KHALIIL AHMED TANWAR, MUMBAI V. ITO 8(2)(2), MUMBAI

ITA 5749/MUM/2012

• Counselvise Citation: 574919914 RSA 2012
• Duration Of Justice: 2 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 12-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 14-09-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI. BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO 5749/MUM/2012 ASSESSMENT YEAR: 2006-07 SHRI KHALIL AHMED TANWAR, A/301, SWATI BUILDING, JUHU LANE, ANDHERI (WEST) MUMBAI 400 058 VS. THE INCOME TAX OFFICER 8(2)(2), MUMBAI. PAN/GIR NO. A BZPT 6169 M ( APPELLANT ) ( RESPONDENT ) ORDER PER G.S. PANNU, AM: THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1 7, MUMBAI DATED 08/05/2012, WHICH IN-TURN HAS ARISEN FROM TH E ORDER PASSED BY THE ASSESSING OFFICER DATED 30/12/2008 UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) P ERTAINING TO ASSESSMENT YEAR 2006-07. APPELLANT BY SHRI S.C.TIWARI RE SPONDENT BY SHRI MANOJ KUMAR DATE OF HEARING 18/08 / 2015 DATE OF PRONOUNCEMENT 18/ 08/ 2015 ITA NO 5749/MUM/2012 ASSESSMENT YEAR: 2006-07 PAGE 2 OF 7 2. IN THIS APPEAL, THE ASSESSEE HAS ASSAILED THREE ADDITIONS NAMELY; (I) RS.4,77,000/- AS UNEXPLAINED CASH DEPOS ITS IN BANK; (II) RS.3,30,000/-BEING UNEXPLAINED CASH DEPOSITS; AND, (III) RS.1,44,463/- BEING NEGATIVE CASH BALANCE IN THE CA SH BOOK. THE APPELLANT INDIVIDUAL FILED THE RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 AT RS.1,68,543/-, WHICH WAS SUBJECT TO SCRU TINY ASSESSMENT. ONE OF THE POINTS NOTED BY THE ASSESSI NG OFFICER WAS THAT THE ASSESSEE HAD MADE CASH DEPOSITS OF RS.15,0 7,500/- IN THE SAVING BANK ACCOUNT MAINTAINED WITH INDIAN OVERSEAS BANK. ON BEING ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE BANK, THE ASSESSEE FURNISHED CASH BOOK FOR THE PERIOD 1/4/200 5 TO 31/3/2006 AND ALSO COPY OF HIS BANK STATEMENT. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION FURN ISHED BY THE ASSESSEE AND NOTICED THAT A SUM OF RS. 4,77,000/- W AS CLAIMED TO HAVE BEEN RECEIVED IN THE AMOUNTS RANGING FROM RS. 17,000/- TO RS.18,000/- FROM 27 PERSONS. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE COULD NOT FILE CONFIRMATION LETTERS FR OM SUCH PERSONS AND, THEREFORE, TO THE EXTENT OF RS.4,77,000/-, THE DEPOSITS IN THE BANK ACCOUNT WERE CONSIDERED AS UNEXPLAINED, WHICH HAS ALSO BEEN AFFIRMED BY CIT(A). WITH REGARD TO THE CASH D EPOSITS APPEARING IN THE BANK FOR RS.3,30,000/-, ASSESSEE E XPLAINED THAT THE SAME WERE AMOUNTS RECEIVED BACK FROM THE SITE L ABOURERS/STAFF, WHO WERE ADVANCED SUCH MONIES IN THE PAST. THE EXP LANATION OF THE ASSESSEE WAS ALSO NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER AND THE AMOUNT OF RS.3,30,000/- WAS ALSO TREATED AS ITA NO 5749/MUM/2012 ASSESSMENT YEAR: 2006-07 PAGE 3 OF 7 UNEXPLAINED DEPOSITS. ON THIS ASPECT, THE CIT(A) A FTER CONSIDERING THE ADDITIONAL EVIDENCE IN THE FORM OF CONFIRMATION S FROM CERTAIN STAFF MEMBERS OF THE SISTER CONCERNS, SCALED DOWN T HE DISALLOWANCE TO RS.1,95,000/- AND, ACCORDINGLY, THE ADDITION HAS BEEN RETAINED TO THE EXTENT OF RS.1,95,000/-. THE ASSESSEE IS AG GRIEVED BY THE SUSTENANCE OF ADDITION OF RS.1,95,000/- BY THE CIT (A), THOUGH IN THE GROUNDS OF APPEAL, THE FIGURE HAS BEEN MENTIONE D AT RS.3,30,000/-. THIRDLY, ON EXAMINATION OF THE CASH BOOK FURNISHED BY THE ASSESSEE, THE ASSESSING OFFICER NOTED THAT T HERE WAS AN AMOUNT OF RS.1,44,463/-, WHICH WAS A NEGATIVE CASH BALANCE. THE ASSESSING OFFICER TREATED THE AMOUNT OF RS.1,44,463 /- AS AN UNEXPLAINED CASH. THIS ADDITION HAS ALSO BEEN AFFI RMED BY THE CIT(A). 3. BEFORE US, A PRELIMINARY POINT WAS RAISED BY THE LD. REPRESENTATIVE FOR THE ASSESSEE TO THE EFFECT THAT IN THE COURSE OF APPEARANCE AT THE ASSESSMENT STAGE, CERTAIN ERRORS HAD CREPT INTO THE SUBMISSIONS PUT FORTH BY THE ASSESSEE. IT WAS POINTED OUT THAT BEFORE THE CIT(A), ASSESSEE HAD FURNISHED REVISED C ASH BOOK ALONGWITH A SUMMARIZED CASH DEPOSITS AND WITHDRAWA LS, WHICH SHOWED THAT THERE WAS NO UNEXPLAINED CASH BALANCES. IN FACT, IT HAS BEEN POINTED OUT THAT EVEN WITH REGARD TO 27 PE RSONS FROM WHOM ASSESSEE HAD RECEIVED AMOUNTS TOTALING TO RS.4 ,77,000/-, ASSESSEE HAD POINTED OUT THAT THE SAME WERE CASH LO ANS GIVEN BY THE ASSESSEE IN THE PAST, WHICH WERE RECEIVED BACK DURING THE YEAR ITA NO 5749/MUM/2012 ASSESSMENT YEAR: 2006-07 PAGE 4 OF 7 UNDER CONSIDERATION. THE LD. REPRESENTATIVE FOR TH E ASSESSEE POINTED OUT THAT IN SUPPORT, ASSESSEE HAD ALSO FURN ISHED COPIES OF RATION CARD, DRIVING LICENCE, PAN NUMBER, ETC. IN R ELATION TO SOME OF THE 27 PERSONS. WITH REGARD TO THE OTHER ADDITI ON RETAINED BY CIT(A) AT RS.1,95,000/-, IT HAS BEEN EXPLAINED THAT BEFORE CIT(A) ASSESSEE HAD MADE ELABORATE SUBMISSIONS AND POINTE D OUT THAT THE SAME REFLECTS AMOUNTS RECEIVED BACK FROM STAFF AND LABOUR OF M/S.LIZ (I) CONSTURCTION P. LTD. AND M/S. TANVER T RAVEL SERVICES IN WHICH ASSESSEE WAS A DIRECTOR AND PARTNER. THE L D. REPRESENTATIVE FOR THE ASSESSEE CONTENDED THAT ALL THE MATERIAL HAS NOT BEEN OBJECTIVELY CONSIDERED BY LOWER AUTHORITIE S PRIMARILY FOR THE REASON THAT THE SAME WAS NOT INITIALLY BROUG HT OUT BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. T HE PLEA OF THE ASSESSEE IS THAT THE EXPLANATION FURNISHED BY THE A SSESSEE BE CONSIDERED ON THEIR MERITS INSTEAD OF THE SAME BEI NG REJECTED AT THE THRESHOLD FOR THE FAILURE OF THE ASSESSEE IN NOT PR ODUCING IT AT THE FIRST STAGE BEFORE THE ASSESSING OFFICER. LD. REPR ESENTATIVE FOR THE ASSESSEE SUBMITTED THAT ASSESSEE WOULD BE SATISFIED , IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO CONSIDER THE EFFICACY OF HIS EXPLANATIONS AND THE MATERIAL FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS STAND . 4. LD. DR HAS DEFENDED THE ADDITION SUSTAINED BY CI T(A) THOUGH HE HAS NOT SERIOUSLY OPPOSED THE PRAYER OF THE ASSE SSEE FOR ITA NO 5749/MUM/2012 ASSESSMENT YEAR: 2006-07 PAGE 5 OF 7 REMANDING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR EXAMINATION OF THE MATERIAL AND EXPLANATION ON MER ITS. 5. IN THE ABOVE BACKGROUND, WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN PRINCIPLE, WE ARE IN AGREEMENT WITH THE ASSERTIONS OF THE ASSESSEE THAT HIS PLEAS OUGHT TO HAVE BEEN C ONSIDERED BY THE INCOME-TAX AUTHORITIES ON THEIR MERIT AND THE SAME COULD NOT HAVE BEEN SHUT-OUT SUMMARILY. IN VIEW OF THE AFORESAID, WE THEREFORE, DEEM IT FIT AND PROPER TO RESTORE THE MATTER BACK T O THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE E XPLANATION FURNISHED BY THE ASSESSEE AND, IF THE SAME ARE FOUN D TO BE REASONABLE AND BONAFIDE, THE SAME BE ACCEPTED AND, IF HIS FINDING IS TO THE CONTRARY, THE ASSESSING OFFICER SHALL BE AT LIBERTY TO PROCEED AS PER LAW. NEEDLESS TO MENTION, THE ASSESSING OF FICER SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D BEFORE PASSING AN ORDER AFRESH AS PER TO LAW. 6. BEFORE PARTING, WE MAY ALSO MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OF FICER SHALL IN NO WAY BE CONSTRUED AS ANY REFLECTION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE ASSESSING OFFICER AFRESH AS PER LAW. ITA NO 5749/MUM/2012 ASSESSMENT YEAR: 2006-07 PAGE 6 OF 7 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS ABOVE, AS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING ON 18/08/2015. SD/- SD/- ( SANDEEP GOSAIN ) (G.S. PANNU ) ( JUDICIAL MEMBER ) ( ACCOUNTANT MEMBER ) MUMBAI DATED 18/08/2015 VM. COPY TO: THE APPELLANT THE RESPONDENT THE CONCERNED CIT(A) THE CONCERNED CIT THE DR, CBENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI