WASIULLAH S KHAN, MUMBAI V. ITO WD 21(3)(2), MUMBAI

ITA 594/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93140 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 24-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: PRAVIN N SHAH
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI . . , , , BEFORE SHRI A.D. JAIN , JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO . 594/MUM/2014 ( / ASSESSMENT YEAR : 2009 - 10 MR. WASIULLAH S. KHAN, R. NO. 202 MAIN VILLA, NEAR GOLE BLDG., NEW HALL ROAD, KURLA, MUMBAI - 400 072 / VS. THE I.T.O. WARD 21(3)(2), C.G.O. BLDG., M.K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. : AEWPK 1969E ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI PRAVIN N. SHAH / RESPONDENT BY : SHRI B.S. BIST / DATE OF HEARING : 02 . 0 7 .2015 / DATE OF PRONOUNCEMENT : 08 .0 7 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 22 , MUMBAI DT. 07.11.2013 PERTAINING TO ASSESSMENT YEAR 2009 - 10. ITA. NO. 594/M/2014 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 2.55 LAKHS MADE BY THE AO AS UNPROVED LO AN. 3. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF TRADING IN SCRAP. THE RETURN FOR THE YEAR WAS FILED ALONGWITH AUDIT REPORT AND AUDITED STATEMENT OF ACCOUNTS. AFTER SCRUTINIZING THE STATEMENT OF ACCOUNT VIS - - VIS THE DOCUMENTARY EVIDENCE S, THE ASSESSING OFFICER ESTIMATED THE GROSS PROFIT AT RS. 20,64,216/ - . THE AO FOUND THAT THE ASSESSEE HAS OFFERED RS. 13,99,553/ - . HE ACCORDINGLY MADE THE ADDITION OF RS. 6,64,663/ - . THE AO FURTHER NOTICED THAT THERE IS AN UNSECURED LOAN OF RS. 2.55 L AKHS IN THE NAME OF M/S. UNITED ASSOCIATES. THE ASSESSEE WAS ASKED TO EXPLAIN THE CASH CREDIT IN THE LIGHT OF THE PROVISIONS OF SEC. 68 OF THE ACT. THE ASSESSEE COULD SUBMIT ONLY LEDGER ACCOUNT . THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSES SEE AND MADE ADDITION OF RS. 2.55 LAKHS. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) ACCEPTED THE ADDITION OF RS. 6,64,663/ - AND IN RESPECT OF UNSECURED LOAN, THE ASSESSEE FILED NECESSARY DETAILS ALONGWITH THE DEATH CERTIFICATE OF THE LENDER . THE ASSESSEE ALSO FILED AFFIDAVIT OF MRS. UMERA KHAN, WIFE OF LATE SHRI ZAHID KHAN (LENDER) MENTIONING THAT A SUM OF RS. 2.55 LAKHS LOAN WAS GIVEN BY HER LATE HUSBAND. SINCE THE AFFIDAVIT WAS NOT FILED BEFORE THE AO, THE LD. CIT(A) CALLED FOR A REMAND REPORT. IN HIS REMAND REPORT, THE AO QUESTIONED THE AUTHENTICITY OF THE AFFIDAVIT OF THE WIFE OF THE LENDER. THE COPY OF THE REMAND REPORT WAS SUPPLIED TO THE ASSESSEE IN RESPONSE TO WHICH THE ASSESSEE PRODUCED BANK STATEMENT OF M/S. UNITED ASSOCIATES, P ROPRIETARY CONCERN OF SHRI ZAHID KHAN AND POINTED OUT THE ENTRIES BY WHICH SHRI ZAHID KHAN HAS GIVEN LOAN TO THE ASSESSEE. ITA. NO. 594/M/2014 3 4.1. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT PRODUCED WIFE OF THE LENDER SHRI ZAHID KHAN. THE LD. CIT(A) FURTHER OBSERVED THAT MERE TRANSACTION THROUGH BANK ACCOUNT CANNOT BE TREATED AS GENUINE SINCE THE ASSESSEE COULD NOT PRODUCE ANY CONFIRMATION IN RESPECT OF THE TRANSACTION. THE LD. CIT(A) WAS CONVINCED THAT THE ASSESSEE H AS NOT DISCHARGED THE ONUS AND CONFIRMED THE ADDITION. 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO TH E RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD. 7. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE FINDINGS OF THE LD. CIT(A). 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD BEFORE US. THE UNDISPUTED FACT IS THAT THE LENDER SHRI ZAHID KHAN HAS SINCE DECEASED WIFE OF THE DECEASED HAS FURNISHED AN AFFIDAVIT CON FIRMING THE LOAN TRANSACTION. THE LOAN AMOUNT IS DULY REFLECTED IN THE BANK STATEMENT OF M/S. UNITED ENTERPRISES WHICH IS THE PROPRIETARY CONCERN OF SHRI ZAHID KHAN. THE OBSERVATIONS OF THE LD. CIT(A) THAT MERE FURNISHING OF BANK ACCOUNT AND THE AFFIDAVI T WOULD NOT PROVE THE GENUINENESS OF THE TRANSACTION AND CREDIT WORTHINESS OF THE LENDER DOES NOT HOLD ANY WATER AND IS DEVOID OF ANY LOGIC. THE ASSESSEE HAS DONE WHATEVER HE COULD DO TO EXPLAIN THE CREDIT ENTRY IN THE LIGHT OF THE PROVISIONS OF SEC. 68 O F THE ACT. IN OUR CONSIDERED OPINION, THE ASSESSEE HAS SUCCESSFULLY DISCHARGED ITA. NO. 594/M/2014 4 THE ONUS. WE, THEREFORE SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS. 2.55 LAKHS. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS ALLOWED. OR DER PRONOUNCED IN THE OPEN COURT ON 8 TH JU LY , 2015 SD/ - SD/ - ( A.D. JAIN ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 8 TH JU LY , 2015 . . ./ RJ , SR. PS / 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