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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Aayakr ApIla saM./ (inaQa-arNa baYa- / Assessment Year 2007-08) Aayakr ApIla saM./ ITA No. 2528/Mum/2018 (inaQa-arNa baYa- / Assessment Year 2008-09) Aayakr ApIla saM./ (inaQa-arNa baYa- / Assessment Year 2009-10) Shantistar Builders The Income Tax Officer, 811, Embassy Centre, Ward 17(3)(3), Aayakar Vs. Nariman Point, Bhavan, M.K. road, Mumbai-400 021 Mumbai-400020 .. (p`%yaqaaI- / Respondent) (ApIlaaqaI- / Appellant) स्थायी लेखा िं./PAN No. AAAAS0068B अपीलाथी की ओर े / Appellant by : Shri Neelkanth Khandelwal, AR प्रत्यथी की ओर े / Respondent by : Shri Chaudhary Arun Kumar Singh, DR ुनवाई की तारीख / Date of hearing: 15-04-2019 घोषणा की तारीख / Date of pronouncement : 15-04-2019 AadoSa / O R D E R महावीर स िंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:
These three appeals filed by the assessee are arising out of the different orders of Commissioner of Income Tax (Appeals)-28, Mumbai [in ITAs No. 891, 2528 & 2529/Mum/2018 short CIT(A)], Appeal No. CIT(A)-28/IT-944, 945 & 946/ITO-17(3)(3)/2014- 15 vide order dated 13.11.2017 & 01/03.2018. The Assessments were framed by the Income Tax Officer, Ward 17(3)(3), Mumbai (in short ‘ACIT/ ITO / AO’) for the A.Ys. 2007-08, 2008-09, 2009-10 vide order dated 16.03.2015, Nil under section 143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter ‘the Act’).
2. The first issue in for AY 2007-08 is as regards to the order of CIT(A) confirming the action of the AO in making addition of unexplained cash credit amounting to ₹ 50 lacs. For this assessee has raised the following ground No. 2: -
2. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs. 50,00,000 as an unexplained cash credit merely based on third party statements and on presumptions and surmises and without making any independent investigation and without considering the evidence tiled by the appellant.”
The assessee has also raised the consequential ground No. 3 relating to disallowance of interest on the above unexplained cash credit. For this assessee has raised the following ground No. 3: -
3. On the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals) erred in confirming the disallowance of interest paid amounting to ₹ 27,123.”
ITAs No. 891, 2528 & 2529/Mum/2018 The learned Counsel for the assessee took us through the ground No 4 that the CIT(A) has not admitted the additional evidences and there is no basis for that. For this assessee has raised the following ground No 4:-
4. On the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals) erred in not accepting additional evidence as per Rule 46A of Income Tax Jules 1962.
The learned Counsel for the assessee took us through the order of CIT(A), wherein the assessee has filed the additional evidences before CIT(A) and this was filed before CIT(A) vide letter dated 23.02.2016 and the following are the details: - “Subsequent to the completion of the re- assessment and since the AO had made no enquiries u/s 133(6) from Jewel Diam who had lent money to the appellant, the appellant had approached them and has obtained from them copies of the following: -
Tax return for A Y 2007-08 which shows the loan given in the audited Balance Sheet of Vasishta Ghanshyam R, proprietor of Jewel Diam.
Bank Statement with ING Vysya Bank showing the giving of the said loan and the proximate source thereof (the same not being cash deposited in the bank).
ITAs No. 891, 2528 & 2529/Mum/2018 We enclose the same herewith in duplicate and request that the same be treated as Additional Evidence. Please note that the same was obtained only after the assessment was completed and was done only because the A 0 did not choose to collect this information u/s 133(6) and hence we plead that this evidence may kindly be admitted for which we shall be obliged..”
The learned Counsel for the assessee in view of the above stated that these evidences are vital for deciding the unexplained cash credit i.e. balance sheet of Vasishta Ghanshyam R, proprietor of Jewel Diam including the bank statement showing source of loan. The learned Counsel for the assessee took us through the order of CIT(A) that nothing is discussed by CIT(A) on the above aspect and hence, these evidences should be admitted and matter be restored back to the file of the AO for fresh adjudication. When these facts were put to the learned Sr. Departmental Representative, he fairly agreed that these evidences can be admitted and the matter can be restored back to the file of the Assessing Officer.
After hearing both the sides and going through the facts and circumstances of the case, we noted that the evidences are really vital for deciding the issue and hence, we admit these evidences and remand the matter back to the file of the Assessing Officer. The order of lower authorities i.e. of the CIT(A) and of the AO are set aside and matter restored back to the file of the Assessing Officer.