIONS AND NOT THE ENTIRE A DDITION OF RS. 16,47,766/ - AS UNEXPLAINED CASH DEPOSITS U/S 68 OF THE ACT. 3. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. AFTER HEARING BOTH THE PARTIES AND CONSIDERING THE ABOVE SUBMISSIONS OF THE LD COUNSEL FOR THE ASSESSEE, WE FIND IT RELEVANT TO REMAND THIS ISSUE TO THE FILE OF THE AO ON THE GROUND OF NATURAL JUSTICE. WE HAVE ALSO NOTICED THAT ASSESSEE MADE SUBMISSIONS TO THE AUTHORITIES BELOW FOR CONSIDERING THE PEAK CREDIT ADDITIONS. BUT, WITHOUT ASSIGNING ANY REASONS OR WITHOUT PASSING ANY SPEAKING ORDER, CIT (A) CONFIRMED THE ADDITIONS, WHICH IN OUR OPINION IS UN SUSTAINABLE IN LAW. THEREFORE, WE ORDER THE ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH AFTER ATTENDING TO ALL THE SUBMISSIONS OF THE ASSESSEE INCLUDING THE REQUIREMENT OF CONSIDERING THE ATTENDANCE OF THE BROTHER OF THE ASSESSEE AND ALSO ATTENDING TO T HE APPROVED MANNER OF ADDING PEAK CREDITS ONLY IN MATTERS WHERE THE ASSESSEE DISCHARGED HIS OWN AND IN MATTERS OF END UTILIZATION OF THE CASH WITHDRAWALS FROM THE BANK ACCOUNT. AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PE R THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 4 T H JANUARY, 2016. S D / - S D / - ( SANDEEP GOSAIN ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 14 .1.2016 3 . . ./ OKK , SR. 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI