REKHA S. PUNJABI, MUMBAI V. ASST CIT 19(1), MUMBAI

ITA 6042/MUM/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8417 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 29-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAV
• Keywords: Application of stay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D , BENCH MUMBAI , BEFORE SHRI H. L. KARWA , PRESIDENT & SHRI R.C.SHARMA , A M SA NO. 348 / MUM/20 1 4 (ARISING OUT OF ITA NO . 6042 /MUM/2014) ( ASSESSMENT YEAR : 200 7 - 20 0 8 ) SMT. REKHA S. PUNJABI, 102, KESAR KRIPA, 14 TH ROAD, KHAR (WEST), MUMBAI - 400 052 VS. ACIT - 19(1), MUMBAI PAN/GIR NO. : A AEPP 03 63 P ( APPELLANT ) .. ( RESPONDENT ) AND ( / ITA NO.6042/MUM/2014) ( ASSESSMENT YEAR :2007 - 2008 ) SMT. REKHA S. PUNJABI, 102, KESAR KRIPA, 14 TH ROAD, KHAR (WEST), MUMBAI - 400 052 VS. ACIT - 19(1), MUMBAI PAN/GIR NO. : A AEPP 0363 P ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI PRAKASH JOTWANI /REVENUE BY : SHRI AKHILENDRA P. YADAV DATE OF HEARING : 21 ST NOV. , 201 4 DATE OF PRONOUNCEMENT : 21 ST NOV. , 201 4 O R D E R PER R.C.SHARMA ( A .M.) : TH IS STAY APPLICATION AROSE OUT OF ITA NO. 6042 /M/2014, FILED BY ASSESSEE FOR A.Y. 2007 - 08 . SA NO. 348 /20 1 4 & ITA NO. 6042/2014 2 2 . THE CONTENTION OF THE LEAR NED AR WAS THAT THE ASSESSEE WAS NEITHER GIVEN PROPER OPPORTUNITY NOR SUPPLIED THE DOCUMENTS COLLECTED BEHIND BACK OF THE ASSESSEE BEFORE MAKING ADDITION U/S.68 OF THE ACT. HE FURTHER CONTENDED THAT ASSESSEE WAS IN RECEIPT OF SIMILAR LOAN FROM VERY SAME PA RTY IN EARLIER YEARS, WHEREIN DEPARTMENT HAS ACCEPTED THE COR RECTNESS OF LOAN WHILE FRAMING ASSESSMENT U/S.143(1). OUR ATTENTION WAS ALSO INVITED TO STATEMENT OF SHRI VIVEK KEDIA BEFORE THE AO DURING THE COURSE OF CROSS - VERIFICATION. THE CONTENTION OF THE AR WAS THAT SHRI SUSHIL KUMAR KEDIA, WHO IS MAIN PERSON WAS NOT CALLED DURING THE CROSS - EXAMINATION. OUR ATTENTION WAS ALSO INVITED TO THE CONFIRMATION OF LOAN DULY SIGNED BY MR. VIVEK KEDIA INCLUDING PAYMENT OF INTEREST ON WHICH ASSESSEE HAS DULY DEDUCTED TAX AT SOURCE AND ALSO PAID THE SAME TO THE GOVERNMENT TREASURY. OUR ATTENTION WAS ALSO INVITED TO THE ORDER OF THE TRIBUNAL IN CASE OF SUSHIL KUMAR KEDIA, PASSED IN ITA NO. 4715/MUM/2010 , DATED 8 - 8 - 2012 FOR THE ASSESSMENT YEAR 2006 - 07 , WHEREIN MATTER WAS RESTORED BACK TO THE FILE OF THE AO . LEARNED AR ALSO CONTENDED THAT ASSESSEE HAS ALREADY PAID RS.10 LAKHS TOWARDS TAX DEMAND. 3. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDER OF LOWER AUTHORITIES AND CONTENDED THAT ASSESSEE SHOULD BE ASKED TO PAY SOM E MORE AMOUNT TOWARDS THE DEMAND RAISED BY THE AO BEFORE GRANTING STAY. SA NO. 348 /20 1 4 & ITA NO. 6042/2014 3 4 . DURING HEARING OF THIS STAY APPLICATION, THE BENCH OBSERVED THAT MAIN GRIEVANCE OF ASSESSEE PERTAINS TO OPPORTUNITY NOT HAVING BEEN GIVEN AND THE DOCUMENTS RELIED BY THE AO FOR MAK ING ADDITION WAS NOT SUPPLIED TO THE ASSESSEE BEFORE MAKING ADDITION. ACCORDINGLY, THE BENCH CONSIDERED IT APPROPRIATE TO DECIDE THE MERIT S OF THE ISSUE, MORE PARTICULARLY, OPPORTUNITY HAVING BEING NOT GIVEN TO THE ASSESSEE. 5 . LEARNED DR AND AR ALSO CONSE NTED FOR DECIDING THE ISSUE ON MERITS. 6 . ACCORDINGLY, BOTH THE PARTIES WERE HEARD ON MERITS ALSO. 7 . WE HAVE CONSIDERED THE RIVAL CONTENTION S , CAREFULLY GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE REMAND REPORT. THE MAIN GRIEVANCE OF T HE ASSESSEE IS THAT THE DEPARTMENT HAS DULY ACCEPTED THE LOAN AMOUNT RECEIVED FROM THE VERY SAME PARTY IN EARLIER YEARS AND ALL THE DOCUMENTS TO JUSTIFY IDENTITY OF THE CREDITOR AND GENUINENESS OF LOAN TRANSACTION WAS FILED BEFORE THE AO DURING THE YEAR UN DER CONSIDERATION, HOWEVER, THE DEPARTMENT HAS NOT GIVEN COPY OF THE DOCUMENTS RELIED ON BY THE AO FOR MAKING ADDITION U/S.68 . IT WAS ALSO THE CONTENTION OF THE LEARNED AR THAT THE MAIN GRIEVANCE OF THE AO WAS THAT CASH WAS DEPOSITED IN BANK ACCOUNT OF CRE DITOR AND THEN CHEQUE WAS ISSUED TO THE ASSESSEE. FURTHER, THE CONTENTION OF THE LEARNED AR WAS THAT NO COPY OF SUCH BANK STATEMENT TO SUBSTANTIATE THIS ALLEGATION OF ASSESSEE WAS SUPPLIED TO HIM IN SPITE OF MAKING REQUEST . THERE IS NO DISPUTE TO THE WELL SETTLED PROPOSITION THAT IN CASE SA NO. 348 /20 1 4 & ITA NO. 6042/2014 4 OF LOAN AND ADVANCE BURDEN IS ON THE ASSESSEE NOT ONLY TO PROVE THE IDENTITY OF THE CREDITOR AND GENUINENESS OF THE LOAN TRANSACTION BUT ALSO CREDITWORTHINESS OF THE LOAN CREDITOR. IN THE INSTANT CASE, WE FOUND THAT EVEN TH OUGH IDENTITY OF THE LOAN CREDITOR ARE ESTABLISHED BUT THE GENUINENESS COULD NOT BE ESTABLISHED BY ASSESSEE BECAUSE OF FAILURE ON THE PART OF THE AO TO FURNISH COPY OF THE BANK STATEMENT OF THE CREDITOR, SO AS TO DISPROVE THE ALLEGATION THAT CASH WAS DEPOS ITED IN THE BANK ACCOUNT OF THE CREDITOR BEFORE ISSUE OF CHEQUE TO THE ASSESSEE. ACCORDINGLY, WE CONSIDER IT APPROPRIATE TO RESTORE THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO THE AO TO SUPPLY COPY OF ALL THE DOCUMENTS TO THE ASSESSEE ON WHIC H THE AO HAS RELIED FOR MAKING ADDITION. NOBODY SHOULD BE CONDEMNED UNHEARD. THE AO IS TO DECIDE THE MATTER AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 8 . AS WE HAVE ALREADY DECIDED THE ISSUE ON MERITS, THEREFORE, WE DISMISS THE STAY APPLICATION A S INFRUCTUOUS. 9 . IN THE RESULT, STAY APPLICATION OF ASSESSEE IS DISMISSED AND APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 1 ST NOV. , 201 4 . 1 ST NOV. ,2014 SD/ - SD/ - ( ) ( H.L.KARWA ) ( ) ( R.C.SHARMA ) / PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; DATE D 21/11/2014 /PKM , PS SA NO. 348 /20 1 4 & ITA NO. 6042/2014 5 COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//