KINTU KISHORE BAJAJ, MUMBAI V. ACIT 9(1), MUMBAI

ITA 5610/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0380 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 03-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: V C SHAH
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JM AND SHRI RAJESH KUMAR , AM ./ I.T.A. NO . 5610 /MUM/201 3 ( / ASSESSMENT YEA R : 2 0 05 - 06 ) MRS.KI NTU KISHOR BAJAJ 501, KRYSTAL, 206, WATERFIELD ROAD, BANDRA (W), MUMBAI - 400050 / VS. ASSTT. COMMISSIONER OF INCOME TAX - 9 (1) , AAYAKAR BHAVAN, MK ROAD, MUMBAI - 400020 APPELLANT RESPONDENT PAN: AACPB6639A / APPELLANT BY : SHRI V C SHAH /R ESPONDENT BY : SHRI R AJESH KUMAR YADAV / DATE OF HEARING : 30.3. 2017 / DATE OF PRONOUNCEMENT : 9. 6 . 2017 / O R D E R PER RAJESH KUMAR , A M : THE AFORESAID APPEAL , AT THE INSTAN CE , OF ASSESSEE IS AGAINST THE ORDER DATED 2.5.2013 OF COMMISSIONER OF INCOME TAX (A) - 19, MUMBAI , FOR THE ASSESSMENT YEAR 20 05 - 06 . 2. WE FIND FROM THE RECORD THAT THERE IS A DELAY OF ONE DAY IN FILING THE APPEAL. THE LD.AR VIDE LETTER DATED 29 TH MARCH,2017 EXPRESSLY AND ELABORATE LY STATED THE REASONS FOR DELAY. WE ARE SATISFIED WITH THE REASONS ADVANCED BY THE LD.AR FOR DELAY OF ONE DAY IN FILING THE APPEAL. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR ADJUDICATION. 3 . GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IS AS UNDER : 2 5610/MUM/2013 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN RETAINING THE ADDITION OF RS.3,50, 000/ - MADE BY THE ASSESSING OFFICER IN RESPECT OF PERSONAL LOAN OF RS.3,50, 000/ - WRITTEN BACK AND CREDITED TO CAPITAL A/C WHICH IS NOT AN INCOME INC L UDIBLE IN TOTAL INCOME 4 . FACTS OF THE CASE ARE THAT THE PRESENT PROCEEDINGS BEFORE US EMANATED FROM THE SET ASIDE PROCEEDINGS IN WHICH THE INCOME TAX APPELLATE TRIBUNAL VIDE ORDER DATED 8.6.2011 PASSED IN ITA NO.1586/MUM/2009 (AY - 2005 - 06) RESTORED BACK THE ISSUE OF ADDITION OF RS.3 ,50,000 / - TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THE ISSUE AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AO AGAIN MADE THE SAME ADDITION BY OBSERVING AS UNDER: THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS NOT SUBMITTED ANY DOCUMENTARY EVIDENCE SHOWING THAT WHEN THIS LOAN W AS TAKEN OR OTHER DETAILS IN THIS REGARD . A MERE STATEMENT THAT THE RELATIVES WERE RELUCTANT TO ACCEPT B ACK THE LOAN CANNOT B E E NOUGH TO SUBSTANTIATE THE CASH CREDIT. SINCE THE ASSESSEE HAS TREATED THE MONEY AS ITS OWN AND TAKEN THE AMOUNT TO ITS CAPITAL ACCOUNT , THE AMOUNT OF RS.3,50,000/ - IS TAXABLE IN THE HANDS OF THE AS SESS EE. IN VIEW OF T HE ABOVE FAC T S AND ON THE B A SIS OF THE FINDINGS GIVEN BY THE HONBLE APEX COURT IN THE CASE OF T V SUNDARAM IYENGAR AND SONS LTD 222 ITR 344(SC), ASSESSEE IS NOT ELIGIBLE FOR ANY RELIEF IN RESPECT OF CASH CREDIT 5 . IN THE APPELLATE PROCEEDINGS, THE LD.CIT(A) ALSO SU STAINED THE ADDITION AS MADE BY THE AO BY OBSERVING AND HOLDING AS UNDER : 4.3.2 IN THE INSTANT CASE NEITHER AT THE ASSESSMENT STAGE NOR AT THE APPELLATE STAGE, HE APPELLANT HAS FURNISHED ANY DETAIL OF LOAN NOR DETAILS OF BANK ACCOUNT NOR DETAIL WHETHER T HE CHEQUES WERE PUT IN BUSINESS OR PERSONAL ACCOUNT. SINCE THE FACTUAL DETAILS ARE NOT PROVIDED BY THE APPELLANT, IT IS NOT POSSIBLE TO VERIFY THE CLAIM OF THE APPELLANT IN VIEW OF THE DIRECTIONS GIVEN BY ITAT. THEREFORE, THE ADDITION MADE BY 3 5610/MUM/2013 THE AO IS U PHELD AND THE CLAIM OF THE APPELLANT IS DISMISSED. GROUND IS DISMISSED. 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED BEFORE US ON RECORD INCLUDING THE IMPUGNED ORDER S . IN THE PRESENT CASE, THE TRIBUNAL HAD RESTORED THE ISSUE B ACK TO THE FILE OF AO TO EXAMINE THE ISSUE AFTER PROVIDING NECESSARY OPPORTUNITY TO THE ASSESSEE TO FURNISH DOCUMENTARY EVIDENCES AS MAY BE PROVIDED BY THE ASSESSEE AT THE SET ASIDE PROCEEDINGS. THE ASSESSEE, NE I THER IN THE SET ASIDE PROCEEDINGS NOR DURIN G THE APPELLATE PROCEEDINGS FILED ANY CLINCHING EVIDENCE TO SUBSTANTIATE HER CASE. BEFORE US ALSO, NOTHING HAS BEEN FILED TO CONTROVERT THE CONCLUSION TAKEN BY LOWER AUTHORITIES WHICH WARRANT US TO TAKE A DIFFERENT VIEW . THEREFORE, WE ARE IN AGREEMENT WI TH THE CONCLUSION DRAWN BY THE AO AND CONFIRMED BY THE LD.CIT(A) ON THIS ISSUE FOR WANT OF NECESSARY DOCUMENTARY EVIDENCES IN SUPPORT OF HER CLAIM. ACCORDINGLY, WE DISMISS THE APPEAL OF THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9TH JUNE , 2017 S D SD ( SAKTIJIT DEY ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 9. 6 . 2017 SRL,SR.PS 4 5610/MUM/2013 / 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, T RUE COPY / (DY./ASSTT. REGISTR AR) , / ITAT, MUMBAI