HITESH K THAKKAR, MUMBAI v. ITO 22(2)(1), MUMBAI

ITA 3628/MUM/2015 | 2009-2010
Pronouncement Date: 31-10-2016 | Result: Allowed

Appeal Details

RSA Number 362819914 RSA 2015
Assessee PAN AATPT8616G
Bench Mumbai
Appeal Number ITA 3628/MUM/2015
Duration Of Justice 1 year(s) 4 month(s) 18 day(s)
Appellant HITESH K THAKKAR, MUMBAI
Respondent ITO 22(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 31-10-2016
Assessment Year 2009-2010
Appeal Filed On 12-06-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER ITA NO.3628/MUM/2015 (ASSESSMENT YEAR 2009-10) MR. HITESH K. THAKKAR B/29 ROOM NO.6 DEONAR MUNICIPAL COLONY NEAR SAI BABA MANDIR GOVANDI MUMBAI 400 043 ...... APPE LLANT PAN: AATPT 8616G VS. THE ITO 22(2)-1 MUMBAI .... RESPONDENT APPELLANT BY : SHRI B.V.JHAVERI RESPONDENT BY : SHRI SUMIT KUMAR DATE OF HEARING : 15/09/2016 DATE OF PRONOUNCEMENT : 31/10/2016 ORDER PER G.S.PANNU A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAI NING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)25 MUMBAI DATED 31/03/2015 WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX A CT 1961 (IN SHORT THE ACT) DATED 01/03/2013. 2 ITA NO.3628/MUM/2015 (ASSESSMENT YEAR 2009-10) 2. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT (A)-25 PASSED THE ORDER ON 31ST MARCH 2015 ON THE BASIS OF WRITTEN SUBMISSIONS MADE ON 2ND DEC EMBER 2013 WITHOUT GRANTING AN OPPORTUNITY AFTERWARDS TO THE A SSESSEE OF A HEARING TO EXPLAIN THE SUBMISSIONS. 2. THE LEARNED CIT (A)-25 ERRED IN NOT DECIDING ON THE ADDITION OF RS.1 22 000/- MADE BY THE INCOME TAX OFFICER 22(2)- 1 AND THE ADDITION MADE BY THE INCOME TAX OFFICER BE DELETED. 3. THE LEARNED CIT (A)-25 ERRED IN CONFIRMING ADDI TION OF OPENING CASH ON HAND OF RS. 4 83 500/- AND THE ADDITION BE DELETED. 4. THE LEARNED CIT(A)-25 IN CONFIRMING ADDITION OF RS.1 41 300/- OF LOANS BY FAMILY MEMBERS AND THE ADDITION BE DELETED . 5. THE LEARNED CIT (A)-25 ERRED IN CONFIRMING ADDI TION OF RS.7 00 000/-AND THE ADDITION BE DELETED. 3. AT THE TIME OF HEARING THE LD. REPRESENTATIVE F OR THE ASSESSEE HAS TAKEN ME THROUGH THE RESPECTIVE ORDERS OF THE ASSESSING O FFICER AS WELL AS THE CIT(A) AND POINTED OUT THAT CERTAIN PERTINENT ERRORS AND O MISSIONS HAVE OCCURRED ON THE BASIS OF WHICH HIS PERTINENT PLEA IS THAT THE MATTER MAY BE SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER TO REVISIT THE VARIOU S ISSUES. 4. IN ORDER TO APPRECIATE THE PLEA OF THE APPELLANT THE FOLLOWING DISCUSSION IS RELEVANT. THE ASSESSEE BEFORE ME IS AN AGENT OF LIC OF INDIA AND GIC OF INDIA EARNING COMMISSION INCOME THEREOF. FOR THE ASSESSM ENT YEAR 2009-10 HE FILED THE RETURN OF INCOME DECLARING AN INCOME OF RS.2 93 670/- AND BY WAY OF THE IMPUGNED ASSESSMENT FINALIZED UNDER SECTION. 14 3 R.W.S. 148 OF THE ACT DATED 1/3/2013 THE TOTAL INCOME HAS BEEN ASSESSED AT RS.28 90 092/- BY MAKING VARIOUS ADDITIONS NAMELY:- 3 ITA NO.3628/MUM/2015 (ASSESSMENT YEAR 2009-10) (A) CHEQUE DEPOSIT IN BANK TREATED AS UNEXPLAINED RS.1 22 000/- (B) UNEXPLAINED CASH DEPOSITS COMPRISING OF:- (I) OPENING CASH BALANCE RS. 4 83 50 0/- (II) BANK WITHDRAWAL RS. 9 0 7 200/- (III) CASH LOANS FROM FAMILY MEMBERS RS. 1 41 300/- RS.15 32 000/- (C) DISALLOWANCE OF EXPENDITURE RS. 90 327/- (D) LOAN FROM ONE MR. ROHIT H. CHAVAN RS . 7 00 000/- 5. BEFORE ME IT IS SUBMITTED THAT THE ADDITION OF RS.1 22 000/- AS CHEQUE DEPOSIT IS FACTUALLY UNTENABLE AS WAS EXPLAINED BY THE ASSESSEE IN ITS COMMUNICATION DATED 15/02/2013 ADDRESSED TO THE ASS ESSING OFFICER COPY OF WHICH HAS ALSO BEEN PLACED IN THE PAPER BOOK BEFORE ME WHEREBY IT IS EXPLAINED THAT THE SAID SUM COMPRISED OF RS.76 000/ - ON 12/06/2008 AND RS.42 000/- ON 03/10/2008 WHICH WERE DEPOSITED OUT OF COMMISSION RECEIPTS AND HAND LOAN FROM MEMBERS OF THE FAMILY AND THE BA LANCE OF RS.3 500/- IS A TOTALLING MISTAKE BY THE ASSESSING OFFICER. THE LD . REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE SAID POSITION WAS ALS O EXPLAINED TO THE CIT(A) VIDE COMMUNICATION DATED 27/10/2013 AND THE SAME HA S BEEN TOTALLY OVERLOOKED. WITH REGARD TO THE CASH BALANCE AS ON 01/04/2008 ASSESSEE POINTED OUT THAT THE BALANCE SHEET FOR THE EARLIER ASSESSMENT YEAR OF 2008-09 WAS FILED WHICH DULY REFLECTED THE CLOSING CASH BA LANCE OF RS.4 83 500/-. EVEN WITH REGARD TO THE BANK WITHDRAWALS OF RS.9 07 200/ - IT WAS POINTED OUT THAT ASSESSEE HAD SUBMITTED THE RESPECTIVE PASS BOOK ET C. IT WAS POINTED OUT THAT EVEN WITH RESPECT TO LOAN FROM MR. ROHIDAS H. CHAVA N ASSESSEE HAD FILED THE CONFIRMATION LETTER ALONGWITH PAN COPY OF THE CREDI TOR AND THAT THE CIT(A) RELIED UPON THE ENQUIRY LETTER ISSUED TO THE SAID C REDITOR WITHOUT CONFRONTING ANYTHING TO THE ASSESSEE. ON OTHER ISSUES ALSO TH E LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THERE WAS BASIC MISTAKE M ADE INASMUCH AS 4 ITA NO.3628/MUM/2015 (ASSESSMENT YEAR 2009-10) RS.90 327/- WAS DISALLOWED BY THE ASSESSING OFFICER WHEREAS THE EXPENSES CLAIMED BY THE ASSESSEE WAS ONLY RS.61 366/-. FOR ALL THE ABOVE REASONS LD. REPRESENTATIVE FOR THE ASSESSEE CONTENDED THAT THE ORDER OF THE CIT(A) BE SET- ASIDE AND THE MATTER BE RESTORED BACK TO THE FILE O F ASSESSING OFFICER FOR REDOING THE ASSESSMENT ON THE AFORESAID ISSUES. 6. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT CONT ROVERTED THE FACTUAL MATRIX BROUGHT OUT BY THE LD. REPRESENTATIVE FOR TH E ASSESSEE AND HAS MERELY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S. FOR THE REASONS BROUGHT OUT BY THE APPELLANT BEFORE ME WHICH HAVE BEEN NOTED BY ME IN SUFFICIENT DETAIL IN EARLIER PARAS I FIND AMPLE F ORCE IN THE PLEA OF THE ASSESSEE FOR SETTING-ASIDE THE MATTER BACK TO THE FILE OF AS SESSING OFFICER FOR REDOING THE ASSESSMENT ON THE ABOVE STATED ISSUES. QUITE CLEAR LY ASSESSEE HAS BEEN CONSISTENTLY POINTING OUT THAT THE ADDITION OF RS.1 22 000/- MADE ON ACCOUNT OF UNEXPLAINED ENTRY IN THE BANK ACCOUNT IS IN FACT CA SH DEPOSITS MADE ON VARIOUS DATES BUT THE SAME HAS BEEN ERRONEOUSLY CONSIDERED AS CHEQUE DEPOSIT. BE THAT AS IT MAY EVEN OTHERWISE ADDITION OF RS.15 32 000/- HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED DEP OSITS IN BANK ACCOUNTS AND UNDER THESE CIRCUMSTANCES THE EFFICACY OF MAKING A DDITION OF RS.1 22 000/- AS UNEXPLAINED HAS TO BE EXAMINED AS TO WHETHER IT WO ULD AMOUNT TO DOUBLE ADDITION OR NOT. EVEN WITH RESPECT TO THE EXPLANAT ION FURNISHED BY THE ASSESSEE REGARDING THE LOAN FROM MR. ROHIDAS H. CHA VAN THERE IS ABSENCE OF INAPPROPRIATE DETERMINATION OF THE ISSUE AND THE AD DITION HAS BEEN SUSTAINED BY THE CIT(A) ON A GENERALIZED BASIS. THUS WITHO UT GOING INTO THE EFFICACY ON INDIVIDUAL ITEMS OF ADDITION IN DEFERENCE TO THE PRELIMINARY PLEA OF THE ASSESSEE THE MATTER IS REMANDED BACK TO THE FILE O F ASSESSING OFFICER FOR 5 ITA NO.3628/MUM/2015 (ASSESSMENT YEAR 2009-10) REDOING THE ASSESSMENT ON THE AFORESAID ISSUES AF TER ALLOWING THE ASSESSEE AN APPROPRIATE OPPORTUNITY OF BEING HEARD AS PER LAW. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/2016 SD/- (G.S. PANNU) ACCOCUNTANT MEMBER MUMBAI DATED 31/10/2016 VM SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT MUMBAI