MUKESH KANTILAL SHAH, MUMBAI V. ITO 16(2)(2), MUMBAI

ITA 6045/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0741 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 29-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6045/MUM/2014 ASSESSMENT YEAR:2010-11 SHRI MUKESH KANTILAL SHAH, 503-B, DHARAM PALACE, HUGES ROAD, MUMBAI-400007 / VS. INCOME TAX OFFICER-16(2)(2), MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO.AAFPS5514G $% & # ' / DATE OF HEARING : 18/01/2018 & # ' / DATE OF ORDER: 18/01/2018 / 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, !' # ! / ASSESSEE BY SHRI DHIRENDRA KUMAR $ ! / REVENUE BY SHRI SUMAN KUMAR -DR ITA NO. 6045/MUM/2014 MUKESH KANTILAL SHAH 2 CONFIRMING THE ADDITION OF RS.45,85,000/- DEPOSITED IN BANK BEING THE CASH RECEIVED FROM BHOGILAL KALIDAS AND P OPATLAL C. SHAH AS INCOME FROM UNDISCLOSED SOURCES AND FURTHER TREATING RS.8,39,908/-, LOANS RECEIVED AS UNEXPLAIN ED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAF TER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI DIRENDRA M. SHAH, CONTENDED THAT PROPER OPPORT UNITY WAS NOT PROVIDED TO THE ASSESSEE, WHICH IN VIOLATIO N OF PRINCIPLE OF NATURAL JUSTICE. IT WAS ALSO CONTENDED THAT IN THE CASE OF SHRI BHOGILAL KALIDAS AND POPATLAL C. SHAH, THE LOANS/CASH GIVEN TO THE ASSESSEE HAS BEEN ACCEPTED THOUGH U/S 143(1) OF THE ACT BUT STILL THE MATTER REQUIRES FRESH CONSIDERATION SO THAT TRUTH MAY PREVAIL AND THE NEC ESSARY EVIDENCE MAY BE PRODUCED. THE LD. COUNSEL INVITED O UR ATTENTION TO CERTAIN PARAS OF THE IMPUGNED ORDER SH OWING SOME CONTRADICTIONS. ON THE OTHER HAND, THE LD. DR, SHRI SUMAN KUMAR, CONTENDED THAT NO SUCH GROUND HAS BEEN RAISED BY THE ASSESSEE BUT HAD NO OBJECTION IF THE MATTER MAY BE REEXAMINED AT THE LEVEL OF LD. ASSESSING OFFICER . ITA NO. 6045/MUM/2014 MUKESH KANTILAL SHAH 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED NIL INCOME ON 29/03/ 2011, WHICH WAS PROCESSED U/S 143(1) ACCEPTING THE RETURN ED INCOME. THE INCOME OF THE ASSESSEE IS FROM SHARE OF PROFIT AND REMUNERATION FROM PARTNERSHIP FIRM M/S S. KANTI LAL & CO., CAPITAL GAINS AND INCOME FROM OTHER SOURCES ET C. THE LD. ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOUR CE OF CASH DEPOSIT. THE ASSESSEE VIDE LETTER DATED 06/12/2012 EXPLAINED THAT THE AMOUNT OF RS.32,10,000/- AND RS.9,75,000/- WERE MADE BY PERSONS NAMELY BHOGILAL KALIDAS AND POPOTAL C.SHAH RESPECTIVELY AND THE BALANCE AMOUNT OF RS.29,43,000/- WAS OUT OF WITHDRAWALS FROM THE BANK ACCOUNT. THE LD. ASSESSING OFFICER MADE THE ADDITIO N AS INCOME FROM UNDISCLOSED SOURCES/UNEXPLAINED CASH CR EDIT. WE NOTE FROM THE IMPUGNED ORDER (PAGE-2) THAT THE M UKESH C. SHAH ATTENDED THE PROCEEDINGS AND FILED WRITTEN SUBMISSIONS AND ALSO ARGUED THE MATTER, HOWEVER, IN PARA- 2.3.1 OF THE IMPUGNED ORDER, THERE IS AN OBSERVATIO N THAT THE ASSESSEE DID NOT MADE ANY SUBMISSION AND MERELY REL IED ITA NO. 6045/MUM/2014 MUKESH KANTILAL SHAH 4 UPON THE GROUNDS OF APPEAL, THUS, THERE IS CONTRADI CTION IN THE ORDER. CONSIDERING THE TOTALITY OF FACTS, WE AR E OF THE VIEW THAT THE ISSUES INVOLVED (GROUNDS RAISED BEFORE US) REQUIRES RECONSIDERATION. THE ASSESSEE HAS FILED AN AFFIDAVI T IN SUPPORT OF HIS CLAIM. THE ASSESSEE IS DIRECTED TO FURNISH T HE NECESSARY EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM BEFORE TH E LD. ASSESSING OFFICER TO SUBSTANTIATE HIS CLAIM. THE AS SESSEE BE GIVEN OPPORTUNITY OF BEING HEARD. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 18/01/2018. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ( DATED : 18/01/2018 F{X~{T? P.S / /. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1# ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1# / CIT(A)- , MUMBAI, ITA NO. 6045/MUM/2014 MUKESH KANTILAL SHAH 5 5. 3$4 .# , 0 *+' * 5 , % / DR, ITAT, MUMBAI 6. 6! 7% / GUARD FILE. ! / BY ORDER, TRUE COPY /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI