BIKARAM MOHANTY, MUMBAI V. ASST CIT CEN CIR 29, MUMBAI

ITA 4957/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0349 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 14-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 30-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN LD
• Keywords: Unexplained cash credit; Opportunity of being heard; Opportunity of cross examination; Third party statement; Retraction
• Section: 143(3); 133A; 131; 68

Judgement Text

ITA NO.4957/MUM/2014 BIKRAM MOHANTY ASSESSMENT YEAR-2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI SANJAY GARG, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.4957/MUM/2014 ( / ASSESSMENT YEAR: 2011-12) BIKRAM K. MOHANTY A-103, BUILDING NO.27 SUNSHINE MAHADA OPP POLICE STATION CHANDIVALI ANDHERI (E) MUMBAI -400 072 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 29 4 TH FLOOR ROOM NO.476 AAYKAR BHAWAN MUMBAI 400 020 !' ./ ./PAN/GIR NO. AIRPM-0621-N ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : M.C.OMI NINGSHEN , LD. DR / DATE OF HEARING : 14/06/2017 / DATE OF PRONOUNCEMENT : 16 /06/2017 ITA NO.4957/MUM/2014 BIKRAM MOHANTY ASSESSMENT YEAR-2011-12 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2011-12 ASSAILS THE ORDER OF THE LD. COMMISSIONER O F INCOME-TAX (APPEALS)- 40 [CIT(A)], MUMBAI DATED 16/05/2014. TH E ONLY ISSUE INVOLVED IN THE APPEAL IS ADDITION U/S 68 FOR RS.36 LACS IN THE HANDS OF THE ASSESSEE ON THE BASIS OF STATEMENT GIVEN BY A T HIRD PARTY DURING SURVEY OPERATIONS U/S 133A . 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESP ITE BEING PROVIDED WITH SUFFICIENT OPPORTUNITY OF BEING HEARD AS PER ORDER SHEET ENTRY AND RPAD NOTICES. NO ADJOURNMENT APPLICATION IS ON RECORD. L EFT WITH NO OPTION, WE PROCEED FURTHER ON THE MERITS OF THE CASE. 3. BRIEFLY STATED, THE ASSESSEE BEING RESIDENT INDIVIDUAL , WAS ASSESSED U/S 143(3) ON 25/03/2013 AT RS.41,19,230/- AFTER CERTAIN ADDITIONS / DISALLOWANCES AS AGAINST RETURNED INCOM E OF RS.1,12,330/- FILED BY THE ASSESSEE ON 16/01/2012. THE ONLY DISPU TE INVOLVED IN THE APPEAL IS ADDITION OF RS.36 LACS U/S 68 IN THE HAND S OF ASSESSEE. 4. DURING SURVEY ACTION U/S 133A IN THE CASE OF AN ENTITY NAMELY M/S EALDOR RETAILS P. LTD., THANE, STATEMENT OF THE DIRECTOR OF THE COMPANY LARTIF KHAN WAS RECORDED U/S 131 ON 13/12/2010 WHERE THE SAID PERSON ADMITTED TO HAVE RECEIVED CASH LOAN OF RS. 36 LACS FROM THE ASSESSEE. THE STATEMENT WAS CONFRONTED TO THE ASSESSEE WHO DE NIED HAVING PAID ANY SUCH LOAN AND ALSO PRODUCED RETRACTION STATEMEN T DATED 05/03/2013 OF LATIF KHAN WHO DENIED HAVING RECEIVED ANY SUCH LOAN FROM THE ITA NO.4957/MUM/2014 BIKRAM MOHANTY ASSESSMENT YEAR-2011-12 3 ASSESSEE. HOWEVER, NOT CONVINCED, LD. AO ADDED THE SAME AS UNEXPLAINED CASH CREDIT TO THE INCOME OF THE ASSESS EE U/S 68. 5. AGGRIEVED, THE ASSESSEE ASSAILED THE SAME WITHOU T ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 16/05/2 014 . THE ASSESSEE CONTENDED THAT THERE WAS NO CASH CREDIT IN ASSESSEE S BOOK SO AS TO ATTRACT SECTION 68 AND THE ADDITION COULD NOT BE MA DE MERELY ON THE BASIS OF THIRD PARTY STATEMENT WHICH HAS SUBSEQUENT LY BEEN RETRACTED. RELIANCE WAS PLACED ON MANY JUDICIAL PRONOUNCEMENTS FOR THE SAID CONTENTION. HOWEVER, THE LD. CIT(A) REJECTED THE SA ME BY NOTING THAT THE ASSESSEE WAS DOING LOT OF TRANSACTIONS ON CASH BASI S AND DREW AN INFERENCE THAT CASH WAS GIVEN AS LOAN TO THE SAID T HIRD PARTY. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE, PLACED RELI ANCE ON THE FINDINGS OF THE LD. CIT(A) AND CONTENDED THAT THIRD PARTY ADMITTED TO HAVING RECEIVED CASH LOAN FROM THE ASSESSEE WHICH A RE CORROBORATED BY CASH WITHDRAWALS MADE BY ASSESSEE FROM HIS BANK ACC OUNT AND THEREFORE, THE ASSESSEE HAS RIGHTLY BEEN SADDLED WI TH IMPUGNED ADDITION. MOREOVER, THE STATEMENT OF THIRD PARTY WA S DULY CONFRONTED TO THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED R ELEVANT MATERIAL ON RECORD. WE FIND THAT IT IS SETTLED LAW THAT ADDI TIONS COULD NOT BE MADE MERELY ON THE BASIS OF DOUBTS, CONJECTURES OR SURMI SES RATHER THE SAME HAS TO BE BASED ON SOME EVIDENCES. THE REVENUE RELY ING UPON THIRD PARTY STATEMENT PROCEEDED TO MAKE THE IMPUGNED ADDI TION U/S 68 IN ASSESSEES HAND WITHOUT BRINGING ON RECORD ANY COGE NT MATERIAL TO ITA NO.4957/MUM/2014 BIKRAM MOHANTY ASSESSMENT YEAR-2011-12 4 SUBSTANTIATE THE SAME. IT IS JUDICIALLY SETTLED THA T THE STATEMENT MADE DURING SURVEY HAS MEAGER EVIDENTIARY VALUE UNLESS C ORROBORATED BY CONDUCT / EVIDENCES. HOWEVER, IN THE INSTANT CASE T HERE IS NO CORROBORATIVE EVIDENCE AND EVEN THE STATEMENT RELIE D UPON BY THE REVENUE HAS SUBSEQUENTLY BEEN RETRACTED. THE ASSESS EE, ALL ALONG, DENIED HAVING MADE ANY SUCH LOAN TO THE THIRD PARTY WHICH SHIFTED THE ONUS ON REVENUE TO PROVE THE SAID ALLEGATIONS AND S UBSTANTIATE THE CASH LOAN. EVEN OTHERWISE, WE FIND THAT THERE IS NO CASH CREDIT IN ASSESSEES BOOKS OF ACCOUNTS SO AS TO ATTRACT THE PROVISIONS O F SECTION 68. THEREFORE, FINDING NO SUBSTANCE IN REVENUES STAND, WE DELETE THE SAID ADDITIONS AND ALLOW ASSESSEES APPEAL. 8. RESULTANTLY, THE ASSESSEES APPEAL STANDS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JUNE, 2017. SD/- SD/- (SANJAY GARG) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 16 .06.2017 SR.PS:- THIRUMALESH ITA NO.4957/MUM/2014 BIKRAM MOHANTY ASSESSMENT YEAR-2011-12 5 / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. - ( ) / THE CIT(A) 4. - / CIT CONCERNED 5. %(/ , / , / DR, ITAT, MUMBAI 6. 0 / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI