KUSUM K JAIN, MUMBAI V. DCIT CIR 23(1), MUMBAI

ITA 3764/MUM/2011

• Counselvise Citation: 376419914 RSA 2011
• Duration Of Justice: 4 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY PUNGLIA
• Assessee Lawyers: JAYANT BHATT
• Section: 68

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI I.P. BANSAL, (JM) AND B.R.BASKARAN (AM) . . , . . , ./ I.T. A. NO . 3764 /MUM/20 1 1 ( / ASSESSMENT YEAR : 200 5 - 06 ) MS.KUSUM K JAIN, ISHWAR NIWAS, RAMKISHAN WADI, GR.FLOOR, STATION, ROAD, BHANDUP (W), MUMBAI - 400078 / VS. DY.COMMISSIONER OF I NCOME TAX - 23(1), MUMBAI. ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AADPJ9059P / : APPELLANT BY: SHRI J AYANT BHATT / RE SPONDENT BY : SHRI SANJAY PUNGLIA / DATE OF HEARING : 17.6. 2015 / DATE OF PRONOUNCEMENT : 17.6 . 2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 15.3.2011 PASSED BY THE LD.CIT(A) - 3 3 , MUMBAI AND IT RELA TES TO THE ASSESSMENT YEAR 200 5 - 06 . THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.36.80 LAKHS MADE BY AO. 2. WE HEARD PARTIES AND PERUSED THE RECORD. THE AO REOPENED THE ASSESSMENT OF THE YEAR UNDER CONSIDERATIO N UPON RECEIPT OF THE INFORMATION THAT THE ASSESSEE HEREIN HAD ADVANCED A LOAN OF RS.24.00 LAKHS FROM HER PROPRIETARY CONCERN NAMED M/S LOVELY MARBLES TO SHRI ITA NO. 37 64 / M/ 20 11 2 K.M.SURYA (HUSBAND OF ASSESSEE) , PROPRIETOR OF M/S APSARA JEWELLERS AND M/S LATEST MARBLES. IT W AS FURTHER NOTICED THAT THE ASSESSEE HAD ALSO ADVANCED A SUM OF RS.25.30 LAKHS IN HER INDIVIDUAL CAPACITY TO SHRI K.M. SURYA. FURTHER IT WA S SEEN THAT THE ASSESSEE HAS ALSO INTRODUCED A SUM OF RS.13.80 LAKHS AS CAPITAL IN HER PROPRIETARY BUSINESS. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO CALLED FOR SOURCES OF ALL THESE INVESTMENTS. 3. IT APPEARS THAT THE AO WAS SATISFIED WITH THE LOAN GIVEN OUT OF HER PROPRIETARY BUSINESS. WITH REGARD TO THE LOAN GIVEN OUT OF HER PERSONAL ACCOUNT AND THE INVESTMENT MADE IN HER PROPRIETARY BUSINESS, THE ASSESSEE SUBMITTED THAT SHE HAD RECEIVED BACK ADVANCE OF RS.35.00 LAKHS GIVEN BY HER IN THE EARLIER YEARS. THOUGH THE ASSESSEE FILED CONFIRMATION LETTERS OBTAINED FROM THE PARTIES, THE AO REJECTED THE SAME BY HOLDING THAT THEY DID NOT CONTAIN ADDRESS, PAN NO. ETC. FURTHER , AFFIDAVITS FILED WERE ALSO REJECTED BY THE AO BY HOLDING THAT THEY ARE SELF SERVING. FURTHER, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE DETAILS OF DATES OF REFUND OF ADVANCES OF RS.35.00 LAKHS WERE FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDING OF THE ASSESSEE HEREIN AND ALSO DURING THE COURSE OF ASSESSMENT PROCEEDING OF SHRI K.M. SURYA. THE AO NOTICED THAT BOTH THE STATEMENT CONTAINED DIFFERENT DATES. HENCE THE AO DISBELI EVED THE CLAIM OF REFUND OF ADVANCE S GIVEN EARLIER . ACCORDINGLY, THE AO ASSESSED FOLLOWING AMOUNTS AS INCOME OF THE ASSESSEE. LOAN ADVANCED TO K.M. SURYA OUT OF PERSONAL CASH 23,00,000 CAPITAL INTRODUCED IN PROPRIETARY CONCERN - 13,80,00 0 ---------------- 36,80,000 ======== 4. THE LD CIT(A) EXAMINED THE PERSONAL BOOKS OF ASSESSEE, BUT HE ENTERTAINED A PRESUMPTION THAT THE PERSONAL BALANCE SHEET HAS DISCLOSED THE ADVANCE AMOUNT OF R S.35.00 LAKHS FOR THE PAST SEVERAL YEARS AND ALSO ITA NO. 37 64 / M/ 20 11 3 THE YEAR UNDER CONSIDERATION. HENCE, THE LD CIT(A) ALSO DISBELIEVED THE CLAIM OF THE ASSESSEE AND ACCORDINGLY CONFIRMED THE ADDITION. 5. BEFORE US, THE LD A.R DEMONSTRATED THAT THE ASSESSEE HAS BEEN F ILING PERSONAL BALANCE SHEET REGULARLY ALONG WITH HER RETURN OF INCOME AND AND IN AY 2004 - 05, THE BREAK UP DETAILS OF ADVANCE AMOUNT OF RS.35.00 LAKHS WERE DULY GIVEN. THE LD A.R FURTHER SUBMITTED THAT THE PERSONAL BALANCE SHEET AS ON 31.3.2005 DOES NOT D ISCLOSE THE ADVANCE AMOUNT OF RS.35.00 LAKHS AND ACCORDINGLY SUBMITTED THAT THE VIEW ENTERTAINED BY LD CIT(A) WAS WRONG. ACCORDINGLY HE SUBMITTED THAT THE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT PROPERLY APPRECIATED BY THE TAX AUTHORITIES BY CONSIDERING THE PERSONAL BOOKS OF ACCOUNT OF THE ASSESSEE. 6. ON THE CONTRARY, THE LD D.R STRONGLY SUPPORTED THE ORDER OF LD CIT(A). 7. HAVING HEARD RIVAL SUBMISSIONS, WE FIND MERIT IN THE SUBMISSION OF THE ASSESSEE THAT THE FACTUAL ASPECTS HAVE NOT BEEN P ROPERLY APPRECIATED BY THE TAX AUTHORITIES. WE NOTICE THAT THE AO DID NOT REFER TO THE PERSONAL BOOKS/FINANCIAL STATEMENTS AND THE LD CIT(A) HAS ENTERTAINED THE VIEW THAT THE BALANCE SHEET AS ON 31.3.2005 DISCLOSED THE ADVANCE AMOUNT OF RS.35.00 LAKHS. WE NOTICE THAT THE VIEW ENTERTAINED BY THE LD CIT(A) IS CONTRARY TO THE FACTS AVAILABLE ON RECORD. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE OR DER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THIS ISSUE AFRESH BY DULY CONSIDERING THE PERSONAL FINANCIAL STATEMENTS AND/OR BOOKS OF ACCOUNTS OF THE ASSESSEE AND TAKE APPROPRIATE DECISION IN LAW. ITA NO. 37 64 / M/ 20 11 4 8. DURING THE COURSE OF HEARING, THE LD A.R ALSO PLACED RELIANCE ON CERTAIN CASE LAW TO CONTEND THAT THE REFUND OF ADVANCE AMOUNT GIVEN IN EARLIER YEARS WOULD NOT ATTRACT THE PROVISIONS OF SEC. 68 OF THE ACT. SINCE WE HAVE SET ASIDE THE MATTER TO THE F ILE OF THE AO, THE ASSESSEE IS FREE TO BRING THOSE CASE LAWS TO THE NOTICE OF THE ASSESSING OFFICER. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COUR T ON 17TH JUNE , 2015 . 17TH JUNE , 201 5 SD SD ( . . / I.P. BANSAL ) ( . . / B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 17TH JUNE , 201 5 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI