ITO 23(2)(4), MUMBAI V. LALIKUMAR M . THAKKAR, MUMBAI

ITA 3705/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4559 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHADRESH K DOSHI ITA NO MUM; OTHER TW
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN , AM AND AMARJIT SINGH , JM ./ I.T.A. NO 3705 / MUM/20 11 ( / ASSESSMENT YEA R : 2007 - 08 ) INCOME TAX OFFICE R 23(2)(4), C - 10/205 , 2 ND FLOOR, PRATYAKSHAKAR BHAVAN, BKC, MUMBAI - 400051 / VS. SHRI LALITKUMAR THAKKAR, 1 - A, KAILASH KUN J , OPP. KANARA BANK, RPT ROAD, MULUND (W), MUMBAI - 4000 80 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ITA NO.3959/MUM/2011 ( / ASSESSMENT YEA R : 200 7 - 0 8 ) SHRI LALITKUMAR THAKKAR, 1 - A, KAILASH KUNJ, OPP. KANARA BANK, RPT ROAD, MULUND (W), MUMBAI - 400080 / VS. INCOME TAX OFFICER 23(2)(4), C - 10/205, 2 ND FLOOR, PRATYAKSHAKAR BHAVAN, BKC, MUMBAI - 400051 ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO 1883/ MUM/20 12 ( / ASSESSMENT YEA R : 2008 - 09 ) INCOME TAX OFFICER 23(2)(4), C - 10/205, 2 ND FLOOR, PRATYAKSHAKAR BHAVAN, BKC, MUMBAI - 400051 / VS. SHRI LALITKUMAR THAKKAR, 1 - A, KAILASH KUNJ, OPP. KANARA BANK, RPT ROAD, MULUND (W), MUMBAI - 400080 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : ABWPT3644G / REVENUE BY SHRI MANOJ KUMAR / ASSESSEE BY SHRI BHADRESH K DOSHI ITA NO. 3705 / MUM/ 2011 AND OTHER TWO APPEALS 2 / DATE OF HEARING : 7.1.2016 / DATE OF PRONOUNCEMENT: 7. 1.2016 / O R D E R P ER B R BASKARAN, AM : THE APPEALS FILED BY THE REVENUE FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 AND THE APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2007 - 08 ARE DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) - 11, MUMBAI . 2. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT THE TAX EFFECT INVOLVED IN THE APPEALS FILED BY THE REVENUE IS LESS THAN RS.10 LAKHS IN BOTH THE YEARS . HE SUBMITTED THAT THE AMOUNT OF INCOME IN DISPUTE IS RS.15,53,560/ - FOR THE ASSESSMENT YEAR 2007 - 08 AND RS.17,25,450/ - FOR THE ASS ESSMENT YEAR 2008 - 09. ACCORDINGLY, HE SUBMITTED THAT THESE APPEAL S OF THE REVENUE ARE LIABLE TO BE DISMISSED, IN VIEW OF THE CBDT CIRCULAR NO.21/2015 DATED 10TH DECEMBER, 2015 . THE LD. DR AGREED THAT THE FACTS PRESENTED BY THE LD. AR . 3. HAVING REGARD T O THE CIRCULAR NO.21/2015, DATED 10.12.2015 ISSUED BY THE CBDT DIRECTING THE AO NOT TO PROSECUTE THE APPEALS FILED BY THE REVENUE BEFORE THE TRIBUNAL, IN WHICH THE TAX EFFECT IS LESS THAN RS.10 LAKHS, THESE APPEALS FILED BY THE REVENUE ARE LIABLE TO BE DI SMISSED. ACCORDINGLY, WE DISMISS THE SAME . 4 . IN THE APPEAL BEARING ITA NO.3959/MUM/2011 FILED BY THE ASSESSEE, THE ONLY ISSUE URGED BY THE ASSESSEE IS WITH REGARD TO ADDITION OF RS.16,29,805/ - MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) ON PROTECT IVE BASIS. ITA NO. 3705 / MUM/ 2011 AND OTHER TWO APPEALS 3 5 . WE HEARD THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. THE AO RECEIVED AIR INFO RMATION TO THE EFFECT THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.2.03 CRORES IN AGGREGATE BY WAY OF CASH IN THE BANK ACCOUNT MAINTAINED WITH AXIS BANK . HOW EVER, THE ASSESSEE SUBMITTED THAT HE HAS NOT DEPOSITED ANY SUCH MONEY IN ANY BANK ACCOUNT BELONGING TO HIM. IN THAT REGARD, A LETTER WRITTEN BY THE AXIS BANK DATED 26.12.2009 STATING THAT THERE IS NO SUCH BANK ACCOUNT WAS PRODUCED BEFORE THE AO . THOUGH TH E AO TOOK THE NOTE OF THE LETTER WRITTEN BY THE BANK, YET HE ESTIMATED INCOME OUT OF THE CASH DEPOSITS OF RS.2.03 CRORES AT THE RATE OF 8% AND ASSESSED THE SAME ON PROTECTIVE BASIS WITH THE REASONING THAT FURTHER CLARIFICATION IS REQUIRED FRO M AXIS BANK. 6. THE L D. CIT(A) NOTICED THAT THE PAN MENT I O NED IN THE AIR INFORMATION TALLIED WITH PAN OF THE ASSESSEE. HENCE, THE LD. CIT(A) TOOK THE VIEW THAT THE ONUS IS CASTED UPON THE ASSESSEE TO REBUT THE EVIDENCE PRODUCED BY THE AO AND ACCORDINGLY, HE C ONFIRMED THE INCOME OF RS.16,29,805/ - ESTIMATED BY THE AO. 7. THE LD. C OUNSEL APPEARING FOR THE ASSESSEE INVITED OUR ATTENTION TO PAGE 4 OF THE PAPER BOOK , WHICH CONTAINS LETTER DATED 22.3.2010 WRITTEN BY AXIS BANK TO THE INCOME TAX OFFICER , AND SUBMITTE D THAT THE BANK HAS CERTIFIED THE AGGREGATE AMOUNT OF CASH DEPOSITS MADE IN THE BANK S ACCOUNT MAINTAINED BY T HE ASSESSEE SINGLY OR JOINTLY. FURTHER, THE BANK HAS ALSO CONFIRMED THAT INFORMATION RELATING TO THE DEPOSITS OF RS.2.03 CRORES WAS ERRONEOUSLY RE PORTED DUE TO SOME TECHNICAL ERROR. ACCORDINGLY, HE SUBMITTED THAT THE AIR INFORMATION RECEIVED BY THE AO WITH REGARD TO THE DEPOSITS OF RS.2.03 CRORES HAS BEEN EST ABLISH ED TO BE NOT CORRECT BY THE LETTER FURNISHED BY THE AXIS BANK. ACCORDINGLY, HE SUBMI TTED THAT THE ITA NO. 3705 / MUM/ 2011 AND OTHER TWO APPEALS 4 INCOME OF RS.16,29,805/ - ESTIMATED BY THE AO ON THE ABOVE SAID DEPOSIT AMOUNT OF RS.2.03 CRORES IS LIABLE TO BE DELETED. 8 . THE LD. DR, UPON CONSIDERING THE LETTER DATED 22.3.2010 ISSUED BY THE AXIS BANK, DID NOT OBJECT TO THE CONTENTIONS OF THE LD.AR. 9. WE HAVE HEARD RIVAL CONTENTIONS ON THIS ISSUE AND PERUSED THE RECORD. ADMITTEDLY, THE ASSESSING OFFICER HAS ESTIMATED THE INCOME OF RS.16,29.805/ - ON THE ALLEGED DEPOSIT OF RS.2.03 CRORES ON PROTECTIVE BASIS, SINCE HE FELT THAT THE LET TER DATED 26.12.2009 WRITTEN BY THE AXIS BANK STATING THAT THERE IS NO SUCH BANK ACCOUNT, REQUIRES FURTHER CLARIFICATION. FROM THE PAPER BOOK, WE NOTICE THAT THE ASSESSEE HAS RAISED A QUERY UNDER RTI ACT TO FIND OUT AS TO WHETHER THE ASSESSING OFFICER DID MAKE ANY ENQUIRY TO CLARIFY THE MATTER. HOWEVER, IT WAS REPLIED THAT THE ASSESSING OFFICER HAS PLACED HIS RELIANCE ON THE LETTER DATED 26.12.2009 REFERRED ABOVE AND IT WAS FURTHER STATED THAT THE AXIS BANK HAS NEGATED THE CASH DEPOSIT IN THE BANK ACCOUNT , MEANING THEREBY, THE ASSESSING OFFICER DID MAKE FURTHER ENQUIRIES. IN RESPONSE TO THE QUERY RAISED UNDER THE RTI ACT, IT APPEARS THAT THE COPY OF LETTER DATED MARCH 22, 2010 WRITTEN BY AXIS BANK TO THE ASSESSING OFFICER WAS GIVEN , WHEREIN THE AXIS BANK HAS CLEARLY STATED THAT THE INFORMATION GIVEN IN ANNUAL INFORMATION RETURN WAS ERRONEOUSLY REPORTED AS RS.2.03 CRORES DUE TO SOME TECHNICAL ERROR. THUS, IT IS SEEN THAT THE ASSESSING OFFICER HAS CLARIFIED THE FACT RELATING TO ERRONEOUS REPORTING OF T HE INFORMATION RELATING TO THE DEPOSIT OF RS.2.03 CRORES. UNDER THESE OF FACTS, THE PROTECTIVE ADDITION OF RS.16,29,805/ - MADE BY THE AO IS LIABLE TO BE DELETED. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE T HE ADDITION CITED ABOVE. ITA NO. 3705 / MUM/ 2011 AND OTHER TWO APPEALS 5 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 7TH JAN, 2016 . 7 TH JAN, 2016 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 7TH JAN, 2016 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI