ITO 22(3)(2), NAVI MUMBAI V. MAHESH M MANANI, NAVI MUMBAI

ITA 389/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3942 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 16-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVAJI B GHODE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 389/MUM/2014 (ASSESSMENT YEAR:2010-11) ITO-22(3)-2, MUMBAI APPELLANT VS. MAHESH N. MANANI PLOT NO.181, FLAT NO.201, MATRU ASHISH BUILDING, SECTOR- 28, VASHI, NAVI MUMBAI-400705 RESPONDENT PAN: AALPM5754G /BY APPELLANT : SHRI SHIVAJI B. GHODE, D.R. /BY RESPONDENT : NONE /DATE OF HEARING : 01.08.2016 /DATE OF PRONOUNCEMENT : 04.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-33, MUMBAI, DA TED 31.10.2013 FOR A.Y. 2010-11 ON FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS.90,00,563/- ON ACCOUNT OF SUNDRY LIABILITIES. ITA NO.389/MUM/14 A.Y. 10-11 [ITO VS. MAHESH N. MAN ANI] PAGE 2 2. DURING COURSE OF ASSESSMENT PROCEEDINGS, FROM TH E BALANCE SHEET ASSESSING OFFICER NOTICED THAT SUNDRY LIABILITIES AT THE END OF YEAR WERE SHOWN AT RS.90,00,563/- AS AGAINST LAST YEARS LIABILITIES OF RS.19,69,537/-. AFTER R EJECTING THE SUBMISSION OF ASSESSEE, ASSESSING OFFICER MADE THE IMPUGNED ADDITION, WHICH WAS DELETED BY CIT(A), WHICH WAS DE LETED BY CIT(A) AFTER CALLING FOR REMAND REPORT. 2.1 SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE INTER ALIA SUBMITTING THAT CIT(A) ERRED IN DELETING THE ADDITION OF RS.90,00,563/- ON ACCOUNT OF SUNDRY LIABILITIES. ACCORDINGLY, ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. 2.2 ON THE OTHER HAND, NONE APPEARED ON BEHALF OF A SSESSEE. THEREFORE, WE PROCEED TO DECIDE THE CASE EX PARTE O N THE BASIS OF SUBMISSION OF LD. DEPARTMENTAL REPRESENTATIVE AN D MATERIAL AVAILABLE ON RECORD. 2.3 AFTER GOING THROUGH THE SUBMISSION OF LD. DEPAR TMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD, WE FIND THAT AS STATED ABOVE ASSESSING OFFICER IN COURSE OF ASSESSMENT PROCEEDINGS NOTICED SUNDRY LIABILITIES AT RS.90,00, 563/-. HE ISSUED NOTICE U/S.133(6) OF THE ACT, WHICH WERE NOT RETURNED BACK, BUT THERE WAS NO RESPONSE RECEIVED. THEREFOR E, ASSESSEE WAS ASKED TO PRODUCE THE CREDITORS WITH THEIR RELEV ANT INCOME TAX RECORDS FOR VERIFICATION. HOWEVER, NEITHER THE CREDITOR CAME BEFORE HIM NOR ASSESSEE COULD DO SO, FOR WHICH, LD. AUTHORIZED REPRESENTATIVE HAS GIVEN ELABORATE REASONING IN THE APPEAL ITA NO.389/MUM/14 A.Y. 10-11 [ITO VS. MAHESH N. MAN ANI] PAGE 3 PROCEEDINGS. THEREAFTER, BEFORE CIT(A) IN COURSE O F HEARING OF APPEAL, ASSESSEE FILED CONFIRMATORY LETTERS FROM AL L THE 8 CREDITORS WHICH CONTAINED COMPLETE NAMES, ADDRESSES AND EVEN INCOME TAX PARTICULARS (PAN) OF THE CREDITORS. THU S, THE MATTER REGARDING VERIFICATION OF SUNDRY CREDITORS ALONG WI TH COPIES OF CONFIRMATIONS FROM SUNDRY CREDITORS WAS SENT TO ASS ESSING OFFICER U/S.250(4) OF THE ACT FOR EXAMINATION WITH A DIRECTION TO MAKE ENQUIRIES/INVESTIGATION AS HE THINKS FIT TO AS CERTAIN THE FACTS OF THE MATTER. HOWEVER, IN THESE PROCEEDINGS ASSESSING OFFICER INSTEAD OF MAKING ANY ENQUIRIES INDEPENDENT LY ONCE AGAIN ASKED LD. AUTHORIZED REPRESENTATIVE TO PRODUC E THE CREDITORS WHICH ADMITTEDLY HE COULD NOT DO FOR THE VERY REASONS AS MENTIONED IN THE SUBMISSIONS FILED. FROM THE RE CORDS, IT WAS OBSERVED BY CIT(A) THAT THOUGH IN THE LETTER CA LLING FOR THE REMAND REPORT CIT(A) SPECIFICALLY DIRECTED THE ASSE SSING OFFICER TO MAKE AN ENQUIRY, INVESTIGATION AS WAS NECESSARY AND THEREAFTER, SUBMIT A FACTUAL REPORT. ASSESSING OFF ICER DID NOT DO ANY ENQUIRIES AT HIS END. ON THE OTHER HAND BY FILING CONFIRMATION LETTERS FROM THE CREDITORS WHO WERE IN THE RECORDS OF INCOME TAX DEPARTMENT HAS ESTABLISHED FROM PANS MENTIONED ON CONFIRMATION LETTERS WHICH HAVE NOT BE EN FOUND INCORRECT. IN CASE OF TWO CREDITORS, NAMELY, PRIYA CONSTRUCTION AND HIRJI N MANANI, RETURN OF INCOME WAS ALSO FILED INTER ALIA INCLUDED INCOME RECEIVED FROM ASSESSEE. CONSIDERIN G THE FACTS AND CIRCUMSTANCES, CIT(A) OBSERVED THAT ASSESSEE ON HIS PART HAS PRIMARILY DISCHARGED HIS ONUS CAST UPON HIM TO ESTABLISH THE CREDITS IN HIS BOOKS WHEREAS ASSESSING OFFICER EXCEPT HARPING ON THE POINT THAT ASSESSEE HAS FAILED TO PR ODUCE THEM ITA NO.389/MUM/14 A.Y. 10-11 [ITO VS. MAHESH N. MAN ANI] PAGE 4 ALONG WITH RECORDS HAS NOT BROUGHT ANY MATERIAL TO ESTABLISH THAT THE LIABILITIES REFLECTED WERE FICTIOUS. SO, ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF ASSESSE E MAINLY ON THE GROUND THAT ASSESSEE COULD NOT PRODUCE CREDITOR S. IT IS NOT IN DISPUTE THAT ASSESSEE HAS FILED CONFIRMATION FRO M CREDITORS ALONG WITH PAN NUMBER. THIS VIEW IS FORTIFIED BY T HE DECISION OF HONBLE APEX COURT IN CASE OF CIT VS. ORISSA COR PORATION (P) LTD. [159 ITR 78 (SC)]. IN VIEW OF THIS, CIT(A) WA S JUSTIFIED IN DELETING THE ADDITION. SAME NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, THE APPEAL FILED BY REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 4 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 04/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,