RAMDAS DADU POOJARI, MUMBAI v. ITO 21(3)(4), MUMBAI

ITA 3438/MUM/2009 | 2005-2006
Pronouncement Date: 28-01-2011 | Result: Allowed

Appeal Details

RSA Number 343819914 RSA 2009
Assessee PAN AAFPP6726P
Bench Mumbai
Appeal Number ITA 3438/MUM/2009
Duration Of Justice 1 year(s) 8 month(s) 2 day(s)
Appellant RAMDAS DADU POOJARI, MUMBAI
Respondent ITO 21(3)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 28-01-2011
Date Of Final Hearing 22-03-2010
Next Hearing Date 22-03-2010
Assessment Year 2005-2006
Appeal Filed On 26-05-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI. V. DURGA RAO JUDICIAL MEMBER. I.T.A. NO. 3438 & 3439/MUM/2009. ASSESSMENT YEAR : 2005-06 & 2006-07. SHRI RAMDAS DADU POOJARI THE INCOME-TAX OFFICER 144 ASHAPURTI CHS LTD. VS. 21(3)(4) MUMBAI. ROOM NO. 4884 NEAR MOTHER DAIRY KURLA (E) MUMBAI 400 024. PAN AAFPP 6726P APPELLANT BY : SHRI MUKESH J. PABANI. RESPONDENT BY : SHRI AMARDEEP. O R D E R PER J. SUDHAKAR REDDY A.M. : BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND DI RECTED AGAINST A COMMON ORDER OF THE CIT(APPEALS)-XX MUMBAI DATED 28-04-20 09 FOR THE ASSESSMENT YEARS 20005-06 AND 2006-07. 2. FACTS IN BRIEF: THE ASSESSEE IS AN INDIVIDUAL. HE IS IN THE BUSINE SS OF RUNNING A PCO AND STD CENTRE AND ALSO CONDUCTING TOURS & TRAVELS BUSI NESS IN THE NAME OF A PROPRIETARY CONCERN M/S SARAS COMMUNICATION & SAI T OURS AND TRAVELS. DURING THE FINANCIAL YEAR 2004-05 THE ASSESSEE STARTED BU SINESS OF EASY BILL PAYMENT 2 SCHEME. UNDER THE SCHEME HE COLLECTS ELECTRICITY B ILLS AND TELEPHONE BILLS FROM THE PUBLIC AND DEPOSITS THE SAME INTO HIS BANK ACCOUNT AND THEREAFTER WITHDRAWS THAT MONEY AND REMITS THE SAME TO B.S.E.S. AND M.T.N.L. OFFICES RESPECTIVELY. HE GETS A SERVICE CHARGE FROM THESE ORGANIZATIONS. THE ASSE SSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEARS 2005-06 ON 29-8-2005 DECLA RING TOTAL INCOME OF RS.1 07 284/-.FOR THE ASSESSMENT YEAR 2006-07 HE FI LED HIS RETURN OF INCOME ON 31- 7-2006 DECLARING A TOTAL INCOME OF RS.1 19 424/-. F OR BOTH THE ASSESSMENT YEARS THE ASSESSEE COULD NOT SUBSTANTIATE THE ENTRIES IN THE BANK ACCOUNT. IT APPEARS FROM A PERUSAL OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS NOT CORRECTLY EXPLAINED THE TRANSACTIONS DONE BY HIM. THE AO FOR VARIOUS REASON S GIVEN IN HIS ORDER MADE ADDITIONS IN BOTH THE ASSESSMENT YEARS U/S 68. FOR THE ASSESSMENT YEAR 2005-06 THE AO TREATED THE ENTIRE DEPOSITS MADE IN THE BANK ACC OUNTS AMOUNTING TO RS.31 91 523/- AS UNEXPLAINED MONEY U/S 69A. SIMIL ARLY ENTIRE DEPOSIT FOR THE ASSESSMENT YEAR 2006-07 AMOUNTING TO RS.18 39 398/- WAS ADDED AS UNEXPLAINED CASH CREDIT.. AGGRIEVED THE ASSESSEE CARRIED THE M ATTER IN APPEAL. THE FIRST APPELLATE AUTHORITY ASKED FOR A REMAND REPORT AND R ESTRICTED THE ADDITION FOR THE ASSESSMENT YEAR 2005-06 TO RS.6 87 263/- ON THE GR OUND THAT THIS IS A PEAK CREDIT. FOR THE ASSESSMENT YEAR 2006-07 AN ADDITION OF RS. 2 48 048/- WAS SUSTAINED ON THE GROUND THAT THIS IS A PEAK CREDIT. THE CONTENTION O F THE ASSESSEE THAT ONLY PROFITS ELEMENT OF THE TRANSACTION HAVE TO BE TAXED AND NOT THE DEPOSITS IN THE BANK OR THE PEAK CREDITS WERE REJECTED ON THE GROUND THAT THE A SSESSEE HAS NOT PROVIDED ANY EVIDENCE. AGGRIEVED THE ASSESSEE IS IN APPEAL. 3. AFTER HEARING MR. MUKESH J. PABANI LEARNED COUN SEL FOR THE ASSESSEE AND SHRI AMARDEEP LEARNED DR WE ARE OF THE CONSIDERED OPINION THAT THIS IS A FIT CASE 3 FOR BEING SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION FOR THE FOLLOWING REASONS. 4. THIS IS A CASE OF A SMALL ASSESSEE WHO IS IN THE BUSINESS OF PCO & STD CENTRE. HE HAS ALSO STARTED THE BUSINESS OF COLLECT ING BILLS FROM THE PUBLIC AND REMITTING THE SAME TO B.S.E.S. AND M.T.N.L. IT APPE ARS THAT THE ASSESSEE HAS NOT MAINTAINED AND PRODUCED PROPER BOOKS OF ACCOUNT. BE FORE US THE LEARNED COUNSEL PLEADED THAT THE ADDITIONS ARE VERY HARSH ON THE SM ALL ASSESSEE AND THE ASSESSEE IS PREPARED TO LEAD EVIDENCE TO PROVE THAT THE DEPOSIT S IN THE BANK ARE NOTHING BUT COLLECTIONS MADE ON BEHALF OF THE B.S.E.S. AND M.T. N.L. OFFICES. HE SUBMITTED THAT THE ASSESSEE HAS BEEN PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THESE DOCUMENTS BEFORE THE AO. IN VIEW OF THE ABOVE SUBMI SSIONS AS ALREADY STATED WE SET ASIDE THE MATTER TO THE FILE OF THE AO FOR FRES H ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THE ASSESSEE SHOULD BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY 2011. SD/- SD/- (V. DURGA RAO)) (J. SUDHAK AR REDDY) JUDICIAL MEMBER. A CCOUNTANT MEMBER MUMBAI DATED: 28 TH JANUARY 2011. WAKODE 4 COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR D-BENCH (TRUE COPY) BY ORDER ASSTT. REGISTRA R ITAT MUMBAI BENCHES MUMBAI.