ITO 24(2)(2), MUMBAI V. SAYEED M. HAJI ( STANSONS RESTAURANT), MUMBAI

ITA 5222/MUM/2010

• Counselvise Citation: 522219914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2006-2007
• Appeal Filed On: 25-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOLI SRINIWAS RAO
• Assessee Lawyers: HITEN M SHAH
• Keywords: Unexplained cash credit; Business income; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.5222/MUM/2010 (ASSESSMENT YEAR: 2006-07) ITO24(2)(2), C-13, ROOM NO.604, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI -400 051 ....... APPELLANT VS MR SAYEED M. HAJI, (STANSONS RESTAURANT), 143/3, ORLEM, MARVE ROAD, MALAD (W), MUMBAI -400 064 ..... RESPONDENT PAN: AAAPH 3421 L APPELLANT BY: SHRI GOLI SRINIWAS RAO RESPONDENT BY: SHRI HITEN M. SHAH DATE OF HEARING: 23.08.2011 DATE OF PRONOUNCEMENT: 30.08.2011 O R D E R PER R.S. PADVEKAR, JM: IN THIS APPEAL THE REVENUE CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT (A)-34, MUMBAI DATED 30.03.2010 FOR THE A.Y . 2006-07. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDI TION MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED CASH CREDIT B Y ADMITTING THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS IN CONTRA VENTION TO RULE 46A. ITA 5222/MUM/2010 MR SAYEED M. HAJI 2 2. THE FACTS WHICH REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE IS IN INDIVIDUAL AND RUNNING TWO RESTAURAN TS NAMELY M/S. STANSONS RESTAURANT AND M/S. TANDOOR CATERERS PROVI DING VEGETARIAN AND NON-VEGETARIAN FOOD AND ALSO HAVING LODGING INC OME FROM MAHABALESHWAR HOUSE. IT WAS NOTICED BY THE A.O. THAT THE ASSESSEE HAS NOT DISCLOSED S/B. A/C. NO.576 OF SOUTH INDIAN BANK, MALAD. THE A.O. SOUGHT THE EXPLANATION OF THE ASSESSEE AND ASS ESSEE EXPLAINED THAT THE SAID SAVING ACCOUNT WAS INADVERTENTLY NOT REFLECTED IN THE BALANCE-SHEET OF THE CONCERNED YEAR. THE ASSESSEE ALSO ACCEPTED THE FACT THAT THE SOME OF THE BUSINESS RECEIPTS WERE DE POSITED IN THE SAID ACCOUNT. THE ASSESSEE HAS MADE DEPOSITS AS WELL AS WITHDRAWALS FROM THE SAID ACCOUNT. THE DETAILS OF THE DEPOSITS ARE AS UNDER:- DATE OF DEPOSIT AMOUNT DEPOSITED 17.8.2005 ` 5,000/- 10.10.2005 ` 73,800/- 19.01.2006 ` 13,500/- 15.02.2006 ` 5,84,100/- APART FROM THAT, THE INTEREST WAS ALSO CREDITED ON 9.9.2005 AND 3.3.2006 OF ` 27,942/- AND ` 26,267/- RESPECTIVELY. THE A.O. ASKED THE EXPLANATION TOWARDS SOURCE OF THE SAID DEPOSITS . THE ASSESSEE STATED THAT SO FAR AS ` 5,84,100/- IS CONCERNED, THE SAID AMOUNT IS ON ACCOUNT OF FD MADE AND SO FAR AS ` 5,000/- AND ` 73,800/- AND ` 13,500/-, THE ASSESSEE STATED THAT THEY ARE THE BUS INESS RECEIPTS. IN RESPECT OF THE WITHDRAWALS, THE ASSESSEE STATED THA T ` 2,20,000/- WAS TAKEN FOR PURCHASE OF THE PROPERTY AT MIRAJ. THE A .O. NOTED THAT THE ASSESSEE HAS NOT PROVIDED ANY OTHER DETAILS. THE A .O., THEREFORE, MADE THE ADDITION OF ` 7,30,609/- ( ` 5,000/- + ` 27,942/- + ` 73,800 + ` 13,500/- + ` 5,84,100/- + ` 26,267/-) AS UNEXPLAINED CASH CREDIT IN THE BANKS FOR THAT YEAR U/S.68 OF THE ACT. THE ASSESSEE CHALLENGED THE ADDITION MADE BY THE A.O. BEFORE THE LD. CIT (A ). ASSESSEE FILED DETAILS IN RESPECT OF THE SOURCE OF THE ADDITIONS A LONG WITH BALANCE- ITA 5222/MUM/2010 MR SAYEED M. HAJI 3 SHEET, BANK STATEMENT AND PROFIT AND LOSS ACCOUNT E TC. THE LD. CIT (A) WAS SATISFIED THAT THE ASSESSEE SUCCESSFULLY EX PLAINED THE SOURCE AND THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITI ON OF ` 7,30,609/- BUT HE SUSTAINED THE ADDITION IN RESPECT OF THE INT EREST CREDITED AND INTEREST IN BANK ACCOUNT OF ` 1,07,130/-. NOW, THE REVENUE IS IN APPEAL BEFORE US. 3. ONLY GRIEVANCE RAISED BY THE REVENUE IS THAT, AT THE APPELLATE STAGE, THE LD. CIT (A) HAS ADMITTED THE ADDITIONAL EVIDENCES IN CONTRAVENTION OF RULE 46A. IT IS WELL SETTLED PRIN CIPLES OF LAW THAT THE LD. CIT (A) HAS POWERS CO-TERMINUS WITH THAT OF THE A.O. AND IT IS VERY WELL WITHIN HIS DISCRETION IN THE INTEREST OF JUSTI CE TO ADMIT THE ADDITIONAL EVIDENCE, IF ANY, AND DECIDE THE ISSUE. WE FIND NO MERIT IN THE GROUND TAKEN BY THE REVENUE. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 30TH AUGUST 2011. SD/- SD/- ( PRAMOD KUMAR ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 30TH AUGUST 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)34, MUMBAI. 4) THE CIT -24, MUMBAI. 5) THE D.R. H BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 5222/MUM/2010 MR SAYEED M. HAJI 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 23.08.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 25.08.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER