YOGENDRA S. SINGH,MUMBAI vs. ATUL KUMAR, ACIT 17(3), MUMBAI
What did the Tribunal hold?
The Tribunal found merit in the assessee's prayer for a fresh opportunity to present their case, considering the failure to furnish relevant documents initially. The appeal was set aside and restored to the Assessing Officer for fresh examination.
What were the facts?
The assessee had a credit balance of ₹271.59 lakhs in a related company's books, of which ₹59.85 lakhs was offered as deemed dividend. The Assessing Officer treated the remaining ₹211.73 lakhs as unexplained cash credit. The CIT(A) dismissed the assessee's appeal without a hearing.
What were the issues?
Whether the CIT(A) erred in dismissing the appeal without providing an opportunity to be heard, and whether the assessee should be granted a fresh opportunity to prove the creditworthiness of the creditor.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “G” Bench, Mumbai
Heard together (2 matters)
Read from the judgment's own cause title. This page is filed under one of them.
O R D E R Per B.R. Baskaran (AM) :-
The assessee has filed this Stay Application seeking stay of outstanding demand of ` 125.33 lakhs.
Learned counsel appearing for the assessee submitted that the assessee was running a proprietary concern and the same was converted into a company with name M/s. V. Bird Shipping Agencies Pvt. Limited. He submitted that the assessee is having a running account with the above said company and he was operating as his current account. At the year end, i.e., as on 31.3.2012, a credit balance of ` 271.59 lakhs was outstanding in the name of the assessee in the books of the above said company, i.e, it was payable by the assessee to the above said company. The assessee offered a sum of ` 59.85 lakhs as deemed dividend u/s. 2(22)(e) of the Act. The Assessing Officer treated the balance amount of ` 211.73 lakhs as unexplained cash credit u/s. 68 of the Act. He submitted that the assessee challenged the said addition by filing appeal before the learned CIT(A) and furnished a written
2 Mr. Yogendra S. Singh submission before the learned CIT(A). The first appellate authority dismissed the appeal filed by the assessee by considering only written submission without providing opportunity of being heard. Learned AR submitted that the financial position of the assessee is very weak and accordingly prayed for stay of collection of outstanding demand.
On the contrary, learned Departmental Representative strongly opposed the petition filed by the assessee.
When the bench asked learned AR to explain the nature of documents, which were filed before the Assessing Officer in order to prove the creditworthiness of the M/s. V. Bird Shipping Agencies Pvt. Limited, the learned AR submitted that the assessee was not properly advised to furnish the relevant details before the Assessing Officer. He submitted that M/s. V. Bird Shipping Agencies Pvt. Limited is having sufficient funds and is also having turnover of ` 10 crores. Hence creditworthiness should not have been doubted with. He further submitted that the assessee may be given an opportunity, which will enable the assessee to furnish all the details to prove the creditworthiness of the creditor.
We heard learned Departmental Representative. Since the matter in dispute relates to the addition made u/s 68 of the Act, the bench took up the appeal for hearing with the concurrence of both the parties.
We heard the parties and perused the record. We noticed that the assessee has taken funds from a related concern. According to learned AR, the related concern is a private limited company and is having turnover of more than ` 10 crores. It was further submitted that the creditworthiness should not have been doubted with. However, we noticed that the assessee has failed to furnish relevant documents before the Assessing Officer and there should not be any doubt that the initial burden to prove the cash credit is placed upon the assessee. However, considering the facts of the case, we find merit in the prayer of the assessee for fresh opportunity to present his case properly
3 Mr. Yogendra S. Singh before the Assessing Officer. Hence, in the interest of justice, we are of the view that the assessee may be provided with one more opportunity in this regard. We also notice that the assessee has raised certain other grounds also. Since the main addition is set aside to the file of the AO, we are of the view that the other issues may also be examined afresh. Accordingly, we set aside the order passed by the learned CIT(A) and restore all the matters to the file of Assessing Officer with the direction to examine them afresh by duly considering information/explanations that may be furnished by the assessee. After giving adequate opportunity of being heard, the Assessing Officer may take appropriate decision in accordance with law. Since we have disposed of the appeal itself, the stay application shall become infructuous.
In the result, the appeal filed by the assessee is allowed for statistical purposes and Stay Application filed by the assessee is dismissed.
Order has been pronounced in the Court on 13.10.2017.
More judgments on Section 68
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