SUNNY S ARORA, MUMBAI V. CIT (A )26, MUMBAI

ITA 5839/MUM/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8118 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 17-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: VENUGOPAL C NAIR
• Keywords: Opportunity of being heard; Peak credit; Application of stay
• Section: 6; 56

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, M UMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , . / S.A. NO.309/MUM./2014 . / ITA NO. 5839/MUM./2014 ( ! ' # / ASSESSMENT YEAR : 2009-10 ) SUNNY ARORA, 302/3 B WING EDEN TOWER, SION TROMBAY ROAD, DEONAR, MUMBAI-400083 / VS. INCOME TAX OFFICER 15(2)(4), MATRU MANDIR, MUMBAI. ( $% / APPELLANT) .. ( &'$% / RESPONDENT) $ ./ )* ./ PAN/GIRNO.:AFXPA6625D $% + / APPLICANTT BY : SHRI VENUGOPAL C NAIR &'$% , + /RESPONDENT BY : SHRI LOVE KUMAR - , . / DATE OF HEARING : 17.10.2014 /#' , . /DATE OF PRONOUNCEMENT : 17.10.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS STAY PETITION SEEKING T HE STAY OF COLLECTION OF OUTSTANDING DEMAND OF RS.4,63,035/-. 2. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED THAT THE AO HAS MADE AN ADDITION OF RS.11,81,450/- RELATING TO THE DEPOSITS MADE BY THE ASSESSEE IN THE BANK ACCOUNTS MAINTAINED WITH ICICI BANK AND CENTRAL BANK OF INDIA. BEFORE THE AO, THE ASSESSEE SUBMITTED THA T THE CASH DEPOSITS WERE RELATING TO THE REIMBURSEMENT OF COST OF RAILWAY TI CKETS BOOKED BY HIM ON BEHALF OF HIS FRIENDS. HOWEVER, HE COULD NOT PROVE THE S AME. HENCE, THE AO ADDED THE ENTIRE AMOUNT DEPOSITS MADE IN THE ABOVE SAID B ANK ACCOUNTS AS INCOME OF THE ASSESSEE. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THAT HE HAD OPENING CASH BALANCE OF RS.5,57,660/- AND DURING THE COURSE OF YEAR HE HAS WITHDRAWN AGGREGATE AMOUNT OF RS.5,85,200/- FROM TH E ABOVE SAID BANK S.A. NO.309/MUM./2014 2 ACCOUNTS AND BOTH ABOVE SAID AMOUNTS WERE UTILIZED FOR MAKING IMPUGNED DEPOSITS. EVEN THOUGH THE LD. CIT(A) CALLED UPON THE REMAND REPORT FROM THE AO, YET THE LD. CIT(A) WAS NOT CONVINCED WITH THE S AID EXPLANATIONS AND ACCORDINGLY DISMISSED THE APPEAL FILED BY THE ASSE SSEE. 3. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE IS A SALARIED EMPLOYEE. HE HAS ACCUMULATED FUNDS IN THE PAST OUT OF HIS SALARY SAVINGS. FURTHER, CASH WITHDRAWN ON THE EARLIER OCCASIONS WAS ALSO USED TO MAKE DEPOSITS SUBSEQUENTLY. ACCORDINGLY, THE LD. AR SUBMITTED THAT IMPUGNED ADDITION IS NOT WARRANTED IF THE ABOVE SAID EXPLANATIONS ARE CONSI DERED. ACCORDINGLY, HE SUBMITTED THAT THE ASSESSEE GOT PRIMA FACIE CASE AG AINST THE ADDITIONS MADE BY THE AO. ALTERNATIVELY, THE LD. AR SUBMITTED THAT THE AO SHOULD HAVE RESTRICTED THE ADDITION TO THE PEAK CREDIT BALANCE FOUND IN HI S BANK ACCOUNTS. 4. ON THE CONTRARY, THE LD. DR SUBMITTED THAT THE ASSESSEE DID NOT HAVE ANY EVIDENCE TO SHOW THAT HE POSSESSED THE OPENING CASH BALANCE OF RS.5,57,660/-. FURTHER HE DOES NOT HAVE ANY EVIDENCE TO SHOW THAT THE AMOUNT WITHDRAWN ON EARLIER OCCASIONS WAS USED TO MAKE DEPOSITS SUBSEQU ENTLY. ACCORDINGLY, THE LD. DR OPPOSED THE PLEA PUT FORTH BY THE LD. AR. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTI ES AND CAREFULLY PERUSED THE RECORD. THOUGH THE ASSESSEE CLAIMED THAT H E HAD OPENING CASH BALANCE OF RS. RS.5,57,660/-, YET THE LD. AR FAIRLY ADMITT ED THAT THE ASSESSEE DID NOT HAVE ANY EVIDENCE TO SUPPORT THE SAID CONTENTION. WE ALSO NOTICE THAT THE ASSESSEE HAS BEEN SHIFTING HIS STAND IN OFFERING EX PLANATIONS WITH REGARD TO THE SOURCE OF DEPOSITS MADE IN THE BANK ACCOUNTS. BEFO RE THE AO, THE ASSESSEE HAS STATED THAT HE HAD MADE RAILWAY TICKETS BOOKING ON BEHALF OF HIS FRIENDS AND LATTER RECEIVED CASH FROM THEM. HOWEVER, THE SAID EXPLANA TION COULD NOT BE SUBSTANTIATED. HOWEVER, BEFORE THE LD. CIT(A), TH E ASSESSEE HAS SUBMITTED THAT HE HAS UTILIZED OPENING CASH AS WELL AS CASH WITHDR AWALS FROM THE BANKS ACCOUNT FOR MAKING THE IMPUGNED DEPOSITS. HOWEVER BEFORE US, IT IS FAIRLY ADMITTED BY THE LD. AR THAT THERE IS NO EVIDENCE TO SHOW THAT THE ASSESSEE IS NOT IN POSSESSION OF OPENING CASH BALANCE AS ON 1.4.200 8. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY PRIMA FACIE CASE TO GRANT STAY. ACCORDINGLY WE REJECT THE STAY APPLICATION FILED BY THE ASSESSEE. S.A. NO.309/MUM./2014 3 6. SINCE WE HAVE HEARD THE PARTIES AT LENGTH ON THE STAY APPLICATION, WITH THE CONSENT OF BOTH THE PARTIES, WE TOOK UP THE APPEAL ALSO FOR FINAL DISPOSAL. WE HEARD THE PARTIES. AS ALREADY NOTICED THAT THE L D. AR HAS PUT FORTH A NEW PLEA THAT THE IMPUGNED ADDITIONS MAY BE RESTRICTED TO PE AK CREDIT BALANCE OF BOTH THE BANK ACCOUNTS. THE LD. AR MADE THIS PLEA ON THE GROUND THAT HE HAS USED THE WITHDRAWALS MADE FROM THE BANKS ON EARLIER OCCASION S TO MAKE SUBSEQUENT DEPOSITS. SINCE THERE IS SOME MERIT IN THE SAID C ONTENTION AND SINCE THE SAID CONTENTION OF THE ASSESSEE HAS NOT BEEN EXAMINED BY AO, WE CONSIDER IT FIT TO SET ASIDE THIS MATTER TO THE FILE OF THE AO FOR HIS EXAMINATION. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD,. CIT(A) AND RESTORE THE PLE A RELATING TO PEAK CREDIT BALANCE ADDITION TO THE FILE OF THE AO WITH A DIRECTION T O EXAMINE THE SAME AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. THE A SSESSEE IS ALSO DIRECTED TO FURNISH ALL THE DETAILS THAT MAY BE CALLED FOR BY T HE AO. 7. IN THE RESULT, THE STAY APPLICATION FILED BY THE ASSESSEE IS DISMISSED AND APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWE D FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OP EN COURT ON 17.10.2014. /#' - 0 12 3 4 17.10.2014 , 5 6 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER 1 - MUMBAI: 17TH OCT,2014. . . ./ SRL , SR. PS S.A. NO.309/MUM./2014 4 ! ' / COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPLICANT 2. &'$% / THE RESPONDENT. 3. - ; ( ) / THE CIT(A)- CONCERNED 4. - ; / CIT CONCERNED 5. 6. <= 5 & >! , . >! ' , 1 - / DR, ITAT, MUMBAI CONCERNED 5 ? @ / GUARD FILE. A - / BY ORDER, TRUE COPY B ) (ASSTT. REGISTRAR) . >! ' , 1 - /ITAT, MUMBAI