KSHIRSAGAR CONSTRUCTION CO. P.LTD, MUMBAI V. DCIT 5(2), MUMBAI

ITA 4588/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1080 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 19-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.4588/M/2015 ASSESSMENT YEAR: 2011-12 M/S. KSHIRSAGAR CONSTRUCTION CO. PVT. LTD., C-20/A, BHARAT NAGAR, GRAND ROAD (E), MUMBAI 400 007 PAN: AAACK1671N VS. DCIT-5(2), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SHAILESH PARMAR, A.R. & SHRI P RATIK JAIN, A.R. REVENUE BY : SHRI M.C. OMI NINGSHEN, D.R. DATE OF HEARING : 19.04.2017 DATE OF PRONOUNCEMENT : 28.04.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 24.03.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2011-12. 2. THE SHORE FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPM ENT OF PROPERTY. ASSESSEE HAS FURNISHED THE RETURN OF INCOME FOR A.Y . 2010-11 DECLARING TOTAL INCOME AS NIL. DURING THE COURSE OF HEARING, THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) NOTICED FROM AI R INFORMATION THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.3,51,000/-. ACCO RDINGLY, ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF THIS CASH DEPOSIT. THE AS SESSEE HAS STATED THAT CASH WAS RECEIVED ON ACCOUNT OF ALLOTMENT OF CAR PARKING AND SAME WAS RETURNED BACK TO THE PARTY BECAUSE CAR PARKING COULD NOT BE ALLOTTED TO THAT PARTY. THE AO OBSERVED THAT ASSESSEE DID NOT SUBSTANTIATE HIS CLA IM BECAUSE ALLOTMENT LETTER OF ITA NO.4588/M/2015 M/S. KSHIRSAGAR CONSTRUCTION CO. PVT. LTD. 2 PARKING WAS ISSUED ON 20.04.10 BUT THE CASH WAS DEP OSITED IN JANUARY 2011. THEREFORE, AO TREATED THE CASH DEPOSIT OF RS.3,51,0 00/- AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED THE SA ME TO THE INCOME OF THE ASSESSEE. 3. MATTER CARRIED TO LD. CIT(A) AND THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. THE LD. A.R. SUBMITTED BEFORE US THAT ASSESSEES BOOKS OF ACCOUNTS ARE DULY AUDITED AND ASSESSEE MAINTAINED ALL BOOKS OF A CCOUNTS UNDER SECTION 44AA OF INCOME TAX ACT, 1961. ACCORDINGLY, AS PER THE CASH BOOK ON HAND FOR THE PERIOD OF 01.04.10 TO 31.03.11 THE ASSESSEE HAS DEPOSITED RS.3,51,000/- OUT OF AVAILABLE CASH OF RS.4,77,635/- AS ON 01.01. 2011. THEREFORE, THE CASH DEPOSIT IS DULY EXPLAINED AND THE SAME IS AVAILABLE AS CASH ON HAND. THE ASSESSEE HAS SUBMITTED THE COPY OF BANK STATEMENT F OR F.Y. 2010-11, COPY OF THE LEDGER ACCOUNT ON CASH ON HAND FROM PAGE 31 TO 41 BY WAY OF PAPER BOOK AND PLEADED THAT THE ADDITION MAY BE DELETED. 5. ON THE OTHER HAND, THE LD. D.R. SUBMITTED THAT B EFORE THE AO ASSESSEE CLAIMED THAT HE HAD RECEIVED THE CASH AGAINST ALLOT MENT OF PARKING BEFORE THE PARKING WAS NOT ALLOTTED. BUT BEFORE THE LD. CIT(A ), THE ASSESSEE HAD TAKEN THE CONTENTION THAT THE CASH DEPOSIT WAS MADE OUT O F CASH IN HAND AVAILABLE WITH HIM. THEREFORE, ASSESSEE IS CHANGING THE STAN D BEFORE THE AO AND THE LD. CIT(A). THEREFORE, ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE MONEY DEPOSITED IN THE BANK. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT D URING THE COURSE OF HEARING THE ASSESSEE HAS SUBMITTED CASH ON HAND BOOK FOR TH E PERIOD FROM 01.04.10 TO 31.03.11. FROM THE CASH ON HAND IT TRANSPIRES THAT ON 01.01.11 ASSESSEE WAS HAVING OPENING BALANCE OF RS.4,77,635/-. THE ASSES SEE ON 04.01.11 HAS ITA NO.4588/M/2015 M/S. KSHIRSAGAR CONSTRUCTION CO. PVT. LTD. 3 DEPOSITED RS.3,51,000/-. WE FIND THAT ASSESSEE HAS ALSO SUBMITTED THE COPY OF BANK STATEMENT FOR THE SAME PERIOD. FROM THE ABOVE STATEMENT AND COPY OF THE LEDGER ACCOUNT ON CASH IN HAND IT TRANSPIRES THAT A SSESSEE WAS HAVING SUFFICIENT CASH ON 01.01.11 I.E. RS.4,77,635/- OUT OF WHICH AS SESSEE CLAIMED THAT HE HAS DEPOSITED RS.3,51,000/-. WE FIND THAT ASSESSEE HAS GIVEN EXPLANATION BEFORE THE AO THAT THIS AMOUNT WAS RECEIVED ON ACCOUNT OF ALLOTMENT OF CAR PARKING AND THE SAME WAS RETURNED TO THE PARTY BECAUSE CAR PARKING COULD NOT BE ALLOTTED TO THAT PARTY. THE SAID ALLOTMENT OF CAR PARKING IS ALSO REFLECTED IN THE CASH ON HAND BUT ASSESSEE WAS HAVING CASH BALANCE O N THAT DAY. THEREFORE, WE ARE OF THE VIEW THAT NO ADDITION CAN BE MADE. DURI NG THE COURSE OF HEARING, THE LD. D.R. RELIED UPON THE STATEMENT MADE BY THE ASSE SSEE BEFORE THE AO AND LD. CIT(A), BUT HE HAS NOT DOUBTED THE GENUINENESS OF THE CASH BOOK AS THE CASH ON HAND BOOK WAS SUPPORTED BY THE BANK STATEME NT. ASSESSEES BOOKS OF ACCOUNTS ARE AUDITED UNDER SECTION 44AB OF THE ACT AND ASSESSEE IS A PRIVATE LIMITED COMPANY. THEREFORE WE DELETE THE SAME. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 28.04.2017. SD/- SD/- (N.K. PRADHAN) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 28.04.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.