ANJU RAJESH PODDAR, MUMBAI V. ACIT CC 43, MUMBAI

ITA 5832/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1501 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHNI
• Keywords: Unexplained cash credit; Search and seizure; Opportunity of being heard
• Section: 143(3); 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO 5832 & 5835/MUM/2015 ASSESSMENT YEAR: 2008-09 & 2011-12 SMT. ANJU RAJESH PODDAR, 42, GAUTAM APARTMENTS, 31, JUHU ROAD, SANTACRUZ(W), MUMBAI 400 054. PAN:- AAHPP8890N VS. THE ACIT C C - 43, ROOM NO. 659, 6 TH FLOOR, AAYAKAR BHAVAN, MAHARSHI KARVE ROAD, MUMBAI- 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. ANANT N. PAI RESPONDENT BY : SHRI. ALOK JOHNI DATE OF HEARING: 21/12 / 2016 DATE OF PRONOUNCEMENT: 21/12/20 16 O R D E R PER RAM LAL NEGI, JM THESE TWO APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST COMMON ORDER DATED 30/10/2015 PASSED BY THE LD. CIT (APPEA LS)-48 MUMBAI FOR THE ASST. YEARS 2008-09 AND 2011-12 RESPECTIVELY, WHERE BY THE LD. CIT(A) DISMISSED THE SEVEN APPEALS FILED BY THE ASSESSEE I NCLUDING THE AFORESAID TWO APPEALS, FILED AGAINST THE ASSESSMENT ORDERS PASSE D U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). SINC E IN ISSUES INVOLVED IN BOTH THE APPEALS ARE COMMON, SAME WERE CLUBBED, HEARD TO GETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE. ITA NO. 5832/MUM/2015 A.Y. 2008-09 2 ITA NO 5832 & 5835/MUM/2015 ASSESSM ENT YEAR: 2008-09 & 2011-12 BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SEIZURE ACTION U/S 132(1) WAS CARRIED OUT IN LOHA ISPAAT GROUP OF CASES ON 22.2.2 012 AND ON SUBSEQUENT DATES AND THE ASSESSEE WAS ALSO COVERED UNDER THE S AME. NOTICE U/S 153A WAS ACCORDINGLY ISSUED TO THE ASSESSEE AND IN RESPONSE THEREOF THE ASSESSEE FILED RETURN OF INCOME FOR THE AY 2008-09 DECLARING THE T OTAL INCOME OF RS. 5,95,530/-. THEREAFTER NOTICE UNDER SECTION 143 (2) OF THE ACT WAS ISSUED ON WHICH CERTAIN DETAILS WERE FURNISHED BY THE ASSESSE E. THE ASSESSEE HAD SHOWN RECEIVED UNSECURED LOANS TO THE TUNE OF RS.15,00,00 0/-FROM DIFFERENT PARTIES, IN HER RETURN OF INCOME. BUT THE AO REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE, ADDED THE SAID AMOUNT TO THE INCOME OF TH E ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES AND ASSESSED THE INCOME O F THE ASSESSEE AT RS. 20,45,530/-. 2. AGGRIEVED, THE ASSESSEE CHALLENGED THE ASSESSMEN T ORDER BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER HEARING THE APPELLANT /ASSESSEE DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ASSESSEE HA S FAILED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE C REDITORS . 3. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL O N THE FOLLOWING EFFECTIVE GROUNDS:- 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT PROVIDING THE A PPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LEARNED COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ACTI ON OF THE LEARNED ASSESSING OFFICER IN MAKING THE ADDITION OF RS. 15, 00,000 IN RESPECT OF LOAN FROM MESSRS. GUPTA TRADERS AS UNEXPLAINED C ASH CREDITS U/S 68 OF THE INCOME TAX ACT, 1961. 3 ITA NO 5832 & 5835/MUM/2015 ASSESSM ENT YEAR: 2008-09 & 2011-12 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET P OINTED OUT THAT THE MUMBAI TRIBUNAL HAS DEALT WITH THE IDENTICAL ISSUE IN ASSESSEES OWN CASE, ITA NO 5831/MUM/2015, FOR THE ASSESSMENT YEAR 2007-08 AND AFTER TAKING INTO CONSIDERATION THE BENCH HAS RESTO RED TO THE FILE OF AO FOR FRESH ADJUDICATION. THE LD. COUNSEL FURTHER SUB MITTED THAT SINCE THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL T HE SAME MAY BE SENT BACK TO THE AO FOR FRESH ADJUDICATION IN TERMS OF T HE DIRECTIONS ISSUED BY THE TRIBUNAL IN THE AFORESAID CASE. 5. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMIT TED THAT THE SIMILAR ISSUE HAS BEEN RESTORED TO THE FILE OF AO BY THE TR IBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08. 6. WE HAVE PERUSED THE MATERIAL PLACED ON RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BY THE PARTIES. WE NOTICE THAT VID E ORDER DATED 30.9.2016, THE COORDINATE BENCH HAS RESTORED THE ID ENTICAL ISSUE TO THE FILE OF AO IN ASSESSEES OWN CASE AFORESAID HOLDING AS UNDER:- 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS COULD BE SEEN, THE ONLY GRIEVANCE OF THE ASSESSEE IS, BEFORE TREATING THE U NSECURED LOANS AS UNEXPLAINED CASH CREDITS UNDER SECTION 68 OF THE AC T, THE DEPARTMENTAL AUTHORITIES HAVE NOT GIVEN ADEQUATE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THIS CONTEXT, IT IS THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE THAT CERTAIN TOURNAMENTS HAVE TAKEN PLACE AFTER COMPLETION OF ASSESSMENT IN ASSESSEES CASE VIZ. ASSESSMENT ORDERS PASSED IN CASE OF LOHA ISPAT LTD AND SOME OF THE CREDITORS WHICH MAY HAVE BEARING ON THE GENU INENESS OF UNSECURED LOANS. TO PROVE SUCH FACT, THE ASSESSEE H AS ALSO SUBMITTED BEFORE US THE ASSESSMENT ORDERS PASSED IN CASE OF LOHA ISPAT LTD, SHRI RAJESH PODDAR (HUF) AND DHANI DEVI P FOR THE VERY THATSAME ASSESSMENT YEAR. ON APPEAL OF THE AFORESAI D ORDERS, WE 4 ITA NO 5832 & 5835/MUM/2015 ASSESSM ENT YEAR: 2008-09 & 2011-12 HAVE NOTICED THAT THESE ORDERS HAVE BEEN PASSED AFT ER COMPLETION OF ASSESSMENT IN CASE OF ASSESSEE. MOREOVER, PRIMA FAC IE, IT APPEARS THAT THEY HAVE NOT BEEN SUBMITTED BEFORE THE LEARNE D COMMISSIONER (APPEALS) EITHER. THUS THESE DOCUMENTS, IN OUR VIEW , HAVE TO BE EXAMINED BY THE DEPARTMENTAL AUTHORITIES TO FIND OU T WHETHER THEY HAVE BEARING ON THE ISSUE OF GENUINENESS OF THE UNS ECURED LOAN. FURTHER, THE ASSESSEE SHOULD ALSO GET A FAIR OPPORT UNITY TO PROVE THE GENUINENESS OF THE LOAN TRANSACTION ON THE BASIS OF AFORESAID DOCUMENTARY EVIDENCE. KEEPING THIS IN VIEW, WE ARE INCLINED TO RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OF FICER FOR DECIDING AFRESH. NEEDLESS TO MENTION, THE ASSESSING OFFICER MUST AFFORD ADEQUATE OPPORTUNITY TO THE ASSESSEE TO REPRESENT H IS CASE AND THE ASSESSING OFFICER SHOULD PASS THE ORDER AFTER CONSI DERING THE SUBMISSIONS OF THE ASSESSEE AND THE DOCUMENTARY EVI DENCE BROUGHT ON RECORD. AT THE SAME TIME, WE DIRECT THE ASSESSEE TO COMPLY TO THE NOTICE TO BE ISSUED BY THE ASSESSING OFFICER AND AP PEARED BEFORE HIM ON THE DATE FIXED WITH NECESSARY EVIDENCE TO ES TABLISH HER CLAIM. IN THE EVENT OF ANY FAILURE ON THE PART OF A SSESSEE TO COMPLY TO THE NOTICES/QUERIES RAISED BY THE ASSESSING OFFICER , THE ASSESSING OFFICER WILL BE AT LIBERTY TO COMPLETE THE ASSESSME NT ON THE BASIS OF MATERIAL ON RECORD IN ACCORDANCE WITH THE. IN VIEW OF THE AFORESAID DECISION, THERE IS NO NEED TO ADJUDICATE THE MERITS OF THE ADDITION MADE UNDER SECTION 68 OF THE ACT AT THIS STAGE. 7. RESPECTFULLY FOLLOWING THE DECISION OF THE COORD INATE BENCH PASSED IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 IN THE IDENTICAL MATTER, WE RESTORE THE SOLE GROUND OF THIS APPEAL TO THE FI LE OF AO TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH THE DIRECTION GIVEN BY TH E COORDINATE BENCH IN ITA NO 5831/MUM/2015(SUPRA). ITA NO. 5835/MUM/2015 A.Y. 2011-12 THE FACTS OF THIS CASE AND GROUND RAISED BY THE AS SESSEE IN THIS APPEAL ARE IDENTICAL TO THE ASSESSEES OWN CASE FOR THE ASSESS MENT YEAR 2008-09. SINCE WE HAVE RESTORED THE SOLE GROUND OF APPEAL IN THE SAID CASE BY FOLLOWING THE DECISION RENDERED BY THE COORDINATE BENCH IN ASSESS EES OWN CASE FOR THE 5 ITA NO 5832 & 5835/MUM/2015 ASSESSM ENT YEAR: 2008-09 & 2011-12 ASSESSMENT YEAR 2007-08, WE ALSO RESTORE THE ISSUE INVOLVED IN THIS APPEAL TO THE FILE OF AO TO ADJUDICATE THE SAME AFRESH IN ACC ORDANCE WITH THE DIRECTION GIVEN BY THE COORDINATE BENCH IN ITA NO 5831/MUM/20 15(SUPRA). 8. IN THE RESULT, THE ASSESSEES APPEALS FOR ASST. YEAR 2008-09 & 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST DECEMBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:21/12/2016 / 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. REGISTRAR) , / ITAT, MUMBAI PRAMILA