RAMESH KALUCHAND JAIN , Mumbai V. DCIT CC-1(2), Mumbai

ITA 4723/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0033 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-09-2022
• Assessment Year: 2004-2005
• Appeal Filed On: 14-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 68; 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER ITA No.4723/M/2019 Assessment Year: 2004-05 Shri Ramesh Kaluchand Jain, Flat No.702, 7 th Floor, 13A Jai Siddhi Vinayak Bldg., Adeshar Dady Street, Cross Lane, C.P. Tank Road, Mumbai – 400 000 PAN: ADAPJ5347C Vs. DCIT, Central Circle -1(2), Mumbai (Appellant) (Respondent) Present for: Assessee by : None Revenue by : Shri Anul Gupta, D.R. Date of Hearing : 27 . 09 . 2022 Date of Pronouncement : 20 . 10 . 2022 O R D E R Per : Kuldip Singh, Judicial Member: The appellant, Shri Ramesh Kaluchand Jain (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 15.05.2019 passed by Commissioner of Income Tax (Appeals)-47, Mumbai [hereinafter referred to as the CIT(A)] qua the assessment year 2004-05 on the grounds inter alia that :- “1. Whether the Ld. CIT(A) was justified by upholding the order of Ld. A.O.dt. 23.12.16 passed u/s 153A r.w.s 143(3)/254 of the Act as the same is illegal, void and contrary to settled law/facts on account that no proper and reasonable opportunity was afforded to the assessee. ITA No.4723/M/2019 Shri Ramesh Kaluchand Jain 2 2. Whether the Ld. CIT(A) was justified, by upholding the order of Ld. A.O., which was passed without appreciating the facts and considering the directions of the Hon'ble ITAT order as well as also by not considering the evidence placed on record by way of confirmations along with PAN number and tax challan, bank statements, balance sheet of Appellant, confirmation etc. 3. Whether the LD CIT(A) was justified by upholding the order of Ld. A.O. which is based on suo-motto drawing of adverse inference without rebutting the evidence placed on record and also without considering the lapse of huge time period of 11 years as the same was also the direction of the Hon'ble ITAT in its order.” 2. Briefly stated facts necessary for adjudication of the controversy at hand are: assessee was subjected to search action on 07.10.2009 in view of the search carried out in case of ABG Shipyard Ltd. on the allegation that the assessee is into providing accommodation entries. Pursuant to the notice issued to the assessee, the assessee has filed return of income on 21.07.2011 under section 153A of the Income Tax Act, 1961 (for short ‘the Act’) at the total income of Rs.48,039/-. By making certain additions assessment was completed and the case travelled up to Tribunal which has passed an order dated 22.04.2015 whereby issue as to the addition of Rs.10.23 lakhs made under section 68 of the Act was set aside to the Assessing Officer (AO). 3. During the remand proceedings the AO proceeded to hold that assessee has only submitted the ledger account, confirmation of M/s. Deetel Securities for Financial Year (F.Y.) 2005-06 in which said amount of Rs.10,23,000/- is appearing as opening balance, but has failed to file the ledger confirmation for the year under consideration i.e. F.Y. 2003-04. So by declining the contentions raised by the assessee AO again made addition of Rs.10,23,000/- on account of unsecured loans as unexplained cash credit and thereby ITA No.4723/M/2019 Shri Ramesh Kaluchand Jain 3 framed the assessment under section 153A read with section 143(3) read with section 254A of the Act. 4. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has upheld the addition made by the AO by dismissing the appeal. Feeling aggrieved assessee has come up before the Tribunal by way of filing present appeal. 5. This appeal was instituted on 15.07.2019 thereafter numerous adjournments were taken by the assessee but suddenly vanished and none appeared on behalf of him and subsequent notices issued on 02.05.2022, 13.06.2022, 26.07.2022, 29.08.2022 and 27.09.2022 through RPAD not received back served/unserved. Since period of more than one month has already elapsed the notices sent to the assessee are presumed to have been served, but the assessee has not preferred to put in appearance to prosecute this appeal. Consequently, the Bench has decided to dispose of the appeal on the basis of documents available on record with the assistance of the Ld. D.R. for the Revenue. 6. I have heard the Ld. Departmental Representative for the Revenue, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon. 7. Bare perusal of the assessment order and impugned order passed by Ld. CIT(A) goes to prove that the assessee had submitted bank confirmation, bank statement, challan, income tax return, computation, balance sheet as on 31.03.2004 pertaining to M/s. Deetel Securities, which are available at page 25 to 34 of the paper book. This fact is also mentioned in para 16.4 of the ITA No.4723/M/2019 Shri Ramesh Kaluchand Jain 4 impugned order, but the Ld. CIT(A) has not examined these documents in detail rather reached the conclusion that “there is no material on record to render a finding that a sum of Rs.10,23,000/- received by the assessee in F.Y. 2003-04 is from disclosed and accounted sources. Neither return of income of M/s. Deetel Securities nor bank statement of M/s. Deetel Securities and source of the alleged amount has been examined by the Ld. CIT(A). 8. I am alive to the fact that even on earlier occasion this case was remitted back to the AO to decide the issue after examining the evidences brought on record by the assessee. No doubt the AO has also mentioned all these evidences submitted by the assessee in para 5.3 of the assessment order but these documents have not been examined in entirety. The AO has also called upon the assessee during the assessment proceedings to provide fresh ledger confirmation, return of income and bank statement of M/s. Deetel Securities which the assessee has not produced. Since now all these documents have come on record to impart the justice and to decide the issue once for all case is remitted back to the AO to decide afresh after taking into account all the evidences brought on record by the assessee as discussed in the preceding paras by providing opportunity of being heard to the assessee. 9. Resultantly, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 20.10.2022. (KULDIP SINGH) JUDICIAL MEMBER Mumbai, Dated: 20.10.2022. * Kishore, Sr. P.S. ITA No.4723/M/2019 Shri Ramesh Kaluchand Jain 5 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.