MITESH K JAIN ( ALIAS SHAH), MUMBAI V. ITO 25(2)92), MUMBAI

ITA 3809/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88622 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 03-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: ASEEIM AGARWAL
• Keywords: Unexplained cash credit
• Section: 148; 144

Judgement Text

, L LL LH HH H INCOME TAX APPELLATE TRIBUNAL,MUMBAI - C BENCH. , ! , BEFORE S/SH.VIJAY PAL RAO, JUDICIAL MEM BER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.3809/MUM/2013, ' ' ' ' # # # # / ASSESSMENT YEAR-2006-07 SHRI. MITESH K. JAIN (ALIAS SHAH), A/72, ASHIANA TOWERS, SODAWALA LANE, BORIVALI (W),MUMBAI-92 PAN:ADDPJ8448B VS ITO 25(2)(2 ), C-11, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI-400051 ( $% / APPELLANT) ( &'$% / RESPONDENT) '() '() '() '() * * * * / ASSESSEE BY : SHRI ASEEIM AGARWAL + * / REVENUE BY : SHRI PREMANAND J. ' ' ' ' + ++ + ), ), ), ), / DATE OF HEARING : 03-03-2015 -.# + ), / DATE OF PRONOUNCEMENT : 18-03-2015 ' ' ' '1961 1961 1961 1961 + + + + 254 254 254 254( (( (1 11 1) )) ) )7) )7) )7) )7) 8 8 8 8 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! ' ' ' ' : CHALLENGING THE ORDERS DATED 22.02.2013 OF THE CIT( A)-35,MUMBAI,THE ASSESSEE HAS FILED FOLLOWING GROUNDS OF APPEAL: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW; THE HON'BLE CIT(A) ERRED IN CONFIRMING THE EX-PARTE ORDER PASSED BY THE LEARNED A.O. WITHOUT CONSIDERING THE FACT THAT THE APPELLANT IS UNEDUCATED AND HE COULD NOT ENGAGE A C OUNSEL DURING THE COURSE OF ASSESSMENT PROCEEDINGS DUE TO STRINGENT FINANCIAL CONDITION. F URTHER, THE COUNSEL APPOINTED BY THE APPELLANT DURING THE COURSE OF CIT(A) PROCEEDINGS DID NOT PRE SENT THE CASE PROPERLY AS THE APPELLANT COULD NOT PAY HIS FEES. 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE C!T(A) ERRED IN CONFIRMING ADDITION OF RS.41,24,450/- AS UNEXPLAINE D CASH CREDITS WITHOUT CONSIDERING THE FACT THAT APPELLANT WAS ENGAGED IN GIVING THE ENTRIES TO VARI OUS PERSONS ON WHICH ONLY COMMISSION INCOME HAS BEEN EARNED RANGING FROM 0.25% TO 1.00%. THE APPELLANT CRAVES LEAVE TO ADD, OMIT OR ALTER GR OUNDS OF APPEAL BEFORE OR DURING THE HEARING OF THE APPEAL. 2 .IN THIS CASE DURING THE COURSE OF ASSESSMENT PROCE EDINGS FOR AY.2005-06,IT WAS OBSERVED THAT THE ASSESSEE HAD CASH DEPOSITS IN THE SUBSEQUENT AY OF RS.13.13 LAKHS AS PER THE BANK STATEMENT OBTAINED FROM THE SARASWAT CO-OPERATIVE BANK.AS THE ASSESSEE HAD NOT FILED ANY RETURN FOR THE YEAR UNDER APPEAL. SUBSEQUENTLY THE CASE OF THE ASS ESSEE WAS REOPENED AND AN ORDER U/S. 144 R.W.S. 147 OF THE ACT WAS PASSED ON 29.12.2009 ASSESSING T HE TOTAL INCOME TAT RS. 13.13 LAKHS. THE AO TREATED ENTIRE CASH DEPOSITS IN THE BANK ACCOUNT AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT LATERON THE CASE WAS REOPENED U/S 148 ISSUED ON 26. 03.2012. IN RESPONSE TO THE NOTICE NONE APPEARED BEFORE THE AO. THEREFORE, ASSESSMENT WAS C OMPLETED EX-PARTE BASED ON MATERIALS AVAILABLE ON RECORD. FROM THE BANK STATEMENT OF THE ASSESSEE IN SARSWAT CO-OPERATIVE BANK, THE AO NOTICED THAT DURING THE FINANCIAL YEAR 2006-07 T HE ASSESSEE HAD DEPOSITED RS. 1.35 CRORES IN CHEQUES ON VARIOUS DATES. ACCORDINGLY, HE ASKED THE ASSESSEE TO EXPLAIN THE SOURCES OF THESE DEPOSITS. BUT THE ASSESSEE DID NOT FILE ANY REPLY I N THIS REGARD. FROM THE BANK STATEMENTS THE AO OBSERVED THAT AFTER RECEIPT OF MONEY IN CHEQUES EIT HER THERE WAS A WITHDRAWAL OR TRANSFER TO VARIOUS PARTIES THROUGH CHEQUES, THAT THE ASSESSEE WAS SHOWING COMMISSION INCOME AND INCOME FROM OTHER SOURCES. CONSIDERING THE NATURE OF THE I NCOME OF THE ASSESSEE I.E. COMMISSION INCOME THE AO COMPUTED THE UNDISCLOSED INCOME AS 20% OF TH E TOTAL CHEQUE DEPOSITS I.E. 27.17 LAKHS. 2 ITA NO. 3809/M/2013 MITESH K. JAIN (ALIAS SHAH) 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA). AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ASSESSMENT ORDER THE FAA HELD THAT FROM 07.04.2006 TO 29.03.2007 RS.49.7 5 LAKHS WERE DEPOSITED AND RS.46.36 LAKHS WERE WITHDRAWN FROM THE BANK ACCOUNT OF THE ASSESSE E, THAT THE DEPOSIT INCLUDED THE FIGURE OF RS. 13.13 LAKHS WHICH CONSTITUTED CASH DEPOSITS. CONSID ERING THE SAID AMOUNT THE FAA REDUCED IT TO RS. 36.62 LAKHS. WITH REGARD TO THE OTHER ADDITION OF COMMISSION INCOME THE FAA HELD THAT THE ASSESSEE WAS NOT ABLE TO BRING FOR ANY EVIDENCE THA T HE WAS ENGAGED IN BUSINESS OF COMMISSION AGENCY. THE FAA ESTIMATED THE INCOME OF THE ASSESSE E AT 3% OF THE AMOUNT INVOLVED I.E. RS. 36.62 LAKHS. 4. BEFORE US,THE AUTHORISED REPRESENTATIVE (AR) CONTEN DED THAT DURING THE LIFE TIME OF HIS LATE FATHER HIS FATHER WAS DOING BUSINESS OF PROVIDING A CCOMMODATION ENTRIES THROUGH A BANK ACCOUNT OPENED IN HIS NAME, THAT HE HAD EARNED COMMISSION @ 0.15% TO 0.50%, THAT THE AO AND THE FAA HAD NOT CONSIDERED THE EVIDENCES PRODUCED BY HIM. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT IN THE SIMILAR TYPE OF CASE OF THE MOTHER OF THE ASSESSEE, WE HAVE REMITTED BACK THE MATTER TO THE FILE OF THE AO (ITA NOS.3810 & 3811/M/2013 FOR THE AYS. 200 3-04 & 2005-06). AS THE FACTS AND CIRCUMSTANCES OF BOTH THE CASES ARE ALMOST IDENTICA L THEREFORE, FOLLOWING THOSE ORDERS, IN THE INTEREST OF JUSTICE WE ARE REMITTING BACK THE MATTE R TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THE AO IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY O F HEARING TO THE ASSESSEE AND THE ASSESSEE SHOULD EXTEND FULL COOPERATION TO THE AO. EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE, IN PART. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. 9): '() ; < + 7 8): = + ) >?. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH, MARCH,2015 . 8 + -.# A B' 18 EKPZ , 201 5 . + 7 C SD/- SD/- ( / VIJAY PAL RAO) ( ! ! ! ! / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, B' /DATE: 18.03 . 2015. SK 8 8 8 8 + ++ + &) &) &) &) D #) D #) D #) D #) / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / $% 2. RESPONDENT / &'$% 3. THE CONCERNED CIT(A)/ E F , 4. THE CONCERNED CIT / E F 5. DR C BENCH, ITAT, MUMBAI / G7 &)' L LL LH HH H , . . . 6. GUARD FILE/ 7 9 ') ') ') ') &) &)&) &) //TRUE COPY// 8' / BY ORDER, H / > DY./ASST. REGISTRAR , /ITAT, MUMBAI