ITO 24(3)(2), MUMBAI V. PRASANNA P AHER, MUMBAI

ITA 4582/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2115 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SOMNATH UKKAL
• Assessee Lawyers: ARUN SAHU
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence
• Section: 143(3); 68; 37

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4582/MUM/2011 ASSESSMENT YEAR: 2007-08 ITO 24(3)(2) R.NO.704, C-11, 7 TH FLOOR, B.K.C. BANDRA (E) MUMBAI-400051. / VS. SHRI PRASANNA P. AHER, PROP. M/S. CHEMI-COLS ENTRPS. PLOT NO.1 BLDG. 1-B, FLAT-13 N.N.P. NR. SANTOSH NAGAR DINDOSHI, MALAD(E), MUMBAI-400097 (REVENUE) (RESPONDENT ) P.A. NO. ADAPA671S REVENUE BY SHRI SOMNATH UKKAL (DR) RESPONDENT BY SHRI ARUN SAHU (AR) ! ' # / DATE OF HEARING : 3/11/2015 ' # / DATE OF ORDER: 30/11/2015 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - 34, PRASANNA P. AHER 2 MUMBAI {(IN SHORT LD. CIT(A)} DATED 24.03.2011 FOR THE ASSESSMENT YEAR 2007-08, DECIDED AGAINST THE ASSESS MENT ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT AO ) U/S 143(3) OF THE ACT. THE REVENUE HAS RAISED FOLLOWING GROUND S OF APPEAL: 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITIONS MADE BY THE A.O. ON CAPITAL INTRODUCED OF RS.5,08,000I- AND UNSECURED LOANS OF RS.75,000I- WITHOUT APPRECIATING THAT NO EVIDENCES HAS BEEN FILED BY THE ASSESSEE DURING ASSESSMENT PROCEEDINGS AND CONTENTION OF ASSESSEE ADMITTED WITHOUT REMANDING THE MATTER BACK TO THE FILE OF AO FOR VERIFICATION, IN CONTRAVENTION TO TH E PROVISIONS OF RULE 46A OF L.T. RULES 2. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITIONS MADE BY THE A.O. ON PENALTY PAID SHOWN AS 'DETENTION CHARGES' OF RS.1,00,00/- IGNORING THA T NO PROOF WAS GIVEN AT THE TIME OF ASSESSMENT PROCEEDINGS THAT IT WAS NOT A FINE/PENALTY COVERED U/S. 37 OF THE I.T. ACT 1961. 3. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITIONS MADE OUT OF VARIOUS EXPENSES @ 10% OF SUCH EXPENSES CLAIMED, WHEN THE ASSESSEE HAS NOT PRASANNA P. AHER 3 DISCHARGED THE BURDEN OF ONUS OF PROOF CAST ON HIM AS PER SECTION 102 OF THE EVIDENCE ACT. 4. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING AN ADDITION OF UNEXPLAINED CASH CREDITS U/S. 68 ON SUNDRY CREDITORS OF RS.14,00,000/- IGNORING THAT TH E EVEN PRIMARY DETAILS VIZ, NAME & ADDRESS OF THE CREDITOR WERE NOT FURNISHED BEFORE THE A.O. AND THA T ASSESSEE HAD FAILED TO DISCHARGE HIS PRIMARY ONUS OF PROVING THE EXISTENCE AND GENUINENESS OF CREDITORS'. 2 . DURING THE COURSE OF HEARING, SHRI SOMNATH UKKAL DEPARTMENTAL REPRESENTATIVE (LD DR) ON BEHALF OF TH E REVENUE AND SHRI ARUN SAHU, AUTHORISED REPRESENTATIVE (LD C OUNSEL) ON BEHALF OF THE RESPONDENT ASSESSEE, ARGUED THE CA SE. 3. IT HAS BEEN ARGUED BY THE LD. DR THAT IN THIS CASE THERE HAS BEEN VIOLATION OF RULE 46A OF THE INCOME TAX RU LES1962, ON THE PART OF THE LD. CIT(A) BY CONSIDERING ADDITI ONAL EVIDENCES FILED BY THE ASSESSEE WITH REGARD TO THE ISSUES INVOLVED IN THE GROUNDS RAISED BY THE REVENUE. IT H AS BEEN SUBMITTED BY HIM THAT LD. CIT(A) HAS TAKEN THE EVID ENCES ON RECORD AND CONSIDERED THE SAME FOR ADJUDICATION OF THE APPEAL WITHOUT CONFRONTING THE SAME TO THE AO. NO PETITION WAS FILED BY THE ASSESSEE U/R 46A. NO FINDINGS HAVE BEEN GIVE N BY LD. CIT(A) AS TO HOW AND WHY THESE EVIDENCES SHOULD BE ADMITTED. IN FACT THERE IS A VIOLATION OF RULE 46A, WHICH HAS PRASANNA P. AHER 4 LED THE VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, AND THEREFORE, THE IMPUGNED ORDER PASSED BY LD. CIT(A) IS NOT SUST AINABLE IN THE EYES OF LAW. 3.1. ON THE OTHER HAND, LD. AR OF THE ASSESSEE HAS SUBM ITTED THAT PROPER OPPORTUNITY WAS NOT GIVEN BY THE AO TO THE ASSESSEE DURING COURSE OF ASSESSMENT PROCEEDINGS, I N AS MUCH AS, NO DOUBTS WERE EXPRESSED BY THE AO WITH RE SPECT TO REPLIES FILED BY THE ASSESSEE IN RESPONSE TO THE QU ERIES OF THE AO. WHATEVER WAS ASKED BY THE AO, THE SAME WAS SUBM ITTED BY THE ASSESSEE, AND THEREFORE, NOTHING MORE WAS AS KED AND THE ASSESSMENT ORDER WAS FRAMED. THEREFORE, THE ASS ESSMENT ORDER WAS ALSO IN VIOLATION OF PRINCIPLES OF NATURA L JUSTICE, AND THEREFORE, ASSESSEE HAS RIGHTY SUBMITTED THE REQUIR ED EVIDENCES BEFORE THE LD. CIT(A), AND HAVE BEEN RIGH TLY CONSIDERED BY HIM WHILE ADJUDICATION OF THE FIRST A PPEAL OF THE ASSESSEE. 3.2. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. THE ADMITTED FACTS ARE THAT ADDITIONAL EVIDENCES WERE FILED BY THE ASSESSEE BEF ORE LD. CIT(A) WHICH HAVE BEEN CONSIDERED BY HIM WHILE ADJU DICATING THE APPEAL OF THE ASSESSEE. IT IS NOTED THAT NO JUS TIFICATION OR FINDINGS OR REASONING HAS BEEN GIVEN BY THE LD. CIT (A) IN ITS ORDER FOR ADMISSION THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. IT IS FURTHER NOTED THAT THESE EVIDENCES HAVE NOT BEEN EVEN CONFRONTED TO THE AO FOR OBTAINING COMMEN TS OF THE AO ON THE EVIDENCES FILED BY THE ASSESSEE. THUS, IT IS A CLEAR CASE OF VIOLATION OF RULE 46A OF THE INCOME TAX RUL E, 1962. PRASANNA P. AHER 5 3.3 . TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANC ES OF THE CASE, AND TO MEET THE ENDS OF JUSTICE, WE FIND IT A PPROPRIATE TO SEND THE ISSUES RAISED BY THE REVENUE, BACK TO THE FILE OF THE AO FOR HIS EXAMINATION AND DECIDING THESE ISSUES AF RESH. THE AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO TH E ASSESSEE TO SUBMIT REQUIRED DETAILS AND DOCUMENTS, AND SHALL ALSO EXPRESS ALL THE DOUBTS LEFT, IF ANY, BEFORE THE TAK ING ANY FRESH DECISION. THE ASSESSEE SHALL ALSO EXTEND NECESSARY COOPERATION TO THE AO BY SUBMITTING ALL THE DETAILS AND DOCUMEN TS AS MAY BE REQUIRED BY THE AO, AS PER LAW. THUS, GROUNDS RA ISED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 . IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2015. SD/- (JOGINDER SINGH) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER ! MUMBAI; % DATED ; 30/11/2015 CTX? P.S/. .. #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. '() / THE APPELLANT 2. *+() / THE RESPONDENT. 3. , , - ( ' ) / THE CIT, MUMBAI. 4. , , - / CIT(A)- , MUMBAI 5. 01 *2 , , '# 2 3 , ! / DR, ITAT, MUMBAI 6. 45 6! / GUARD FILE. PRASANNA P. AHER 6 / BY ORDER, +0' * //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI