INCOME TAX OFFICER-20(1)(4), MUMBAI V. DIMPLE Y. VASARIA, MUMBAI

ITA 4785/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2030 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 06-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESHWAR YADAV
• Assessee Lawyers: MANDAR VAIDHYA
• Keywords: Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.4785/M/2017 ASSESSMENT YEAR: 2013-14 INCOME TAX OFFICER- 20(1)(4), ROOM NUMBER-112, 1 ST FLOOR, PIRAMAL CHAMBERS, LAL BAUG, PAREL, MUMBAI 400 012 PAN: AADPV7238A VS. MS. DIMPLE Y. VASARIA, C-203, VINA BINA APARTMENT, ACHARYA DONDE MARG, SEWREE, MUMBAI-400015 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI MANDAR VAIDHYA, A.R. REVENUE BY : SHRI RAJESHWAR YADAV, D.R. DATE OF HEARING : 10.06.2019 DATE OF PRONOUNCEMENT : 18.06.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 31.03.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. THE ISSUE RAISED IN GROUND NO.1 & 2 IS AGAINST T HE DELETION OF ADDITION OF RS.10,63,75,000/- BY LD. CIT(A) AS M ADE BY THE AO ON ACCOUNT OF NON GENUINE UNEXPLAINED UNSECURED LOANS WHICH WERE NOT EXPLAINED BY THE ASSESSEE AND ISSUE CHALLENGED IN GROUND NO.3 & 4 IS AGAINST THE DELETION OF ADDIT ION OF RS.1,65,33,000/- BY LD. CIT(A) AS MADE BY THE AO TO WARDS DEEMED INTEREST ON THE SAID UNSECURED LOANS. ITA NO.4785/M/2017 MS. DIMPLE Y. VASARIA 2 3. THE ASSESSEE FILED THE RETURN OF INCOME ON 31.07 .2013 DECLARING THE INCOME OF RS.12,60,890/-. THEREAFTER , THE CASE OF THE ASSESSEE WAS SELECTED UNDER CASS AND STATUTORY NOTICES WERE DULY ISSUED AND SERVED UPON THE ASSESSEE. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED T HAT RS.13,35,75,000/- WERE CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE WHICH WERE STATED TO BE ON ACCOUNT OF RECE IPTS AGAINST SUNDRY DEBTORS, ROUTINE BUSINESS DEPOSITS/ADVANCES ETC. PERTINENT TO MENTION THAT ASSESSEE WAS NOT MAINTAIN ING ANY BOOKS OF ACCOUNTS QUA THE BUSINESS. DURING THE COU RSE OF ASSESSMENT PROCEEDINGS ASSESSEE FILED A VERY CRYPTI C REPLY OF 5 LINES STATING SAME TO BE RECEIPTS ON ACCOUNT OF BUS INESS DEPOSITS, RETENTION MONEY ,TRADE ADVANCES RECEIVED BACK DURING THE YEAR WITHOUT FURNISHING ANY PROOF OF SUCH RECEI PTS. THE AO ADDED THE SAME TO THE INCOME OF THE ASSESSEE UNDER SECTION 68 BY TREATING THE SAME AS NON GENUINE AND UNEXPLAINED . HOWEVER, WHILE MAKING THE NET ADDITION OF RS.10,08,75,000/-, THE AO ALLOWED THE DEDUCTION OF RS.3,27,50,000/- TOWARDS LOAN REPAID ON ACCOUNT OF LOANS RECEIVED/LOANS REPAYMENT. 4. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) ALL OWED THE APPEAL OF THE ASSESSEE BY PASSING A VERY CRYPTIC OR DER WITHOUT REFERRING TO ANY MATERIAL FURNISHED BY THE ASSESSEE . HOWEVER, A REMAND REPORT WAS CALLED BY THE LD. CIT(A) FROM THE AO WHICH WAS FILED BY THE AO AND REQUESTED FIRST APPELLATE A UTHORITY FOR FOUR TO FIVE WEEKS ARE REQUIRED IN ORDER TO CARRY O UT A DETAILED ENQUIRY WITH RESPECT TO CREDITWORTHINESS OF THE LEN DERS AND GENUINENESS OF THE TRANSACTIONS WHICH MAY BE ALLOW ED. HOWEVER, LD. CIT(A) WITHOUT ALLOWING THE TIME TO TH E ASSESSEE ITA NO.4785/M/2017 MS. DIMPLE Y. VASARIA 3 PROCEEDED TO DISPOSE OF THE APPEAL IN A VERY SHORT AND CRYPTIC MANNER. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD INCLUDING THE IMPUGNED ORDER AND REMAND REPO RT OF THE AO, WE OBSERVE THAT IN THIS CASE THE AO HAS NOT CON DUCTED ANY ENQUIRY AS THE ASSESSEE HAS NOT COOPERATED DURING T HE ASSESSMENT PROCEEDINGS. THEREAFTER, DURING THE REM AND PROCEEDINGS ALSO THE AO HAS SOUGHT 6-8 WEEKS IN ORD ER TO CARRY OUT DETAIL ENQUIRY INTO THE CREDITWORTHINESS OF THE PERSONS WHO ADVANCED MONEY TO THE ASSESSEE. HOWEVER, THE LD. C IT(A) PROCEEDED TO DISPOSE OF THE APPEAL WITHOUT ALLOWING TIME TO THE AO TO CARRY OUT SUCH INVESTIGATION/ENQUIRIES INTO THE GENUINENESS OF THESE CREDITS. UNDER THESE CIRCUMST ANCES, WE ARE LEFT WITH NO CHOICE BUT TO RESTORE THE MATTER B ACK TO THE FILE OF THE AO TO EXAMINE THE WHOLE ISSUE AFRESH AFTER G IVING REASONABLE OPPORTUNITY TO THE ASSESSEE AND DECIDE T HE CASE AS PER FACTS AND IN LAW DENOVO. ACCORDINGLY, ISSUE IS SET ASIDE TO THE FILE OF THE AO. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18.06.2019. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 18.06.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI ITA NO.4785/M/2017 MS. DIMPLE Y. VASARIA 4 THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.