ITO WD 1(2), THANE V. NITIN M FARIA, THANE

ITA 526/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1710 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 12-02-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 25-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS DIVYA BAJPAI
• Assessee Lawyers: SUBODH L RATNAPARKHI
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI N.K.BILLAIYA , A M ITA NO. 526 / MUM / 20 1 2 ( ASSESSMENT YEAR : 200 8 - 20 0 9 ) ACIT, CIR - 3, THANE VS. SHRI NITIN M. FARIA, 603/604, KONARK TOWER, OPP.SAIBABA TEMPLE, GHANTALI MANDIR ROAD, THANE(W) - 400 602 PAN/GIR NO. : A AHP F 6039 K ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : MRS. DIVYA BAJPAI /ASSESSEE BY : SHRI SUBODH L. RATNAPARKHI DATE OF HEARING : 1 2 TH FEB ., 201 3 DATE OF PRONO UNCEMENT : 01 / 03 / 201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED THIS APPEAL AGAINST THE ORDER DATED 2 1 - 10 - 2011 , PASSED BY THE CIT(A) - II , THANE , RELATING TO ASSESSMENT YEAR 2008 - 0 9 . 2 . THE DEPARTMENT IS OBJ ECTING THE INACTION ON THE PART OF THE LEARNED CIT(A) IN DELETING THE ADDITION OF RS. 28,32,675/ - BY OBSERVING THAT THE ONUS LAYS UPON THE ASSESSEE HAS ALREADY BEEN DISCHARGED. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS DERIVING INCOME FROM SALARY AND TRADING IN CLOTH. DURING THE COURSE OF ASSESSMENT PROC EEDINGS IT WAS NOTICED BY THE AO THAT THE ASSESSEE ITA NO. 526 /2 0 1 2 2 ALONG WITH ONE ASHOK MURJI FARIA ENTERED INTO AN AGREEMENT FOR PURCHASE OF LAND AT DHAKATE VENGAON, DISTT. RAIGAD ADMEASURING 15.67 HECTARE FOR TOTAL CONSIDERATION OF RS. 64,65,350/ - . WHEN ASKED TO EXPLAIN THE SOURCE OF THIS INVESTMENT, THE ASSESSEE SUBMITTED THAT HE HAD TAK EN A LOAN OF RS. 28.32 LACS FROM ONE SHRI PRAVIN HIRJI THAKKAR. THE CONFIRMATION OF. PRAVIN HIRJI THAKKAR WAS SUBMITTED ALO NGWITH THE RETURN OF INCOME FILED BY HIM FOR THE A.Y. 2008 - 09. ON THE BASIS OF DETAILS FILED ON BEHALF OF THE ASSESSEE, THE AO MADE FURTHER ENQUIRIES . IN REPLY TO RETURN FILED BY SHRI PRAVIN HIRJI THAKKAR FOR THE A.Y. 2008 - 09, THE AO FOUND THAT SHRI PRAVI N HIRJI THAKKAR HAS CLAIMED THAT HE HAS FILED RETURN WITH THE ITO, WARD - 1(1), THANE VIDE ACKNOWLEDGMENT NO. 0821017725 ON 31/07/2008 WHEREIN TOTAL INCOME OF RS.2,25,55,889/ - AND THE TAX AMOUNT OF RS. 80,43,790/ - WAS SHOWN TO HAVE BEEN PAID. ON INVESTIGA TION WITH THE ITO, WARD - 1(1), THANE, IT WAS NOTICED BY THE AO THAT NO SUCH RETURN OF INCOME WAS FILED WITH THE ITO, WARD - 1(1), THANE BY PRAVIN HIRJI THAKKAR FOR THE A.Y. 2008 - 09. THE REAFTER THE ASSESSEE FILED ANOTHER RETURN SHOWING THE SAME INCOME WITH ITO, WARD - 1(1), THANE. SHRI PRAVIN HIRJI THAKKAR WAS ALSO SUMMONED UNDER SECTION 131, WHO WAS CONFRONTED WITH THE ABOVE IRREGULARITY NOTICED IN FILING OF HIS RETURN, WHO ALSO COULD NOT GIVE ANY REASONABLE EXPLANATION FOR THE SAME , HOWEVER, A REVISED COP Y OF RETURN WAS FILED ON 21/12/201 . THE ASSESSEE WAS ALSO REQUIRED TO EXPLAIN THE ABOVE DISCREPANCIES NOTICED BY THE AO. DETAIL REPLY WAS FILED, HOWEVER, THE ITA NO. 526 /2 0 1 2 3 AO WAS NOT SATISFIED. IN HIS VIEW, THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF LOAN OF RS. 28,32,6 75/ - . 4 . DETAIL SUBMISSIONS WERE FILED BEFORE THE CIT(A). THE CONTENTIONS RAISED BEFORE THE AO WERE REITERATED. RELIANCE WAS PLACED ON VARIOUS CASE LAWS. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, LEARNED CIT(A) FOUND THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION AS ALL THE DETAILS PROVING THE LOAN GENUINE HAVE BEEN FILED AND THEY WERE NOT FOUND FALSE OR INCORRECT. ACCORDINGLY, HE DELETED THE ADDITION. AGGRIEVED THEREBY, THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUN AL . 5 . THE LEARNED DR PLACED RELIANCE ON THE ORDER OF AO. ON THE OTHER HAND, LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDER OF CIT(A). COPY OF THE ORDER IN CASE OF SHRI PRAVIN HIRJI THAKKAR WAS ALSO FILED, WHEREBY THE ASSESSMENT AT THE INCOM E OF RS. 2,24,55,890/ - WAS ASSESSED. ATTENTION OF THE BENCH WAS DRAWN ON THE COPY OF RETURN FILED BY SHRI PRAVIN HIRJI THAKKAR , WHICH IS PLACED AT PAGE 26 AND 27 . 6 . AFTER CONSIDERING THE AO, CIT(A) AND OTHER DETAILS ON WHICH ATTENTION OF THE BENCH WAS DR AWN, WE FIND THAT ORDER OF CIT(A) DOES NOT SUFFER FROM ANY INFIRMITY. THERE IS NO DISPUTE THAT SHRI PRAVIN HIRJI THAKKAR WAS ASSESSED TO TAX AND RETURN FOR ASSESSMENT YEAR 2008 - 09 WAS FILED DECLARING AN INCOME OF RS. 2,24,55,890/ - . TAX WAS ALSO PAID ON THE RETURNED INCOME. FROM THIS INCOME, A SUM OF RS. 28.32 LAKHS OR ODD WAS GIVEN TO THE ASSESSEE ON LOAN. SHRI PRAVIN HIRJI THAKKAR ITA NO. 526 /2 0 1 2 4 APPEARED BEFORE THE AO , WHO ALSO CONFIRMED IN HAVING ADVANCED THE LOAN TO THE ASSESSEE . THE LOAN WAS GIVEN THROUGH PROPER BANK ING CHANNEL. THREE INGREDIENTS I.E. IDENTITY OF THE PERSON, GENUINENESS OF THE TRANSACTION AND SOURCE OF THE LOAN GIVEN, HAVE BEEN PROVED IN THIS CASE. SHRI PRAVIN HIRJI THAKKAR APPEARED BEFORE THE AO, WHO CONFIRMED HAVING GIVEN LOAN TO THE ASSESSEE FROM TH E SOURCE OF HIS INCOME OF RS. 2.24 CRORES OR ODD. THEREFORE, WE ARE OF THE VIEW THAT THE LEARNED CIT(A) WAS JUSTIFIED IN HOLDING THAT ONUS LAY UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE LOAN IS DISCHARGED. 7 . IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) . 8 . RESULTANTLY , APPEAL OF THE DEPARTMENT IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 ST DAY OF M AR . 201 3 . 201 3 SD/ - ( ) ( N.K.BILLAIYA ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 1 / 0 3 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI . 4. / CIT 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// ITA NO. 526 /2 0 1 2 5 / BY ORDER , ( /ASSTT. REGISTRAR) / ITAT, MUMBAI