TALWALKARS FITNESS SOLUTIONS, MUMBAI v. ITO WD 18(2)(1), MUMBAI

ITA 4149/MUM/2011 | 2006-2007
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 414919914 RSA 2011
Assessee PAN AACFT2822M
Bench Mumbai
Appeal Number ITA 4149/MUM/2011
Duration Of Justice 10 month(s) 11 day(s)
Appellant TALWALKARS FITNESS SOLUTIONS, MUMBAI
Respondent ITO WD 18(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 30-03-2012
Assessment Year 2006-2007
Appeal Filed On 19-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E : MUMBAI BEFORE SHRI P.M.JAGTAP A.M. AND AMIT SHUKLA J.M. ITA. NO.4149/MUM/2011 ASSESSMENT YEAR 2006-2007 TALWALKARS FITNESS SOLUTIONS MUMBAI 400 028 PAN AACFT2822M VS. INCOME TAX OFFICER WARD 18(2)(1) MUMBAI 400 012 (APPELLANT) (RESPONDENT) FOR APPELLANT : -NONE- FOR RESPONDENT : SHRI A.K.NAYAK ORDER PER SHRI P.M.JAGTAP A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LEARNED CIT(A)-29 MUMBAI DATED 17-2-2011 PASSED EX PARTE WHEREBY HE CONFIRMED THE ADDITION OF RS.3 50 000/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE ACT. 2. ASSESSEE IN THE PRESENT CASE IS A PARTNERSHIP FI RM WHICH IS ENGAGED IN THE BUSINESS OF RUNNING GYMNASIUM/FITNESS CENTRE. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 31- 10-2006 DECLARING TOTAL INCOME AT NIL. IN THE BALANCE SHEET FILED ALONG WIT H THE SAID RETURN LOANS OF RS.2 50 000/- AND RS.1 00 000/- WERE SHOWN TO BE RE CEIVED BY THE ASSESSEE FROM MR. DIVYESH SHAH AND MR. VIRAL UKANI RESPECTIV ELY. THE SAID LOANS REPRESENTING CASH CREDITS OF THE ASSESSEE WERE EXAM INED BY THE ASSESSING OFFICER AND ON SUCH EXAMINATION HE HELD THAT ALTHO UGH THE IDENTITY OF THE CREDITORS WAS DULY ESTABLISHED BY THE ASSESSEE THE IR CREDITWORTHINESS WAS NOT PROVED. HE THEREFORE TREATED THE SAID LOANS AS UN EXPLAINED CASH CREDIT AND THE AMOUNT OF RS.3 50 000/- WAS ADDED BY HIM TO THE TOT AL INCOME OF THE ASSESSEE UNDER SECTION 68 IN THE ASSESSMENT COMPLETED UNDER SECTION 143 (3) OF THE ACT 2 BY ORDER DATED 26-12-2008. AGGRIEVED BY THE ORDER P ASSED BY THE ASSESSING OFFICER UNDER SECTION 143 (3) AN APPEAL WAS PREFER RED BY THE ASSESSEE BEFORE THE LEARNED CIT(A). 3. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFO RE THE CIT(A) THE ASSESSEE DID NOT APPEAR AT THE TIME OF HEARINGS FIX ED FROM TIME TO TIME. AS NOTED BY THE LEARNED CIT(A) IN HIS IMPUGNED ORDER THE ASSESSEE ALSO DID NOT FILE ANY WRITTEN SUBMISSIONS. THE APPEAL OF THE ASS ESSEE THEREFORE WAS DISPOSED OF BY THE LEARNED CIT(A) ON THE BASIS OF M ATERIAL AVAILABLE ON RECORD. IN THIS REGARD HE NOTED THAT AS PER THE STATEMENT OF FACTS FILED BY THE ASSESSEE LOAN CONFIRMATIONS ISSUED BY THE CONCERNED CREDITOR S WERE DULY FILED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S. HE ALSO TOOK INTO CONSIDERATION THE OTHER SUBMISSIONS MADE BY THE ASS ESSEE I.E. STATEMENT OF FACTS AS WELL AS GROUNDS OF APPEAL AND HELD ON SUCH CONSIDERATION THAT ALTHOUGH THE IDENTITY OF THE CONCERNED CREDITORS AN D GENUINENESS OF THE RELEVANT LOAN TRANSACTIONS WAS DULY ESTABLISHED TH E CREDITWORTHINESS OF THE LENDERS COULD NOT BE PROVED IN THE ABSENCE OF THEIR INCOME TAX PERMANENT ACCOUNT NUMBER BALANCE SHEET OR SOURCE OF FUNDS. H E THEREFORE CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTIO N 68 OF THE ACT TREATING THE CONCERNED LOANS AS UNEXPLAINED CASH CREDITS. AGGRIE VED BY THE ORDER OF THE LEARNED CIT(A) ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US NOBODY HAS AP PEARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE ASSESSEE IS THERE FORE BEING DISPOSED OF AFTER CONSIDERING MATERIAL AVAILABLE ON RECORD AND THE SU BMISSIONS MADE BY THE LEARNED D.R. WHO HAS MAINLY RELIED ON THE ORDERS OF THE AUTHORITIES BELOW IN SUPPORT OF THE REVENUES CASE. IT IS OBSERVED THAT THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 TREATING THE CON CERNED LOANS AS UNEXPLAINED CASH CREDITS HAS BEEN CONFIRMED BY THE LEARNED CIT( A) BY HIS IMPUGNED ORDER MAINLY ON THE GROUND THAT IN THE ABSENCE OF PERMANE NT ACCOUNT NUMBER OR SOURCE OF FUNDS OF THE CONCERNED LENDERS HAVING BEE N FURNISHED BY THE ASSESSEE THE CREDITWORTHINESS OF THE SAID LENDERS COULD NOT BE SATISFACTORILY 3 ESTABLISHED. AS NOTED BY THE LEARNED CIT(A) HIMSELF IN THE ORDER THE CONFIRMATIONS OF THE SAID LOANS HOWEVER WERE ISSUED BY THE CONCERNED CREDITORS AND THE SAME WERE FILED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. AS FURTHER SUBMITTED BY THE ASSESSEE I N THE GROUNDS OF APPEAL RAISED BEFORE US THE SAID CONFIRMATIONS INDICATED THE INCOME TAX PERMANENT ACCOUNT NUMBER OF THE CONCERNED LENDERS AND EVEN TH EIR BANK STATEMENTS WERE ALSO FURNISHED DURING THE COURSE OF ASSESSMENT PROC EEDINGS. THERE IS THUS A CONTRADICTION IN THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW AS WELL AS BEFORE US AND THE FIND ING GIVEN BY THE LEARNED CIT(A) ON THE BASIS OF WHICH HE CONFIRMED THE ADDIT ION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE ACT. 5. KEEPING IN VIEW OF THIS POSITION CLEARLY EVIDEN T FROM RECORD WE ARE OF THE VIEW THAT IT IS A FIT CASE WHERE THE LEARNED CIT(A) SHOULD AFFORD ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD SO AS TO ENABLE THE ASSESSEE TO PLACE ON RECORD THE RELEVANT MATERIAL IN SUPPORT OF HIS C ASE WHICH CAN BE EXAMINED BY THE LEARNED CIT(A) SO AS TO ARRIVE AT A JUST AND PROPER DECISION. WE THEREFORE SET ASIDE THE IMPUGNED ORDER OF THE LEAR NED CIT(A) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF T HE ASSESSEE AFRESH AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD. THE ASS ESSEE IS ALSO DIRECTED TO EXTEND FULL COOPERATION AND COMPLY WITH THE NOTICES WITHOUT SEEKING ANY FURTHER ADJOURNMENT. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF MARCH 2012. SD/- SD/- (AMIT SHUKLA) (P.M.JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATE 30 TH MARCH 2012 VBP/- 4 COPY TO 1. TALWALKARS FITNESS SOLUTIONS KUKADE HOUSE PATIL M ARUTI WADI OFF. N.C.KELKAR ROAD MUMBAI 400 028 PAN AACFT2822M 2. INCOME TAX OFFICER WARD 18 (2) (1) PIRAMAL CHAMBE RS LALBAUG MUMBAI 400 002. 3. CIT(A) - 2 9 C - 10 7 TH FLOOR PRATYAKSHA KAR BHAVAN BANDRA - KURLA COMPLEX BANDRA EAST MUMBAI 400 051. 4. CIT - 18 MUMBAI 5. DR E BENCH 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR I.T.AT. MUMBAI BENCHES MUMBAI.