HARRESH MEHTA, MUMBAI V. ACIT CC 44, MUMBAI

ITA 4158/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7673 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 06-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJORE SATISHCHANDRA
• Keywords: Unexplained expenditure
• Section: 69C; 143(3); 153A; 263

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE HONBLE SH. B. R. BASKARAN, AM & HONBLE SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 4158/MUM/2017 ( / ASSESSMENT YEAR: 2011 - 12 ) HARRESH MEHTA, 2601, 26 TH FLOOR, SHI TAPI HG, MARG, GAMDEVI, MUMBAI - 400 007 / VS. ACIT CC 44 A AYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN NO. AA LPM3811G ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VIJAY MEHTA AR / RESPONDENTBY : SHRI RAJORE SATISH CHANDRA , DR / DATE OF HEARING : 18/10 /201 8 / DATE OF PRONOUNCEMENT : 09/01/201 9 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 50, MUMBAI DATED 09.03.17 FOR AY 2011 - 12 . 2 I.T.A. NO. 4158 /MUM/201 7 HARRESH MEHTA 2 . THE SOLITARY GROUND RAISED BY THE ASSESSEE IS AGAINST CHALLENGING THE ORDER OF LD. CIT( A) IN TREATING A SUM OF RS. 88,573 AS UNEXPLAINED EXPENDITURE U/S 69C OF THE I.T. ACT. 3 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PART IES , MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES, WE FIND FROM THE RECORDS THAT INITIALLY THE RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR AY 2011 - 12 IN RESPONSE TO NOTICE U/S 153A DECLARING TOTAL INCOME OF RS. 8,46,17,360/ - . SUBSEQUENTLY, AN ASSESSMENT ORDER U/S 143(3) R.W.S 153A WAS PASSED BY THE AO DETERMINING THE TO TAL INCOME OF THE ASSESSEE AT RS. 10,56,40,790/ - . THE SAID ASSESSMENT ORDER WAS SET ASIDE BY THE PR. CIT (CEN) - 4, MUMBAI U/S 263 OF THE I.T. ACT. IN PURSUANT TO THE ORDE R OF PR. CIT, THE AO PASSED ORDER OF ASSESSMENT U/S 143(3) R.W.S 263 BY ADDING A SUM OF RS. 5,50,000/ - U/S 69C OF THE I.T. ACT. 4. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF 3 I.T.A. NO. 4158 /MUM/201 7 HARRESH MEHTA BOTH THE PARTIES, PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND RESTRICTED THE ADDITIONS AT RS. 8 8,573 / - . 5 . WE HAVE GONE THROUGH THE ORDER PASSED BY THE LD. CIT(A) AND NOTICE D THAT THE AO HAD FOLLOWED THE FINDINGS OF LD. PR. CIT MADE U/S 263 OF THE I.T. ACT, WHEREIN THE LD. PR. CIT HAD HELD THAT THE ASSESSEE HAD ACCEPTED THE LOAN OF RS. 1.5 CRO RE DURING THE PREVIOUS YEAR FROM ONE SHRI RAJMAL VANIGOTA AND PAID INTEREST OF RS. 88,573/ - WHICH CONSTITUTES INTEREST FOR THE PART OF THE PREVIOUS YEAR 2010 - 11. 6. LD. CIT(A) WHILE DECIDING THE SAID ISSUE HAD UPHELD THE SAID ADDITION ON THE GROUND THAT SINCE THE ASSESSEE HAD NOT FILED ANY APPEAL AGAINST THE ORDER OF LD. PR. CIT, THEREFORE IS PRECLUDED TO CHALLENGE THE SAME AND THE SAID FINDINGS OF LD. PR. CIT BE TREATED AS FINAL. 7. WE NOTICE THAT THE SAME LD. CIT( A) HAD ALREADY PASSED ORDER DATED 19.09.16 IN APPEAL NO. CIT - A 50/IT - 1062/2014 - 15 THEREBY DELETING THE PENALTY IMPOSED BY AO U/S 271B OF THE ACT 4 I.T.A. NO. 4158 /MUM/201 7 HARRESH MEHTA BY HOLDING THAT THERE WAS NO CONCLUSIVE EVIDENCE THAT THE ASSESSEE HAD ACCEPTED CASH LOAN OF RS. 1.5 CRORE AS ALLEGED BY THE AO. 8. LD. CIT(A) HAD FAILED TO APPRECIATE THAT ASSESSEE HAD TAKEN A CATEGORICAL /SPECIFIC STAND FROM THE VERY BEGINNING THAT NO SUCH PAYMENT OF CASH LOAN WAS RECEIVED BY THE ASSESSEE OR NO INTEREST WAS EVER PAID TO SH. RAJMAL VANIGOTA. APART FROM THAT, THE ASSESSEE HAD ALSO FILED AN A FFIDAVIT OF SH. RAJMAL VANIGOTA, WHEREIN HE HAD DENIED HAVING ARRANGED ANY LOAN TO THE ASSESSEE. 9. FROM THE RECORDS, WE NOTICE THAT THE AO AS WELL AS LD. CIT(A) HAD NOT CONTROVERTED THE SPECIFIC DOCUMENT FILED BY SHRI RAJMAL VANIGOTA IN THE SHAPE OF A FFIDAVIT. EVEN THE A O HAD NOT BROUGHT ON RECORD ANY CORROBORA TIVE EVIDENCE REGARDING THE ACTUAL PAYMENT O F ANY INTEREST . IT IS A SETTLED LEGAL POSITION THAT NO ADDITION CAN BE MADE MERELY ON THE BASIS OF SUS PICIOUS AND ASSUMPTIONS WITHOUT CORROBORATIVE EVIDENCE. 5 I.T.A. NO. 4158 /MUM/201 7 HARRESH MEHTA 10. THUS, KEEPING IN VIEW THE ABOVE DISCUSSION AND ALSO BEARING IN MIND, THE ENTIRETY OF THE FACT AND SETTLED LEGAL POSITION, THE IMPUGNED ADDITION IN THE PRESENT CASE IS UNSUSTAINABLE IN LAW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED ADDITIONS MADE U/S 69C OF THE ACT. RESULTANTLY, THIS GROUND RAISED BY THE ASSESSEE STANDS ALLOWED . 11 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE IS A LLOWED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT O N 9 TH JAN 2019. SD/ - SD/ - ( B. R. BASKARAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 09 . 01 .201 9 SR.PS . DHANANJAY 6 I.T.A. NO. 4158 /MUM/201 7 HARRESH MEHTA / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI