SHAILENDRAKUMAR JAIN, MUMBAI V. ITO 24(2)(2), MUMBAI

ITA 6713/MUM/2010

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9359 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 03-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 21-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, , , , , ,, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , , ! BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.6713/MUM/2010 ASSESSMENT YEARS:2006-07 SHAILENDRA KUMAR JAIN, C/O- R.K. JAIN, CHARTERED ACCOUNTANTS, 1B/01, NALANDA, EVERSHINE NAGAR, MALAD (WEST), MUMBAI - 400064 ' ' ' ' / VS. INCOME TAX OFFICER, WARD-24(2)(2), C-13, 604, 6 TH FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( ' %&' /ASSESSEE) ( / REVENUE) P.A. NO.ADAPJ3368J ' %&' ( ) ( ) ( ) ( ) / // / ASSESSEE BY): NONE ( ) ( ) ( ) ( ) / REVENUE BY SHRI NEIL PHILIP - DR ' ( '* / / / / DATE OF HEARING : 03/02/2015 + + + + ( '* /DATE OF ORDER 04/02/2015 + + + + / / / / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 31ST MARCH 2010 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. AT THE TIME OF HEARING, NONE WAS PRESENT FOR THE ASSESSEE, WHEREAS, SHRI NEIL PHILIP, LD. DR, WAS PRESENT FOR THE REVENUE. WE NOTE THAT THE APPEAL WAS FILED BY THE ASSESSEE ON 21/09/2010. REGISTERED SHAILENDRA KUMAR JAIN. 2 AD NOTICE WAS SENT TO THE ASSESSEE FOR 08/05/2012 A ND THE ASSESSEE REQUESTED FOR ADJOURNMENT, WHICH WAS ALLOW ED. ON THE NEXT DATE OF HEARING I.E. 09/08/2012, THE ASSESSEE AGAIN REQUESTED FOR ADJOURNMENT WHICH WAS ALSO GRANTED. ON 11/07/2013 NOBODY APPEARED FOR THE ASSESSEE, THEREF ORE, REGISTERED AD NOTICE WAS ISSUED, STILL NOBODY APPEA RED ON 06/01/2014. AGAIN ON 18/12/2014, REGISTERED NOTICE WAS ISSUED FOR TODAY STILL THE ASSESSEE IN SPITE OF SERVICE OF NOTICE DID NOT APPEAR. IN VIEW OF THESE FACTS, IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE HIS APPEAL, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTY QUA THE ASSESSEE AND PROCEED TO DISPOSE OF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RE CORD. THE ACKNOWLEDGMENTS FOR RECEIPT OF REGISTERED NOTICE AR E VERY MUCH AVAILABLE ON RECORD. 2. THE FIRST GROUND RAISED IN THE APPEAL IS GENERAL IN NATURE, REQUIRES NO DELIBERATION. 3. THE NEXT GROUND PERTAINS TO CONFIRMING THE ADDIT ION MADE BY THE ASSESSING OFFICER AND ALSO SUGGESTED IN THE REMAND REPORT ENHANCING THE INCOME WITHOUT ISSUING A SHOW CAUSE N OTICE. WE FIND NO MERIT IN THIS GROUND OF THE ASSESSEE, THERE FORE, IT IS DISMISSED AS SUCH MORE SPECIFICALLY WHEN EVEN IN TH E REMAND REPORT, THE LD. ASSESSING OFFICER REITERATED HIS ST AND. 4. THE NEXT GROUND PERTAINS TO DISALLOWANCE OF EXPE NSES AMOUNTING TO RS.16,112/- ( BEING 20% OF RS.80,588/- ) ON THE GROUND THAT THE SAME WERE INCURRED FOR PERSONAL PUR POSES. WE FIND THAT THE DISALLOWANCE WAS MADE BY THE ASSESSIN G OFFICER FOR WANT OF BILL AND VOUCHERS AND THUS THE PERSONAL ELE MENT OF SUCH EXPENSES COULD NOT BE RULED OUT. IT IS NOTED THAT THE MATTER WAS SHAILENDRA KUMAR JAIN. 3 REMANDED BACK TO THE ASSESSING OFFICER, WHEREIN, AL SO HE ASSERTED HIS STANDS THE PAYMENTS WERE MADE IN CASH, THUS, THE 20% OF THE DISALLOWANCE IS JUSTIFIED AS THE OFFICE WAS RUN FROM THE RESIDENCE, CONSEQUENTLY, THERE WAS LIKELIHOOD O F INVOLVEMENT OF PERSONAL EXPENSES. HOWEVER, TO PUT AN END TO TH E LITIGATION, THE DISALLOWANCES TO THE EXTENT OF 10% ARE CONFIRME D IN PLACE OF 20% SUSTAINED BY THE LD. COMMISSIONER OF INCOME TA X (APPEALS), THUS, THIS GROUND OF THE ASSESSEE IS PARTLY ALLOWED . 5. THE NEXT GROUND PERTAINS TO CAPITAL GAINS/BUSINE SS INCOME AMOUNTING TO RS.2,93,700/-. WE NOTE THAT SUFFICIEN T OPPORTUNITY WAS GRANTED TO THE ASSESSEE TO FURNISH THE NECESSAR Y DETAILS AS MENTIONED IN PARA 5 TO 5.3 OF THE ASSESSMENT ORDER. THE ASSESSEE DID NOT FURNISH THE NECESSARY DETAILS EVIDENCING TH AT HE EARNED INCOME AS SHORT TERM CAPITAL GAIN AND MODE OF RECEI PT. THE REASONING CONTAINED IN THE ASSESSMENT ORDER/IMPUGNE D ORDER SEEMS TO BE JUSTIFIED BECAUSE THE ASSESSEE DID NOT FURNISH ANY DETAIL. EVEN BEFORE US, THE ASSESSEE REMAINED ABSEN T; THEREFORE, WE AFFIRMED THE CONCLUSION DRAWN IN THE IMPUGNED OR DER. 6. THE NEXT GROUND PERTAINS TO ADDITION OF RS 8,68, 863/- BY TREATING AS UNEXPLAINED CASH CREDIT. THE STAND OF THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT FACTS WER E NOT APPRECIATED. WE FIND THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS RECORDED THE FACTUAL POSITION THAT AF TER REPEATED REMINDERS, THE ASSESSEE DID NOT FILE THE NECESSARY DETAILS, THUS, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), MORE SPECIFIC ALLY WHEN THE ASSESSEE HAS NOT PROVED THE INGREDIENTS REQUIRE D U/S 68 OF SHAILENDRA KUMAR JAIN. 4 THE ACT AND EVEN REMAND REPORT WAS SENT TO THE ASSE SSEE FOR HIS COUNTER COMMENTS AND THE LIABILITY WAS NOT SHOWN IN THE BALANCE SHEET IN THE NAME OF THE CLAIMED BROKER. 7. THE LAST GROUND PERTAINS TO CONFIRMING THE ADDIT ION OF RS.1,20,611/- BY TREATING THE SAME AS UNEXPLAINED C ASH CREDIT. WE NOTE THAT DURING ASSESSMENT PROCEEDINGS, THE ASS ESSEE WAS ASKED TO FURNISH THE NECESSARY DETAILS OF BUSINESS LIABILITY WITH NAMES AND ADDRESSES OF CREDITORS. EVEN IN THE REMA ND PROCEEDINGS, NECESSARY DETAILS WERE NOT PRODUCED, T HUS, WE FIND NO INFIRMITY IN THE CONCLUSION OF THE LD. COMMISSIO NER OF INCOME TAX (APPEALS). FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 04/02/2015. SD/ - (RAJENDRA) SD/ - (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; ,' DATED : 04/02/201 5 F{X~{T? P.S/. '.. + ( .'/ 0/1' + ( .'/ 0/1' + ( .'/ 0/1' + ( .'/ 0/1'/ COPY OF THE ORDER FORWARDED TO : 1. 23 / THE APPELLANT 2. .423 / THE RESPONDENT. 3. 5 ( ) / THE CIT, MUMBAI. 4. 5 / CIT(A)- , MUMBAI 5. /78 .'' , , / DR, ITAT, MUMBAI 6. 89% : / GUARD FILE. +' +' +' +' / BY ORDER, 4/' .' //TRUE COPY// ; ;; ;/ // /< < < < (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI