RAM DAS POOJARI, MUMBAI V. ITO 21(3)(4), MUMBAI

ITA 5862/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56104 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 22-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: MUKESH P PABANI
• Keywords: Opportunity of being heard
• Section: 131; 27

Judgement Text

1 ITA NO. 5862-63/MUM/2010 M/S R AMDAS DADU POOJAI IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R.K. PANDA, A.M. AND SHRI VIJAY PAL RA O, J.M. ITA NO. 5862/MUM/2010 (ASST YEAR 2005-06) ITA NO. 5863/MUM/2010 (ASST YEAR 2007-08) RAMDAS DADU POOJARI, C/O PABARI LEGAL ASSOCIATES, ADVOCATE HIGH COURT, BUILDING NO. 47, ROOM NO. 921, GULMOHAR CO-OP. HSG. SOCIETY LTD., KANDIVALI (EAST), MUMBAI 400 101. VS ITO 21(3), MUMBAI. (APPELLANT) (RESPONDENT) PAN NO. AAFPP 6726P APPELLANT BY S HRI MUKESH P. PABANI RESPONDENT BY SHRI C.G.K. NAIR DATE OF HEARING 1.12.2011 DATE OF PRONOUNCEMENT 09.12.2011 ORDER PER R K PANDA, AM THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS DATED 05.05.2010 OF THE LD. CIT(A)- 32, MUMBAI RELATING TO A.YRS. 2005-06 & 2007-08 RESPECTIVELY. SINCE COMMON GROUNDS ARE INVOLVED IN BOTH THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS CHALLE NGED THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE LEVY OF PENALTY U/S 27 1D R.W.S. 269SS AMOUNTING TO RS. 4 LACS FOR THE A.Y. 2005-06 AND RS . 2 LACS FOR A.Y. 2007- 08. 2 ITA NO. 5862-63/MUM/2010 M/S R AMDAS DADU POOJAI 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RUNNING A PCO AND STD CENTRE AND ALSO C ONDUCTING TOURS AND TRAVELS IN THE NAME OF PROPRIETARY CONCERNS M/S SAR AS COMMUNICATION AND SAI TOURS AND TRAVELS. DURING THE COURSE OF ASSESS MENT PROCEEDINGS, THE A.O. NOTED FROM THE BANK STATEMENT FURNISHED BY THE ASSESSEE THAT THERE ARE CERTAIN DEPOSITS IN CASH WHICH THE ASSESSEE COULD N OT EXPLAIN PROPERLY. HE, THEREFORE, MADE AN ADDITION OF RS. 31,91,523/- U/S 69 A OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. RECO RDED THE STATEMENT ON OATH U/S 131 OF THE ACT ACCORDING TO WHICH THE ASSE SSEE HAS PURCHASED A FLAT FOR WHICH HE HAS TAKEN LOAN OF RS. 6 LACS FROM SHRI D.S. CHAVAN. THE A.O. ASKED THE ASSESSEE TO FURNISH THE DETAILED ADD RESS OF SHRI D.S. CHAVAN. SUBSEQUENTLY THE ASSESSEE SUBMITTED THAT HE HAS NOT TAKEN ANY CASH LOAN EITHER FROM SHRI D.S. CHAVAN OR ANY OTHER PERSON. HOWEVER, THE A.O. WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASS ESSEE AND HELD THAT PROVISIONS OF SECTION 269SS ARE APPLICABLE TO THE A SSESSEE. HE, THEREFORE, INITIATED PENALTY PROCEEDINGS U/S 271D SEPARATELY. THE ASSESSEE WENT ON APPEAL AGAINST THE QUANTUM ADDITION WHICH WAS UPHEL D BY THE LD. CIT(A). THEREAFTER, THE A.O. INITIATED PENALTY PROCEEDINGS U/S 271D OF THE ACT. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASS ESSEE, THE A.O. LEVIED PENALTY OF RS. 4 LACS U/S 271D FOR A.Y. 2005-06 AND RS. 2 LACS FOR A.Y. 2007-08. IN APPEAL, THE LD. CIT(A) CONFIRMED THE P ENALTY LEVIED BY THE A.O. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE AS SESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, FILED A COPY OF THE ORDER OF THE TRIBUNAL VIDE ITA NO. 3438 & 3439/MUM/ 2009 ORDER DTD. 28.01.2011 FOR A.Y. 2005-06 AND 2006-07 AND SUBMITT ED THAT THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION. HE SUBMITTED THAT THE ASSESSEE HAS NEITHER TAKEN ANY C ASH LOAN FROM SHRI D.S. CHAVAN NOR FROM ANY OTHER PERSON FOR WHICH NO PENAL TY U/S 271D IS 3 ITA NO. 5862-63/MUM/2010 M/S R AMDAS DADU POOJAI LEVIABLE. REFERRING TO THE COPY OF THE ORDER OF LD . CIT(A) HE SUBMITTED THAT THE LD. CIT(A) HAS ALSO AGREED TO THE PROPOSITION T HAT CASH RECEIPT CAN EITHER BE TREATED AS LOAN OR INCOME AND NOT BOTH. HOWEVER , HE UPHELD THE ACTION OF THE A.O. ON THE GROUND THAT THE ASSESSEE FAILED TO ESTABLISH THAT LOAN OF RS. 4 LACS AND RS. 2 LACS ACCEPTED TO HAVE BEEN TAKEN F ROM SHRI D.S. CHAVAN IS INCLUDED IN THE PEAK OF CREDIT WORKED OUT FOR THE P URPOSE OF ASSESSMENT OF INCOME. HE ACCORDINGLY SUBMITTED THAT UNDER THESE CIRCUMSTANCES, THE MATTER NEEDS FRESH ADJUDICATION AT THE LEVEL OF A.O . 5. THE LD. D.R., ON THE OTHER HAND, SUPPORTED THE O RDER OF THE LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PURSUED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE T RIBUNAL VIDE ORDER DTD. 28.1.2011 HAS RESTORED THE QUANTUM ADDITION FOR A.Y . 2005-06 & 2006-07 RESPECTIVELY TO THE FILE OF THE A.O. FOR FRESH ADJU DICATION. WE FURTHER FIND THE LD. CIT(A) HAS ALSO AGREED WITH THE SUBMISSION OF T HE ASSESSEE THAT CASH RECEIPT CAN EITHER BE TREATED AS LOAN OR INCOME AND NOT BOTH. HOWEVER, HE HAS UPHELD THE PENALTY LEVIED BY THE A.O. ON THE GR OUND THAT THE ASSESSEE FAILED TO ESTABLISH THAT THE LOAN OF RS. 4 LACS AND RS. 2 LACS RESPECTIVELY TAKEN FROM SHRI D.S. CHAVAN IS INCLUDED IN THE PEAK OF CREDIT WORKED OUT FOR THE PURPOSE OF ASSESSMENT OF INCOME. IT IS THE SUBM ISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS NOT TAKEN AN Y CASH LOAN FROM SHRI D.S. CHAVAN OR ANY OTHER PERSON. UNDER THESE CIRCU MSTANCES AND IN THE INTERESTS OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE A.O. WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRES H AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 4 ITA NO. 5862-63/MUM/2010 M/S R AMDAS DADU POOJAI 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 09.12.2011. SD/- ( VIJAY PAL RAO ) JUDICIAL MEMBER SD/- ( R K PANDA ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 09.12.2011. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT, CITY -21, MUMBAI 4 CIT(A) - 32 MUMBAI 5 DR BENCH D 6 MASTER FILE /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI