DHARMENDRA PATEL, MUMBAI V. ITO 23(1)(4), MUMBAI

ITA 4967/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8831 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 03-08-2016
• Court: TRIBUNAL
• Department Lawyers: TUFAIL AHMAD KHAN
• Keywords: Additional evidence
• Section: 143(3); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 4967 /M/2016 (AY 2012 - 2013 ) DHARMENDRA PATEL, C/O. R. SANGHVI & CO, 104, RIZVI CHAMBERS - 2, JAIN MANDIR MARG, BANDRA (W), MUMBAI 400 050. / VS. ITO - 23(1)(4), MATRU MANDIR, MUMBAI 400 007. ./ PAN : AGUPP0609E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RAJE S H SANGHVI / RESPONDENT BY : SHRI TUFAIL AHMAD KHAN, DR / DATE OF HEARING : 12.01.2017 / DATE OF PRONOUNCEMENT : 18 .01.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 03.08.3016 IS AGAINST THE ORDER OF THE CIT (A) - 32, MUMBAI DATED 18.5.2016 FOR THE ASSESSMENT YEAR 2012 - 2013. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED IN REJECTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED BY CONFIRMING THE ADDITION OF RS. 28,36,000/ - UNDER A DIFFERENT SECTION N AMELY 69A INSTEAD OF SECTION 69 OR 68 AS DONE BY THE AO AND IGNORING AMONGST OTHER ISSUES THE FACT THAT ADDITION U/S 69A CAN BE DONE ONLY BY THE AO AS DEFINED U/S 2(7A). 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED IN UPH OLDING THE ADDITION OF RS. 28,36,000/ - , IGNORING THE SUBMISSIONS MADE BY ASSESSEE AND WITHOUT MAKING OR DIRECTING APPROPRIATE ENQUIRIES. 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED THE RETURN OF INCOME D ECLARING THE TOTAL INCOME OF RS. 4,39,330/ - . ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE ASSESSED INCOME WAS DETERMINED AT RS. 32,76,250/ - . IN THE ASSESSMENT, AO MADE ADDITION OF RS. 28,36,000/ - BEING THE CASH DEPOSITS IN THE ACCOUNTS OF THE A SSESSEE. CIT (A) CONFIRMED THE SAME FOR THE REASONS GIVEN IN PARA 5 OF HIS ORDER. AGGRIEVED, 2 ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 3. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE BROUGH T OUR ATTENTION TO PAGE 29 OF THE PAPER BOOK (THE BANK ACCOUNT COPY OF THE ASSESSEE WITH CENTRAL BANK OF INDIA) AND UNDERLINED CASH DEPOSITS OF RS. 28 LAKHS ON 25.10.2011 AND 28.10.2011. FURTHER, LD AR BROUGHT OUR ATTENTION TO PAGE 46 OF THE PAPER BOOK (T HE BANK ACCOUNT COPY OF SHRI DILIPKUMAR BABULAL RANKA (IN SHORT SHRI RANKA) WITH CENTRAL BANK OF INDIA A/C NO. 3006391790) AND DEMONSTRATED THAT THE ABOVE CASH DEPOSITS HAVE FOUND THEIR WAY TO THE BANK ACCOUNT OF SHRI RANKA ON 25.10.2011 AND 28.10.2011. AFTER DISCUSSIONS IN THE COURT, LD COUNSEL FOR THE ASSESSEE ARGUED THAT THE ASSESSEE IS NOT THE OWNER OF THE CAS H DEPOSITS IN HIS ACCOUNT AS SHRI RANKA IS THE BENEFICIARY OF THE SAID ACCOUNT. LD AR PLEADED THAT THE ASSESSEE WAS MERELY A CONDUIT FOR THE MONEY BELONGING TO SHRI RANKA. BRINGING OUR ATTENTION TO THE ASSESSMENT ORDER, LD COUNSEL FOR THE ASSESSEE ARGUED THAT THE AO HAS NOT GONE INTO THE SAID FACTS OF THE TRANSACTIONS AND ERRED IN TAXING THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE U/S 69 OF THE ACT. HE ALSO MENTIONED THAT THE ASSESSING OFFICER HAS ERRONEOUSLY HELD THAT THE ASSESSEE FAILED TO DISCHARGE T HE ONUS WHEN ALL THE DETAILS WERE ALREADY GIVEN TO THE AUTHORITIES. FURTHER, STATING THAT THE ASSESSING OFFICER CONCLUDED THE INVESTIGATION WITHOUT EXAMINING SHRI RANKA, WITH THE MOTIVE TO DIG OUT THE FACTS RELATING TO THE OWNERSHIP OF THE CASH DEPOSITS I N THE ACCOUNTS OF THE ASSESSEE. 4. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US, WE ARE OF THE OPINION, THE INVESTIGATION UNDERTAKE N BY THE REVENUE AUTHORITIES I S NO T COMPLETE IN ALL RESPECTS AND THEREFORE, THE CONCLUSIONS DRAWN BY THEM ARE UNSUSTAINABLE IN LAW. THEREFORE, IN OUR CONSIDERED VIEW, THE MATTER HAS TO BE REMANDED TO THE FILE OF THE AO FOR DEEPER INVESTIGATION INTO THE SOURCE OF THE CASH DEPOSITS IN THE B ANK ACCOUNTS OF THE ASSESSEE. AO SHOULD ALSO EXAMINE SHRI RANKA I N V O K I N G THE POWERS , THE ACT HAS CONFERRED ON H IM. WITH THE SAID DIRECTIONS, WE ALLOW THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 ORDER PRONOUNCED IN THE OPEN COURT ON 1 8 T H JANUARY, 2017. S D / - S D / - ( AMARJIT SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 18.01.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI