ITO 16(2)(4), MUMBAI V. SURESH G. SETH (HUF), MUMBAI

ITA 945/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75599 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 17-02-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: ASHOK J PATIL
• Keywords: Unexplained cash credit; Rejection of books of accounts

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND B.R.BHASKARAN (AM ) . . , . . , ./I.T.A. NO.945/MUM/2011 ( / ASSESSMENT YEAR : 2007-08) INCOME TAX OFFICER , 16(2) (4), MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SURESH G SETH (HUF) A-302, RAJGIRI APART.13, KHETWADI, BACK ROAD, NEAR MILAN GUEST HOUSE, GRANT ROAD, MUMBAI-400004 ( % / APPELLANT) .. ( &% / RESPONDENT) ./ ./PAN/GIR NO. : AAHHS4651N % / APPELLANT BY : SHRI PITAMBAR DAS &% * /RESPONDENT BY : SHRI ASHOK J PATIL * - / DATE OF HEARING : 17.2.2014 * - /DATE OF PRONOUNCEMENT : 19.2.2014 / O R D E R PER B.R.MITTAL, JM: THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2007-08 AGAINST ORDER OF LD. COMMISSIONER OF INCOME TAX(A) DATED 12.10.2 010 ON THE FOLLOWING GROUNDS: 1. THE LD.CIT(A) ERRED IN LAW AND FACT IN DELETING THE AMOUNT OF RS.56,84,993/- MADE ON ACCOUNT OF SUPPRESSION OF SA LE RECEIPTS IN RESPECT OF THE TRANSACTION WITH M/S ARISHTA ENTERPRISES P LTD AN D M/S SHREE VIJAYA RAJ ENTERPRISES; 2. THE LD. CIT(A) ERRED IN DELETING THE AMOUNT OF R S.14,23,821/- MADE ON ACCOUNT OF ESTIMATED BUSINESS PROFIT ON LOW NET PRO FIT; 3. THE LD. CIT(A) ERRED IN DELETING THE AMOUNT OF R S.16,00,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT; 4. THE DL. CIT(A) ERRED IN GRANTING RELIEF TO THE A SSESSEE WITHOUT ACCORDING OPPORTUNITY TO THE AO BY REMANDING THE CASE IN THE LIGHT OF TAKING COGNIZANCE OF THE SOME ADDITIONAL FACTS; 5. THE APPELLANT CRAVES LEAVES TO AMEND OR ALTER AN Y GROUND OR ADD GROUNDS/ WHICH MAY EE NECESSARY I.T.A. NO. 945/MUM/2011 2 THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT( A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED 2. AT THE TIME OF HEARING, LD. DR REFERRED THE ORD ER OF LD. CIT(A) IN RESPECT OF THE GROUND TAKEN BY DEPARTMENT AND SUBMITTED THAT THE A O HAS STATED IN PARA 5 OF THE ASSESSMENT ORDER THAT INSPITE OF GIVING VARIOUS OPPORTUNITIES THE ASSESSEE FAILED TO PRODUCE COMPLETE DETAILS OF THE FILM RIGHT SALES A ND RECEIPTS AND CONSEQUENTLY AO STATED THAT THE ASSESSEE SUPPRESSED THE RECEIPT TO THE EXTENT OF RS.14,83,670/- FROM M/S ARSHITA ENTERPRISES P.LTD AND RS.42,01,323/- FR OM M/S VIJAYA RAJ ENTERPRISES. HE FURTHER REFERRED PARA 5.2 OF THE ASSESSMENT ORDER O F AO AND STATED THAT THE ASSESSEE DID NOT PROPERLY MAINTAINED BOOKS OF ACCOUNT AND T HE SAME WAS ADMITTED BY ASSESSEE BEFORE AO, AS MENTIONED IN THE ASSESSMENT ORDER. THEREFORE, AO REJECTED THE BOOKS OF ACCOUNTS OF THE ASSESSEE U/S 145(3) OF THE INCOM E TAX ACT, 1961(THE ACT) AND APPLIED NET PROFIT RATE. HE FURTHER SUBMITTED THAT THE ASSESSEE ALSO DID NOT FILE ANY DETAILS IN RESPECT OF INDUSTRIAL GALA ACTIVITY AN D THEREFORE, AO CONSIDERED THE TOTAL SALE CONSIDERATION OF RS.16 LAKHS AS UNEXPLAINED CASH C REDITS. 3. THE LD. DR SUBMITTED THAT THE LD. CIT(A) DELETE D THE ADDITIONS MADE BY AO AFTER ADMITTING THE DETAILS FILED BY THE ASSESSEE BEFORE HIM AND WITHOUT GIVING OPPORTUNITY TO THE AO. TO SUBSTANTIATE HIS SUBMISSIONS, THE LD. DR REFERRED PARAS 5 TO 8 OF THE IMPUGNED ORDER, WHEREIN, THE LD. CIT(A) HAS SPECIF ICALLY MENTIONED THAT THE ASSESSEE PRODUCED THE RELEVANT DETAILS AND PAPERS BEFORE HIM . HE FURTHER SUBMITTED THAT THE LD. CIT(A) ACCEPTED THE BOOK RESULT, THOUGH THE ASSESSE E HAS NOT DISPUTED BEFORE HIM IN THE GROUNDS OF APPEAL, THE REJECTION OF BOOKS OF AC COUNT BY THE AO. HE SUBMITTED THAT THE ORDER OF LD. CIT(A) BE SET ASIDE. 4. ON THE OTHER HAND, LD. AR CONCEDED THAT THE AS SESSEE FILED FRESH DETAILS BEFORE THE LD. CIT(A) AND THE SAME WERE CONSIDERED WITHOU T CALLING REMAND REPORT FROM AO. HE SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTE R IS RESTORED BACK FOR DECIDING THE ISSUE AFRESH. 5. IN VIEW OF ABOVE SUBMISSIONS OF LD. REPRESENTATI VES OF THE PARTIES AND CONSIDERING THE ORDER OF LD. CIT(A) THAT HE HAS ADM ITTED FRESH DOCUMENTS/ DETAILS FILED BY ASSESSEE BEFORE HIM WHICH WERE CONSIDERED WITHOU T SEEKING REMAND REPORT FROM THE AO, WE SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH A FTER GIVING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER I.T.A. NO. 945/MUM/2011 3 TO HIM WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES BY A REASONED ORDER. IN THE RESULT, GROUNDS OF APPEAL TAKEN BY DEPARTMENT ARE ALLOWED FOR STATISTICAL PURPOSES . 6. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS A LLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19TH FEBRUARY, 2014 . 1 2 19TH FEBRUARY, 2014 * SD SD ( . . , / B.R. BASKARAN ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: ON THIS DAY OF FEBRUARY, 201 4 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. % / THE APPELLANT 2. & % / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- CONCERNED 4. 7 / CIT CONCERNED 5. 8 &9 , - 9 , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) - 9 , /ITAT, MUMBAI