ITO 25(2)(2), MUMBAI V. PAVAN JATINBAI SETH, MUMBAI

ITA 3742/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92694 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PERMANAND J
• Assessee Lawyers: V V MAHENDALE
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , ! ..'(),*!,+ BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.3742/MUM/2013 ASSESSMENT YEAR: 2009-10 ITO-25(2)(2), R.NO.106 PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 51 / VS. SHRI PAVAN JATINBAI SETH 14, SITA NIWAS, PAI NAGAR BORIVALI (W), MUMBAI 400 092 / APPELLANT / RESPONDENT P.A. NO. AGVPS7673L ,- / REVENUE BY SHRI PERMANAND J. ,- / ASSESSEE BY SHRI V.V. MAHENDALE / DATE OF HEARING 02/06/2015 / DATE OF ORDER: 05/06/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 11/02/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, BROADLY CHALLENGING THE DELETION OF THE ADDITION OF AMOUNTING OF RS.12 LAKH ON ACCOUNT OF CASH DEPOSITS ON THE BA SIS OF FRESH INFORMATION SUBMITTED BY THE ASSESSEE DURING FIRST SHRI PAVAN JATINBAI SETH 2 APPELLATE STAGE, THUS, THERE IS VIOLATION OF RULE 4 6A OF THE INCOME TAX RULES AND FURTHER DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN FDRS AMOUNTIN G TO RS.23,87,449/- AND ALSO THE ADDITION OF RS.3,54,942 /- ON ACCOUNT OF UNEXPLAINED DEPOSITS. 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI PREMANAND J., ADVANCED HIS ARGUMENTS WHICH ARE IDEN TICAL TO THE GROUND RAISED BY ASSERTING THAT THE ASSESSEE CONVENIENTLY IGNORED THE ASSESSMENT PROCEEDINGS FOR NOT FILING THE NECESSARY DETAILS, THUS, THE ASSESSING O FFICER WAS DENIED TO INVESTIGATE THE SOURCE OF SUCH DEPOSITS. ON THE OTHER HAND, SHRI V.V. MEHENDALE, LD. COUNSEL FOR TH E ASSESSEE, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY SUBMITTING THAT A WELL REASONED ORDER HAS BEEN PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS), THUS, THERE IS NO INFIRMITY IN THE SAME. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IF THE O BSERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION M ADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY TH E LD. RESPECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND AN ALYZED, WE FIND THAT THE ASSESSEE IS AN INDIVIDUAL DECLARED TO TAL INCOME OF RS.5,11,900/- IN HIS RETURN FILED ON 07 TH JUNE, 2011. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE ASSESSING OFFICER DETERMINED THE T OTAL INCOME AT RS.45,78,610/- IN A ORDER PASSED U/S 143( 3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). ON APP EAL, BEFORE SHRI PAVAN JATINBAI SETH 3 THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE I MPUGNED ADDITIONS WERE DELETED AGAINST WHICH THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS TRIBUNAL. 2.2. WE NOTE THAT BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE TOOK THE PLEA TH AT THE CASH DEPOSITS WAS MADE OUT OF EARLIER CASH ACCRUALS , WHICH WAS GENERATED FROM OTHER SOURCES AND THE CASH WAS WITHDRAWN FROM OTHER BANKS. HOWEVER, WE FIND THAT THE SOURCE OF CASH HAS NOT BEEN SATISFACTORILY EXPLAINE D BY THE ASSESSEE.. ANOTHER PLEA RAISED BY THE ASSESSEE BEF ORE THE LD. CIT(A) IS THAT THE DEPOSITS OF RS.23,87,449/- WERE NOT ENTIRELY OWNED BY THE ASSESSEE HIMSELF BUT SOME OF THE FIXED DEPOSITS WERE HELD BY THE WIFE AS A JOINT HOLDER. HOWEVER, W E NOTE THAT ON THIS ISSUE ALSO THE ASSESSING OFFICER WAS PREVEN TED BY THE EXPLANATION TO GO INTO THE DETAILS OF SUCH CLAIM. SO FAR AS THE UNEXPLAINED DEPOSITS AMOUNTING TO RS.3,54,942/- IS CONCERNED, THE ASSESSING OFFICER WAS CLAIMED TO HAV E OBTAINED BANK STATEMENT. IN PARA 7.2 OF THE IMPUGN ED ORDER, THERE IS FINDING BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT THE DETAILS OF RECEIPT OF BANK STATE MENT WERE PRODUCED, THE CONCLUSION DRAWN BY THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) IS THAT INTEREST INCOME OF RS. 47,990/- WAS ONLY CHARGEABLE TO TAX AND THE BALANCE WAS CAPI TAL RECEIPT WHICH WAS NOT CHARGEABLE. WE NOTE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT GIVEN ANY FINDING THAT HE HIMSELF VERIFIED THE SOURCE OF SUCH DEPOSITS/RECEIPTS AND ARE SATISFACTORILY EXPLAINED BY THE ASSESSEE, THUS, WITHOUT GOING INTO DEEP OF THE MATT ER AT LEAST A CLEAR-CUT CASE OF VIOLATION OF RULE 46A OF THE RU LES AS THE SHRI PAVAN JATINBAI SETH 4 ASSESSING OFFICER HAS BEEN PREVENTED TO PEEP INTO/INVESTIGATING THE SOURCE OF RECEIPTS/DEPOSITS, THEREFORE, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, FAIR PLAY AND ALSO NO PREJUDICE IS CAUSED TO EITHER SIDE, WE REMA ND THIS APPEAL TO THE FILE OF THE LD. ASSESSING OFFICER FOR FRESH ADJUDICATION/EXAMINATION IN ACCORDANCE WITH LAW. TH E ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIAT E HIS CLAIM, CONSEQUENTLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH THE S IDES AT THE CONCLUSION OF THE HEARING ON 02 ND JUNE 2015. SD/- SD/- ( N.K. BILLAIYA ) (JOGIN DER SINGH) *! / ACCOUNTANT MEMBER ! / JUDICIAL MEMBER MUMBAI; !' DATED : 05/06/2015 F{X~{T? P.S / #$ ,0 123241 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. % % & ( ) / THE CIT, MUMBAI. 4. % % & / CIT(A)- , MUMBAI 5. )*+ # , % # - , / DR, ITAT, MUMBAI 6. +. / / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI