UTSOV DHOWAN, MUMBAI V. ITO 19(3)(4), MUMBAI

ITA 7516/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2805 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 23-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Peak credit

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 7516 / MUM/20 1 3 ( / ASSESSMENT YEA R : 200 8 - 09 ) UTS O V DHOWAN, C/O P VS AND ASSOCIATES, 57, PATVA CHAMBERS, 104/108 CLIVE ROAD, OPP. MASJIT STATION, MUMBAI - 400009 / VS. INCOME TAX OFFICER - WARD 19 ( 3 )( 4 ), MUMBAI . ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AGFPD756 5G / APPELLANT BY SHRI DHARMESH SHAH / RESPONDENT BY SHRI PRAMOD NIKALJE / DATE OF HEARING : 3 .11 . 201 5 / DATE OF PRONOUNCEMENT: 3 .11. 201 5 / O R D E R P ER B R BASKARAN, AM: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19 .11.2013 PASSED BY THE LD. CIT(A) - 18 , MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 200 8 - 09 . 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LD.CIT(A) IN CONFIRMING THE ADDITION OF RS.17 , 37 , 109/ - MADE BY THE AO U/S 69A OF THE INCOME TAX ACT, 1961. ITA NO. 7516 / MUM/20 1 3 2 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING THE TOTAL INCOME OF RS.1,70,230/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS MAINTAINED A BANK ACCOUNT WITH M/S AXIS BANK, WHEREIN HE HAS DEPOSITED AMOUNTS AGGREGATING TO RS.17,37,109/ - BY WAY OF CASH AND OTHER DEPOSITS. THE ASSESSEE DID NOT FURNISH ANY EXPLANATION BEFORE THE AO AND ALSO DID NOT CO - OPERATE WITH THE AO. HENCE, THE AO COMPLETED THE ASSESSMENT TO THE BEST OF HIS JUDGMENT BY ASSESSING THE ABOVE SAID SUM OF RS.17,37,109 / - AS INCOME OF THE ASSESSEE. 4 . IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE ASSESSEES F ATHER FURNISHED AN AFFIDAVIT STAT ING THAT THE ABOVE SAID DEPOSITS REPRESENT MONEY GIVEN BY HIM TO THE ASSESSEE. HOWEVER, NO EVIDENCE WAS FURNISHED TO CORROBORATE THE SUBMISSIONS MADE IN THE AFFIDAVIT AND HENCE THE LD. CIT(A) REJECTED THE SAME. THE ASSESSEE ALSO T OOK THE ALTERNATIVE ARGUMENT THAT PEAK AMOUNT OF DEPOSITS SHOULD HAVE BEEN TAKEN AS INCOME. THE LD. CIT(A) REJECTED THE SAID CONTENTION ALSO ON THE REASONING THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE TO SHOW THAT CASH DEPOSITS WERE MADE ON DIFFERENT OCCASIONS. ACCORDINGLY, THE LD.CIT(A) DISMI SS ED THE AP PEAL FILED BY THE ASSESSEE. 5. WITH REGARD TO THE AFFIDAVIT FURNISHED BY THE FATHER OF THE ASSESSEE, WE FIND THAT THE LD CIT (A) WAS JUSTIFIED IN REJECTING THE SAME, SINCE THE CONTENTS OF THE SAID AFFIDAVIT WAS NOT SUBSTANTIATED WITH EVIDENCES. BEFORE US, THE LD.COUNSEL OF THE ASSESSEE SUBMITTED A COPY OF BANK STATEMENT /ACCOUNT AS WELL AS THE PEAK CREDIT WORKING S AND ACCORDING LY PRAYED THAT THE PEAK CREDIT BALANCE MAY BE TAKEN AS THE INCOME OF THE ASSESSEE . THOUGH THE LD.DR STRONGLY OBJECTED TO THE SAID PLEA OF THE LD A.R, IN THE ITA NO. 7516 / MUM/20 1 3 3 INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THIS ALTERNATIVE PLEA OF THE ASSESSEE REQUIRES EXA MINATION. ACCORDI NGLY , WE SET ASIDE THE ORDER OF THE LD. CIT(A) WITH REGARD TO THE DECISION TAKEN BY HIM ON THE ISSUE OF PEAK CREDIT AND RESTORE THE SAME TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THE CLAIM OF THE ASSESSEE BY DULY CONSIDERING THE BANK ACCOUNT AND OTHER EXPLANATION S THAT MAY BE FURNISHED BY THE ASSESSEE . A FTER AFFORDING NECESSARY OPPORTUNITY OF HEARING TO THE ASSESSEE, T HE AO MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE . PRONOUNCED ACCORDINGLY ON 3RD NOVEMBER , 2 015. 3RD NOV , 2 015 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 3RD NOV , 2 015. . . ./ SRL , SR. PS / COP Y OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6 . / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI