GANGADHAR B. GUNJITE, MUMBAI V. INCOME TAX OFFICER, RANGE-31(1)(5), MUMBAI

ITA 5735/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0498 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: JITENDRA SINGH
• Section: 133(6); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.5735/M/2017 ASSESSMENT YEAR: 2011-12 MR. GANGADHAR B. GUNJITE, F-29, S.B.I. OFFICERS QUARTERS, KUMUD NAGAR, S.V. ROAD, GOREGOAN (WEST), MUMBAI-400 104 PAN: AIKPG3477F VS. ITO, WARD 31(1)(5), C-11, 7 TH FLOOR, ROOM NO.707, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 051 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI K. GOPAL, A.R. & SHRI JITENDRA SINGH, A.R. REVENUE BY : MS. N. HEMALATHA, D.R. DATE OF HEARING : 08.01.2018 DATE OF PRONOUNCEMENT : 31.01.2018 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 02.05.2017 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2011-12. 2. THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE WAS AN EMPLOYEE OF THE STATE BANK OF INDIA EARLIER BUT HE WAS DISMI SSED FROM SERVICE IN 2005 FOR OFFICIAL LAPSES. ADMITTEDLY THE ASSESS EE HAS NO JOB AND NO REGULAR SOURCE OF INCOME. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR AY 2011-12 ON 28/04/2014 DECLARING A TOT AL INCOME OF RS.75,242/-. SUBSEQUENTLY, THE ASSESSING OFFICER (H EREINAFTER ITA NO.5735/M/2017 MR. GANGADHAR B. GUNJITE 2 REFERRED TO AS THE AO) RECEIVED INFORMATION FROM TH E OFFICE OF THE ADDL. DIT(I&CI), MUMBAI TO THE EFFECT THAT THE ASSE SSEE HAS DEPOSITED CASH OF RS.46,55,800/- IN HIS BANK ACCOUN T MAINTAINED WITH THE STATE BANK OF INDIA, GOREGAON (WEST) BRANCH. S INCE THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF THESE CASH DEPO SITS THE MATTER WAS REFERRED TO THE AO WHO PROCEEDED TO ISSUE A NOT ICE UNDER SECTION 148 OF THE ACT DATED 25/03/2014. IN THE COURSE OF T HE ASSESSMENT PROCEEDINGS THE ASSESSEE CLAIMED THAT THE CASH WAS RECEIVED FROM 33 PERSONS AND HE FILED CONFIRMATIONS IN RESPECT OF 28 PERSONS. ON VERIFICATION OF THE SAID LOAN CONFIRMATIONS, IT WAS FOUND THAT THE SAME DO NOT CARRY ANY PAN AND NO OTHER SUPPORTING DOCUME NT WAS ATTACHED TO PROVE THE CREDITWORTHINESS OF THE LENDE RS. THE ASSESSEE FURNISHED CERTAIN DOCUMENTS TO THE AO CONCERNING TH E REPAYMENT OF THE LOANS SUBSEQUENTLY. THE AO DIRECTED THE ASSESSE E TO PRODUCE THE UNSECURED LOAN CREDITORS BUT THE ASSESSEE WAS UNABL E TO DO SO. THE AO ISSUED NOTICES UNDER SECTION 133(6) OF THE ACT T O 19 SUCH PARTIES TO VERIFY THEIR SOURCE, GENUINENESS AS WELL AS THEI R CREDITWORTHINESS BUT ONLY TWO LOAN CREDITORS VIZ. SHRI S A GUNJITE A ND SHN SANTOSH M RAHTOD APPEARED PERSONALLY OR THROUGH THEIR RELATIV ES BEFORE THE AO. THE REST DID NOT RESPOND. AFTER CONSIDERING THE SUB MISSIONS OF THE ASSESSEE, THE LOAN CONFIRMATIONS FILED BY THE ASSES SEE IN RESPECT OF OTHER LOAN CREDITORS AND THE DECLARATIONS OF THE LO AN CREDITORS WHO APPEARED BEFORE THE AO, THE AO ACCEPTED THAT THE AS SESSEE HAS ESTABLISHED THE NATURE AND SOURCE OF LOAN FROM 10 L OAN CREDITORS WHO HAD ADVANCED IN ALL A SUM OF RS 11,85,000/- TO THE ASSESSEE AND HELD THAT THE REMAINING AMOUNT OF RS. 34,70,800/- WAS NO T SATISFACTORILY ITA NO.5735/M/2017 MR. GANGADHAR B. GUNJITE 3 EXPLAINED AND THE SAME WAS BROUGHT TO TAX UNDER SEC TION 69A OF THE ACT. 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS DISMISSED. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE ME. 5. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMI TTED THAT ASSESSEE HAS DEPOSITED RS.46,55,800/- IN THE BANK. THE ASSESSEE HAS RECEIVED THIS CASH FROM 33 PERSONS AND HAS FILED CO NFIRMATIONS IN RESPECT OF 28 PERSONS. DURING THE ASSESSMENT PROCE EDINGS, ASSESSEE HAS SUBMITTED THE DETAIL TO WHOM THIS AMOUNT IS REP AID WHICH IS MENTIONED ON PAGE 18-19 OF THE PAPER BOOK BUT AO DI D NOT EXAMINE THE SAME. THE PERSONS WHO HAVE REPAID THE LOAN ARE FROM VILLAGES AND THEY HAD NOT COME UP BEFORE THE AO. THEREFORE, MATTER MAY BE RESTORED TO VERIFY THE SAME. THE LD. A.R. ALSO FUR THER REQUESTED THAT THIS LOAN CONFIRMATION IS FROM THE VILLAGES AND THE Y ARE STAYING OUTSIDE THE JURISDICTION OF THE AO. THEREFORE, IT MAY BE VERIFIED BY ISSUING THE COMMISSION TO RESPECTIVE JURISDICTION A ND MATTER MAY BE RESTORED TO AO. 6. THE LD. D.R. OBJECTED TO IT. 7. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASS ESSEE WAS ASKED TO PRODUCE THE PARTIES FROM WHOM THE LOAN WAS REPAID. HOWEVER, ITA NO.5735/M/2017 MR. GANGADHAR B. GUNJITE 4 ASSESSEE COULD NOT PRODUCE THE PARTY AND OTHER PART IES DID NOT REMAIN PRESENT BEFORE THE AO. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, I RESTORE THIS ISSUE BACK TO THE FILE OF AO. AO IS DIRECTED TO ISSUE COMMISSION TO THE LATUR DISTRICT AND IF THE P ARTIES CONFIRM THAT THE LOAN IS REPAID, THEN NO ADDITION IS CALLED FOR. AO IS FURTHER DIRECTED TO PASS THE ORDER AFRESH, AS PER LAW. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 31.01.2018. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 31.01.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.