ITO 16(1)(1), MUMBAI V. CHAITANYA KIRAN SHANTARAM, MUMBAI

ITA 4292/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0508 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL LD
• Assessee Lawyers: DEV MANE GIRAJDAR LD
• Keywords: Unexplained cash credit
• Section: 133(6); 68

Judgement Text

ITA.NO.4292/MUM/2016 CHAITANYA KIRAN SHANTARAM ASSESSMENT YEAR 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 4292/MUM/2016 ( / ASSESSMENT YEAR: 2011-12) INCOME TAX OFFICER 16(1)(1) ROOM NO.436(A),4 TH FLOOR AAYKAR BHAVAN, M.K.MARG MUMBAI 400 020 / VS. CHAITANYA KIRAN SHANTARAM 3,GROSVENOR HOUSE PEDDAR ROAD, MAHALAXMI MUMBAI-400 026 ./ ./PAN/GIR NO. AOWPS-2801-K ( /APPELLANT ) : ( !' / RESPONDENT ) ASSESSEE BY : DEV MANE GIRAJDAR, LD. AR REVENUE BY : RAJAT MITTAL, LD. DR / DATE OF HEARING : 25/01/2018 / DATE OF PRONOUNCEMENT : 31/01/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT Y EAR [AY] 2011- 12 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS)-4 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-4/TR.347/APPEAL-(3)/ITO- 11(1)(4)/2014-15 DATED 16/03/2016. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. INCOME TAX OFFICER 11(1)(4), MUMBAI [AO] U/S 14 3(3) ITA.NO.4292/MUM/2016 CHAITANYA KIRAN SHANTARAM ASSESSMENT YEAR 2011-12 2 OF THE INCOME TAX ACT,1961 ON 26/03/2014. THE REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING TO DELETE THE ADD ITION OF RS.1 CRORE MADE U/S.68 OF INCOME-TAX ACT,1961 BY ADMITTING ADDITION AL EVIDENCE IN COURSE OF THE APPELLATE PROCEEDINGS WITHOUT GRANTING AN OPPOR TUNITY TO THE ASSESSING OFFICER, WHICH IS IN VIOLATION OF RULE 46A OF THE I NCOME-TAX RULES,1962. 2. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) O N THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICE BE RESTORED. 2. FACT, IN BRIEF, ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL ENGAGED AS E VENT ORGANIZER WAS ASSESSED AT RS.103.48 LACS AS AGAINST RETURNED LOSS OF RS.2.44 LACS E-FILED BY THE ASSESSEE ON 30/03/2013. DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THAT TH E ASSESSEE RECEIVED ADVANCE OF RS.1 CRORES FROM AN ENTITY NAME LY NAISHA & CO. AND SUBSEQUENTLY PAID AN ADVANCE TAX OF RS.20 LACS ON VARIOUS DATES OUT OF THE SAID ADVANCE. IT WAS FURTHER NOTED THAT THE ASSESSEE UTILIZED THE ADVANCE PARTLY FOR PURCHASE OF MOTORCAR AND PAR TLY TOWARDS ADVANCEMENT OF CERTAIN LOAN. TO CONFIRM THE ADVANCE , NOTICE U/S 133(6) WAS ISSUED TO THE LENDER BUT NO SATISFACTORY REPLY WAS RECEIVED AGAINST THE SAME. ACCORDINGLY, THE SAID ADVANCE WAS TREATED AS UNEXPLAINED CASH CREDIT U/S 68 AND ADDED TO THE INCOME OF THE A SSESSEE. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 16/03/2016 WHE RE THE ASSESSEE POINTED OUT THAT THE SAID ADVANCE WAS RECEIVED BY T HE ASSESSEE AGAINST PRODUCTION OF A MARATHI FILM TITLED AS DIARY WHICH COULD NOT BE PRODUCED DUE TO ENHANCEMENT OF THE COST. SATISFIED WITH ASSE SSEES EXPLANATION, LD. CIT(A) DELETED THE IMPUGNED ADDITION. AGGRIEVED , THE REVENUE IS IN FURTHER APPEAL BEFORE US. ITA.NO.4292/MUM/2016 CHAITANYA KIRAN SHANTARAM ASSESSMENT YEAR 2011-12 3 4. THE LD. DEPARTMENTAL REPRESENTATIVE [DR] DRAWING OUR ATTENTION TO THE GROUNDS OF APPEAL POINTED OUT THAT NO SATISFACT ORY DETAILS ETC. OF THE ADVANCE WAS SUBMITTED BY THE ASSESSEE DURING PROCEE DINGS BEFORE LD. AO AND LD. CIT(A) ERRED IN APPRECIATING THE ADDITIO NAL EVIDENCES WITHOUT CONFRONTING THE SAME TO LD. AO IN VIOLATION OF RULE 46A. IT WAS FURTHER CONTENDED THAT THE ASSESSEE FAILED TO PROVE THE SAID LOAN TRANSACTION BEYOND DOUBT EVEN BEFORE LD. CIT(A). PE R CONTRA, LD. AUTHORISED REPRESENTATIVE [AR] RELIED ON THE ORDER OF LD. CIT(A). 5. UPON PERUSAL OF MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE COULD NOT DEMONSTRATE FULFILLMENT OF THREE PRIMARY CONDIT IONS VIZ. IDENTITY, CREDITWORTHINESS AND GENUINENESS TO SUBSTANTIATE HIS CLAIM REGARDING CASH CREDIT BEFORE LD. AO. IT APPEARS FROM PARA-5 OF THE IMPUGNED ORDER THAT THE ASSESSEE FILED FEW DOCUMENTS LIKE BALANCE SHEET, PARTNERSHIP DEED, AGREEMENT ETC. BEFORE LD. CIT(A) WHICH WERE NEVER PRODUCED BY THE ASSESSEE BEFORE LD. AO. FURTHER, THE ASSESSEE I S NOT ABLE TO EXPLAIN THE TRANSACTIONS INCLUDING PAYMENT OF ADVANCE TAX E TC. CARRIED OUT BY HIM SUBSEQUENTLY. THEREFORE, CONCURRING WITH THE STAND OF REVENUE, THE MATTER IS REMITTED BACK TO THE FILE OF LD. AO IN TE RMS OF RULE 46A WITH A DIRECTION TO THE ASSESSEE TO EXPLAIN THE SAID CASH CREDIT WITH DOCUMENTARY EVIDENCES, FAILING WHICH LD. AO SHALL B E AT LIBERTY TO ADJUDICATE THE SAME ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD. 6. RESULTANTLY, THE REVENUES APPEAL STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY,2018 ITA.NO.4292/MUM/2016 CHAITANYA KIRAN SHANTARAM ASSESSMENT YEAR 2011-12 4 SD/- SD/- (MAHAVIR SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 31.01.2018 SR.PS:- THIRUMALESH ! / 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 FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI