YOGENDRA S. SINGH, MUMBAI V. ATUL KUMAR, ACIT 17(3), MUMBAI

ITA 5416/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9039 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 22-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A GARODIA
• Assessee Lawyers: DINESH SAINI
• Keywords: Unexplained cash credit; Opportunity of being heard; Application of stay; Onus to prove
• Section: 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & AMARJIT SINGH (JM) I.T.A. NO. 5416/MUM/2017 (ASSESSMENT YEAR 2012 - 13) & S.A. NO. 450/MUM/2017 IN I.T.A. NO. 5416 /MUM/20 17 (ASSESSMENT YEAR 20 12 - 13 ) MR. YOGENDRA S. SINGH 03, SHALOM HERITAGE OPP. RBK, PHASE 6 INDRALOK, BHAYANDAR (E ) THANE - 401105 (MAH.) PAN : BHKPS6843R VS. ACIT 17(3) 112, 1 ST FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI DINESH SAINI DEPARTMEN T BY S HRI A. GARODIA DATE OF HEARING 1 3 . 10 . 201 7 DATE OF PRONOUNCEMENT 1 3 . 10 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS STAY APPLICATION SEEKING STAY OF OUTSTANDING DEMAND OF ` 125.33 LAKHS. 2. LEARNED COUNSEL APPEAR ING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS RUNNING A PROPRIETARY CONCERN AND THE SAME WAS CONVERTED INTO A COMPANY WITH NAME M/S. V. BIRD SHIPPING AGENCIES PVT. LIMITED. HE SUBMITTED THAT THE ASSESSEE I S HAVING A RUNNING ACCOUNT WITH THE ABOVE S AID COMPANY AND HE WAS OPERATING AS HIS CURRENT ACCOUNT. A T THE YEAR END , I.E., AS ON 31.3.2012, A CREDIT BALANCE OF ` 271.59 LAKHS WAS OUTSTANDING IN THE NAME OF THE ASSESSEE IN THE BOOKS OF THE ABOVE SAID COMPANY, I.E, IT WAS PAYABLE BY THE ASSESSEE TO THE ABOVE SAID COMPANY. THE ASSESSEE OFFERED A SUM OF ` 59.85 LAKHS AS DEEMED DIVID END U/S. 2(22)(E) OF THE ACT. THE ASSESSING OFFICER TREATED THE BALANCE AMOUNT OF ` 211.73 LAKHS AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. HE SUBMITTED THAT THE ASSESSE E CHALLENGED THE SAID ADDITION BY FILING APPEAL BEFORE THE LEARNED CIT(A) AND FURNISHED A WRITTEN MR. YOGENDRA S. SINGH 2 SUBMISSION BEFORE THE LEARNED CIT(A). THE FIRST APPELLATE AUTHORITY DISMISSED THE APPEAL FILED BY THE ASSESSEE BY CONSIDERING ONLY WRITTEN SUBMISSION WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD. LEARNED AR SUBMITTED THAT THE FINANCIAL POSITION OF THE ASSESSEE IS VERY WEAK AND ACCORDINGLY PRAYED FOR STAY OF COLLECTION OF OUTSTANDING DEMAND. 3. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOS ED THE PETITION FILED BY THE ASSESSEE. 4. WHEN THE BENCH ASKED LEARNED AR TO EXPLAIN THE NATURE OF DOCUMENTS , WHICH WERE FILED BEFORE THE ASSESSING OFFICER IN ORDER TO PROVE THE CREDITWORTHINESS OF THE M/S. V. BIRD SHIPPING AGENCIES PVT. LIMITED, THE LEAR NED AR SUBMITTED THAT THE ASSESSEE WAS NOT PROPERLY ADVISED TO FURNISH THE RELEVANT DETAILS BEFORE THE ASSESSING OFFICER. HE SUBMITTED THAT M/S. V. BIRD SHIPPING AGENCIES PVT. LIMITED IS HAVING SUFFICIENT FUNDS AND IS ALSO HAVING TURNOVER OF ` 10 CRORES . H ENCE CREDITWORTHINESS SHOULD NOT HAVE BEEN DOUBTED WITH. HE FURTHER SUBMITTED THAT THE ASSESSEE MAY BE GIVEN A N OPPORTUNITY , WHICH WILL ENABLE THE ASSESSEE TO FURNISH ALL THE DETAILS TO PROVE THE CREDITWORTHINESS OF THE CREDITOR. 5. WE HEARD LEARNED DEPA RTMENTAL REPRESENTATIVE. SINCE THE MATTER IN DISPUTE RELATES TO THE ADDITION MADE U/S 68 OF THE ACT, THE BENCH TOOK UP THE APPEAL FOR HEARING WITH THE CONCURRENCE OF BOTH THE PARTIES. 6. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE ASSESSEE HAS TAKEN FUNDS FROM A RELATED CONCERN. ACCORDING TO LEARNED AR , THE RELATED CONCERN IS A PRIVATE LIMITED COMPANY AND IS HAVING TURNOVER OF MORE THAN ` 10 CRORES . IT WAS FURTHER SUBMITTED THAT THE CREDITWORTHINESS SHOULD NOT HAVE BEEN DO UBTED WITH. HOWEVER, WE NOTICED THAT THE ASSESSEE HAS FAILED TO FURNISH RELEVANT DOCUMENTS BEFORE THE ASSESSING OFFICER AND THERE SHOULD NOT BE ANY DOUBT THAT THE INITIAL BURDEN TO PROVE THE CASH CREDIT IS PLACED UPON THE ASSESSEE. HOWEVER, CONSIDERING TH E FACTS OF THE CASE, WE FIND MERIT IN THE PRAYER OF THE ASSESSEE FOR FRESH OPPORTUNITY TO PRESENT HIS CASE PROPERLY MR. YOGENDRA S. SINGH 3 BEFORE THE ASSESSING OFFICER. HENCE, I N THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE PROVIDED WITH ONE MORE OPPORTUN ITY IN THIS REGARD. WE ALSO NOTICE THAT THE ASSESSEE HAS RAISED CERTAIN OTHER GROUNDS ALSO. SINCE THE MAIN ADDITION IS SET ASIDE TO THE FILE OF THE AO, WE ARE OF THE VIEW THAT THE OTHER ISSUES MAY ALSO BE EXAMINED AFRESH. ACCORDINGLY, WE SET ASIDE THE OR DER PASSED BY THE LEARNED CIT(A) AND RESTORE ALL THE MATTER S TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THEM AFRESH BY DULY CONSIDERING INFORMATION/EXPLANATION S THAT MAY BE FURNISHED BY THE ASSESSEE. AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD, THE ASSESSING OFFICER MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. SINCE WE HAVE DISPOSED OF THE APPEAL ITSELF, THE STAY APPLICATION SHALL BECOME INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSES AND STAY APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1 3 . 10 .201 7. SD/ - SD/ - (AMRAJIT SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 3 / 10 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGIS TRAR) PS ITAT, MUMBAI