UDAY SINH WALA, MUMBAI V. ITO 19(3)(4), MUMBAI

ITA 3609/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2240 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 01-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Assessee Lawyers: SUBHASH S SHETTY SHRI D B SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER / I .T.A. NO . 3609/MUM/2012 ( / ASSESSMENT YEAR : 2007 - 08 MR. UDAY SINGH WALA, FLAT NO. 304, OCEANIC CO - OP HSG. SOC.LTD., CARTER ROAD, BANDRA (W), MUMBAI - 400 050 / VS. THE ITO - 19(3)(4), PIRAMAL CHAMBERS, PAREL, MUMBAI - 400 012 ./ ./ PAN/GIR NO. : AAFPW 9931K ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SUBHASH S. SHETTY SHRI D.B. SHAH / RESPONDENT BY: SHRI PAWAN KUMAR BEERLA / DATE OF HEARING : 0 2 . 1 2 .2015 / DATE OF PRONOUNCEMENT : 0 2 .12 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 30 , MUMBAI D ATED 22.2.2012 PERTAINING TO ASSESSMENT YEAR 200 7 - 0 8 . 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITIONS MADE BY THE AO U/S. 68 OF THE ACT IN ITA. NO. 3609/M/2012 2 RESPECT OF THE CREDIT ENTRIES IN THE NAME OF MR. JAYANTILAL TRADA AND MRS. ARUNA TRADA. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE RETURN FOR THE YEAR WAS FILED ON 4.10.2009 DECLARING TOTAL INCOME AT RS. 1,53,199/ - . THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT. 3.1. WHILE SCRUTINIZING THE RETURN OF INCOME AND GOING THROUGH THE STATEMENT OF ACCOUNTS, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS RECEIVED LOAN OF RS. 10,99,750/ - FROM MR. JAYANTILAL TRADA AND RS. 1,99,000/ - FROM MRS. ARUNA TRADA. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS/CONFIRMATIONS. THE AS SESSEE FILED NECESSARY CONFIRMATIONS FROM THESE TWO PARTIES. HOWEVER, THE AO OBSERVED THAT THE ASSESSEE HAS NOT FURNISHED THE PAN DETAILS OF THE TWO PARTIES. THE AO FURTHER OBSERVED THAT THE ASSESSEE HAS ALSO NOT FURNISHED THE BANK DETAILS VERIFYING TH E TRANSACTIONS. THE AO FURTHER NOTICED THAT THE ADDRESSES GIVEN FOR THESE TWO PARTIES WERE OF MALAYSIA. THE AO WAS OF THE FIRM BELIEF THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST UPON HIM U/S. 68 OF THE ACT AND MADE AN ADDITION OF RS. 12,98,75 0/ - . 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT SINCE THE LENDERS WERE RESIDENT OF MALAYSIA, THEREFORE, THERE WAS NO QUESTION OF FURNISHING THEIR PAN DETAI LS. THE LD. COUNSEL FURTHER STATED THAT THE LOAN IN THE NAME OF SMT. ARUNA TRADA WAS TAKEN ON 23.9.2005 ITA. NO. 3609/M/2012 3 WHICH COMES IN FINANCIAL YEAR 2005 - 06 RELEVANT TO THE ASSESSMENT YEAR 2006 - 07, THEREFORE THE SAME CANNOT BE ADDED AS UNEXPLAINED CASH CREDIT FOR THE YE AR UNDER CONSIDERATION. IN RESPECT OF THE OTHER LOAN ENTRY IN THE NAME OF MR. JAYANTILAL TRADA, THE LD. COUNSEL FURNISHED THE BANK STATEMENT AND THE COPY OF THE RETURN FILED IN MALAYSIA. IT IS THE SAY OF THE LD. COUNSEL THESE DOCUMENTS COULD NOT BE FUR NISHED BEFORE THE LOWER AUTHORITIES AS THEY WERE NOT AVAILABLE DURING THE COURSE OF THE PROCEEDINGS, THEREFORE, THE SAME MAY BE ADMITTED AS ADDITIONAL EVIDENCE. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY RELIED UPON THE FINDINGS OF THE RE VENUE AUTHORITIES. IT IS THE SAY OF THE LD. DR THAT THE LOWER AUTHORITIES HAD GIVEN SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO FURNISH THE DETAILS THEREFORE THERE IS NO REASON WHY THE ADDITIONAL EVIDENCE SHOULD BE ACCEPTED AT THIS STAGE. 7. WE HAVE HEA RD THE RIVAL CONTENTIONS AND HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD. 7.1. IN SO FAR AS TRANSACTION FOR SMT. ARUNA TARDA IS CONCERNED, THE DOCUMENTARY EVIDENCES CLEARLY SHOW TH AT THE LOAN WAS TAKEN ON 23.9.2005 WHICH IS RELEVANT FOR THE ASSESSMENT YEAR 2006 - 07 AND THEREFORE IT IS AN OPENING BALANCE FOR THE YEAR UNDER CONSIDERATION. IN OUR UNDERSTANDING OF THE LAW, NO ADDITION CAN BE MADE U/S. 68 OF THE ACT IN RESPECT OF OPENIN G BALANCES BROUGHT FORWARD FROM EARLIER YEARS. WE, DIRECT THE AO TO DELETE THE ADDITION OF CREDIT IN THE NAME OF MRS. ARUNA TRADA . ITA. NO. 3609/M/2012 4 7.2. IN SO FAR AS THE LOAN TAKEN FROM MR. JAYANTILAL TRADA IS CONCERNED, IT IS AN UNDISPUTED FACT THAT HE IS A RESIDENT O F MALAYSIA AND THEREFORE HE DOES NOT HAVE ANY PAN. 8. WE HAVE CAREFULLY PERUSED THE ADDITIONAL EVIDENCES FURNISHED BEFORE US. ADMITTEDLY, THE PARTY IS RESIDING IN MALAYSIA AND THEREFORE COULD NOT SEND THE DOCUMENTS DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND ALSO THE PROCEEDINGS BEFORE THE FIRST APPE LLATE AUTHORITY. MOREOVER, THE TRANSACTIONS HAVE BEEN MADE THROUGH BANKING CHANNEL, THEREFORE, THE SAME COULD NOT BE ANTI DATED. HOWEVER, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ASSESSEE IS DIRECTED TO FURNISH THE BANK DETAILS AND THE DETAILS PERTAINING TO THE RETURN FILED IN MALAYSIA IN THE CASE OF MR. JAYANTILAL TRADA. THE AO IS DIRECTED TO VERIFY THE SAME AND DECIDE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 2 ND DECEMBER , 2015 SD/ - SD/ - ( PAWAN SINGH ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 2 ND DECEMBER , 2015 . . ./ RJ , SR. PS ITA. NO. 3609/M/2012 5 / 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