ITO 9(2)-2, MUMBAI V. KALPAJ REALITY P. LTD, MUMBAI

ITA 4582/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55049 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIP J THAKKARRAJESH P SHAH
• Keywords: Unexplained investment; Corroborative evidences
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, MUMBAI. BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER I.T.A NO.4582/ MUM/2010 ASSESSMENT YEAR: 2007-08 INCOME TAX OFFICER 9(2)(2) .. APPELLANT AAYAKAR BHAVAN, M.K. ROAD, MUMBAI VS KALPAJ REALITY PVT LTD., .. RESPONDEN T VAIKUNTHALAL MEHTA MARG, JVPD SCHEME, VILE PARLE(W), MUMBAI-56. PA NO. AAACK 1559 P APPEARANCES: C.G.K.NAIR, FOR THE APPELLANT DILIP J THAKKAR/RAJESH P SHAH, , FOR THE RESPONDENT DATE OF HEARING : 1.8.2011 DATE OF PRONOUNCEMENT : 30 -08-2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF CIT(A)S ORDER DATED 25 TH MARCH, 2010, , IN THE MATTER OF ASSESSMENT UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESS MENT YEAR 2007-08 ON THE FOLLOWING GROUNDS: I.T.A NO.4582/ MUM/2010 ASSESSMENT YEAR: 2007-08 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) HAS ERRED IN HOLDING THAT THE AIR INFORMATION PROVI DED TO THE ASSESSEE DOES NOT CONTAIN ANY ENTRY SHOWING DEPOSIT OF RS.25,01,2 80 WITH M/S AKRUTI NIRMAN LTD, WITHOUT APPRECIATING THE FACT THAT THE ENTRY IS APPEARING ON PAGE NO.1 AT SR. NO.1. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CITA) HAS ERRED IN DELETING THE ADDITIONS OF RS.25,01,280 MAD E UNDER SECTION 69 OF THE I.T.ACT 1961 BY HOLDING THAT THE PAYMENT WAS MADE T HROUGH BANK ACCOUNT, WHICH IS APPEARING IN BANK STATEMENT ON 23.1.2007, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE W ITH SUPPORTING EVIDENCES, WITH RESPECT TO THE INVESTMENT MADE ON 2.2.2007, WH ICH IS NOT APPEARING IN THE BANK STATEMENT. 2. THE ISSUE IN APPEAL IS IN A VERY NARROW COMPASS OF MATERIAL FACTS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER CONFRONTED THE ASSESSEE WITH AIR INFORMATION TO THE EFFECT THAT INVESTMENT OF RS.25,01,280 IS MADE IN AKRUTI NIRMAN LTD. EVEN AS ASSESSEE SUBMITTED THAT INVEST MENT WAS MADE FROM BANK ACCOUNT, THE ASSESSING OFFICER ADDED THIS AMOUNT BY OBSERVING THAT IT IS SEEN THAT NO EXPLANATION WAS OFFERED EITHER WITH REGARD TO INVES TMENT MADE IN CASH OR THE SOURCE OF THE SAME AND THAT IT IS BEYOND DOUBT THAT THE ASSESSEE HAD MADE INVESTMENT AND SOURCE OF THE SAME WAS UNEXPLAINED. AGGRIEVED ASS ESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO DELETED THE DISALLOWAN CE AND OBSERVED AS FOLLOWS: AS REGARDS THE ISSUE IN DISPUTE, I FIND TRUTH IN TH E CONTENTION OF THE APPELLANT THAT THE COPY OF THE AIR WHICH HE HAS RELIED UPON D OES NOT CONTAIN ANY ENTRY SHOWING DEPOSIT OF RS.25,01,280 WITH M/S. AKRUTI NI RMAL LTD, IN FACT THE APPELLANT ON ITS OWN HAS FURNISHED THIS INFORMATION AS APPEARING IN THE STATEMENT OF CURRENT ACCOUNT MAINTAINED WITH AMERIC AN EXPRESS BANK, COPY OF WHICH WAS SUBMITTED TO THE AO VIDE LETTER DT.23.11.2 009. CONTRARY TO THE STAND OF THE AO THAT THE SAID AMOUNT WAS INVESTED IN CASH THE BANK ACCOUNT SHOWS THAT THE SAME WAS INVESTED BY ISSUING CHEQUE NO.336 WHICH WAS CLEARED ON 23.1.2007. I, THEREFORE, FIND NO BASIS FOR THE AO T O COME TO HIS CONCLUSION THAT ANY DEPOSIT WAS MADE WITH AKRUTI NIRMAN LTD AND THA T TOO BY MAKING PAYMENT IN CASH. IN FACT, THE APPELLANT HAS VOLUNTEERED TO FURNISH INFORMATION THAT IT INVESTED THE IMPUGNED SUM IN THE IPO OF THE SAID CO MPANY BY MAKING PAYMENT THROUGH BANK. I, THEREFORE, DELETE THE ADDITION MAD E OF RS.25,01,280 AS UNEXPLAINED INVESTMENT. 3. THE ASSESSING OFFICER IS AGGRIEVED AND IS IN APP EAL BEFORE US. I.T.A NO.4582/ MUM/2010 ASSESSMENT YEAR: 2007-08 3 4. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE SEE NO REASONS TO INTERFERE IN THE WELL REASONED STAND OF THE CIT(A). THE INVESTMENT IS MADE BY CHEQUE, THE SOURCE OF DEPOSIT IN BANK ACCOUNT IS NOT CALLED INTO QUESTION, AND YET ASSESSING OFFICER KEEPS ON DRAGGI NG THE MATTER IN UNCESSARY LITIGATION. IF ANYTHING, IT IS A SAND COMMENTARY ON HOW THOUGHTLESSLY APPEALS ARE FILED IN A CASUAL AND FRIVOLOUS MANNER. THE APPEAL IS DE VOID OF ANY MERITS. 5. IN THE RESULT, APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2011 SD/- (VIJAY PAL RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 30 TH AUGUST, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),20, MUMBAI 4. COMMISSIONER OF INCOME TAX,9 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI