ITO 24(1)(1), MUMBAI V. MUSTAK KARIM PRASALIA, MUMBAI

ITA 3863/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100580 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2014
• Court: TRIBUNAL
• Department Lawyers: NEELIMA V NADKARNI
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.3863/M/2014 (AY:2008 - 2009 ) INCOME TAX OFFICER 24 (1) - 1, R.NO.607, C - 13, 6 TH FLOOR, PRATYAKSHKAR BHAVAN, BKC, MUMBAI 51. / VS. SHRI MUSTAK KARIM PRASLA, 204, SULTANABAD BAUG, BEHRAM BAUG, JOGESWARI WEST, MUMBAI 102. ./ PAN : ALPPP5731P ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : MS. NEELIMA V. NADKARNI, DR / RESPONDENT BY : NONE / DATE OF HEARING : 08.07.2015 / DATE OF PRONOUNCEMENT : 12 .08.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 29.5.2014 IS AGAINST THE ORDER OF THE CIT (A) - 34, MUMBAI DATED 31.3.2013 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS TO THE TUNE OF RS. 12,75,840/ - IGNORING THE FACT THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE DOCUMENTARY EVIDENCE THE SOURCE OF THE CASH DEPOSITS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF EXPLAINED CASH DEPOSITS TO THE TUNE OF RS. 12,75,840/ - IGNORING THE FACT SEVERAL OPPORTUNITIES WERE GRANTED TO THE ASSESSEE DURING THE CO URSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE FAILED TO TENDER ANY SATISFACTORY COMPLIANCE. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS TO THE TUNE OF RS. 12,75,840/ - , WHI CH INCLUDES CASH RECEIVED VIDE W ILL PROPERTY, WITHOUT GRANTING ANY OPPORTUNITY TO THE ASSESSING OFFICER FOR VERIFYING THE DETAILS SUBMITTED BY WAY OF REMAND REPORT WHICH IS CLEARLY IN VIOLATION OF RULE 46A(3) OF THE INCO ME TAX RULES, 1962. 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE, WHO IS AN INDIVIDUAL, FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 1,09,208/ - . AO COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT AND DETERMINED THE A SSESSED 2 INCOME AT RS. 14,10,050/ - . IN THE ASSESSMENT, AO MADE CERTAIN ADDITIONS AND AN ADDITION OF RS. 12,75,840/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IS ONE OF THEM, WHICH THE SUBJECT MATTER OF DISPUTE BEFORE THE TRIBUNAL. AGGRIEVED WITH THE DECISION OF THE AO, ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SELLING AND PURCHASING OF CHOCOLATES APART F R O M THAT HE W AS DOING THE SHARE BUSINESS ALSO. ASSESSEE FURTHER SUBMITTED THAT DURING THE YEAR, ASSESSEE AVAILED PERSONAL LOANS FROM ICICI BANK AND CLEARED THE SAME. IN CONNECTION WITH THE CASH DEPOSIT IN DCB AND ICICI BANK, THE ASSESSEE FURNISHED THE CASH FLOW CHAR T AND EXPLAINED THE SOURCES OF CASH BALANCE WHICH INCLUDES THE CASH RECEIVED VIDE WILL PROPERTY ALSO. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , CIT (A) ALLOWED THE APPEAL. AGGRIEVED WITH THE SAID DECISION OF THE CIT (A), REVENUE IS IN APPEAL BEF ORE THE TRIBUNAL. 4. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, LD DR FOR THE REVENUE RELIED ON THE ORDER OF THE AO AND SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS, AO ALLOWED SUFFICIENT TIME AND REASONABLE OPPORTUNITY TO SUBSTANTIATE THE CLAIM OF CA SH DEPOSITS WITH DOCUMENTARY EVIDENCE, BUT THE ASSESSEE FAILED TO FURNISH THE SATISFACTORY EVIDENCE. HE FURTHER SUBMITTED THAT THE SUBMISSION OF THE CASH FLOW CHART AND EXPLANATION OF THE SAME WAS NOT DONE BEFORE THE AO. DURING THE FIRST APPELLATE PROCEE DINGS, THE SAID CASH FLOW CHART AND OTHER DOCUMENTARY EVIDENCE W E R E SUBMITTED BY THE ASSESSEE FOR THE FIRST TIME AND THE CIT (A) A D M I T T E D THE SAME AND ALLOWED THE APPEAL WITHOUT REMANDING THE SAID DOCUMENTS TO AO FOR NECESSARY VERIFICATION AND VERACITY OF THE SAME. THEREFORE, THE SAID DECISION OF THE CIT (A) CANNOT BE APPRECIATED AS THE SAME IS IN VIOLATION OF THE RULE 46A(3) OF THE INCOME TAX RULES. LD DR FURTHER SUBMITTED THAT THE SAID DOCUMENTS SHOULD BE REMANDED TO THE FILE OF THE AO TO VERIFY THE GENUINENESS OF THE SAME. 5. ON THE OTHER HAND , NONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT ITS CASE. 6. I HAVE HEARD THE LD DR FOR THE REVENUE AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE THE TRIBUNAL. T H E R E I S N O N E O N B E H A L F O F T H E A S S E S S E E D E S P I T E T H E N O T I C E . ON PERUSAL OF THE SAID RELEVANT MATERIAL AND ADDITIONAL EVIDENCES , I FIND MERIT IN THE ARGUMENT OF THE LD DR 3 TO REMAND THE ISSUE. CONSIDERING THE SAME, I REMAND THE ISSUE TO THE FILE OF THE AO TO VERIFY THE ADDITIONAL EVIDENCES AND THE VERACITY OF THE SAME AND DECIDE THE ISSUE AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH AUGUST, 2015. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 12 .8 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI