GAURI CHETAN SEHGAL, MUMBAI V. ITO WD 24(3)(1), MUMBAI

ITA 6338/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92401 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 10-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 16-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: JITENDRA JAIN; KASHYAP K VAIDYA
• Keywords: Additional evidence; Revised return
• Section: 68; 143(3)

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA JUDICAIL MEMBER ./ I.T.A. NO.6338 /MUM/2012 ( / ASSESSMENT YEAR : 2006-2007 SMT. GAURI CHETAN SEHGAL, B-24, VARSHA, GULMOHAR X ROAD 4, J.V.P.D. SCHEME, MUMBAI 400 049. / VS. INCOME TAX OFFICER - WARD 24(3), PRATYAKSHA BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400051. ./ PAN : AJJPS6769G ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI JITENDRA JAIN & SHRI KASHYAP K VAIDYA R E SPONDENT BY : SHRI VIJAY KUMAR BORA / DATE OF HEARING : 10-03-2015 / DATE OF PRONOUNCEMENT : 17-04-2015 [ !' / O R D E R PER R.C. SHARMA, A.M . : THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) -34, MUMBAI DATED 13-06-20 12 FOR THE A.Y. 2006-07 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INC OME TAX ACT, 1961. 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY TH E ORDER OF LD. CIT(A) FOR CONFIRMING THE ADDITION ON ACCOUNT OF UNEXPLAINED C ASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961. ITA 6338/M/12 2 3. THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE WITH A REQUEST TO ACCEPT THE SAME. THE REQUEST LETTER FILED FOR ACCEPTING ADDIT IONAL EVIDENCE READS AS UNDER:- MOST RESPECTFULLY, WE SUBMIT AS UNDER: 1. THE MAIN CONTROVERSY IN THE APPEAL FILED BY THE APPELLANT RELATES TO SUBMISSION OF DETAILS SUCH AS NAME AND ADDRESS O F THE PARTIES AND THE QUANTUM OF CONTRACT UNDERTAKEN FROM SUCH PARTIE S. 2. THE WORK WAS DONE IN FINANCIAL YEAR 2005-06. ASS ESSMENT PROCEEDINGS BEFORE THE LEARNED OFFICER BEGUN IN THE MONTH OF JULY, 2007 AND THE ASSESSMENT COMPLETED ON 10 TH DECEMBER, 2008. 3. THE IST APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS)- 34 WAS INSTITUTED ON 12 TH JANUARY, 2009 AND WAS CULMINATED ON 13TH JUNE, 2012. 4. IT IS THIS INTERVENING PERIOD AND THE TIME LAG B ETWEEN WORK DONE AND COMPLETION OF BOTH THE TAX PROCEEDING COMING TO AN END, THE PARTIES TO WHOM WORK WAS DONE WERE NOT COOPERATING WITH THE APPELLANT. 5. HOWEVER RECENTLY AFTER FILING THE APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL, AFTER GREAT PERSUASIONS; REQUES TS AND RUNNING AROUND THE APPELLANT WAS ABLE TO PROCURE THE DETAIL S LIKE NAME AND ADDRESS OF THE PARTY, CONTRACTED AMOUNT, PAN NUMBER AND CONFIRMATION LETTER. THE CONFIRMATION LETTERS BEARS THE DATE IN AND AROUND NOVEMBER/DECEMBER, 2013. THEREFORE THE ABOVE DETAILS COULD NOT BE FILED BEFORE THE ASSESSING OFFICER AND ALSO BEFORE COMMISSIONER OF INCOME TAX-APPEALS. 6. THESE PAPERS ARE THUS CRUCIAL FOR THE ADJUDICATI ON OF THE MATTER. 7. THE MOOT QUESTION NOW THEREFORE IS WHETHER CASH CREDITS APPEARING IN PASS BOOK IS ARISING ON ACCOUNT OF CIV IL WORK OR IS IT A CASH CREDIT? 8. THE APPELLANT WAS EXECUTING THE CIVIL WORK ALONG HER FATHER AND THE INTERACTIONS WITH CLIENT WAS DONE BY UMESH KHAN NA. 9. THE APPELLANT THUS REQUESTS TO ACCORD KIND PERMI SSION FOR PRODUCTION OF HEREIN DISCUSSED EVIDENCE AS THEY GO TO THE ROOT OF THE MATTER & INVOLVE A SUBSTANTIAL CAUSE IN DETERMINING CORRECT INCOME & THE CORRECT TAX LIABILITY OF THE APPELLANT FOR THE YEAR UNDER THE APPEAL. THIS EVIDENCE WAS NOT AVAILABLE TO THE APPELLANT AT THE TIME OF THE BOTH PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION. ITA 6338/M/12 3 10. IN THE PECULIAR CIRCUMSTANCES OF THE EASE, THE APPELLANT BEGS TO SUBMIT THE AFORESAID DETAILS IN TABULATED MANNER BY WAY OF PAPER BOOK UNDER RULE 29 OF APPELLATE TRIBUNAL RULES. AS A MEA SURE OF ABUNDANT PRECAUTION, WE PRAY THAT PERMISSION MAY KINDLY BE G RANTED TO ADDUCE THE SAME AS ADDITIONAL EVIDENCE FOR DECIDING THE AP PEAL. 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. DURING THE COURSE OF ASSESSMENT, THE A.O. FOUND THAT AN AMOUNT OF INR 18,40,000/- WAS RECEIVED AND DEPOSITED BY ASSESSEE IN BANK ACCOUNT NUMBER NO. 11254 WHICH IS IN BOMBAY MERCANTILE CO-OP BANK LTD., ANDHERI BR ANCH MUMBAI THROUGH SEVERAL SMALL DEPOSITS. THE ASSESSEE IS A JOINT ACC OUNT HOLDER, WHICH WAS IN HER MAIDEN NAME, IN THE SAID ACCOUNT NUMBER NO. 112 54 WHICH IS IN THE NAME OF THE ASSESSEES FATHER UMESH KHANNA AND TWO OTHERS. THE ACCOUNT WAS USED TO RECEIVE MONEY TOWARDS CIVIL CONSTRUCTIO N WORK FROM VARIOUS CLIENTS. THE ACCOUNT WAS ALSO USED TO MAKE PAYMENT TOWARDS EXPENDITURE FOR THE CIVIL CONSTRUCTION WORK. THE ASSESSEE HAD FILED A REVISED RETURN TAKING INTO CONSIDERATION THE ACTIVITIES OF THE ACCOUNT NO. 112 54 DECLARING INCOME UNDER SECTION 44 AD OF THE IT ACT, 1961. THE ASSESSING O FFICER REJECTED THE REVISED RETURN, EVEN THOUGH THAT WAS THE ONLY BASIS ON WHIC H HE COULD CONCLUDE THAT THE INCOME WAS ONLY OF THE ASSESSEE. THE A.O. AND A LSO LD. COMMISSIONER OF INCOME-TAX OFFICER (APPEAL) DID NOT CONSIDER THE AM OUNT PAID TOWARDS EXPENSES AND WITHDRAWN FROM THE BANK ACCOUNT AS PER THE BANK STATEMENT AVAILABLE ON RECORD DURING THE YEAR UNDER CONSIDERA TION. THE LD. A.R. FILED ADDITIONAL EVIDENCE TO SUBSTANTIATE HER CLAIM FOR D EPOSIT IN BANK ACCOUNT OUT OF CONTRACT RECEIPTS. 5. WE HAVE GONE THROUGH THE ADDITIONAL EVIDENCE FIL ED WHICH GIVES THE DETAILS OF NAME, ADDRESS, PAN, CONFIRMATION LETTER OF CONTRACTED AMOUNT ALONG WITH SUMMARY OF ALL THE TRANSACTIONS AND DATE-WISE DETAILS OF CASH, NON-CASH AMOUNTS PAID TO FOR EXPENSES ALONG WITH LETTER OF C ONFIRMATION, AND PAN DETAILS. WE FIND THAT ALL THE ABOVE DOCUMENTS GOES TO THE ROOT OF THE MATTER FOR DECIDING THE ISSUE AS TO WHETHER IT WAS CASH CR EDIT OR LOAN TAKEN BY THE ITA 6338/M/12 4 ASSESSEE WHICH HAS BEEN ADDED BY THE A.O. U/S 68 OF THE ACT OR IT WAS IN THE NATURE OF CONTRACT RECEIPTS. IN THE INTEREST OF JU STICE AND FAIR PLAY, WE RESTORE THIS MATTER BACK TO THE FILE OF THE A.O. FOR DECIDI NG THE ISSUE AFRESH AS PER LAW AFTER CONSIDERING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL, 2015. !' # $% &! ' 17-04-2015 ( ) SD/- SD/- (VIVEK VARMA) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER $ 5 MUMBAI ; &! DATED 17-04-2015 [ .6../ RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 7 () / THE CIT(A) 34,, MUMBAI 4. 7 / CIT 24, MUMBAI 5. :;( 66<= , <= , $ 5 / DR, ITAT, MUMBAI G BENCH 6. (?@ A / GUARD FILE. ' / BY ORDER, : 6 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 5 / ITAT, MUMBAI