NEELAM KRISHNA THAKKER, MUMBAI V. ITO 23(3)(1), MUMBAI

ITA 6511/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83905 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 13-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LAV KUMAR
• Section: 131; 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BE NCH, MUMBAI , !' # # # # , , !' $ BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ./I .T.A. NO. 6511/MUM/2012 ( % % % % / ASSESSMENT YEAR : 2009-10 SMT. NEELAM KRISHNA THAKKER, J-403, VARDHAMAN NAGAR, DR. R.P. ROAD,MULUND (W), MUMBAI-400 080 / VS. THE ITO, WARD 23(3)(1), PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-400 051 '& ./ '( ./ PAN/GIR NO. : AACPT 1951D ( &) / APPELLANT ) .. ( *+&) / RESPONDENT ) &) , / APPELLANT BY: SHRI K. SHIVRAM SHRI AJAY R. SINGH SHRI NEELAM JADHAV *+&) - , / RESPONDENT BY: SHRI LAV KUMAR - ./ / DATE OF HEARING :14.10.2014 01% - ./ / DATE OF PRONOUNCEMENT :14.10.2014 !2 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A)-33, MUMBAI DT.25.9.2012 PERTAINING TO A.Y.20 09-2010. 2. THE ASSESSEE IS AGGRIEVED BY THE ADDITION OF RS. 27 LAKHS U/S. 68 OF THE ACT. THE ASSESSEE HAS ALSO TAKEN AN ALTERNATIV E PLEA THAT THE ENTIRE AMOUNT CANNOT BE ADDED U/S. 68 OF THE ACT AS OPENIN G BALANCE CANNOT BE CONSIDERED U/S. 68 OF THE ACT. ITA NO. 6511/M/2012 2 3. THE ASSESSEE IS IN THE BUSINESS OF CAR HIRE. RE TURN FOR THE YEAR WAS FILED ON 27.7.2009 DECLARING INCOME AT RS. 4,76,206 /-. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT. DURING THE COURS E OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS TAKEN UNSECURED LOAN FROM M/S. BHARAT AGENCIES AMOUNTING RS. 27 LAKHS. THE PROPRIETOR OF M/S. BHARAT AGENCIES, SMT. HEENA Y PA TEL WAS SUMMONED U/S. 131 AND HER STATEMENT WAS RECORDED ON OATH. A FTER EXAMINING HER, THE ASSESSING OFFICER FOUND THAT SHE HAD TAKEN UNSE CURED LOANS OF RS. 86,74,584/- AND TOTAL LOANS GIVEN BY HER AT RS. 87, 77,961/-. THE AO FURTHER OBSERVED THAT SHE HAS SHOWN MEAGER INCOME F ROM HER PROPRIETORSHIP CONCERN WHICH WAS AT RS. 49,349/- FO R A.Y. 2007-08, RS. 72,335/- FOR A.Y. 2008-09 AND RS. 58,730/- IN A.Y. 2009-2010. 3.1. THE AO WAS OF THE FIRM OPINION THAT THE LADY W AS NOT IN A POSITION TO GIVE A LOAN OF RS. 27 LAKHS TO THE ASSESSEE. THE AO TREATED THE SAME AS INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STAT ED THAT FIRSTLY THERE WAS OPENING BALANCE OF RS. 16,50,000/- IN THE ACCO UNT OF M/S. BHARAT AGENCIES AND RS. 10,50,000/- WAS CREDITED DURING TH E YEAR, THEREFORE, ENTIRE ADDITION IS UNCALLED FOR. FURTHER THE LD. C OUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE HAD SUBMITTED THE BANK SUM MARY, LOAN CONFIRMATION AND THE BALANCE SHEET OF BHARAT AGENCI ES THEREBY DISCHARGING THE INITIAL ONUS CAST UPON THE ASSESSEE BY VIRTUE OF SEC. 68 OF THE ACT. IN SUPPORT, THE LD. COUNSEL FOR THE ASSES SEE RELIED UPON CERTAIN JUDICIAL DECISIONS. ITA NO. 6511/M/2012 3 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE FINDINGS OF THE LOWER AUTHORITIES. 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES. NO DOUBT, THE ASSESSEE HAS FURNISHED THE BANK STATEMEN T OF BHARAT AGENCIES BUT THE LD. CIT(A) AT PARA 3.5 ON PAGE-4 OF HIS ORD ER HAS ELABORATELY DISCUSSED THE DEPOSITS IN THE SAID BANK ACCOUNT AND CAME TO THE CONCLUSION THAT MAXIMUM AMOUNT AVAILABLE AT THE CRE DIT OF BHARAT AGENCIES WAS AT RS. 20,07,517/-, THEREFORE, THE LOA N AMOUNT SHOWN AS GIVEN AT RS. 27 LAKHS DURING THE YEAR CANNOT BE TAK EN AS GENUINE. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE STATED TH AT THE REVENUE AUTHORITIES HAVE GROSSLY MISTAKEN THE FACTS OF THE CASE. THE ASSESSEE HAS TAKEN ONLY RS. 10,50,000/- DURING THE YEAR UNDER C ONSIDERATION AND THERE WAS AN OPENING BALANCE OF RS. 16.50 LAKHS. WE FIND THAT THIS ASPECT HAS NOT BEEN DEALT BY THE REVENUE AUTHORITIES. THEREFO RE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO. THE ASSESSEE IS DIRECTED TO FILE THE COPY OF LEDGER ACCOUNT TO SUBS TANTIATE HER CLAIM THAT THERE WAS AN OPENING BALANCE. THE AO IS DIRECTED T O VERIFY THE SAME AND DECIDE THE ISSUE AFRESH IN RESPECT OF THE AMOUNT BO RROWED DURING THE YEAR UNDER CONSIDERATION IN THE LIGHT OF THE PROVISIONS OF SEC. 68 OF THE ACT. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH OCTOBER, 2014 SD/- SD/- (VIVEK VARMA ) (N.K. BILLAIYA) !' / JUDICIAL MEMBER !' / ACCOUNTANT MEMBER MUMBAI; 3! DATED : 14 TH OCTOBER, 2014 . . ./ RJ , SR. PS ITA NO. 6511/M/2012 4 !2 !2 !2 !2 - -- - *. *. *. *. 4%. 4%. 4%. 4%. / COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPELLANT 2. *+&) / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 67 *. , , / DR, ITAT, MUMBAI 6. 78 9 / GUARD FILE. !2 !2 !2 !2 / BY ORDER, +. *. //TRUE COPY// : :: : / ; ; ; ; ' ' ' ' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI