JACKIE SHROFF, MUMBAI V. ACIT 11(1), MUMBAI

ITA 5834/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2790 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 17-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PANKAJ JAIN
• Keywords: Unexplained expenditure; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.5834/M/2014 ASSESSMENT YEAR: 2010-11 MR. JACKIE SHROFF, 901, 9 TH FLOOR, FREEDA ONE, KARTER ROAD, BANDRA (WEST), MUMBAI 400 050 PAN: AAJPS6596A VS. ASST. COMMISSIONER OF INCOME TAX-11(1), AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI PANKAJ JAIN, A.R. REVENUE BY : SHRI JEEVAN LAL, D.R. DATE OF HEARING : 27.06.2016 DATE OF PRONOUNCEMENT : 30.06.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 30.07.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2010-11. 2. THE SOLE ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS RELATING TO THE ADDITION OF RS.7,69,708/- ON ACCOUNT OF MISMATCH BE TWEEN THE AIR INFORMATION AND THE DETAILS SUBMITTED BY THE ASSESS EE RELATING TO THE CREDIT CARD PAYMENTS PAID TO AMERICAN EXPRESS BANKING CORPORATI ON (AEBC). AS PER THE AIR INFORMATION, THE ASSESSEE HAD PAID A SUM OF RS. 9,92,813/- TO AEBC, DURING THE YEAR UNDER CONSIDERATION, OUT OF WHICH O NLY PAYMENTS AMOUNTING TO RS.2,23,105/- WERE REFLECTED IN THE BOOKS OF ACCOUN TS. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) THEREFORE ADDED THE DIFFERENCE OF THE SAME AMOUNTING TO RS.7,69,708/- INTO THE INCOME OF THE A SSESSEE TREATING THE SAME AS UNEXPLAINED EXPENDITURE. ITA NO.5834/M/2014 MR. JACKIE SHROFF 2 3. IN APPEAL BEFORE LD. CIT(A), THE ASSESSEE SUBMIT TED THAT THE AIR INFORMATION WAS INCORRECT AS THE ASSESSEE HAD NOT I NCURRED THE EXPENDITURE AS DETAILED IN THE AIR INFORMATION. HE FURTHER SUBMIT TED THAT A REQUEST WAS MADE TO THE AO TO PROVIDE THE FULL DETAILS OF TRANSACTIO NS WITH REGARD TO PAYMENTS TO AEBC. HOWEVER THE AO HAD NOT PROVIDED THE SAME. 4. THE LD. CIT(A), HOWEVER, REJECTED THE ABOVE CONT ENTION OF THE ASSESSEE AND HELD THAT THE ASSESSEE HIMSELF WOULD HAVE MADE INQUIRIES FROM THE AEBC AND EXPLAINED THE SAME TO THE AO. HE HELD THAT THE ONUS TO EXPLAIN THE EXPENDITURE WAS UPON THE ASSESSEE. HE, THEREFORE, UPHELD THE ADDITIONS SO MADE BY THE AO. 5. BEFORE US, THE LD. A.R. OF THE ASSESSEE REITERAT ED THE SUBMISSIONS AS WERE MADE BEFORE THE LD. CIT(A). HE HAS ALSO RELIE D UPON VARIOUS DECISIONS OF THE TRIBUNAL WHEREIN IT HAS BEEN HELD THAT THE A DDITION CANNOT BE MADE SOLELY ON THE BASIS OF AIR INFORMATION ESPECIALLY W HEN, THE ASSESSEE DENIES ANY SUCH RECEIPT; THAT THE BURDEN TO PROVE SUCH REC EIPTS IS ON THE AO AS THE ASSESSEE CANNOT BE ASKED TO PROVE THE NEGATIVE. TH E LD. A.R., IN THIS RESPECT, HAS RELIED UPON THE DECISION OF THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SHREE G. SELVAKUMAR ITA NO.868/BANG/0 9 DECIDED VIDE ORDER DATED 22.10.10 AND FURTHER IN THE CASE OF M/S. ARAT I RAMAN VS. DCIT ITA NO.245/BANG/12 DECIDED VIDE ORDER DATED 05.10.12 AN D IN THE CASE OF M/S. A.F. FERGUSON AND COMPANY VS. JCIT ITA NOS.5037/M/ 12 AND 473/M/13 DECIDED VIDE ORDER DATED 17.10.14 (MUMBAI TRIBUNAL) . 6. WE FIND THAT THE LD. CIT(A) HAS TOTALLY IGNORED THE ABOVE DECISIONS OF THE TRIBUNAL WHILE CONFIRMING THE ADDITIONS MADE BY THE AO ON THIS ISSUE. THE LD. A.R. HAS BROUGHT OUR ATTENTION TO THE COPY OF T HE LETTER DATED 12.03.13 FURNISHED BY THE ASSESSEE BEFORE THE AO TO STATE TH AT THE ASSESSEE HAD ALREADY GIVEN THE DETAILS OF THE TRANSACTIONS AS PER THE BA NK ACCOUNTS TO THE AO. UNDER SUCH CIRCUMSTANCES THE BURDEN SHIFTED UPON THE AO T O REBUT THE ACCOUNTS ITA NO.5834/M/2014 MR. JACKIE SHROFF 3 SUBMITTED BY THE ASSESSEE. WHEN THE ASSESSEE HAD S PECIFICALLY ASKED FOR THE DETAILS OF THE AIR INFORMATION SO THAT HE MAY SPECI FICALLY ADMIT OR DENY THE TRANSACTIONS, THEN UNDER SUCH CIRCUMSTANCES THE AO WAS SUPPOSED TO CONTRADICT/REBUT THE ACCOUNTS OF THE ASSESSEE REGAR DING THE SPECIFIC TRANSACTIONS NOT SHOWN BY THE ASSESSEE IN HIS ACCOUNTS. 7. IN VIEW OF THIS, THE IMPUGNED ORDER OF THE LD. C IT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO WITH A DIRECTION TO PROVIDE FULL DETAILS TO THE ASSESSEE REGARDING THE TRANSACTIONS OF EXPENDITURE AS PER THE AIR INFORMATION AND THEN TO GIVE OPPORTUNITY TO THE ASS ESSEE TO REBUT THE SAID INFORMATION. THE AO IS DIRECTED TO MAKE INQUIRIES REGARDING THE AUTHENTICITY OF THE AIR INFORMATION FROM THE CONCERNED BANK ALSO . WITH THE ABOVE DIRECTIONS, THE MATTER IS RESTORED TO THE FILE OF T HE AO FOR FRESH ADJUDICATION ON THIS ISSUE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.2016. SD/- SD/- (G.S. PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30.06.2016. * 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.