BABULAL B KOTHARI, MUMBAI V. ITO 15(1)(1), MUMBAI

ITA 5146/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9653 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 16-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-08-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Keywords: Business income; Additional evidence
• Section: 143(3); 68

Judgement Text

ITA NO.5146/M/2014 BABULAL B KOTHARI ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 5146/MUM/2014 ( / ASSESSMENT YEAR: 2009-10) BABULAL B KOTHARI C/O MAYUR JEWELLERS & STEEL CENTRE, SHOP NO.1, DOSHI BHAVAN, 70/178, BORA BAZAR STREET FORT MUMBAI 400 001 / VS. INCOME TAX OFFICER 15(1)(1) MATRU MANDIR ROOM NO.119 MUMBAI -400 007 ./ ./PAN/GIR NO. ALWPK-4507-F ( ! /APPELLANT ) : ( '#! / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 04/09/2017 / DATE OF PRONOUNCEMENT : 08/09/2017 ITA NO.5146/M/2014 BABULAL B KOTHARI ASSESSMENT YEAR 2009-10 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 ASSAILS THE ORDER OF THE LD. COMMISSIONER O F INCOME-TAX (APPEALS)- 26 [CIT(A)], MUMBAI DATED 09/05/2014 QUA CONFIRMATION OF CERTAIN ADDITIONS AGAINST CASH CREDIT. FIRST OF ALL, IT IS NOTED THAT THE ASSESSEE HAS ASSAILED LEVY OF INTEREST U/S 234 BY W AY OF GROUND OF APPEAL NO. 3. THE SAME BEING CONSEQUENTIAL AND MAND ATORY IN NATURE, DO NOT REQUIRE ANY INTERFERENCE ON OUR PART AND HEN CE DISMISSED IN LIMINE. NONE HAS APPEARED FOR ASSESSEE DESPITE NOTICE. LEFT WITH NO OPTION, WE PROCEED TO DISPOSE-OFF THE SAME ON THE B ASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING LD. DEPARTMEN TAL REPRESENTATIVE [DR]. 2. BRIEFLY STATED THE ASSESSEE BEING RESIDENT INDIVIDUAL DERIVING INCOME FROM BUSINESS UNDER PROPRIETORSHIP CONCERN NAMELY MAYUR JEWELLERS & STEEL CENTRE HAS BEEN ASSESSED FOR IMPUGNED AY U/S 143(3) ON 27/12/2011 AT RS.17,18,560/- AS AGAINST R ETURNED INCOME OF RS.1,68,534/- FILED BY THE ASSESSEE ON 24/03/2010. AS PER AIR INFORMATION, THE ASSESSEE WAS FOUND TO HAVE DEPOSITED CASH OF RS .10.59 LACS IN ONE OF THE BANK ACCOUNT MAINTAINED WITH THE BHARAT CO- OPERATIVE BANK LIMITED, FORT, MUMBAI. THE ASSESSEE ATTRIBUTED THE SAME TO THE BUSINESS RECEIPTS OF THE ASSESSEE. HOWEVER, NOT CONVINCED, LD. AO TREATED THE SAME AS CASH CREDIT U/S 68 AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. FURTHER, THE ASSESSEE REFLE CTED UNSECURED LOAN ITA NO.5146/M/2014 BABULAL B KOTHARI ASSESSMENT YEAR 2009-10 3 OF RS.4,91,021/- FROM AN INDIVIDUAL NAMELY KRISHAN JAIN. SINCE THE ASSESSEE COULD NOT FURNISH REQUISITE CONFIRMATIONS, THE SAME WERE ALSO ADDED TO THE INCOME OF THE ASSESSEE U/S 68. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH PARTIAL SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 09/05/2 014 WHERE THE ASSESSEE SUBMITTED ADDITIONAL EVIDENCES TO SUBSTANT IATE THE CASH DEPOSITED IN THE BANK ACCOUNT. ACCORDINGLY, A REMAND REPORT WAS CALLED AGAINST THE SAME AND FINALLY, THE ADDITION WAS REST RICTED TO RS.65,152/-, BEING PEAK OF NEGATIVE CASH BALANCE . HOWEVER, THE ADDITION AGAINST UNSECURED LOAN FOR RS.4,91,021/- WAS CONFIRMED. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. DR PLACED RELIANCE ON THE FINDINGS OF LO WER AUTHORITIES. 5. HEARD AND PERUSED RELEVANT MATERIAL ON RECORD. W E FIND THE MATTER TO BE FACTUAL ONE. SO FAR AS THE ADDITION OF RS.65, 152/- TOWARDS CASH DEPOSITED BY THE ASSESSEE IS CONCERNED, WE SEE NO R EASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) SINCE THE ADDITION HAS BEEN RESTRICTED TO PEAK OF NEGATIVE CASH BALANCE AFTER APPRECIATING DETAILED SUBMISSIONS OF THE ASSESSEE AND REMAND REPORT . HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS DISMISSED. 6. HOWEVER, THE ADDITION OF RS.4,91,021/- AGAINST UNSECURED LOANS, IN OUR OPINION, REQUIRE RE-ADJUDICATION BY LD. CIT(A) SINCE THE LOAN WAS OBTAINED FROM THE FAMILY MEMBER OF THE ASSESSEE AND THE ASSESSEE HAD FURNISHED EXPLANATION BEFORE LD. AO DURING REMAND P ROCEEDINGS, WHICH HAS NOT BEEN APPRECIATED BY LD. CIT(A). ACCORDINGLY , THIS ADDITION IS SET ASIDE TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION WITH DIRECTION TO THE ITA NO.5146/M/2014 BABULAL B KOTHARI ASSESSMENT YEAR 2009-10 4 ASSESSEE TO SUBSTANTIATE THE SAME. RESULTANTLY, TH IS GROUND OF ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PU RPOSES. 7. RESULTANTLY, THE ASSESSEE APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH SEPTEMBER, 2017. SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 08 . 09.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. '%- , - , / DR, ITAT, MUMBAI 6. ./ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI