KALPESH P SHAH, THANE V. ITO WD 4(2), THANE

ITA 5902/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9042 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: AWADESH KUMAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.5902/M/2013 ASSESSMENT YEAR: 2007-08 SHRI KALPESH P. SHAH, 201/202, JALARAM JYOT, VEER SAVARKAR NAGAR, NEAR VISHWAKARMA, VASAI DIST-THANE (W) PAN: AKQPS1874E VS. ITO WARD NO.4(2), ROOM NO.29, B WING, 6 TH FLOOR, ASHAR I.T. PARK, ROAD NO.16 Z, WAGLE INDL. ESTATE, THANE 400 604 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI AWADESH KUMAR, A.R. REVENUE BY : SHRI RAJESH KUMAR YADAV, D.R. DATE OF HEARING : 21.08.2017 DATE OF PRONOUNCEMENT : 13.10.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 02.08.2013 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2007-08. GROUND NO.1 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS MADE THE AD DITION ON ACCOUNT OF RS.11,75,353/- MADE ON ACCOUNT OF UNEXPLAINED CR EDITOR. THE AO DURING THE COURSE OF REMAND PROCEEDINGS FOUND THAT SUNDRY CREDITOR TO THE EXTENT OF RS.10,09,166/- VERIFIABLE ON THE B ASIS OF COPIES OF BILLS AND LEDGER ACCOUNT AND ALSO CONFIRMATIONS FUR NISHED. THE ITA NO.5902/M/2013 SHRI KALPESH P. SHAH 2 REMAINING RS.1,55,637/- ON ACCOUNT OF UNEXPLAINED C REDITOR WAS NOT VERIFIABLE BEFORE THE LD. CIT(A). 3. BEFORE US, THE LD. A.R. HAS FILED THE ADDITIONAL EVIDENCE TO SHOW THAT THIS AMOUNT HAS ALREADY BEEN PAID BY THE ASSESSEE. THEREFORE, WE RESTORE THIS ISSUE BACK TO THE FILE O F AO TO VERIFY THE SAME AND DECIDE THE MATTER AFRESH IN RESPECT OF RS. 1,55,637/- AS PER LAW. GROUND NO.2 4. THE SECOND GROUND IS IN RESPECT OF ADDITION OF R S.9,55,384/-. THE AMOUNT OF ADVANCE OF RS.9,55,384/- RECEIVED BY THE ASSESSEE THROUGH CHEQUE ON DIFFERENT DATES FROM A PARTY NAME LY AARON PHARMACEUTICALS PVT. LTD. DURING THE COURSE OF HEA RING, THE AO FOUND AND VERIFIED THE DOCUMENTARY EVIDENCES VIZ. C ONFIRMATORY LETTERS, PROOF OF REMITTANCES AND EXPORT MADE AGAIN ST THE ADVANCES RECEIVED FROM FOREIGN BUYERS. HOWEVER, ASSESSEE CO ULD NOT FILE CONFIRMATORY LETTER FOR ADVANCES RECEIVED FROM THE PARTY AARON PHARMACEUTICALS PVT. LTD. OF RS.9,55,384/-. THE AM OUNTS OF ADVANCES WERE RECEIVED BY THE ASSESSEE THROUGH CHEQ UES ON DIFFERENT DATES FROM THE SAID PARTIES I.E. IN F.Y. 2005-06 OF RS.6,43,793/- AND IN F.Y. 2006-07 RS.3,11,591/-. THE ASSESSEE HAS RE CEIVED THE ADVANCE FOR SUPPLY OF PHARMACEUTICAL PRODUCT TO BE EXPORTED BY AARON PHARMACEUTICALS PVT. LTD. BUT DUE TO SOME REA SON THE PARTY COULD NOT CONFIRM THE ORDER AFTER GIVING THE ADVANC E. THE ADVANCES ARE STILL LYING WITH ASSESSEE AND THE SAME WERE NOT WRITTEN OFF IN THE ITA NO.5902/M/2013 SHRI KALPESH P. SHAH 3 BOOKS OF THE ACCOUNT OF THE ASSESSEE. THEREFORE, A SSESSEE CONTENDED THAT THIS IS NOT THE INCOME IN THE HANDS OF THE ASS ESSEE. 5. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS CONFIRMED THE SAME. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CAS E, WE FIND THAT ASSESSEE HAS RECEIVED THE ADVANCE OF RS.1,17,45,773 /- IN FINANCIAL YEAR 2006-07. IN THE REMAND PROCEEDINGS, THE AO HA S VERIFIED THESE DEBTORS FROM BANK OF MAHARASHTRA AND IN THE REMAND PROCEEDING, THE AO VERIFIED FROM THE BANK AND HE HAS SUBMITTED THE REPORT AS UNDER: OUT OF RS.1,17,45,773/- ON ACCOUNT OF ADVANCE FROM DEBTOR ALL THE DEBTORS WERE CONFIRMED EXCEPT CONFIRMATION IN W HICH THE ADDITION OF RS.9,55,384/- WAS OUTSTANDING. THE ASSESSEE HAS RECEIVED A LETTER FROM BANK OF MA HARASHTRA INTIMATING THAT ASSESSEE HAS RECEIVED RS.7,26,83,94 0/- AS FOREIGN REMITTANCE AGAINST WHICH ASSESSEE HAS MADE EXPORT O F RS.6,98,57,582/- AS PER BANK REALIZATION CERTIFICAT ION ISSUED BY BANK OF MAHARASHTRA. THEREFORE, THIS FACT REQUIRES VERI FICATION AT THE END OF AO BECAUSE, ASSESSEE HAS ALREADY RECEIVED THE AM OUNT OF RS.6,98,57,582/-. THEREFORE, ONLY ADDITION CAN BE MADE IN RESPECT OF THE AMOUNT WHICH ASSESSEE HAS NOT EXPORTED BUT AT T HE SAME TIME THE ASSESSEE HAS ALSO SUBMITTED BEFORE ME THAT ADVANCE OF RS.6,43,793/- RELATES TO F.Y. 2005-06 & F.Y. 2006-07 AND ADDITION OF RS.3,11,591/- CAN BE MADE IN THIS YEAR BUT ALL THES E FACTS AND FIGURES REQUIRE VERIFICATION. THEREFORE, WE ALLOW THE APPE AL OF THE ASSESSEE ITA NO.5902/M/2013 SHRI KALPESH P. SHAH 4 AND RESTORE THIS ISSUE BACK TO THE FILE OF THE AO T O DECIDE THE MATTER AFRESH AS PER LAW. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13.10.2017. SD/- SD/- (G. MANJUNATHA) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED:13.10.2017. * 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.