ITO 19(1)(1), MUMBAI V. NITIN GANPAT MUDRAS, MUMBAI

ITA 446/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3908 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANDHIR GUPTA
• Keywords: Unexplained cash credit; Source of fund; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 446/MUM/2014 (ASSESSMENT YEAR:2009-10) ITO-19(1)(1), MUMBAI-12 APPELLANT VS. SH. NITIN GANPAT MUDRAS, PROP. OF M/S. G. B. MUDRAS, 494, SADHANA, 16 TH ROAD KHAR (W), MUMBAI-400052 RESPONDENT PAN: AAAPM7700P /BY APPELLANT : SHRI RANDHIR GUPTA, D.R. /BY RESPONDENT : NONE /DATE OF HEARING : 04.08.2016 /DATE OF PRONOUNCEMENT : 08.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-30, MUMBAI, DA TED 18.11.2013 FOR A.Y. 2009-10 ON FOLLOWING GROUNDS: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T ACT OF RS. 26,36,500/- BEING CASH DEPOSI TS IN DENA BANK AND EXCELLENT CO.OP BANK LTD. HOLDING THA T ITA NO.446/MUM/14 A.Y. 09-10 [ITO VS. SH. NITIN GANPAT MUDRAS.] PAGE 2 THE GENUINENESS AND CREDITWORTHINESS OF THE SOURCE OF CASH DEPOSITS WHICH WERE SHOWN AS WITHDRAWAL FROM SARASWAT CO.OP BANK LTD. CREDIT CARD WAS EXPLAINED IGNORING THE FACT THAT THE ASSESSEE HAS NOT BEEN AB LE TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN SARASWAT CO .OP BANK LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS.' (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING TH E ADDITION OF RS.26,36,500/- ON ACCOUNT OF UNEXPLAINE D CASH CREDIT WITHOUT APPRECIATING THE FACT THAT THE REMAND REPORT WAS SUBMITTED BY THE AO ON THE LIMITE D ISSUE OF CASH WITHDRAWAL FROM OTHER BANK ACCOUNTS B UT THE SOURCE OF FUNDS DEPOSITED IN THOSE OTHER BANK ACCOUNTS HAD NOT BEEN EXPLAINED.' 2. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF ASSESSEE BUT HOWEVER THE LD. D.R. FAIRLY ADMITTED T HAT THE TAX EFFECT ON THE IMPUGNED ADDITIONS IS LESS THAN THE L IMIT PRESCRIBED BY THE CBDT CIRCULAR OF 10.12.2015 BEARI NG NO. 21 OF 2015. 2.1 WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATE RIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE D ELETION OF ADDITION OF RS.26,36,500/- THE TAX EFFECT OF WHICH IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOA RD OF DIRECT TAXES (CBDT) DATED 10.12.2015 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINS T RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTI VELY TO THE PENDING APPEALS. IN THE PRESENT CASE, SINCE IT IS A N UNDISPUTED FACT THAT ON THE ADDITIONS WHICH ARE IN DISPUTE, TH E TAX EFFECT IS ITA NO.446/MUM/14 A.Y. 09-10 [ITO VS. SH. NITIN GANPAT MUDRAS.] PAGE 3 LESS THAN RS. 10 LACS AND IN THE ABSENCE OF ANY MAT ERIAL ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXEMPTIONS SPECIFIED I N CLAUSE (8) OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF TH E AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT AP PEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EF FECT INVOLVED OR IF FOR ANY REASON, THE AFORESAID CBDT CIRCULAR I S NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 3. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE 08 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 08/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,