Appeal Details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 8985 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-06-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2006-2007
Appeal Filed On
23-06-2017
Judgement Text
, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER, ITA NO.4577/MUM/2017 ASSESSMENT YEAR: 2006-07 M/S ATUL SHIRODKAR & ASSOCIATES 16/815, KHERNAGAR, VRINDAVAN HSG. SOCIETY, BANDRA (EAST), MUMBAI-400051 / VS. ITO - 23(1)(2), PIRAMAL CHAMBERS, LALBAUGH, PAREL, MUMBAI-400012 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAHFA4794Q / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER OF THE LD. CIT(A)-32, MUMBAI, DATED 14/03/2017 AND IT PERTAINS TO ASSESSM ENT YEAR 2006-07. ! / ASSESSEE BY NONE ! / REVENUE BY SMT. JOTHI LAKSMI NAYAK / DATE OF HEARING : 18/06/2019 / DATE OF ORDER: 28/06/2019 2 M/S ATUL SHIRODKAR & ASSOCIATES 2. THE BRIEF, FACTS IN THE CASE ARE THAT THE ASSESS EE IS PARTNERSHIP FIRM WHICH IS ENGAGED IN THE BUSINESS OF TECHNICAL CONSULTANCY I N INFRASTRUCTURE PROJECTS, FILED ITS RETURN OF INCOME ON 31/10/2006 DECLARING TOTAL INCOME OF R S.7,27,030/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S 1 43(3) R.W.S. 254 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) ON 25/03/2015, DE TERMINING TOTAL INCOME AT RS.61,83,020/- BY MAKING ADDITION TOWARDS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT, FOR UNSECURED LOANS RECEIVED FROM VARIOUS PARTIES ON THE GROUND THAT TH E ASSESSEE HAS FAILED TO PROVE THE IDENTITY, GENUINENESS OF THE TRANSACTIONS AND CREDI TWORTHINESS OF THE PARTIES. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER ARE AS UNDER:- 4.8 IF, ANY CREDIT FOUND IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, THE SAME HAS TO BE EXPLAINED BY THE ASSES SEE WITH SUPPORTING DOCUMENTS/EVIDENCES AND THE ONUS IS WHOL LY AND EXCLUSIVELY ON THE ASSESSEE. WHERE THE SOURCE AND N ATURE OF A RECEIPT CANNOT BE SATISFACTORILY EXPLAINED BY THE A SSESSE, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE INCOME O F THE ASSESSE AND NO FURTHER BURDEN LIED ON THE REVENUE TO SHOW THAT THE INCOME IS FROM ANY PARTICULAR SOURCE. THE RELIANCE IS PLACED ON THE JUDGEMENTS OF THE HON'BLE SUPREME COURT IN THE CASE OF ROSHAN DI HATTI V CIT[1977] 107 ITR 938 (SC) AND KA LE KHAN MOHAMMAD HANIF V CIT [1963] SO UR 1 (SC). 4.9 FURTHER, IT PERTINENT TO MENTION HERE THAT VIDE HIS LETTER DATED 02.03.2015, THE ASSESSEE HAS STATED THAT THEY HAVE REPAID THE LOAN TO SHRI OMPRAKASH KHAKE. THE PART OF LETTER IS REPRODUCED HERE AS UNDER:- 1. THOUGH OUR CLIENT HAD AVAILED OF AN UNSECURED LO AN FROM THE SAID MR. KHAKHE, THE SAME WAS REPAID IN DUE COU RSE, SOME TIME DURING THE YEAR 2007 AND SINCE THEN OUR CLIENT HAS HAD NO BUSINESS DEALINGS OR TRANSACTIONS WITH HIM. DUE TO CLOSURE OF ACCOUNT BY VIRTUE TO REPAYMENTS, AS EVIDENCED BY TH E DOCUMENTS ALREADY FURNISHED TO YOU, OUR CLIENT HAS HAD NO CON NECTION SINCE THEN WITH THE SAID PARTY.' 4.10 IN THE ABOVE LETTER, THE ASSESSE HAS STATED TH AT THE LOAN IS REPAID IN DUE COURSE, SOME TIME DURING THE YEAR 200 7. IT MEANS 3 M/S ATUL SHIRODKAR & ASSOCIATES THE ASSESSE DOES NOT HAVE ANY PROOF/EVIDENCE OF REP AYMENT OF LOAN TO MR KHAKE. IT IS ALSO SUPPORTED BY THE FACT THAT DURING THE PROCEEDINGS THE ASSESSE HAS NOT SUBMITTED ANY PROOF SUCH AS BANK STATEMENTS TO PROVE THAT THE AMOUNT WAS REPAID TO THE PART/. 4.11 ON THE OTHER HAND, FROM VERY FIRST DAY, THE AS SESSE HAS THE INFORMATION THAT THE MATTER WAS IN APPEAL, FIRSTLY BEFORE CIT (A) WHERE, HE HIMSELF FILED APPEAL AND DECISION CAME ON LY ON 10,08.2010 AND BEFORE THE HON'BLE ITAT, WHERE THE R EVENUE HAD FILED THE APPEAL. SO, IF THEY KNEW THE STATUS OF CA SE OR THE MATTER INVOLVED WHERE HE HAS THE ONUS TO PROVE THE GENUINE NESS AND CREDITWORTHINESS OF THE PARTY FROM WHOM LOAN WAS TA KEN, HE MUST HAVE REQUISITE CONTACT DETAILS OF THE ASSESSE. MERE , ISSUANCE OF LETTER (RETURNED UNSERVED), TO THE PARTY AND STATED THAT THE MATTER IS VERY OLD, THEY PUT THEIR BEST EFFORT, ARE NOT AC CEPTABLE. 4.12 IN VIEW OF THE ABOVE FACTS, JUDICIAL DECISIO NS AND DISCUSSION ON THE ISSUE, THE UNDERSIGNED IS IN THE VIEW THAT THE ASSESSEE FAILED TO PROVE THE GENUINENESS AND CREDIT WORTHINESS OF THE LOAN RECEIVED FROM MR. OMPRAKASH KHAKE. THER EFORE, THE AMOUNT OF RS.52,97,385/- RECEIVED FROM SHRI OMPRAKA SH KHAKE, IS HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDITS U/S 68 OF THE IT ACT. 1961 . 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE ASSESSEE NE ITHER APPEARED NOR FILED ANY WRITTEN SUBMISSION TO JUSTIFY THE ADDITIONS MADE BY THE AO. THEREFORE, THE LD. CIT(A) DISPOSED OFF THE APPEAL FILED BY THE ASSESSEE EX-PARTE ON THE BA SIS OF MATERIAL AVAILABLE ON RECORD AND HELD THAT THE ASSESSEE HAS FAILED TO PRODUCE ANY EV IDENCE BEFORE THE AO IN SUPPORT OF ITS CLAIM, THEREFORE, IN ABSENCE OF ANY EVIDENCE, THE A DDITIONS MADE BY THE AO TOWARDS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT, CANNOT B E INTERFERED. THE RELEVANT FINDINGS OF THE LD. CIT(A) ARE AS UNDER:- 4. I HAVE CAREFULLY CONSIDERED THE MATTER AND THE MATE RIAL OH RECORD. THE CASE WAS FIXED FOR HEARING VIDE NOTICE DT, 02/05/2016 WHICH WAS DULY SERVED ON THE APPELLANT. IN RESPONSE TO THE SAME NOBODY WAS APPEARED; AGAIN CASE WAS FIXED FOR HEARI NG ON 26.10.2016 NOBODY ATTENDED NOR ANY APPLICATION O F ADJOURNMENT 4 M/S ATUL SHIRODKAR & ASSOCIATES WAS RECEIVED EVEN THOUGH NOTICE WAS DULY SERVED UPO N THE APPELLANT THEREAFTER, FINAL OPPORTUNITY WAS GIVEN BY FIXING H EARING ON 22/117/2016, WHICH WAS ALSO DULY SERVED BY THE POST AL AUTHORITIES ON THE APPELLANT, BUT THIS TIME ALSO APPELLANT DID NOT RESPOND. THE APPELLANT WAS GIVEN SUFFICIENT OPPORTUNITIES TO ATT END APPELLATE PROCEEDINGS, BUT APPELLANT DID NOT ATTEND A SINGLE HEARING NOR ANY CORRESPONDENCE MADE. I FOUND FROM THE ASSESSMENT ORDER THAT THE APPELLAN T REMAIN FAILED TO PRODUCE ANY EVIDENCE BEFORE THE A,G. IN S UPPORT OF HIS CLAIM. NOTHING WAS ARGUED BEFORE ME. THEREFORE, IN ABSENCE OF ANY EVIDENCE IN SUPPORT OF THE CLAIMED OF THE APPELLANT . ON THE ABOVE CIRCUMSTANCE, I AM OF THE OPINION THAT THE ADDITION MADE BY THE A.Q. IS UPHELD. ACCORDINGLY, THE ADDITION MADE BY THE AO IS CONFIRMED. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE AS SESSEE IS IN APPEAL BEFORE US. NONE APPEARED ON BEHALF OF THE ASSESSEE. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. FIRST OF ALL, THE APPEAL FILED BY THE ASSESSEE IS DEFECTIVE, WHICH IS EVIDENT FROM THE FACT THAT THE ASSESSEE HAS NOT FILED ANY GROUNDS OF APPEAL ALONG WITH FORM NO.36. SECONDLY, THE ASSESSEE IS NON-COOPERATIVE, WHICH IS EVIDENT FROM THE FACT, EVEN DURING THE COURSE OF APPELLATE PROCEEDINGS, BEFORE THE FIRST APPELLATE A UTHORITY, THE ASSESSEE IS NEITHER APPEARED NOR FILED ANY SUBMISSIONS TO JUSTIFY ITS C ASE. FURTHER, EVEN BEFORE US, THE ASSESSEE IS NON-COOPERATIVE WHICH IS EVIDENT FROM T HE FACT THAT EVEN THOUGH THE NOTICE OF HEARING WAS SERVED ON THE ASSESSEE, THE ASSESSEE IS NOT APPEARED. FROM THE ABOVE, IT IS VERY CLEAR THAT THE ASSESSEE IS NOT SERIOUS ABOUT I TS APPEAL; THEREFORE, WE ARE OF CONSIDERED VIEW THAT THERE IS NOTHING TO OFFER FROM THE ASSESSEE TO EXPLAIN UNEXPLAINED CASH CREDIT FOUND IN BOOKS OF ACCOUNTS TO PROVE IDE NTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTIES. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE AO AS WELL AS THE LD. CIT(A) WERE RIGHT IN TREATING UNSEC URED LOAN OF RS.52,97,385/- CLAIMED TO 5 M/S ATUL SHIRODKAR & ASSOCIATES HAVE RECEIVED FROM SHRI OMPARAKASH KHAKE AS UNEXPLA INED CASH CREDIT U/S 68 OF THE ACT, AND ACCORDINGLY, WE CONFIRMED THE ADDITIONS MADE BY THE AO AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/06/2019. SD/- SD/- ( SAKTIJIT DEY ) (G. MANJUNATHA) '!# /JUDICIAL MEMBER $!# / ACCOUNTANT MEMBER MUMBAI; DATED : 28/06/2019 F{X~{T F{X~{T F{X~{T F{X~{T? P.S / /. . . %'&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT (RESPECTIVE ASSESSEE) 2. #$%!' / THE RESPONDENT. 3. &% &% ' ( ) / THE CIT, MUMBAI. 4. &% &% ' / CIT(A)- , MUMBAI, 5. )*+ % # , , &% % ,. , / DR, ITAT, MUMBAI 6. +/ 0 / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
Mehul