Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, MUMBAI BENCHES “B”, MUMBAI
Before: Shri Joginder Singh, & Shri Ramit Kochar
आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 04/03/2014 of the Ld. First Appellate Authority, Mumbai. The only ground raised by the assessee pertains to confirming the addition of Rs.4,15,000/-, claimed to be opening balance, purported to be unexplained credit in the name of M/s Jade Investment and Leasing Pvt. Ltd. on the ground that no supporting evidence was furnished by the assessee ignoring the direction of the Tribunal in its order dated 11/12/2008, more specifically, when the Tribunal did not dispute the books of accounts were destroyed in flood and permitting the assessee to file audited balance- sheet/profit & loss account, obtained by the assessee from the auditor to substantiate its claim.
During hearing, Shri Rahul Hakani, Ld. counsel for the assessee, advanced arguments, which is identical to the ground raised by inviting our attention to various pages of the paper book. It was pleaded that pursuant to the direction of the Tribunal, the necessary documents were duly placed before the Assessing Officer, which were ignored by him. Our attention was further invited to page-28, 30 and 36 of the paper book along with para 2.6 of the impugned order. On the other hand, the ld. DR, Shri Suman Kumar, defended the addition and the conclusion drawn in the impugned order.
2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessment order u/s 143(3) and r.w.s 254 of the Act was passed on 10/02/2006 by the Assessing Officer, determining total income at Rs.23,16,050/-. While doing so, an amount of Rs.4,15,000/- was added as the Ld. Assessing Officer was of the view that the debit amount of Rs.4,15,000/- in the name of M/s Jade Investment and Leasing Pvt. Ltd. could not be explained with the help of supporting evidence. It is noted that on earlier occasion, the matter travelled up to the Tribunal, wherein, vide order dated 11/12/2008 (ITA No.1955/Mum/2007) following order was passed:-
“This appeal by the assessee for the Assessment year 1992-93 is directed against the order of CIT(A). The only ground of appeal of the assessee is as under:-
"1. Ld. CIT(A) erred in confirming an addition of Rs.415, 000 made in respect of the amount received from Jade Investment & Leasing Pvt. Ltd without quite appreciating that that the said amount was received in an earlier year and without properly appreciating the facts and circumstances of case."
2. The Ld. Counsel for the assessee submitted that the assessee is in the second innings before the Tribunal. He submitted that in the first innings, the issue of addition of Rs.4.15 lakhs was set aside by the Tribunal to the file of the Assessing Officer for fresh decision after allowing an opportunity of being heard to the assessee, in dt.24.3.04. The Ld. Counsel for the assessee submitted that thereafter in July, 05 there were un-precedented floods in Mumbai and the entire record of the assessee was lost in the floods and therefore, the assessee could not produce the requisite evidence before the Assessing Officer at the time of fresh assessment being framed in accordance with directions of the Tribunal. However, The Ld. Counsel for the assessee submitted that with much efforts, the assessee was able to get the audit report and other evidence from its first auditor in order to prove the genuineness of the entry of Rs.4,15,000/- relating to M/s.Jade Investment and Leasing Pvt. Ltd. Learned Counsel for the assessee requested that the assessee may be allowed one more chance to lead its evidence before the CIT(A). Ld. DR has opposed the submissions of the Learned Counsel for the .assessee. He submitted that the assessment was set .aside by the order of the Tribunal on 24.03.04 and the flood waters came in the month of July 05 and therefore, the assessee was having more than a year its disposal to file the necessary evidence before the Assessing Officer and therefore, there is no justification for allowing one more chance to tile assessee.
We have considered the rival submissions carefully. We find that in pursuance of setting aside the order passed by the Tribunal on 24.03.04, the assessment proceedings were commenced by the AO by issuing notice u/s.143(2) of the Act to the assessee on 17.01.06 and therefore, it cannot be said that the assessee could have filed the' necessary evidence before the Assessing Officer prior to the flood waters destroying its records in July 05. The assessee has claimed before us tha1 it has acquired the requisite evidence before the its first auditor and is 11 a position to produce the same before the Revenue authorities While it is well settled that the onus to prove the genuineness of the entries in the account books of the assessee is clearly on the assessee, We find that in the peculiar facts of the case it shall be in the interest of the justice to allow the assessee one more chance to lead evidence in support of its case before the-revenue authorities. Accordingly, the order of the CIT(A) is set aside to its file v.ith direction to pass a denovo appellate order in accordance with law after providing reasonable opportunity of hearing to the parties. The assessee shall be at liberty to lead the evidence in support of its case regarding the genuineness of the entry with regard to M/s Jade Investment and Leasing Pvt. Ltd. We direct according.
In the result, the appeal of the assessee is allowed for statistical purpose only.”
2.2. Pursuant to this direction of the Tribunal, the assessee approached the office of the Assessing Officer, however, the explanation of the assessee was rejected. It is also noted that identical plea was raised by the assessee before the Ld. Commissioner of Income Tax (Appeal), wherein, in para-2.6 of the impugned order, it was noted that there were series of entries in the books of the assessee by way of transferring various credits through general entries. The amount of Rs.4,15,000/- from M/s Jade Investment and Leasing Pvt. Ltd. was considered as unexplained credit. The whole addition is on the premise that the assessee could not file confirmation from M/s Jade Investment and Leasing Pvt. Ltd. However, from page-36 of the paper book in para 4(c) of the assessment order dated 14/03/1995, there is specific mention that this is a credit from the said party i.e. M/s Jade Investment and Leasing Pvt. Ltd. We have also perused the record and find that the assessee produced the books of accounts/audited account before the Assessing Officer to explain the amount. It is evidently clear (page-5 of the paper book) that the impugned amount is opening balance and even before the Tribunal, the Ld. DR (ITA No.4936/Mum/1996) has clearly admitted (para-4) that even the CIT(A) accepted the explanation of the assessee that this entry was on the basis of evidence at that time and directed the Assessing Officer to delete the addition made in the original assessment order, meaning thereby, the evidence was available during original assessment proceedings, which clearly proves that the amount of Rs.4,15,000/- was in the name of M/s Jade Investment and Leasing Pvt. Ltd. The assessee has duly explained that the opening entry to the credit of M/s Jade Investment and Leasing Pvt. Ltd. is only carried forward balance as on 31/03/1991, which is fortified by the copy of the audited balance sheet of the accounts of the assessee, thus, the opening balance cannot be treated as undisclosed income. The ratio laid down in CIT vs V.P. Singh 357 ITR 681 (P & H) supports our view, thus, this ground of the assessee, is allowed.
Finally, the appeal of the assessee is allowed.