SURENDRA BOHRA, MUMBAI V. ITO WD 17(3)(4), MUMBAI

ITA 4135/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8650 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 23-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 234B; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E,MUM BAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.4135/MUM/2014 FOR (ASSESSMENT YEAR : 2009-10 ) SURENDRA BOHRA 4-C, NAAZ CINEMA BUILDING, LAMINGTON ROAD, MUMBAI-400004 PAN: AEZPB5921L VS. ITO WARD- 17(3)(4), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI AKHILENDRA YAD AV (DR) DATE OF HEARING : 23.01.2017 DATE OF PRONOUNCEMENT : 23 .01.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JM: 1. THIS APPEAL U/S 253 OF THE INCOME-TAX ACT (ACT) B Y ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [ FOR SHORT THE CIT(A)] 19, MUMBAI DATED 10.03.2014 FOR ASSESSMENT YEAR (AY) 20 09-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE ID. CIT(A) HAD ERRED IN SUSTAINING THE ASSES SMENT ORDER PASSED BY THE ID. A.O. U/S 144 OF THE INCOME TAX ACT, AND HAS ALSO ER RED IN SUSTAINING THE ADDITIONS MADE IN THE ASSESSMENT ORDER. THE ORDER S O PASSED IS BAD IN LAW AND BAD ON FACTS AND IS CONTRARY TO THE PRINCIPLES OF N ATURAL JUSTICE, 2. THE APPELLANT WAS PREVENTED BY SUFFICIENT AND RE ASONABLE CAUSE IN HEARING OF APPEAL BEFORE THE LD. CIT(A), AND THE LD. CIT(A) HA S ERRED IN NOT PROPERLY APPRECIATING THE WRITTEN SUBMISSIONS MADE BEFORE HI M. 3. THE LD. CIT(A), HAS ERRED IN IGNORING THE WRITTE N SUBMISSIONS MADE BEFORE HIM BY ALLEGEDLY ON THE SUSPICION AND PRESUMPTION T HAT EVIDENCE APPEARS TO BE ADDITIONAL EVIDENCES SUBMITTED IN APPEAL PROCEEDING S. 4. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDIT ION OF RS. 17,10,800/- ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSITS IN BANK ACC OUNT. THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE CREDITS WERE DULY EXPLAINED AND WERE OUT OF HIS PROPRIETORSHIP BUSINESS. THE ADDITION 50 MADE IS BAD IN LAW AND BAD ON FACTS. 2 ITA NO. 4135/M/2014 SURENDRA BOHRA. 5. THE LD. CIT(A) HAS ERRED IN NOT GRANTING TELESCO PING EFFECT OF THE INCOME ALREADY SHOWN. 6. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 31.03.2010 DECLARING TOTAL INCOME AT RS. 5,81,000/- . THE ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT ON 29.12.2011. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER (AO) MADE THE ADDITION U/S 68 ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF RS. 17,10,800/-. ON APPEAL BEFORE THE LD. CIT(A), THE A DDITION WAS CONFIRMED. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE FILED THE PRESE NT APPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE CASE W AS CALLED FOR HEARING. WE HAVE NOTICED THAT DESPITE RECEIVING NOTICE OF APPEAL, NO NE APPEARED ON BEHALF OF ASSESSEE EVEN ON LAST DATE OF HEARING I.E. ON 15.06.2016. TH E NOTICE FOR HEARING OF APPEAL FOR 23.01.2017 WAS DULY SERVED ON ASSESSEE BY RPAD. THE AD CARD OF THE NOTICE IS AVAILABLE ON RECORD. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE ( DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE DR FO R THE REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW AND WOULD ARGUE THAT ASSESSEE NEITHER APPEARED DURING THE ASSESSMENT NOR BEFORE THE LD. CIT(A) DESPITE GIVING SUFFICIENT OPPORTUNITY. EVEN BEFORE TRIBUNAL NO DOCUMENTARY EVIDENCE IS PLACED O N RECORD BY ASSESSEE TO SUBSTANTIATE HIS CLAIM. THE LD. DR FOR THE REVENUE ARGUED THAT THE ASSESSEE IS NOT ENTITLED FOR ANY RELIEF. 5. WE HAVE CONSIDERED THE CONTENTIONS OF LD. DR FOR TH E REVENUE AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW. DURING THE ASSESSMENT, THE AO MADE THE ADDITION OF RS. 17,10,800/- ON THE BASIS OF AIR INFORMATION THAT AS SESSEE MADE CASH DEPOSIT IN SAVING BANK WITH PUNJAB & SINDH BANK, RAJENDRA PLAC E, NEW DELHI-25. BEFORE THE AO NO DOCUMENTARY EVIDENCE WAS PROVIDED NOR ASSESSE E APPEARED DURING ASSESSMENT. HENCE, THE AO COMPLETED THE PROCEEDING U/S 144 OF T HE ACT. DURING THE FIRST APPELLATE PROCEEDING, WE HAVE NOTICED THAT ASSESSEE FIELD CASH BOOK SHOWING THE TRANSACTION FOR FINANCIAL YEAR (FY) 2008-09 VIDE HI S LETTER DATED 27.01.2014. THE LD. CIT(A) NEITHER CONSIDERED THE MATERIAL PLACED BEFOR E HIM EITHER CONSIDERING IT AS ADDITIONAL EVIDENCE OR BY SEEKING REMAND REPORT F ROM THE AO AND DISMISSED THE APPEAL WITHOUT DISCUSSING THE MERIT OF THE CASE. CO NSIDERING THE FACT THAT LD. CIT(A) 3 ITA NO. 4135/M/2014 SURENDRA BOHRA. NOT GAVE ANY FINDING ON THE DOCUMENTARY EVIDENCE PL ACED BEFORE US. WE DEEM IT APPROPRIATE TO RESTORE THE SAME TO THE FILE OF CIT( A) TO PASS THE ORDER ON MERIT BY SPEAKING ORDER. NEEDLESS TO SAY THAT LD. CIT(A) SHA LL PROVIDE APPROPRIATE OPPORTUNITY BEFORE PASSING THE ORDER. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 3 RD JANUARY, 2017. SD/- SD/- (B.R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 23 /01/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/