ITO WD 23(2)(3), V. HARSHAD HIRJI THAKKAR,

MA 378/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8806 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK

Judgement Text

MA NO 378 OF 2011 HARSHAD HIRJI THAKKAR, MUMBAI PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND M.A.NO.378/MUM/2011 (ARISING OUT OF ITA NO.1302/MUM/2009) (ASSESSMENT YEAR: 2005-06) INCOME TAX OFFICER WARD 23(2) (3) MUMBAI VS HARSHAD HIRJI THAKKAR B 19 DYANESHWAR DARSHAN G.V.SCHEME ROAD,GAVANAPDA MULUND (E) MUMBAI 400081 PAN NO: ACEPT 1479 L (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI A.K. NAYAK, DR ASSESSEE BY: NONE DATE OF HEARING: 01/06/2012 DATE OF PRONOUNCEMENT: 08/06/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE APPEAL IN ITA NO.1302/MUM/2009. IT IS T HE CONTENTION OF THE REVENUE THAT THERE ARE CERTAIN FACTUAL ERROR S WHICH HAVE BEEN CREPT INTO THE ORDER AND THEREFORE, THE MATTER REQU IRES CONSIDERATION UNDER SECTION 254(2). WHEN THE CASE WAS POSTED, NON E ON BEHALF OF ASSESSEE WERE PRESENT AND ON EARLIER OCCASIONS THE NOTICES WERE RETURNED UNSERVED AND NOTICES WERE SENT THROUGH THE DR FOR SERVICE POSTING THE CASE. THEREFORE, THE MATTER WAS HEARD E X-PARTE, THE RESPONDENT. 2. BRIEFLY STATED THE REVENUE HAS RAISED GROUND NO.1 I N ITS APPEAL ON THE ISSUE OF DELETION OF ADDITION MADE BY AO AMOUNTING TO ` .26,32,500/-,THOUGH ASSESSEE FAILED TO FURNISH LOAN CONFIRMATION FROM THE PARTIES. AO MADE AN ADDITION OF THE ABOVE AMOUNT AS ASSESSEE HAS NOT FURNISHED CONFIRMATIONS WITH REFER ENCE TO THE MA NO 378 OF 2011 HARSHAD HIRJI THAKKAR, MUMBAI PAGE 2 OF 3 CREDITS. THE CIT SENT DOCUMENT FILED ON REMAND AND AFTER THE REMAND REPORT OF AO, DELETED THE ADDITIONS. IT WAS THE CONTENTION OF THE REVENUE THAT ASSESSEE WITH REFERENCE TO SHRI MA NILAL SAVLA AND MS. SHILPA SHAH, ONLY CONFIRMATION WITH REFERENCE T O OPENING BALANCE OF NEXT YEAR ARE FILED AND CONFIRMATION OF CREDITS DURING THE YEAR HAS NOT BEEN FILED. SINCE THE CIT (A) DELETED THESE CREDITS, THE REVENUE CONTESTED THE ABOVE. WHILE EXAMINING THIS I SSUE THE TRIBUNAL VIDE ITA NO.1302/MUM/2009 (PARA-6) HAS NOT ED DOWN AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. WE FIND THAT AS FAR AS LOANS FROM MANILAL SAVLA AND SHILPA SHAH ARE CONCERNED, THE SAME ARE ONLY OPENIN G BALANCES AND AS HAS BECOME CLEAR FROM THE FINDINGS OF THE CIT (A) AND THEREFORE, NO ADDITION CAN BE MAINT AINED IN RESPECT OF THESE TWO ITEMS. AS FAR AS THE OTHER TWO ITEMS ARE CONCERNED, WE AGREE WITH THE LEARNED DR T HAT CIT (A) SHOULD NOT HAVE DELETED THE ADDITIONS WITHO UT ASKING ASSESSEE TO PROVE THE CREDITWORTHINESS OF TH ESE PARTIES. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LEARNED CIT (A) IN RESPECT OF LOAN S FROM M/S KOHLI TRADERS AND SHRI CHETAN JOSHI AND REMIT T HE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO R E- EXAMINE THE ISSUE AFTER PROVIDING AN ADEQUATE OPPORTUNITY TO ASSESSEE . 3. IT WAS THE CONTENTION OF THE REVENUE NOW THAT LOANS FROM SHRI MANILAL SAVLA AND MS. SHILPA SHAH ARE NOT THE OPENI NG BALANCES IN THE YEAR, BUT CREDITS MADE DURING THE YEAR AND THIS FACT WAS WRONGLY CONSIDERED BY THE ITAT AND AFFIRMED THE ORD ER OF THE CIT (A). IT WAS THE CONTENTION THAT CREDITS IN THE ABOV E 2 CASES ALSO REQUIRED TO BE RE-EXAMINED AS WAS DIRECTED IN THE O THER CASES IN RESPECT OF M/S KOHLI TRADERS AND SHRI CHETAN JOSHI. 4. WE HAVE CONSIDERED THE ISSUE AND EXAMINED THE RECOR D. IT IS ADMITTEDLY A FACT THAT CREDITS FROM THE TWO PEOPLE WERE RECEIVED DURING THE YEAR IN OCTOBER, 2004 AND WHAT WAS PLACE D ON RECORD BEFORE THE CIT (A) WAS ONLY CONFIRMATIONS OF OPENIN G BALANCES FOR THE NEXT YEAR. EVEN THOUGH THE CREDITS WERE RECEIVE D DURING THE MA NO 378 OF 2011 HARSHAD HIRJI THAKKAR, MUMBAI PAGE 3 OF 3 YEAR, THE ITAT ERRED IN RECORDING THAT THE LOANS WE RE ONLY THE OPENING BALANCES AND NO ADDITIONS CAN BE MAINTAINED IN RESPECT OF THESE TWO ITEMS. SINCE FACTS WERE ERRONEOUSLY RECOR DED, IN THE INTEREST OF JUSTICE WE RECALL THE ORDER TO THAT EXT ENT AND RE-HEAR THE MATTER AS FAR AS LOANS OF THE ABOVE TWO PERSONS ARE CONCERNED. SINCE ASSESSEE WAS NOT REPRESENTED IN THESE PROCEED INGS, IN THE INTEREST OF JUSTICE, THE CASE IS POSTED FOR HEARING TO THE EXTENT OF ABOVE 2 LOANS IN GROUND NO.1. REGISTRY IS DIRECTED TO POST THE CASE IN DUE COURSE AFTER ISSUING THE NOTICE TO THE PARTI ES ACCORDINGLY. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY R EVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2012. SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE-PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED 8 TH JUNE, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI