DINESH K. YADAV, MUMBAI V. ITO WD 25(3)(2), MUMBAI

ITA 3620/MUM/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0893 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 12-06-2015
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL HIRAWAL
• Section: 80C; 69

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI . . , , BEFORE SHRI R.C. SHARMA , ACCOUNTANT MEMBER . / ITA NO. 3620 / MUM/ 201 5 ( / AS SESSMENT YEAR : 2010 - 1 1 ) SHRI DINESH K. YADAV, C/O. KARNAVAT & CO. 2A KITAB MAHAL, 1 ST FLOOR, 192 DR. D.N. ROAD, MUMBAI - 400 001 .. / APPELLANT V/S ITO - 25 ( 3 )( 2 ) R.NO.306, 3 RD FLOOR, C - 11, PRATYAKSHKAR BHAVAN, BKC, BANDRA (E) MUMBAI - 51 .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER ABKPY2869E APPELLANT BY : SHRI SUNIL HIRAWAL (AR) REVENUE BY : SHRI JAVED AKHTAR, (DR) / DATE OF HEARING 2 8 .0 7 .201 5 / DATE OF ORDER 31.07.2015 / ORDER . . , / PER R.C. SHARMA , A .M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 27.03.2015 , PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) 45 , MUMBAI, AGAINST THE ASSESSMENT ORDER UNDER SECTION DINESH K. YADAV 2 143(3), FOR THE ASSESSM ENT YEAR 2010 - 1 1 . THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL : - 1. ON FACTS AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 45, MUMBAI [THE LEARNED CIT(A )] HAD ERRED IN CONFIRMING THE ADDITION OF RS.8,04,000/ - MADE BY THE LEARNED ASSESSING OFFICER (LAO) U/S.69 OF THE I.T. ACT, 1961. UNDER THE FACTS AND CIRCUMSTANCES OF THE MATTER, SHE OUGHT TO HAVE DELETED THE SAID ADDITION OF RS.8AO,000/ - . 2. ON FACTS AN D IN LAW, THE LEARNED CIT(A) HAD ERRED IN NOT DIRECTING THE LAO TO ALLOW DEDUCTION U/S.80 - C OF RS.1 :00,000/ - AS CLAIMED BY THE APPELLANT. UNDER THE FACTS AND CIRCUMSTANCES OF THE MATTER, SHE OUGHT TO HAVE DIRECTED THE LAO TO ALLOW DEDUCTION OF RS.1 ,00,00 0/ - U/S.80 - C OF THE LT. ACT. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE OR AT, THE TIME OF HEARING OF THE APPEAL, SO AS TO ENABLE THE HON. ITAT TO DECIDE THIS APPEAL ACCORDI NG TO LAW . 2. THE BRIEF FACTS AS CULLED OUT FROM ORDERS OF THE AUTHORITIES BELOW ARE THAT THE ASSESSEE IS ENGAGED IN RETAIL TRADE OF MILK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE AO ASKED THE ASSESSEE TO EXPLA IN THE NATURE AND SOURCE OF THE CAS H DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE AO WAS NOT SATISFIED WITH THE RESPONSE GIVEN BY THE ASSESSEE AND THEREFORE, HE MADE THE ADDITION U/S 69 FOR THE AMOUNT OF CASH DEPOSITS OF RS.8,04,000/ - . SIMILARLY, THE AO MADE ANOTHER ADDITION DISALLOWIN G THE DEDUCTIO N U/S 80C CLAIMED BY ASSESSEE FOR RS.1,00,000/ - FOR WANT OF DOCUMENTARY EVIDENCES. THE ASSESSEE CONTESTED BOTH THE ADDITIONS BEFORE THE LD CIT(A). THE LD. CIT(A) PASSED THE ORDER EX - PARTE QUA THE ASSESSEE. IT IS FURTHER SEEN DINESH K. YADAV 3 THAT THE ORDER P ASSED BY LD. CIT(A) IS NON - SPEAKING AND WITHOUT APPLICATION OF MIND AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE REQUEST ED THAT THE ASSESSEE IS A MILK V ENDER AND HE IS N OT WELL VERSE D WITH THE NITTY - GRITIES OF THE INCOME T AX. HE FU RTHER SUBMITTED THAT THERE WAS LACK OF OPPORTUNITY BOTH ON THE PART OF THE AO AND THE LD. CIT(A) , D U E TO WHICH THIS CASE COULD NOT BE PROPERLY EXPLAIN ED . W ITH RESPECT T O GROUND NO.1, HE TOOK US THROUGH VARI OUS PAGES OF THE PAPER BOOK SHOWING CASH STATEMENT S AND SOURCES OF AMOUNT DEPOSITED IN THE BANK ACCOUNT. THE CASH STATEMENT HAS BEEN PERUSED BY ME IN DETAIL. THE LD. DR HAS OBJECTED TO THE FRI ENDLY LOAN SHOWN IN THE CASH FLOW STATEMENT. I HAVE CAREFULLY AN ALYSED THE CASH STATEMENT . I N MY CONSIDERED OPINION , EXCEPT FRIENDLY LOAN , ALL OTHER ITEMS ARE DUL Y SUBSTANTIATE D AND NOTHING ADVERSE HAS BEEN FOUND ABOUT THEM. THEREFORE, KEEPING IN VIEW, THAT THE FACTS AND CIRCUMSTANCES, IT IS DIRECT ED THAT OUT OF TOTAL ADDITION OF RS.8,04,000/ - , T HE ADDITION ON ACCOUNT OF FRIENDLY LOAN TO THE EXTENT OF RS. 2,44,132/ - (I.E., RS.1,95,065/ - & RS.4 9,067/ - ) IS CONFIRMED AND THE BALANCE AMOUNT OF RS.5,59,868/ - IS DIRECTED TO BE DELETED AND THE APPELLANT GETS RELIEF A CCORDINGLY . THUS, GROUND NO.1 IS PARTLY ALLOWED. 3. IN GROUND NO.2, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. AO IN MAKING ADDITION OF RS.1,00,000/ - BEING THE DEDUCTION CLAIMED U/S DINESH K. YADAV 4 80C OF THE I.T. ACT. THE AO HAD MADE THE DISALLO WANCE BY NOT ACCEPTING THE CLAIM OF THE ASSESSEE. THE ASSESSEE HAS SUBMITTED THAT THE AMOUNT HAS BEEN INCURRED ON ACCOUNT OF STAMP DUTY, REGISTRATION FEE ETC. FOR THE PURPOSE OF TRANSFER OF SUCH HOUSE PROPERTY TO THE HOUSE. THE ASSESSEE HAD CONTENDED THAT AS PER THE COPY OF AGREEMENT, T HE ASSESSEE HAS PAID AGGREGATE AMOUNT OF RS.3 , 66 , 606/ - ON ACCOUNT OF S TAMP DUTY AND REGISTRATION CHARGES. BUT , THE ASSESSEE HAS NEITHER SHOWN ANY EVIDENCE THERETO NOR SOURCE OF IT HAS BEEN EXPLAINED BEFORE US. THEREFORE, IN THE FITNESS OF JUSTICE, IT IS CONS IDERED APPROPRIATE TO SEND THIS ISSUES TO THE FILE OF THE AO. THE ASSESSEE SHALL FURNISHED REQUISITE EVIDENCES BEFORE THE ASSESSING OFFICER WHICH SHALL BE CONSIDERED BY AO BEFORE TAKING ANY APPROPRIATE DECISION IN THIS REGARD . THUS, GROUND NO.2 IS ALLOWED FOR STATISTICAL PURPOSE S . 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT O N DAY OF 31 ST JULY , 2015. SD/ - . . , R.C. SHARMA ACCOUNTANT MEMBER MUMBAI, DATED : 31 .0 7 .2015 PATEL DINESH K. YADAV 5 / COPY OF THE ORDER FORWARDED TO : (1) / THE ASSESSEE ; (2) / THE REVENUE; (3) ( ) / THE CIT(A ) ; (4) / THE CIT, MUMBAI CITY CONCERNED ; (5) , , / THE DR, ITAT, MUMBAI ; (6) / GUARD FILE . / TRUE COPY / BY ORDER / / (DY./ASSTT. REGI STRAR) , / ITAT, MUMBAI /