AJAYKUMAR JINDAL (HUF), MUMBAI V. ITO 13(2)(4), MUMBAI

ITA 5192/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0364 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N HEMLATHA
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 5192/MUM/2017 ( / ASSESSMENT YEAR: 2011 - 12 ) AJAY KUMAR JINDAL HUF 512, ASHIRWAD BUILDING, AHMEDABAD STREET, MASJID BUNDER, MUMBAI - 400 009 / VS. INCOME TAX OFFICER, WARD 17(1)(1), R. NO. 115, 1 ST FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AADHM 5918 C ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SMT. N. HEMLATHA / DATE OF HEARING : 28.11.2017 / DATE OF PRONOUNCEMENT : 05.02 .2018 / O R D E R PER S HAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 02.05.2017 AND PERTAINS TO THE A SSESSMENT YEAR 2011 - 12. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. FIRST GROUND OF APPEAL: 2 ITA NO. 5192/MUM /2017 (A.Y. 2011 - 12) AJAY KUMAR JINDAL HUF VS. ITO 1.1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 28 MUMBAI (CIT - APPEAL) HAS ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER (AO) WITHOUT ANY EXPRESS REASON AND CONCLUSIVE EVIDENCE A ND WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD. 1.2. THE LEARNED CIT (APPEALS) FAILED TO CONSIDER THAT THE ADDITIONS BY THE AO ARE ARBITRARY IN NATURE, BASED ON ASSUMPTION AND WITHOUT CONSIDERING FACTS OF THE CASE. 2. SECOND GROUND OF APPEAL: 2.1. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS. 28,13,783 / - BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 BASED ON PRESUMPTION WITHOUT CONSIDERING THE FACTS IN CASE OF THE APPELLANT. 2.2. THE LEARNED C IT (APPEALS), ERRED IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE BY CONFIRMING THE ADDITION WITHOUT CONSIDERING THE FACT THAT THERE IS NO SALE OR PURCHASE BY THE APPELLANT TO/FROM ANY PARTY IN ANY MANNER. THE TRANSACTIONS IN BANK AS CONSIDERED BY THE ASSESSING OFFICER FOR ADDITION TO INCOME OF THE APPELLANT U/S 68 OF THE ACT WERE IN THE NATURE OF INCOME AND WERE IN THE NATURE OF ON ACCOUNT TRANSACTIONS AND DETAILS OF THE SAME ARE ALREADY MENTIONED IN THE BANK STATEMENT. THE ASSESSING OFFICER CON SIDERED ONLY CREDIT TRANSACTION OF THE BANK STATEMENT AND IGNORED DEBIT TRANSACTIONS COMPLETELY. 3. THIRD GROUNDS OF APPEAL: 3.1. THE APPELLANT CRAVES TO LEAVE TO ADD, AMEND AND/OR ALTER ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL AT ANY TIME. 3. BRI EF FACTS OF THE CASE ARE AS UNDER: IN THIS CASE THE ASSESSEE IS ST A TED TO HAVE NO BUSINESS. THE ASSESSING OFFICER CONDUCTED ENQUIRY FROM BANK AND OBSERVED AS UNDER : IN RESPONSE TO THE SAID NOTICE, DENA BANK VIDE LETTER DTD. 24.03.2014 HAS FORWARDED THE BA NK STATEMENT OF THE ASSESSEES ACCOUNT FOR THE PERIOD FROM 01.04.2008 TO 31.03.2013. ON GOING THROUGH THE BANK STATEMENT IT IS SEEN THAT THERE ARE TRANSACTION WORTH RS.28,13,783/ - . IT IS NOT UNDERSTANDABLE THAT WHEN THERE WAS NO BUSINESS ACTIVITY DURING TH E F.Y. 2010 - 11 THEN HOW TRANSACTION OF RS.28,13,783/ - TOOK PLACE. 3 ITA NO. 5192/MUM /2017 (A.Y. 2011 - 12) AJAY KUMAR JINDAL HUF VS. ITO THE ASSESSEE WAS CONFRONTED WITH A FINAL SHOW CAUSE CONFRONTING HIM WITH THE ENQUIRY DATED 24.03.2014. IN RESPONSE, NO ATTENDANCE WAS MADE NOR ANY EXPLANATION WAS GIVEN. ASSESSING OFFICER P ROCEEDED TO ADD THE SAME. 4. U PON ASSESSEE'S APPEAL , THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE IN APPEAL ALSO, THE ASSESSEE MADE A BLAND STATEMENT THAT THE BANK CONTAINED OLD PAYMENTS RECEIVED, AND THERE WAS NO SALE PURCHASE TRANSACTION DURING THE YEAR. BUT NO EVIDENCE WHATSOEVER WAS FURNISHED BEFORE ME. 5. A GAINST ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. I HAVE HEARD THE L D. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. NONE APPEARED ON BEHALF OF THE ASSESSEE DES PITE NOTICE. I FIND THAT IN THIS CASE ASSESSING OFFICER HAS OBSERVED THAT ASSESSEE HAS NOT CONDUCTED ANY BUSINESS. FROM THE DENA BANK, THE ASSESSING OFFICER HAS O BTAINED INFORMATION THAT THERE ARE TRANSACTION OF RS.28,13,783/ - IN T HE BANK ACCOUNT OF THE AS SESSEE. THIS HAS BEEN ADDED BY THE ASSESSING OFFICER AS UNDISCLOSED INCOME. NO EXPLANATION FOR THE SAME HAS BEEN GIVEN EITHER BE FOR E THE ASSESSING OFFICER OR BEFORE THE LEARNED CIT - A. BEFORE THE ITAT ALSO NO SUPPORTING DOCUMENT HAS BEEN SUBMITTED EXCEPT FO R THE GROUNDS OF APPEAL THAT THE NATURE OF THE DEPOSITS IS EVIDENT FROM THE ENTRY IN THE BANK STATEMENT A ND THAT THERE ARE DEBIT ENTRIES ALSO IN THE BANK STATEMENT . IN MY CONSIDERED OPINION , BY MERELY MAKING THE ABOVE SUBMISSIONS WITHOUT ANY CO GENT DOCUMEN T IN SUPPORT OF THE SAME THE ABOVE 4 ITA NO. 5192/MUM /2017 (A.Y. 2011 - 12) AJAY KUMAR JINDAL HUF VS. ITO AVERMENTS ARE MERELY SELF - SERVING STATEMENTS DEVOID OF ANY COGENCY. IN THESE CIRCUMSTANCES , I DO NOT FIND ANY INFIRMITY IN THE ORDER'S OF THE AUTHORITIES BELOW. ACCORDINGLY , I UPHOLD THE SAME. 7. IN THE RESULT , THIS APPE AL FILED BY THE ASSESSEE STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2018 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 05.02.2018 . . ./ ROSHANI , SR. PS / 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 F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI