AJAY DOSHI, MUMBAI V. ITO 19(2)(1), MUMBAI

ITA 6424/MUM/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9588 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K CHATURVEDI
• Keywords: Unexplained cash credit
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I G. MANJUNATHA , ACCOUNTANT MEMBER IT A NO. 6424/MUM./2013 ( ASSESSMENT YEAR : 20 09 10 ) SHRI AJAY DOSHI 70/C 2, HARI NIWAS, GOLIBAR ROAD SANTACRUZ (EAST), MUMBAI 400 055 PAN AAAPD8085C . APP ELL ANT V/S INCOME TAX OFFICER WARD 19(2) (1), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI V.K. CHATURVEDI DATE OF HEARING 24.06.2019 DATE OF ORDER 03.07.2019 O R D E R PER SAKTIJIT DEY, J.M. CAPTIONED APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 16 TH AUGUST 2013, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3 0 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 20 09 10 . 2 SHRI AJAY DOSHI 2 . T HE DISPUTE INVOLVED IN THE PRESENT APPEAL IS CONFINED TO THE ADDITION OF ` 1,59,44,000, AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 3 . WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. AS COULD BE SEEN FROM THE ORDER SHEET ENTRIES , FROM THE FIRST DATE OF HEARING OF APPEAL ON 16 TH SEPTEMBER 2015 TILL 24 TH JUNE 2019, THOUGH , THE APPEAL WAS FIXED FOR HEARING ON SEVERAL OCCASIONS, BUT NO ONE APPEARED ON BE HALF OF THE ASSESSEE TO REPRESENT THE CASE. THEREFORE, THE BENCH WAS COMPELLED TO ADJOURN THE HEARING OF APPEAL REP EATEDLY . HOWEVER, THERE IS NO IMPROVEMENT IN THE SITUATION. EVEN , THE NOTICE OF HEARING ISSUED PER REGISTERED POST AS DIRECTED BY THE BENCH V IDE ORDER DATED 2 ND MAY 2019, HAS RETURNED BACK UNSERVED WITH THE POSTAL REMARK LEFT . THE AFORESAID FACTS CLEARLY INDICATE THAT THE ASSESSEE HAS NO INTEREST IN PURSUING ITS APPEAL BEFORE THE TRIBUNAL. IN THESE CIRCUMSTANCES, WE HAVE NO OTHER ALTERNATIVE BUT TO PROCEED WITH THE HEARING OF APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4 . BRIEF FACTS ARE, THE ASSESSEE , AN INDIVIDUAL , FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 30 TH SEPTEMBER 2009, DECLARING TOTAL INCOME OF ` 9,74,590. DURING THE ASSESSMENT 3 SHRI AJAY DOSHI PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FURNISH THE DETAILS OF SOURCE OF INVESTMENT IN V ARIOUS ASSETS LIKE MUTUAL FUNDS, SHARES AND STOCK, IMMOVABLE AND MOVABLE PROPERTIES, ETC. IN RESPONSE TO THE QUERY RAISED BY THE ASSESSING OFFICER, THE ASSESSEE MADE SO ME SUBMISSIONS EXPLAINING THE SOURCE OF INVESTMENT. AFTER PERUSING THE SUBMISSIONS OF TH E ASSESSEE, THE ASSESSING OFFICER FOUND THAT AS PER ASSESSEES CLAIM, IT HAS MADE INVESTMENT OF ` 80 LAKH FROM THE AMOUNT OF ` 55 LAKH FROM AJINKYA MULTITRADE PVT. LTD. AND ` 25 LAKH FROM VIVA TRADELINK PVT. LTD. HOWEVER, ON GOING THROUGH THE LEDGER ACCOUN T OF AJINKYA MULTITRADE PVT. LTD., HE FOUND THAT IN THE RELEVANT PREVIOUS YEAR, THE ASSESSEE HAS RECEIVED TOTAL AMOUNT OF ` 1.02 CRORE AND ` 25 LAKH ON THE SAME DATE I.E., 3 RD APRIL 2008. AS ALLEGED BY THE ASSESSING OFFICER , TO VERIFY THE GENUINENESS OF TH E SE TRANSACTION S THOUGH THE ASSESSING OFFICER ISSUED NOTICE S UNDER SECTION 133(6) OF THE ACT, HOWEVER, SUCH NOTICES RETURNED BACK UNSERVED. THUS, THE ASSESSING OFFICER TREATING THE AGGREGATE AMOUNT OF ` 1.27 CRORE CLAIMED TO HAVE BEEN RECEIVED FROM THE AFO RESAID TWO PARTIES AS BOGUS ADDED BACK TO THE INCOME OF THE ASSESSEE. SIMILARLY, HE FOUND THAT TO EXPLAIN SOME OTHER INVESTMENT THE ASSESSEE HAD STATED THAT HE HAS RECEIVED AN AMOUNT OF ` 58,38,000 FOR LAND DEALING FROM FOUR PARTIES, HOWEVER, AS OBSERVED B Y THE ASSESSING OFFICER , NOTICES ISSUED UNDER SECTION 133(6) OF THE ACT TO ALL THE FOUR PARTIES FOR VERIFYING THE GENUINENESS OF 4 SHRI AJAY DOSHI ASSESSEES CLAIM , RETURNED BACK UNSERVED. ACCORDINGLY, HE TREATED THE AMOUNT OF ` 58,38,000, AS BOGUS. ON THE BASIS OF THE AFOR ESAID REASONING, THE ASSESSING OFFICER ADDED BACK THE AMOUNT OF ` 1,27,00,000 AND ` 58,38,000 AGGREGATING TO ` 1,85,38,000, AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. BEING AGGRIEVED WITH SUCH ADDITION, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 5 . AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER. AFTER TAKING NOTE OF THE REMAND REPORT AND THE SUBMISSIONS OF THE ASSESSEE AND OTHER MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) GRANTED PARTIAL RELIEF TO THE A SSESSEE BY SUSTAINING ADDITION OF ` 6 LAKH IN RESPECT OF CREDIT STANDING IN THE NAME OF SHLOK TRADERS PVT. LTD. FURTHER, HE DELETED CREDIT OF ` 15 LAKH STANDING IN THE NAME OF SHRI JIGNESH GOPANI. SIMILARLY, HE DELETED THE CREDIT AMOUNT OF ` 6.30 LAKH STAN DING IN THE NAME OF RAJVI TRADING CO. HOWEVER, H E SUSTAINED ALL OTHER CREDIT AMOUNT S AGGREGATING TO ` 1,59,44,000, APPEARING IN THE NAME OF FOUR PARTIES. 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE TAKING US THROUGH THE OBSERVATIONS OF THE ASSESSING OFFICER I N THE ASSESSMENT ORDER AS WELL 5 SHRI AJAY DOSHI AS IN THE REMAND REPORT AND THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS) SUBMITTED , THE ASSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE CREDIT ENTRIES APPEARING IN THE NAME OF THE FOUR PARTIES. THEREFORE , TH E ADDITION MADE IS JUSTIFIED. 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN, BEFORE THE ASSESSING OFFICER THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE TO PROVE THE GENUINENESS OF THE OUTSTANDING CREDITORS TO PROVE THE SOURCE OF INVESTMENT . BEFORE LEARNED COMMISSIONER (APPEALS), THE A SSESSEE FURNISHED SOME EVIDENCE ON THE BASIS OF WHICH A REMAND REPORT WAS CALLED FROM THE ASSESSING OFFICER. ON EXAMINING THE EVIDENCES FURNISHED BY THE ASSESSEE, THE ASSESSING OFFICER SUBMITTED HIS REPORT BEFORE LEARNED COMMISSIONER (APPEALS). UPON CONSIDERING THE REMAND REPORT AND OTHER MATERIALS ON RECORD, LEARNED COMMISSIONER (APPEALS) HAVING FOUND THAT PART OF THE CREDIT AMOUNT APPEAR ING IN THE BOOKS HAVE BEEN PROVED TO BE GENUINE , DELETED THE ADDITION TO THAT EXTENT. HOWEVER, AS REGARDS THE BALANCE CREDIT AMOUNT OF ` 1,59,44,000, APPEARING IN THE NAME OF FOUR PARTIES, THE ASSESSEE COULD NOT FURNISH CLINCHING EVIDENCE TO PROVE EITHER T HE GENUINENESS OF THE TRANSACTION OR THE CREDITWORTHINESS OF THE CREDITORS. THEREFORE, ON FACTUAL VERIFICATION OF THE AFORESAID ASPECT, LEARNED COMMISSIONER (APPEALS) SUSTAINED THE ADDITION TO THAT EXTENT. FACTUAL POSITION 6 SHRI AJAY DOSHI REMAINS UNALTERED BEFORE US AS TH E ASSESSEE HAS NEITHER APPEARED NOR FURNISHED ANY EVIDENCES TO CONTROVERT THE FACTUAL FINDING OF THE LEARNED COMMISSIONER (APPEA LS). THAT BEING THE CASE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. GROUNDS RAISED ARE DISMISSED. 8 . IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 03.07.2019 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 03.07.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR) ITAT, MUMBAI