DCIT 11(2)(2), MUMBAI V. SOIR JEWELLERY P.LTD, GUJRAT

ITA 624/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0407 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR A K NAYAK
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NOS.623 & 624 /MUM/2015 (ASSESSMENT YEAR: 2009-10) D C I T - 11(2)(2) VS. M/S. SOIR JEWELLERY PVT. LTD. ROOM NO. 477A, 4TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 C/O. M/S. BRS & ASSOCIATES, CA S 4TH FLOOR, CA HOUSE WALKESHARI NAGRI, INDIRA GANDHI MARG JAMNAGAR 361008 PAN AAJCS8099R APPELLANT RESPONDENT APPELLANT BY: DR. A.K. NAYAK RESPONDENT BY: SHRI VIJAY MEHTA DATE OF HEARING: 12.06.2017 DATE OF PRONOUNCEMENT: 12.06.2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT BOTH THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE RESPECTIVE ORDERS OF THE CIT(A) DATED 18.11.2014. ITA NO. 623/ MUM/2015 RELATES TO THE QUANTUM WHILE ITA NO. 624/MUM/2015 RELATES TO D ELETION OF PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE ACT . ITA NO. 623/MUM/2015 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO T HE DELETION OF DISALLOWANCE OF THE ADDITION MADE BY THE AO BY APPL YING SECTION 68 AMOUNTING TO RS.1,07,61,674/-. 3. BRIEF FACTS RELATING TO THIS GROUND ARE THAT THE AO NOTED THAT THE ASSESSEE HAS OBTAINED SECURED LOAN ON RS.1.97,61,67 4/- FROM M/S. DAMASY RETAIL JEWELLERY PVT. LTD. THE NOTICES SENT BY THE AO COULD NOT BE SERVED AND RECEIVED BACK. THEREFORE, THE AO TREATED THE SAID AMOUNT AS UNEXPLAINED CASH CREDIT AND ADDED UNDER SECTION 68 OF THE ACT. ITA NOS. 623&624/MUM/2015 M/S. SOIR JEWELLERY PVT. LTD. 2 4. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO AND AFTER CALLING FOR THE REMAND REPORT AND VERIFYING THE DOCUMENTS FILED BY THE ASSESSEE ALONG WITH CONFIRMATION FROM M/S. DAMASY RETAIL JEWELLERY PVT. LTD. DELETED SAID CASH CREDIT. 5. BEFORE US THE LEARNED D.R. VEHEMENTLY RELIED ON THE ORDER OF THE AO AND CONTENDED THAT THE CIT(A) HAD INCORRECTLY OBSER VED THAT THE AO IN THE REMAND REPORT HAVE NOT GIVEN ANY ADVERSE COMMENTS. 6. THE LEARNED A.R. BEFORE US WENT THROUGH PARAS 3 AND 4 OF THE REMAND REPORT REPRODUCED BY THE CIT(A) IN ITS ORDER AND RELIED ON THE ORDER OF THE CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUG H THE RECORDS ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT THE CIT(A) HAS CALLED FOR THE REMAND REPORT FROM THE AO. THE A O HAS GIVEN OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE SUBMITTED EVIDENCE ALONG WITH CONFIRMATION OF M/S. DAMASY RETAIL JEWELLERY PVT. L TD. BEFORE THE AO. THE AO HAD DULY EXAMINED THESE EVIDENCES BUT DID NOT MA DE ANY ADVERSE COMMENTS ON THE EVIDENCES. THEREFORE, IN OUR VIEW T HE CIT(A) HAS CORRECTLY DELETED THE ADDITION AND IT IS NOT A CASE WHICH WAR RANT OUR INTERFERENCE. WE, THEREFORE, CONFIRM THE ORDER OF THE CIT(A) DELE TING THE ADDITION OF RS.1,07,61,674/- RECEIVED BY THE ASSESSEE FROM M/S. DAMASY RETAIL JEWELLERY PVT. LTD. THUS THE APPEAL FILED BY REVENU E IS DISMISSED. ITA NO. 624/MUM/2015 8. SO FAR AS THIS APPEAL IS CONCERNED, IT IS FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 28.11.2014 DELETING T HE PENALTY LEVIED ON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE ACT. WE HEA RD THE RIVAL SUBMISSIONS AND GONE THROUGH THE ORDERS OF THE TAX AUTHORITIES BELOW AND WE NOTED THAT THE AO LEVIED THE PENALTY ON THE ASSESSEE IN RESPEC T OF THE ADDITION MADE BY THE AO UNDER SECTION 68 AMOUNTING TO RS.1,07,61, 674/- AS WELL AS CERTAIN OTHER DISALLOWANCES. ITA NOS. 623&624/MUM/2015 M/S. SOIR JEWELLERY PVT. LTD. 3 9. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A), THE CIT(A) DELETED THIS DISALLOWANCES AS WELL AS ASCERTAINED THE GENUI NENESS OF THE UNSECURED LOAN AMOUNTING TO RS.1,07,61,674/-. THE CIT(A) THER EFORE DELETED THE PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE ACT. 10. BEFORE US WE NOTED THAT THE REVENUE HAS COME IN APP EAL ONLY AGAINST THE DELETION OF THE ADDITION MADE BY THE AO UNDER SECTION 68 AMOUNTING TO RS.1,07,61,674/- BUT HAS NOT IN APPEAL IN RESPECT OF OTHER DISALLOWANCES. WE IN THE PRECEDING PARAGRAPHS CONFI RMED THE ORDER OF THE CIT(A) DELETING THE ADDITION MADE UNDER SECTION 68 OF THE INCOME TAX ACT AMOUNTING TO RS.1,07,61,674/-. IN VIEW OF THIS FACT WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE C IT(A) DELETING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 11. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JUNE, 2017. SD/ - SD/ - (PAWAN SINGH) (P.K. BANSAL) JUDICIAL MEMBER VICE PRESIDENT MUMBAI, DATED: 12 TH JUNE, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -18, MUMBAI 4. THE CIT - 11, MUMBAI 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.