JAYANTILAL H GURJAR, MUMBAI V. ITO WD 15(1)(2), MUMBAI

ITA 5700/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93120 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 19-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: V K TULSIYAN
• Keywords: Principle of natural justice
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE S/SHRI I.P. BANSAL, (JM) AND B.R.BASKARAN (AM) . . , . . , ./ I .T.A. NO . 5700 / MUM/20 1 2 ( / ASSESSMENT YEAR : 20 07 - 08 ) J AYANTILAL H GURJAR, SHOP NO.1, PANCHGANGA BUILDING, N M JOSHI MARG, MUMBAI - 400013 / VS. INCOME TAX OFFICER 1 5 (1) (2), 116, MATRU MANDIR , 4 TH FLOOR, TARDEO ROAD, MUMBAI - 40 0007 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AACPG0830E / : A PPELLANT BY: SHRI V K TULSIYAN / RE SPONDENT BY : SHRI LOVE KUMAR / DATE OF HEARING : 30 .6. 2015 / DATE OF PRONOUNCEMENT : 30 .6. 2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 8.6.2012 PASSED BY THE LD. CIT(A) - 26, MUMBAI FOR THE ASSESSMENT YEAR 2007 - 08, WHEREIN HE HAS CONFIRMED THE ADDITION OF RS.5 , 34 , 801/ - MADE BY THE AO UNDER SECTION 68 OF THE INCOME TAX ACT, 1961. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE AO NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH IN TWO BANK ACCOUNT S AGGREGATING TO RS.20,64,994/ - . THE ASSESSEE FURNISHED THE DETAILS OF CASH RECEIVED ONLY TO ITA NO. 5700 / M/ 1 2 2 THE EXTENT OF RS.15,30,193 / - . HENCE, THE AO ASSESSED THE DIFFERENCE OF RS.5 ,34,801 / - AS INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. 3. BEFORE THE LD.CIT(A), THE ASSESSEE SUBMITTED THAT THERE WAS A MISTAKE IN THE WORKING OF CASH RECEIPTS. IT WAS SUBMITTED THAT THE CASH WITHDRAWALS FROM THE BANK WAS SHOWN AT RS.1 ,53 ,94 6 / - WHEREAS THE ACTUAL WITHDRAWALS MADE WORKED OUT TO RS.14,39,640/ - . A CCORDINGLY, IT WAS PLEADED THAT THERE IS NO REQUIREMENT OF MAKING ANY ADDITION , IF THE CASH WITHDRAWALS IS TAKEN AT CORRECT FIGURE OF RS.14,39,640/ - . HOWEVER, THE LD.CIT(A) TOOK THE VIEW THAT THE ASSESSEE HAS CHANGED HIS STAND TO MAKE F UTILE ATTEMPT TO EXPLAIN OTHERWISE UNEXPLAINED CASH DEPOSITS. ACCORDINGLY , HE TOOK THE VIEW THAT THE ASSESSEES STAND IS AN AFTERTHOUGHT AND ACCORDINGLY CONFIRMED THE ADDITION MADE BY THE AO. 4 . THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT T HERE WAS GENUINE CLERICAL MISTAKE IN COMPUTING CASH WITHDRAWAL WHICH CAN BE VERIFIED FROM THE BANK STATEMENT AND HENCE THE LD.CIT(A) WAS NOT JUSTIFIED IN CONSIDERING THE SAME AS IT WAS AFTER THOUGHT. 5 . ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASS ESSEE HAS FAILED TO EXPLAIN THE SOURCE OF BANK DEPOSITS AND HENCE THE ADDITION WAS MADE. 6. HAVING HEAR D THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT , IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PROPERLY EXP LAIN THE CASH WITHDRAWALS MADE FROM THE BANK. WE NOTICE THE LD. CIT(A) HAS REJECTED THE CLAIM OF THE ASSESSEE THAT CASH WITHDRAWALS WERE TO THE EXTENT OF RS.14,39,640/ - , EVEN WITHOUT EXAMINING THE RELEVANT BANK STATEMENT S AND WORKINGS, WHICH IN OUR OPINI ON IS NOT JUSTIFIED. THEREFORE, WE ARE OF THE VIEW THAT T HE LD.CIT(A) SHOULD HAVE EXAMINED THE CLAIM OF THE ASSESSEE BY DULY VERIFYING / ASKING THE AO TO ITA NO. 5700 / M/ 1 2 3 VERIFY THE SAME WITH THE BANK STATEMENT S AND THEN SHOULD HAVE TAKEN THE PROPER DECISION. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END O F THE LD.CIT(A) BY DULY CONSIDERING THE BANK STATEMENT S, WORKINGS AND EXPLANATION OF THE ASSESSEE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE TH IS ISSUE BACK TO HIS FILE FOR FRESH CONSIDERATION.. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE , 2015 . 30TH JUNE , 201 5 SD SD ( . . / I.P. BANSAL ) ( . . / B.R. BASKARAN ) / JUDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI: 30TH JUNE , 201 5 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERN ED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI