ASST CIT 17(1), MUMBAI V. HOTEL SUBA PLACE, MUMBAI

ITA 4608/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0115 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 04-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTALDR
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -CBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMARJIT SINGH,JUDICIAL MEMBER ./I.T.A./4608/MUM/2016, / ASSESSMENT YEAR: 2011-12 ACIT-17(1) ROOM NO.117, 1ST FLOOR, AAYAKAR BHAVAN, MK MARG MUMBAI-400 020. VS. M/S. HOTEL SUBA PLACE APOLLO BUNDER, NEAR REGAL CINEMA, COLABA,MUMBAI-400 039 PAN:AAAFH 7675 Q ( /APPELLANT ) ( / RESPONDENT) / REVENUE BY: SHRI RAJAT MITTAL-DR /ASSESSEE BY: SHRI PARESH SHAPARIA / DATE OF HEARING: 06/02/2018 / DATE OF PRONOUNCEMENT: 01.3.2018 PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 05/04/2016 OF CIT(A)-28 , MUMBAI THE ASSESSING OFFICER (AO) HAS FILED THE PRESENT APPEAL. ASSESSEE-FIRM, ENGAGE D IN THE BUSINESS OF RUNNING HOTELS, FILED ITS RETURN OF INCOME ON 30/09/2011,DECLARING TOTAL INCOME OF RS.1.17 CRORES.THE AO COMPLETED THE ASSESSMENT U/S. 143(3) OF ACT ON 19/0 3/14 DETERMINING ITS INCOME AT RS.5.97 CRORES. 2. EFFECTIVE GROUND OF APPEAL (GOA 1 & 2) IS ABOUT ADM ITTING ADDITIONAL EVIDENCES WITH REGARD TO UNEXPLAINED CASH CREDITS OF RS.39.57 LAKH S (RS.12.07 LAKHS FROM BMW FINANCIAL SERVICES INDIA + RS.27.50 LAKHS FROM THE PARTNERS). DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND THAT THE ASSESSEE HAD RECEIVED LOAN OF R S.24.72 CRORES FOR ONE OF THE HOTELS.OUT OF THE SAID AMOUNTS, HE ACCEPTED RS.20.43 CRORE AS GE NUINE LOANS.THE BALANCE LOAN OF RS.4.29 CRORES PERTAINING TO 24 DEPOSITORS WAS ADDED AS UNE XPLAINED CASH CREDIT U/S. 68 OF THE ACT, TO THE TOTAL INCOME OF THE ASSESSEE. 3. AGGRIEVED BY ORDER OF THE AO THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA) AND MADE DETAILED SUBMISSIONS. AFTE R CONSIDERING THE AVAILABLE MATERIAL HE DELETED ALL THE ADDITIONS MADE U/S. 68 OF THE ACT. HOWEVER, WHILE DELETING THE ADDITIONS FOR CREDIT OF RS.12.07 LAKHS AND RS.27.50 LAKHS RECEIVE D FROM BMW FINANCIAL SERVICES INDIA AND THE PARTNERS OF THE FIRM RESPECTIVEL, HE ADMITTED A DDITIONAL EVIDENCES. 4. BEFORE US, HE DEPARTMENTAL REPRESENTATIVE (DR) STAT ED THAT THE ADDITIONAL EVIDENCES WERE ACCEPTED IN VIOLATION OF RULE 46A OF THE INCOME TAX RULES 1962 (RULES). THE AUTHORISED REPRESENTATIVE (AR) COULD NOT CONTROVERT THE SUBMIS SIONS MADE BY THE DR. 4608/M/16 HOTEL SUBA PLACE 2 THERE IS NO DOUBT THAT THE FAA HAS POWERS TO ADMIT ADDITIONAL EVIDENCES,BUT SAME IS GOVERNED BY THE PROVISIONS OF RULE 46A.SUB RULE 3 O F THE RULE STIPULATED THAT THE FAA WILL AFFORD A REASONABLE OPPORTUNITY TO AO,IF HE ADMITS NEW EVIDENCES DURING APPELLATE PROCEED - INGS.BUT,IN THE CASE UNDER CONSIDERATION,HE HAS NOT FOLLOWED THE SAID PROCEDURE.THEREFORE, IN THE INTEREST OF JUSTICE WE ARE REMITTING BACK THE ISSUE TO THE FILE OF FAA. HE IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE A O,WITH REGARD TO ADDITIONAL EVIDENCES . EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF AO IN PART. AS A RESULT APPEAL FILED BY THE AO IS PARTLY ALLOWE D. . ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST MARCH, 2018. 01 , 2018 SD/- SD/- ( / AMARJIT SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED :01.3.2018. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR C BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.