ITO 5(3)(4), MUMBAI V. SHAMBHO CONSTRUCTION P. LTD, MUMBAI

ITA 4998/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88050 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: D C JAIN
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence

Judgement Text

, , , , , ,, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.4998/MUM/2011 ASSESSMENT YEAR: 2007-08 ASST. COMMISSIONER OF INCOME TAX, CIRCLE-5(3), R. NO.573, 5 TH FLOOR, AAYKAR BHAWAN, M.K. RAOD, MUMBAI-400020 / VS. M/S SHAMBHO CONSTRUCTION PVT. LTD. 321 KUMUD VILLA, V.P. ROAD, 1 ST FLOOR, REAR BUILDING, MUMBAI-400004 ( # / REVENUE) ( $%& /ASSESSEE) P.A. NO.AAJCS5692Q # ' ( ' ( ' ( ' ( / REVENUE BY : SHRI LOVE KUMAR - DR $%& ' ( ' ( ' ( ' ( / // / ASSESSEE BY) SHRI D.C. JAIN ' &) / / / / DATE OF HEARING : 13 /01/2015 *+, ' &) / DATE OF PRONOUNCEMENT : 13 /01/2015 DATE OF ORDER : - - - - ' &) / 14/01/2015 - - - - / / / / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 31/03/2011 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN :- M/S SHAMBHO CONSTRUCTION PVT. LTD . 2 1. DELETING THE ADDITION OF RS.5 LACS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNSECURED LOANS WITHOUT APPRECIATING THAT THE AMOUNTS OF UNSECURED LOANS WERE NOT APPEARING IN THE BANK STATEMENTS OF THE LOAN CREDITORS AS WELL AS THE ASSESSEE COMPANY, FURTHER, THE LD.CIT(A) ADMITTED THE FRESH AND ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E I. T . RULES, 1962 WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER. 2. DELETING THE ADDITION OF RS . 10 LACS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SHARE CAPITAL AND ADMITTING THE FRESH AND ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF THE I. T. RULES, 1962 WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER . 3. DELETING THE ADDITION OF RS.58 , 31,4001- OUT OF RS.70,01,4001- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH CREDITS WITHOUT APPRECIATING THE FACT THAT SEVERAL CASH DEPOSITS WERE FOUND IN THE BANK ACCOUNT OF THE ASSESSEE WHICH WAS NOT SATISFACTORILY EXPLAINED BY THE ASSESSEE AND ADMITTING THE FRESH AND ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF THE I. T. RUL ES, 1962 WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER . 2. AT THE TIME OF HEARING, THE LD. DR, SHRI LOVE KU MAR, ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE G ROUND RAISED BY FURTHER SUBMITTING THAT THE FIRST APPELLATE AUTH ORITY GRANTED RELIEF WITHOUT APPRECIATING THE FACT THAT THE AMOUN T OF UNSECURED LOANS WERE NOT APPEARING IN THE BANK STATEMENT OF L OAN CREDITORS AS WELL AS THE ASSESSEE COMPANY. IT WAS ALSO CONTE NDED THAT ADDITION OF RS.58,31,400/- WAS DELETED OUT OF 70,01 ,400/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT WITHOUT APPRECIA TING THE FACT THAT SEVERAL CASH DEPOSITS WERE FOUND IN THE BANK A CCOUNT OF THE ASSESSEE WHICH WERE NOT EXPLAINED BEFORE THE ASSESS ING OFFICER. IT WAS FURTHER SUBMITTED THAT THERE IS VIOLATION OF RULE 46A OF M/S SHAMBHO CONSTRUCTION PVT. LTD . 3 INCOME TAX RULES AS FRESH/ADDITIONAL EVIDENCE WAS A DMITTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND NO OPPORTUNITY WAS GRANTED TO THE ASSESSING OFFICER. 2.1. ON THE OTHER HAND, SHRI D.C. JAIN, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED AT BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). WITHOUT GOING INTO MUCH DELIBERATION AND THE FACT THAT NECESSARY DETAILS WE RE NOT FURNISHED BEFORE THE ASSESSING OFFICER IN SPITE OF THE FACT THAT VARIOUS NOTICES ON 07/01/2009, 22/06/2009, 27/07/20 09, 07/09/2009 AND 12/10/2009 (ALONG WITH QUESTIONNAIRE ) WERE SENT TO THE ASSESSEE AND THE ASSESSEE DID NOT FILE THE NECESSARY DETAILS/DOCUMENTS/INFORMATION RELEVANT TO THE IMPUG NED ASSESSMENT YEAR. AT THE SAME TIME, THE LD. COMMISS IONER OF INCOME TAX (APPEALS) ADMITTED ADDITIONAL EVIDENCE, WITHOUT AFFORDING OPPORTUNITY TO THE ASSESSING OFFICER, THE REFORE, IT IS VIOLATION OF RULE 46A OF THE RULES, THUS, WE REMAND THIS FILE TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE TH E CLAIM OF THE ASSESSEE AFRESH AND DECIDE IN ACCORDANCE WITH LAW F OR WHICH DUE OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM BE PROVID ED TO THE ASSESSEE. THE MANDATE OF THE CONSTITUTION IS TO COL LECT/LEVY DUE TAXES, CONSEQUENTLY, SO THAT NO GRIEVANCE IS CAUSED EITHER SIDE, WE DEEM IT APPROPRIATE TO SEND THIS FILE TO THE LD. ASSESSING OFFICER. THUS, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR S TATISTICAL PURPOSES ONLY. M/S SHAMBHO CONSTRUCTION PVT. LTD . 4 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 13/01/2015. - ' *+, . / 13/01/2015 + ' 5 SD/ - (SANJAY ARORA) SD/ - (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; . DATED : 14/01/201 5 F{X~{T? P.S/. .. - ' 7&8 98,& - ' 7&8 98,& - ' 7&8 98,& - ' 7&8 98,&/ COPY OF THE ORDER FORWARDED TO : 1. :; / THE APPELLANT 2. 7<:; / THE RESPONDENT. 3. = ( ) / THE CIT, MUMBAI. 4. = / CIT(A)- , MUMBAI 5. 8?5 7& , , / DR, ITAT, MUMBAI 6. 5@$ A / GUARD FILE. - - - - / BY ORDER, <8& 7& //TRUE COPY// B BB B / // /C # C # C # C # (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI