ITO WD 1, MUMBAI V. MANGAL IRGONDA PATIL, MUMBAI

ITA 513/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6216 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-11-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 23-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S RAWAL
• Assessee Lawyers: M P MAKHIJA
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE SHRI J SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 513/MUM/2009 (ASSESSMENT YEARS: 2005-06) INCOME TAX OFFICER, WARD-1, PALGHAR, DIST.THANE. . APPELLANT VS SMT.MANGAL IRGONDA PATIL, AT VIGHNAHARTA PETROLEUM, CHAR RASTA, BOISAR ROAD, PALGHAR, DIST THANE. PAN:AJKPP9565C RESPONDENT APPELLANT BY : SHRI R S RAWAL RESPONDENT BY : SHRI M P MAKHIJA O R D E R PER VIJAY PAL RAO,JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 23.10.2008 OF CIT(A)-II, THANE FOR THE ASSES SMENT YEAR 2005-06. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN ALLOWING RELI EF OF RS.48,500/- IN RESPECT OF AGRICULTURAL RECEIPTS BY ADMITTING ADDITIONAL EVIDENCE AND NOT GIVING OPPORTUNITY TO THE AO TO EXAMINE THE SAME UNDER RULE 46A OF THE IT RULES.; ITA NO. 513/MUM/2009 (ASSESSMENT YEARS: 2005-06) 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN ALLOWING RELI EF OF RS.7,03,597/- OUT OF ADDITION ON ACCOUNT OF UNEXPLAINED CREDITS U/S 68 OF IT ACT BY ADMITTING ADDITIONAL EVIDENCE AND NOT GIVING OPPORTUNITY THE AO TO EXAMINE THE SAME UNDER RULE 46A OF THE IT RULES; 3. THE APPELLANT PRAYS THAT THE ORDER OF THE HON. CIT(A)-II, THANE BE CANCELLED AND THAT OF THE AO BE RESTORED 3. BRIEF FACTS OF THE CASE ARE THAT WHILE PASSING T HE ASSESSMENT ORDER DATED 27.07.2007, THE AO HAS INTE R ALIA MADE AN ADDITION OF A SUM OF RS.48,500/- IN RESPECT OF AN AGRICULTURAL INCOME AND RS.8,03,597/- ON ACCOUNT O F UNEXPLAINED CREDIT. 4. ON APPEAL, THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE IN RESPECT OF THE AGRICULTURAL INCOME AS WELL AS UNSECURED LOAN OF RS. .8,03,597/- AND DELETED THE A DDITION. 5. WE HAVE HEARD THE LEARNED DR AS WELL AS THE LEAR NED AR AND CONSIDERED THE RELEVANT RECORD. AS POINTED OUT BY THE LEARNED DR, THE CIT(A) HAS CONSIDERED THE ADDITION AL EVIDENCE FILED BY THE ASSESSEE IN RESPECT OF THE AG RICULTURAL INCOME AS WELL AS UNEXPLAINED CASH CREDIT MADE U/S 68 OF THE ACT WITH RESPECT TO THE UNEXPLAINED AMOUNT OF RS. 8,03,597/-. THE CIT(A) HAS RECORDED HIS FINDING IN PARAGRAPHS 4 AS WELL AS 4.2 WHICH ARE REPRODUCED BELOW: 0.4 I HAVE CAREFULLY CONSIDERED BOTH THE ISSUES. THE ASSESSEE HAS PRODUCED THE COPY OF SALE BILLS, COPY OF P AND L ACCOUNT ETC IN SUPPORT OF HIS CLAIM TOWARDS THE AGRICULTURAL INCOME RECEIVED OF ITA NO. 513/MUM/2009 (ASSESSMENT YEARS: 2005-06) 3 RS.46,000/-. IN VIEW OF THE ABOVE, THE ADDITION OF RS.46,500/- IS DELETED 4.2 REGARDING LOAN TAKEN FROM THE IT HAS BEEN CONTENDED BY THE LEARNED AR THAT THE ASSESSMENT WAS GETTING TIME BARRED AND THE APPELLAN T DID NOT HAVE MUCH TIME TO COLLECT NECESSARY DETAILS FROM THE LOANERS. HOWEVER, DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LEARNED AR HAS PRODUCED ALL NECESSARY DETAILS AS UNDER WITH COPIES OF BALAN CES SHEET AND PASS BOOK AND COPIES OF RETURN OF INCOME.. 6. AFTER CONSIDERING THE ADDITIONAL EVIDENCE AND DE TAILS FILED BY THE ASSESSEE THE ADDITION MADE BY THE AO WAS DELETED. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE AO WAS NOT GIVEN AN OPPORTUNITY OF EXAMINATION OF ADDITIONAL EVIDENCE AND REBUTTAL THEREOF, THE CIT( A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962 WHILE PASSING THE IMPUGNED ORDER. WE ACCORDI NGLY, SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE ISSUE TO THE RECORD OF THE AO FOR PASSING A FRESH ORDER AFTER CONSIDER ING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. NEEDLES S TO SAY THE ASSESSEE BE GIVEN FAIR AND REASONABLE OPPORTUNI TY OF BEING HEARD BEFORE PASSING THE ORDER. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE AO FOR SPEEDY DISPO SAL OF THE MATTER. ITA NO. 513/MUM/2009 (ASSESSMENT YEARS: 2005-06) 4 07. IN THE RESULT, APPEAL OF THE REVENUE STANDS ALL OWED FOR STATISTICAL PURPOSES.. PRONOUNCED IN THE OPEN COURT ON 30.11.2010 SD SD (J.SUDHAKAR REDDY) (VI JAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMB ER MUMBAI, DATED 30 TH NOV 2010 SRL:251110 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI