SHAILESH KANTILAL SHAH, GOREGAON V. ITO 16(2)(2), MUMBAI

ITA 6044/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9718 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 29-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN DR
• Keywords: Income from undisclosed sources; Speculation loss; Assessment record
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.6044/MUM/2014 ASSESSMENT YEAR: 2010-11 SHRI SHAILESH KANTILAL SHAH, 503, B, DHARAM PALACE, HUGES ROAD, MUMBAI-400007 / VS. INCOME TAX OFFICER - 16(2)(2), MUMBAI ( ! ' /ASSESSEE) ( ' / REVENUE) PAN NO.:-AAFPS5517F ! ' / ASSESSEE BY NONE ' / REVENUE BY SHRI V. JUSTIN-DR ( ' ) ' * / DATE OF HEARING : 11/09/2017 ) ' * / DATE OF ORDER: 11/09/2017 ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 12/06/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. 2. DURING HEARING, NONE WAS PRESENT FOR THE ASSESS EE, IN SPITE OF THE FACT THAT ON 05/12/2016 AND 16/05/2 017, THIS APPEAL WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE . THE ASSESSEE NEITHER PRESENTED HIMSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE HA S NOTHING TO SAY, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE, AND TEND TO DISPOSE OF THIS APPEA L ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ON THE OTHE R HAND, SHRI V. JUSTIN, LD. DR, STRONGLY DEFENDED THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER BY PLACING RELIANCE UPON THE REASONING CONTAINED IN THE ORDER OF THE FIRST APPEL LATE AUTHORITY. 2.1. THE FIRST GROUND RAISED BY THE ASSESSEE PERTA INS TO CONFIRMING THE ADDITION OF ` 47,20,000/- DEPOSITED AS CASH IN THE BANK, CLAIM TO BE RECEIVED FROM BABU BHAHI MAGU KIA AND RUSIK LAL FOJALAL AS INCOME FROM UNDISCLOSED SOURCE S. WE ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 3 HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE, INDIVID UAL, AT THE RELEVANT TIME WAS DERIVING INCOME FROM SHARE OF PRO FIT AND REMUNERATION FROM PARTNERSHIP FIRM M/S S KANTILAL & COMPANY, CAPITAL GAINS, SPECULATION PROFIT AND INCO ME FROM OTHER SOURCES, DECLARED NIL INCOME IN HIS RETURN FI LED ON 21/03/2011. THE LD. ASSESSING OFFICER WHILE FRAMIN G THE ASSESSMENT ON 26/03/2013, U/S 143(3) OF THE ACT, DE TERMINED THE TOTAL INCOME AT ` 1,36,69,760/-. IT WAS FOUND BY THE LD. ASSESSING OFFICER THAT THERE WAS CASH DEPOSIT IN TH E BANK ACCOUNT OF THE ASSESSEE IN VIJAYA BANK, AMOUNTING T O ` 65,00,650/- DURING THE FINANCIAL YEAR 2009-10. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF SUCH DEPOSIT. TH E STAND OF THE ASSESSEE WAS THAT THE AMOUNT OF ` 23,90,000/- AND ` 23,30,000/- WAS MADE BY TWO PERSONS NAMELY SHRI BAB U BHAI M. AND SHRI RASIK LAL F. AND THE REMAINING AMOUNT O F ` 17,80,650/- WAS OUT OF WITHDRAWALS FROM THE SAME BA NK ACCOUNT. IN THE ABSENCE OF ANY PLAUSIBLE EVIDENCE F OR SUCH DEPOSITS, THE LD. ASSESSING OFFICER MADE AN ADDITIO N OF ` 47,20,000/- WITH RESPECT TO CASH DEPOSITS FROM AFOR ESAID TWO PERSONS. IT IS NOTED THAT EVEN BEFORE THE LD. COMM ISSIONER OF ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 4 INCOME TAX (APPEAL), NO SUBMISSION WAS MADE BY THE ASSESSEE AS IS EVIDENT FROM PARA 2.4.6 OF THE IMPUGNED ORDER . MEANING THEREBY, EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE GENUINENESS OF THE CASH DEPOSITS AND THE SOURCE THEREOF WAS NOT PROVED BY THE ASSESSEE. BEFORE US, AS MENTIONED EARLIER, THE ASSESSEE NEITHER PRESENTED H IMSELF NOR MOVED ANY ADJOURNMENT PETITION AND EVEN NEITHER ANY WRITTEN SUBMISSIONS WERE FILED NOR ANY DOCUMENTARY EVIDENCE TO PROVE THE SOURCE OF THE CASH DEPOSIT IN THE BANK, THEREFO RE, IN VIEW OF THIS FACTUAL MATRIX, WE ARE OF THE VIEW THAT THE ON US IS UPON THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSIT. THE RATIO LAID DOWN BY HON'BLE APEX COURT IN CIT VS P. MOHANK ALA 291 ITR 278 (SC) AND A. GOVIND RAJU MUDALIAR VS CIT 34 ITR 807 (SC), CIT VS KUNDAN INVESTMENT LTD. 263 ITR 626 (CA L.), CIT VS N. R. PORTFOLIA (P.) LTD. (2013) 214 TAXMAN 408 (DE L.) SUPPORTS OUR VIEW, CONSEQUENTLY, WE AFFIRM THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THIS GROUND OF THE ASSESSEE, IS THEREFORE, DISMISSED. 3. THE NEXT GROUND PERTAINS TO THE AMOUNT OF ` 16,96,362/-, CLAIM TO BE RECEIVED AS LOAN, WHICH WA S TREATED ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 5 AS INCOME FROM UNDISCLOSED SOURCES. THE FACTS, IN B RIEF, ARE THAT THE ASSESSEE CLAIMED LOANS ADVANCES TO THE TUN E OF ` 16,96,362/-. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE EXPLANATION OF THE ASSESSEE WAS THAT OUT OF THE AFORESAID MENTIONED AMOUNT ` 1,85,000/- WAS ADDED DUE TO CASH RECEIPT FROM ONE SMT. JAYSHREE S. SHAH. THE AS SESSEE NEITHER PRODUCED ANY CONFIRMATION NOR ANY EVIDENCE FOR SUCH CLAIM. EVEN BEFORE THE LD. COMMISSIONER OF INCOME T AX (APPEAL), NO EVIDENCE WAS FILED IN SUPPORT OF SUCH CLAIM. IDENTICALLY FOR THE AMOUNT OF ` 3,97,625/-, IT WAS CLAIMED TO BE RECEIVED FROM SHRI SANJAY K. SHAH WITHIN A NARRATIO N SHORT TERM CAPITAL GAIN. THE ASSESSEE DID NOT FILE ANY E VIDENCE AT ANY STAGE IN SUPPORT OF SUCH CLAIM. THUS, IDENTICAL IS THE SITUATION FOR THIS AMOUNT ALSO. THE ANOTHER AMOUNT OF ` 11,13,737/- WAS ADDED BY THE ASSESSING OFFICER WITH RESPECT TO THE AMOUNT FROM SHRI MUKESH K. SHAH. THE ASSESSE E DID NOT OFFER ANY EXPLANATION FOR THIS AMOUNT ALSO. EV EN IN THE CONFIRMATION FILED BY THE ASSESSEE WITH RESPECT TO THIS AMOUNT, THERE WAS INCONSISTENCY AND WAS HAVING DIFFERENT FI GURES. IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE, WE DONT FIND ANY ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 6 INFIRMITY IN THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) ON THIS GROUND ALSO. 4. THE NEXT GROUND PERTAINS TO SET OFF OF CARRIED F ORWARD SPECULATION LOSS AMOUNTING TO ` 49,91,994/- WHICH WAS ADJUSTED AGAINST INCOME FROM CAPITAL GAIN OF ` 47,73,183/- IN HIS REVISED COMPUTATION OF INCOME. THE LD. ASSESSI NG OFFICER EXAMINED THE ASSESSMENT RECORD OF EARLIER YEARS, WH EREIN, IT WAS FOUND THAT NO SUCH LOSS WAS CLAIMED BY THE ASSE SSEE. THE SCHEDULE BFLA AND SCHEDULE CFL DID NOT CONTAIN ANY ENTRY OF ANY FIGURE IN SUPPORT OF SUCH CLAIM. CONSIDERING T HE FACTUAL MATRIX AND THE FACTUAL FINDING RECORDED IN THE IMPU GNED ORDER, WE AFFIRM THE STAND OF THE LD. COMMISSIONER OF INCO ME TAX (APPEAL). 5. THE LAST GROUND RAISED BY THE ASSESSEE IS WITH RESPECT TO UN-RECONCILED DIFFERENCE OF ` 5,95,214/- FOR HOUSING LOAN CLAIM TO BE RECEIVED FROM FINANCIAL INSTITUTIO N. THE LD. ASSESSING OFFICER, WHILE FRAMING THE ASSESSMENT ADD ED THE CLAIMED EXCESSIVE LIABILITY TO THE TUNE OF ` 5,95,294/- AND FOUND THAT THE HOUSING LOAN OF ` 1,15 CRORE WAS SANCTIONED ON 01/06/2008 TO M/S KANTILAL & CO. WHERE THE ASSESSEE WAS A ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 7 PARTNER. OUT OF THIS LOAN, THERE WAS PAYMENT OF PRI NCIPLE AMOUNT OF ` 10,78,053/- TILL 31/03/2010. IN THE PERSONAL BALANCE SHEET OF THE ASSESSEE, THE LOAN REVEALED WA S ` 1,10,17,161/- AS PAYABLE BY THE ASSESSEE TO THE FIN ANCE COMPANY, THUS, THERE WAS A DIFFERENCE OF ` 5,95,214/-. THE ASSESSEE DID NOT OFFER ANY EXPLANATION EITHER BEFOR E THE ASSESSING OFFICER OR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). BEFORE THIS TRIBUNAL ALSO, THE ASSES SEE NEITHER PRESENTED HIMSELF NOR MOVED ANY EVIDENCE TO SUBSTAN TIATE HIS CLAIM. THEREFORE, ON THIS COUNT ALSO, WE AFFIRM TH E STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL). FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 11/09/2017. SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( MUMBAI; , DATED :-11/09/2017 F{X~{T? P.S / -' %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 2301 / THE RESPONDENT. ITA NO.6044/MUM/2014 SHRI SHAILESH KANTILAL SHAH 8 3. 4 4 ( 5' ( ./ ) / THE CIT, MUMBAI. 4. 4 4 ( 5' / CIT(A)- , MUMBAI 5. 6'7 2' , 4 ./* . 8 , ( / DR, ITAT, MUMBAI 6. 9 : / GUARD FILE. / BY ORDER, 36/' 2' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI,