AAKASH PROJECTS & INFRASTRUCTURES PVT LTD, MUMBAI V. ITO 9 (1)(1), MUMBAI

ITA 7307/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5444 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , A MUMBAI BEFORE : SHRI C.N. PRASAD, JM & SHRI M.BALAGANESH, AM ITA NO. 7307/MUM/2019 ( ASSESSMENT YEAR : 2010 - 11 ) M/S. AAKASH PROJECTS & INFRASTRUCTURES PVT. LTD., GROUND FLOOR AAKASH HOUSE SAN TACRUZ AIRPORT SIDE MARBLE MARKET W.E. HIGHWAY VILE PARLE EAST MUMBAI - 400 099 VS. ITO 9(1)(1) AAYAKAR BHAVAN M.K.ROAD CHURCHGATE, MUMBAI 400 020 PAN/GIR NO. AAGCA0058H (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI VIMAL PUNMIYA REVENUE BY SHRI BRAJENDRA KUMAR DATE OF HEARING 13 / 05 /202 1 DATE OF PRONOUNCEMENT 13 / 05/ 202 1 / O R D E R PER C.N. PRASAD (J.M): THIS APPEAL IN ITA NO. 7307/MUM/2019 FOR A.Y. 2010 - 11 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) - 16 , MUMBAI IN APPEAL NO. CIT(A) - 16/11443/ITO - 9(1)(1)/2015 - 16 DATED 30/09/2019 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED ITA NO . 7307/MUM/2019 M/S. AAKASH PROJECTS & INFRASTRUCTURE PVT. LTD., 2 TO AS ACT) DATED 31/12/2015 BY THE LD. IN COME TAX OFFICER 9(1)(1), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDITION MADE IN THE SUM OF RS.25 LAKHS TOWARDS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT IN RESPECT OF LOAN RECEIVED FROM OLYMPUS VISION PVT. LTD., IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSEE COMPANY HAD FILED ITS RETURN OF INCOME FOR THE A.Y.2010 - 11 ON 17/09/2010 DECLARING TOTAL INCOME OF RS. 80,176/ - . THE LD. AO OBSERVED THAT ASSESSEE HAS RECEIVED AN AMOUNT OF RS.10,30,88,998/ - FROM THE FOLLOWING PARTIES AS UNSECURED LOA NS: - SR. NO. PARTICULAR S AMOUNT 1. M/S. AAKASH UNIVERSAL LTD., RS.9,80,88,998/ - 2. M/S. NICCO SECURITIES PVT. LTD., RS.25,00,000/ - 3. M/S. OLYMPUS VISION PVT. LTD., RS.25,00,000/ - TOTAL RS.10,30,88,998/ - 3.1. THE LD. AO IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS U/S .143(3) OF THE ACT ISSUED NOTICE U/S.133(6) OF THE ACT TO ALL THE THREE PARTIES. SINCE, NO REPLY WAS RECEIVED FROM M/S. NICCO SECURITIES PVT. LTD., THE LD. AO PROCEEDED TO MAKE ADDITION U/S.68 IN THE SUM OF RS.25 LAKHS WHILE COMPLETING ASSESSMENT U/S.143(3 ) OF THE ACT. THIS ASSESSMENT WAS SUBJECT MATTER OF CHALLENGE BY THE ASSESSEE BEFORE THE LD. CIT(A) AND THEREAFTER , TO THIS TRIBUNAL. WE FIND THAT THIS TRIBUNAL VIDE ITS ORDER IN ITA NO.2578/MUM/2017 DATED 25/10/2017 FOR A.Y.2010 - 11 IN THE FIRST ITA NO . 7307/MUM/2019 M/S. AAKASH PROJECTS & INFRASTRUCTURE PVT. LTD., 3 APPELLATE PROCEEDINGS HAD ACKNOWLEDGED THE RECEIPT OF VARIOUS DOCUMENTS FURNISHED BY THE ASSESSEE INCLUDING THE CONFIRMATION OF LOAN FROM THE CREDITORS AND HAD REMANDED THE MATTER TO THE FILE OF THE LD. AO FOR VERIFICATION AND DECIDE THE ISSU E IN ACCORDANCE WITH LAW. 3.2. THE ORIGINAL ASSESSMENT WAS SOUGHT TO BE REOPENED BY THE LD. AO BY ISSUANCE OF NOTICE U/S.148 OF THE ACT ON 26/03/2015. IN THE RE - ASSESSMENT PROCEEDINGS, THE LD. AO PROCEEDED TO TREAT THE RECEIPT OF UNSECURED LOAN OF RS.25 LAKHS FROM M/S. OLYMPUS VISION PVT. LTD., AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT AND COMPLETED RE - ASSESSMENT PROCEEDINGS. THE LD. AR SUBMITTED THAT ALL THE NECESSARY DOCUMENTS HAD BEEN DULY FURNISHED WITH REGARD TO THIS LOAN CREDITOR ALSO AND ASSESSE E HAD DULY PROVED THE IDENTITY, CREDITWORTHINESS OF LENDERS AND GENUINENESS OF TRANSACTIONS BEFORE THE LOWER AUTHORITIES AND THAT ALL THESE DOCUMENTS WERE ALREADY EXAMINED BY THE LD. AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS ITSELF IN RESPECT OF THIS LOAN CREDITOR. WHILE THIS IS SO, THE LD. AR ARGUED THAT THERE IS NO REASON FOR THE LD. AO TO TAKE A DIVERGENT STAND IN RESPECT OF THE VERY SAME DOCUMENTS IN RE - ASSESSMENT PROCEEDINGS. IN FACT, THE LD. AO HAD ALSO ISSUED NOTICE U/S.133(6) OF THE ACT TO THIS LOAN CREDITOR AND THE SAME WAS DULY RESPONDED BY THE SAID PARTY BEFORE THE LD. AO. HOWEVER, THE LD. AR FAIRLY STATED THAT SINCE IN THE FIRST ROUND OF PROCEEDINGS, WHEREIN THE ADDITION TOWARDS UNSECURED LOAN IN RESPECT OF NICCO SECURITIES WAS MADE , T HE MATTER W AS REMANDED BY THIS TRIBUNAL TO THE FILE OF THE LD. AO FOR FRESH ADJUDICATION , T HIS APPEAL ALSO MAY BE REMANDED BACK TO THE FILE OF THE LD. AO FOR FRESH A DJUDICATION IN ACCORDANCE WITH LAW. 3. 3 . PER CONTRA, THE LD. DR VEHEMENTLY ARGUED THAT SUFFICIENT OPP ORTUNITIES WERE GIVEN TO THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS. ITA NO . 7307/MUM/2019 M/S. AAKASH PROJECTS & INFRASTRUCTURE PVT. LTD., 4 3. 4 . CONSIDERING THE FACTS OF THE CASE AND VARIOUS DOCUMENTARY EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES WHICH HAD BEEN SUMMARILY BRUSHED ASIDE BY THE LOWER AUTHOR ITIES IN THE RE - ASSESSMENT PROCEEDINGS AND ALSO RESPECTFULLY FOLLOWING THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE IN THE FIRST ROUND OF APPELLATE PROCEEDINGS REFERRED TO SUPRA, WE DEEM IT FIT AND APPROPRIATE IN THE INTEREST OF JUSTICE AND FAIR PL AY , TO REMAND THIS APPEAL TO THE FILE OF THE LD. AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION THAT ASSESSEE BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. THE LD. AO IS DIRECTED TO EXAMINE ALL THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE. ASSESSEE IS ALSO GIVEN LIBERTY TO FURNISH FRESH EVIDENCES , IF ANY , IN SUPPORT OF ITS CONTENTIONS. ACCORDINGLY, THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 1 3 /05/2021 . SD/ - ( M.BALAGANESH ) SD/ - ( C.N.PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED 13 / 05/ 202 1 KARUNA , SR.PS ITA NO . 7307/MUM/2019 M/S. AAKASH PROJECTS & INFRASTRUCTURE PVT. LTD., 5 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//