ITO 9(3)(1), MUMBAI V. SHAMSAD & SONS PROPERTY P.LTD, MUMBAI

ITA 7475/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8993 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 02-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRADEEP K SINGH
• Keywords: Opportunity of being heard
• Section: 68; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI N.K. BILLAIYA (A.M.) ITA NO. 7475/MUM /2010 ASSESSMENT YEAR : 2005-06 INCOME TAX OFFICER 9(3)(1), ROOM NO. 227, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. VS. SHAMSAD & SONS PROPERTY PVT. LTD., 4-B, FATIMA MANZIL, NATIONAL LIBRARY ROAD, BANDRA (W), MUMBAI 400 050. PAN AAFCS8518M (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI PRADEEP K. SINGH DATE OF HEARING 03-9-2012 DATE OF PRONOUNCEMENT 14-9-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER DTD. 17-08-2010 PASSED BY THE LD. CIT(A) 20, MUMB AI FOR A.Y. 2005-08. 2. THE NOTICE OF DATE OF HEARING FIXING THE APPEAL FOR 3-9-2012 SENT TO THE ASSESSEE BY RPAD WAS DULY RECEIVED BY THE AS SESSEE AS PER AD CARD AVAILABLE ON RECORD. HOWEVER, AT THE TIME OF H EARING, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE NOR FILED ANY APP LICATION FOR ADJOURNMENT OF THE CASE. THEREFORE, IT WAS DECIDED TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE, ON MERITS, AFTER HEARING THE LD. D.R. ITA NO. 7475/MUM/2010 2 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE COMPANY IS ENGAGED IN THE BUSINESS AS A PROPERTY DEALER. THE R ETURN WAS FILED DECLARING LOSS OF RS. 38,070/-. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS PROVIDED VARIOUS OPPO RTUNITIES TO PRODUCE THE BOOKS OF ACCOUNTS, BILLS AND VOUCHERS OF MAJOR EXPENSES, TO JUSTIFY WIP AND COST OF FLAT SOLD SHOWN IN THE BALANCE SHEE T, YEAR-WISE WORKING OF THE PROFIT DECLARED, POSITION OF STOCK AND TO PR OVE THE DEPOSITS IN THE BANK ACCOUNT. IN THE ABSENCE OF ANY COMPLIANCE, THE A.O. ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AFTER INVOKING THE PRO VISIONS OF SECTION 145 OF THE INCOME TAX ACT, 1961 (THE ACT), DISALLOWED T HE SHORT TERM CAPITAL LOSS OF RS. 69,715/- AND ADDED UNEXPLAINED CASH CRE DIT OF RS. 12,62,000/- AND THEREBY COMPLETED THE ASSESSMENT AT AN INCOME OF RS. 12,92,640/- VIDE ORDER DTD. 26-12-2007 PASSED U/S 1 43(3) OF THE ACT. ON APPEAL, THE ASSESSEE, BEFORE THE LD. CIT(A) FURN ISHED COPIES OF CASH BOOK AND DAY BOOK TO EXPLAIN THE SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT. THE LD. CIT(A) AFTER PROVIDING OPPOR TUNITY TO THE A.O. TO STATE HIS CASE HELD THAT THE APPELLANT HAD ADEQUATE CASH IN THE CASH BOOK TO MAKE THE IMPUGNED DEPOSITS IN THE BANK ACCO UNT AND ACCORDINGLY DELETED THE ADDITION OF UNEXPLAINED CAS H CREDIT OF RS. 12,62,000/-. ON THE SECOND ISSUE I.E. DISALLOWANCE OF SHORT TERM CAPITAL LOSS, THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE A.O. BEING NOT PRESSED. ITA NO. 7475/MUM/2010 3 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE REVENUE IS IN APPEAL BEFORE US TAKING THE FOLLOWING GROUNDS OF AP PEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 12,62, 000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE I.T. ACT, 1961 IGNO RING THE FACT THAT THE ASSESSEE HAD NOT SATISFACTORILY EXPLAINED THE SOURC E AND NATURE OF THE ABOVE CASH CREDITS DESPITE ADEQUATE OPPORTUNITIES G IVEN DURING THE PROCEEDINGS. 1. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED. 4. AT THE TIME OF HEARING THE LD. D.R. WHILE RELYIN G ON THE ORDER OF THE A.O. SUBMITS THAT SINCE THE BOOKS OF ACCOUNTS HAVE NOT BEEN PRODUCED BEFORE THE A.O., THEREFORE, IN THE INTEREST OF JUST ICE, THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE A.O. TO EXAMINE THE SAME A FRESH. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND F ROM THE ASSESSMENT ORDER THAT DESPITE VARIOUS OPPORTUNITIES PROVIDED T O THE ASSESSEE, THERE IS NO EVIDENCE THAT THE ASSESSEE HAS PRODUCED THE BOOK S OF ACCOUNTS BEFORE THE A.O. HOWEVER, BEFORE THE LD. CIT(A) THE ASSESSE E HAS FURNISHED COPIES OF CASH BOOK & DAY BOOK TO EXPLAIN THE SOURCE OF CA SH DEPOSITED IN THE BANK ACCOUNT. THE LD. CIT(A) AFTER PROVIDING THE O PPORTUNITY TO THE A.O. WHILE HOLDING THAT THE APPELLANT HAD DECLARED THE C ASH BALANCE IN THE CASH BOOK, DELETED THE ADDITION OF CASH CREDIT OF R S. 12,62,000/-. IN ABSENCE OF ANY MATERIAL TO PROVE THE SOURCE OF CASH DEPOSITED IN THE CASH BOOK AND OTHER CONDITIONS IN TERMS OF SECTION 68 OF THE ACT AND KEEPING ITA NO. 7475/MUM/2010 4 IN VIEW THAT THE ASSESSEE HAS NOT PRODUCED THE BOOK S OF ACCOUNTS BEFORE THE A.O., WE ARE OF THE VIEW THAT IN THE INTEREST O F JUSTICE, THE MATTER SHOULD GO BACK TO THE FILE OF THE A.O. AND ACCORDIN GLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ACCOUNT AND SEND BACK THE MATTER TO THE FILE OF THE A.O. TO DECIDE THE SAME AFRESH I N THE LIGHT OF OUR OBSERVATION HEREINABOVE AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GR OUNDS TAKEN BY THE REVENUE ARE, THEREFORE, PARTLY ALLOWED FOR STATISTI CAL PURPOSE. 6. IN THE RESULT, THE REVENUES APPEAL STANDS PARTL Y ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 14-9-2012 SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED : 14-9-2012 RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 20, MUMBA I 4. COMMISSIONER OF INCOME TAX CENTRAL -9 MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI