ACIT CEN CIR 20, MUMBAI V. AMARJEET D. NAGI, MUMBAI

ITA 4018/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4277 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 07-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SURINDER JIT SINGH
• Keywords: Unexplained cash credit; Search and seizure
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 4011/MUM/2012 ASSESSMENT YEAR : 2004-05 ITA NO. 4018/MUM/2012 ASSESSMENT YEAR : 2006-07 DY. CIT - CC - 20 ROOM NO.402, 4 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. VS. SHRI AMARJEET D. NAGI 5-A, SANGAM BLDG. NEAR HDFC BANK JUHU VERSOVA LINK RD. ANDHERI (W) MUMBAI-400 053. PAN NO.AAMPN 1956 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURINDER JIT SINGH REVENUE BY : NONE DATE OF HEARING : 04/07/2013 DATE OF PRONOUNCEMENT : 10 /07/2013 O R D E R PER B. RAMAKOTAIAH, AM: THESE TWO APPEALS BY THE REVENUE ARE AGAINST THE OR DERS OF CIT(A)- 39, MUMBAI, DATED 01.03.2012. THE ISSUE IN THIS APP EAL IS WITH REFERENCE TO DIRECTION GIVEN BY CIT(A) WITH REFERENCE TO CERT AIN CREDITS MADE IN ASSESSEES BANK ACCOUNT. THE GROUNDS RAISED BY THE REVENUE, COMMON FOR BOTH THE YEARS IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING AO TO VERIFY THE RECORDS OF ASSESSEES WIFE FOR FINANCIAL YEAR 2002-03 AND FIND OUT WHETHE R THE DEPOSITS ITA NO.ITA NO.4011 AND 4018 /M/12 A.Y.04-05 & 06-07 AMARJEET D. N AGI 2 MADE IN ASSESSEES BANK ACCOUNT DURING FINANCIAL YE AR 2003-04 ARE REFLECTED IN BOOKS OF ACCOUNTS MAINTAINED BY ASSESS EES WIFE. 2. BRIEFLY STATED THE ASSESSEE IS CARRYING ON BUSINESS OF DEALING IN PAINTINGS AND ARTS AND INTERIOR DECORATION. THERE W AS A SEARCH AND SEIZURE ACTION IN THE NAGI GROUP OF CASES ON 30.05. 2008. THE ASSESSEE FILED THE ORIGINAL RETURN OF INCOME ON 07.03.2005 D ECLARING INCOME OF RS.7,61,765/- FOR THE ASSESSMENT YEAR 2004-05 AND O N 15.12.2007 DECLARING INCOME OF RS.2,23,241/- FOR THE ASSESSME NT YEAR 2006-07. CONSEQUENT TO THE NOTICE U/S. 153A DATED 05.09.2008 , ASSESSEE FILED RETURNS OF INCOME ON 05.09.2010 ADMITTING THE SAME INCOME. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THA T THERE ARE CREDIT ENTRIES IN THE BANK ACCOUNT TO THE EXTENT OF RS.21, 43,942/- RELEVANT FOR THE ASSESSMENT YEAR 2004-05 AND AN AMOUNT OF RS.26 ,48,805/- RELEVANT TO ASSESSMENT YEAR 2006-07. AO ASKED THE ASSESSEE T O EXPLAIN THE CREDITS FOUND IN THE BANK STATEMENTS. IN THE ABSENC E OF NECESSARY DETAILS AO CONSIDERED THE ABOVE AMOUNTS AS CASH CREDITS AND ADDED TO THE INCOME RETURNED. 3. AGGRIEVED BY THE ABOVE ADDITIONS, THE ASSE SSEE PREFERRED THE APPEAL TO THE CIT(A)-39, MUMBAI WHO AFTER CONSIDERI NG THE SUBMISSIONS DIRECTED THE ASSESSING OFFICER AS UNDER, IN BOTH YE ARS SIMILARLY:- 6.1 I HAVE CONSIDERED THIS ISSUE. AO IS DIRECTED T O VERIFY THE RECORDS OF THE APPELLANTS WIFE FOR ASSESSMENT YEAR 2003-04 AND FIND OUT WHETHER THE DEPOSITS MADE IN THIS BANK ACCOUNT ARE REFLECTED IN BOOKS OF ACCOUNTS MAINTAINED BY THE APPELLANTS WIF E SMT. CHANDRA NAGI. AO IS ALSO DIRECTED TO VERIFY THE BUSINESS RE CEIPTS DEPOSITED IN THIS BANK ACCOUNT IS TAKEN IN THE PROFIT AND LOSS ACCOUNT OF SMT. CHANDRA NAGI FOR ASSESSMENT YEAR 2003-04. IF THESE CREDIT ENTRIES ARE EXPLAINED IN THE HANDS OF SMT. CHANDRA NAGI, A O IS DIRECTED TO ITA NO.ITA NO.4011 AND 4018 /M/12 A.Y.04-05 & 06-07 AMARJEET D. N AGI 3 DELETE THE ADDITIONS MADE ON SUCH DEPOSITS IN THE A PPELLANTS HAND. IN CASE IF THE DEPOSITS ARE NOT EXPLAINED AND ARE N OT REFLECTED IN THE BOOKS OF ACCOUNTS OF MR. CHANDRA NAGI THEN SUCH CRE DITS ARE TO BE TAXED AS UNEXPLAINED CREDIT IN THE HANDS OF THE APP ELLANT IN THIS ASSESSMENT YEAR . WITH THESE DIRECTIONS GROUND NO.2 IS DISPOSED OFF. 4. WHEN THE CASE WAS POSTED FOR HEARING NONE AP PEARED ON BEHALF OF THE ASSESSEE AND AFTER HEARING THE LD. CIT-DR THE I SSUES WERE DECIDED EXPARTE ASSESSEE . 5. IT WAS THE OBJECTION OF THE LD. DR THAT CIT (A) HAD WRONGLY DIRECTED AO TO VERIFY THE RECORDS OF ASSESSEES WIFE ASSESS MENT YEAR 2003-04, WHEREAS THE APPEALS PENDING WERE OF ASSESSMENT YEAR S 2004-05 AND 2006-07. FURTHER, IT WAS SUBMITTED THAT CIT(A) CANN OT DIRECT AO TO EXAMINE AND DELETE, WHICH SHOULD HAVE BEEN DONE BY HIM IN REMAND PROCEEDINGS THEREFORE, ORDER OF CIT(A) CAN NOT BE G IVEN EFFECT TO. 6. WE HAVE CONSIDERED THE ISSUE. THE BLOCK OF A SSESSMENTS OF SIX YEARS COULD HAVE BEEN COMPLETED CONSEQUENT TO THE SEARCH . CIT(A) MUST HAVE EXAMINED IN DETAIL IN ASSESSMENT YEAR 2003-04 AND M UST HAVE GIVEN DIRECTION TO VERIFY THE RECORDS OF ASSESSEES WIFE FOR THE ASSESSMENT YEAR 2003-04 AND SAME DIRECTION HAVE BEEN COPIED INTO OT HER ORDERS WITHOUT MODIFYING THE RELEVANT ASSESSMENT YEARS. THEREFORE, EVEN IN ASSESSMENT YEAR 2004-05 AND 2006-07 THE DIRECTION TO ASSESSING OFFICER ARE WITH REFERENCE TO EXAMINING ASSESSEES WIFE RECORDS FOR ASSESSMENT YEAR 2003- 04 WHICH IS NOT CORRECT, THEREFORE, ACCEPTING THE C ONTENTIONS OF THE LD. DR WE MODIFY THE DIRECTIONS OF THE CIT(A) AND RESTORE THE ISSUE TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE ABOVE CREDITS IN T HE BANK ACCOUNT OF THE ASSESSEE BY GIVING DUE OPPORTUNITY TO THE ASSESSEE AND ALSO EXAMINING THE RECORDS OF ASSESSEES WIFE WHO IS SUPPOSED TO H AVE DONE SOME ITA NO.ITA NO.4011 AND 4018 /M/12 A.Y.04-05 & 06-07 AMARJEET D. N AGI 4 BUSINESS. THE CLAIM MADE BEFORE LD. CIT(A) THAT TR ANSACTIONS PERTAINING TO HER BUSINESS HAS TO BE EXAMINED, SINCE ASSESSI NG OFFICER HAD NO OPPORTUNITY TO EXAMINE THIS MATTER AT THE TIME OF C OMPLETION OF THE ASSESSMENT. IN THE INTEREST OF JUSTICE, WE RESTORE THE ISSUE TO THE FILE OF AO FOR EXAMINATION AND ADJUDICATION ON THE BASIS OF FACTS AND LAW IN RESPECTIVE YEARS AND TO THAT EXTENT ORDERS OF CIT(A ) ARE MODIFIED. THE GROUNDS ARE CONSIDERED ALLOWED FOR STATISTICAL PURP OSES 7. THE REVENUE APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY 2013. SD/- SD/- (VIVEK VARMA ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED: 10 TH JULY, 2013. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.