ITO 21(3)(4), MUMBAI V. RAMESH MANSINGH RAMSINGHANI, MUMBAI

ITA 4360/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83797 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Onus to prove
• Section: 68

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI H.L. KARWA, HONBLE PRESIDENT AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ./ I.T.A. NO.4360 /MUM/2012 ( / ASSESSMENT YEAR : 2009-2010 INCOME TAX OFFICER 21(3)(4), ROOM NO. 505, C-11, 5 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI 400 051. / VS. MR. RAMESH MANSINGH RAMSINGHANI, C/O VIJAY AUTOMOBILES (BPCL), L.B.S. MARG, KURLA, MUMBAI 400 070. ./ PAN : AACPR7518Q ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI PITAMBAR DAS R E SPONDENT BY : SHRI JITENDRA SINGH / DATE OF HEARING : 09-09-2014 / DATE OF PRONOUNCEMENT : 12-09-2014 [ !' / O R D E R PER B.R. BASKARAN, A.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 26-04-2012 PASSED BY THE LD. CIT(A) 32, MUMBAI AN D IT RELATES TO A.Y. 2009- 10. 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN DELETING THE ADDITION OF RS. 25 LACS MADE U/S 68 OF THE INCOME T AX ACT, 1961. 3. THE FACTS RELATING TO THE ABOVE SAID ISSUE ARE S TATED IN BRIEF. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. NOTED TH AT THE ASSESSEE HAS TAKEN ITA 4360/M/12 2 A LOAN OF RS. 25 LACS FROM A PERSON NAMED SHRI SAME ER KADAM. THE ASSESSEE FILED ONLY LOAN CONFIRMATION LETTER. SINCE THE IDEN TITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE CREDITOR WE RE NOT PROVED BY THE ASSESSEE, THE A.O. ADDED THE ABOVE SAID AMOUNT OF R S. 25 LACS AS INCOME OF THE ASSESSEE. IN THE APPELLATE PROCEEDINGS, THE LD . CIT(A) TOOK THE VIEW THAT ONCE THE ASSESSEE HAS FILED LOAN CONFIRMATION LETTE R WITH PAN NUMBERS, ADDRESSES AND OTHER DETAILS, THE BURDEN OF PROOF SH IFTS UPON THE A.O. TO DISPROVE THE CLAIM OF THE ASSESSEE. ACCORDINGLY, BY PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. ORISSA CORPORATION P. LTD., 159 ITR 78, THE LD. CIT(A) DELETED THE ABO VE SAID ADDITION. AGGRIEVED BY THE DECISION OF LD. CIT(A), THE REVENUE IS IN AP PEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES AND ALSO PERUSED THE R ELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. D.R. SUBMITTED THAT T HE ASSESSEE IS REQUIRED TO DISCHARGE THE PRIMARY BURDEN OF PROOF PLACED UPON U /S 68 OF THE ACT. THE PRIMARY BURDEN CAN BE DISCHARGED BY PROVING THREE M AIN INGREDIENTS IN RESPECT OF CASH CREDITS, VIZ., THE IDENTITY OF THE CREDITOR, THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE CREDITO R. THE LD. D.R. FURTHER SUBMITTED THAT THE ASSESSEE, APART FROM FILING A CO NFIRMATION LETTER, DID NOT FILE ANY OTHER DOCUMENT BEFORE THE AO OR LD. CIT(A) TO PROVE THE THREE MAIN INGREDIENTS CITED ABOVE, BUT THE FIRST APPELLATE AU THORITY HAS EXPRESSED THE VIEW THAT THE ASSESSEES OBLIGATION GOT OVER BY FIL ING THE CONFIRMATION LETTER. THE LD. D.R. SUBMITTED THAT THE INITIAL BURDEN TO P ROVE THE CASH CREDIT ALWAYS LIES UPON THE ASSESSEE AND ONLY IF HE DISCHARGES TH E INITIAL BURDEN, THEN THE BURDEN OF PROOF GETS SHIFTED TO THE A.O. 5. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE ASSESSEE HAS FILED CONFIRMATION LETTER CONTAINING THE NAME A ND ADDRESS, PAN NUMBER AND OTHER DETAILS OF THE CREDITOR. WHEN THE BENCH ASKED THE LD. A.R. AS TO WHETHER THE ASSESSEE HAS GOT ANY DOCUMENT TO PROVE THE CREDITWORTHINESS OF ITA 4360/M/12 3 THE CREDITOR AND OTHER TWO INGREDIENTS MENTIONED AB OVE, THE LD. A.R. SUBMITTED THAT HE DOES NOT HAVE THOSE DOCUMENTS IN HIS HANDS. HE, HOWEVER, SUBMITTED THAT THE ASSESSEE WOULD BE IN PO SITION TO FURNISH ALL THE DETAILS AND ACCORDINGLY SUGGESTED THAT THE MATTER M AY BE SET ASIDE TO THE FILE OF THE A.O. THE LD. D.R. ALSO AGREED TO THE ABOVE S AID PROPOSAL. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO EXAMINE AFRESH THE DETAILS FURNISHED BY THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LA W. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH SEPTEMBER,2014. !' # $% &! ' 12-09-2014 ( ) SD/- SD/- (H.L. KARWA) (B.R. BASKARAN) PRESIDENT ACCOUNTANT MEMBER $ 2 MUMBAI ; &! DATED 12-09-2014 [ .3../ RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 4 () / THE CIT (A)-32, MUMBAI 4. 4 / CIT CITY 21,,MUMBAI 5. 78( 339: , 9: , $ 2 / DR, ITAT, MUMBAI D BENCH 6. (<= > / GUARD FILE. ' / BY ORDER, 7 3 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 2 / ITAT, MUMBAI