SHRI GANESH DEVELOPERS, MUMBAI V. ITO WD 22(2)(3), NAVI MUMBAI

ITA 6152/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100818 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 22-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2012
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: DINESH R SHAH
• Keywords: Onus to prove

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ./ ITA NO . 6152 / MUM/20 1 2 ( / ASSESSMENT YEAR : 200 9 - 2010 ) M/S SHRI GANESH DEVELOPERS, 88/1/1, DHAWDE CHAWL, VALLABH SOCIETY, GHATKOPAR(E), MUMBAI - 400075 VS. ITO - WARD - 22(2)(3), MUMBAI ./ ./ PAN/GIR NO. : A BEFS 9021 J ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI VIJAY KUMAR BORA /ASSESSEE BY : SHRI DINESH R. SHAH / DATE OF HEARING : 22 /0 6 / 2015 / DATE OF PRONOUNCEMENT 19/08 /2015 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) , MUMBAI FOR THE ASSESSMENT YEAR 2009 - 10 . 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR ADDITION OF RS. 18,25,000/ - U/S.68 IN RES PECT OF 6 LOAN CREDITORS. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. DURING THE COURSE OF SCRUTINY ASSESSMENT THE AO FOUND THAT THERE WAS UNSECURED LOANS OF RS. 4,17,35,000/ - FROM 140 LOAN CREDITORS. THE AO ADDED THE ENTIRE AMOUNT IN ASSESSEE S INCOME AS UNEXPLAINED LOAN CREDITORS. BY THE ITA NO. 6152 /1 2 2 IMPUGNED ORDER THE CIT(A) UPHELD THE ADDITION OF RS.18,25,000/ - IN RESPECT OF FOLLOWING SIX LOAN CREDITORS : - NO. NAME OF LENDER SERIAL NO. AMOUNT 1 SMT. AMRUTBEN M. CHHEDA (1) RS.4,00,000 2 SMT. DEVKABEN P REMJI HARIA (7) RS. 50,000 3 SHRI DINESH MANILAL SHAH (8) RS.5,00.000 4 SHRI POPATLAL PREMJI HARIA HUF (23) RS.1,00,000 5 SMT. PRAVINA TARUN ANANDKOR (24) RS.2,75,000 6 SHRI VIJAY T. FARIA HUF (31) RS.5,00,000 TOTAL RS.18,25,000 4. IT WAS CONTEN DED BY LD. AR THAT THE ASSESSEE HAS FILED LOAN CONFIRMATION LETTERS. PAN NUMBERS, BANK STATEMENTS, RETURN OF ACKNOWLEDGEMENT RECEIPTS AND AN AFFIDAVIT CONFIRMING THE FACTS OF GIVING LOANS; THE ASSESSEE HAS FULFILLED THE REQUIREMENT OF SEC.68 OF IT ACT, 196 1. HE FURTHER INVITED OUR ATTENTION TO THE FACT THAT NOTICES WERE SENT BY THE AO AT THE WRONG ADDRESS, THEREFORE, THE SAME WAS NOT SERVED TO THE RESPECTIVE CREDITORS. AS PER LD. AR MERELY ON THE GROUND THAT THE SAID PARTIES COULD NOT CONTACTED, THE AO HELD THE LOAN TO BE INGENUINE. HE FURTHER CONTENDED THAT AS PER THE CONFIRMATION FILED BY THE ASSESSEE IN RESPECT OF THESE LOAN CREDITORS THE ASSESSEE HAS FULLY DISCHARGED ITS BURDEN TO PROVE AS ENUNCIATED U/S.68 OF THE ACT. 5. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES AND FOUND FROM THE RECORD THAT DURING THE COURSE OF SCRUTINY ASSESSMENT THE AO CALLED FOR CONFIRMATION FROM ALL THE 14 0 CREDITORS. HOWEVER, THE CIT(A) HAS DELETED THE ADDITIONS EXCEPT THE ITA NO. 6152 /1 2 3 ABOVE SIX PARTIES, HOWEVER, THE REVENUE IS NOT IN APPEAL BEFORE US WITH RESPECT TO THE ADDITIONS DELETED BY THE CIT(A) AND IT WAS SPECIFICALLY ASKED FROM LD. DR WHO HAS CONFIRMED THAT TH ERE IS NO APPEAL BY THE REVENUE. AFTER VERIFYING THE CONFIRMATION FILED BY ALL THE ABOVE SIX PARTIES WE FOUND THAT THEY HAD DULY INCORPORATED PAN NUMBER, BANK STATEMENTS AND AFFIDAVIT CONFIRMING GIVING OF THE LOAN TO THE ASSESSEE . MERELY ON THE PLEA THAT D UE TO WRONG ADDRESS THE NOTICE COULD NOT BE SERVED TO THESE PARTIES CANNOT BE MADE THE BASIS FOR ADDING THE SAME IN ASSESSEES INCOME. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, WE RESTORE THIS ADDITION IN RESPECT OF THESE SIX LOAN CREDITORS TO TH E FILE OF THE AO FOR DECIDING AFRESH AFTER ISSUING NOTICE AS PER THE CORRECT ADDRESS FURNISHED BY THE ASSESSEE. ACCORDINGLY, THE AO IS TO DECIDE THE ISSUE AFRESH AS PER THE LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 19/08 / 201 5 . SD/ - SD/ - ( ) ( SANJAY GARG ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 19/08 /201 5 . . /PKM , . / PS / 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//