Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI JOGINDER SINGH & SHRI RAMIT KOCHAR
PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee, being ITA No. 1088/Mum/2013, is directed against the appellate order dated 26th November, 2012 passed by learned Commissioner of Income Tax (Appeals)-32, Mumbai (hereinafter called “the CIT(A)”), for the assessment year 2009-10, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 28th December, 2011 passed by learned Assessing Officer (hereinafter called “the AO”) u/s 143 (3) of the Income-tax Act,1961 (Hereinafter called “the Act”).
The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the Tribunal”) read as under:-
2 1088/Mum/2013
“1. The Learned Income Tax officer & the Learned CIT(A) - 32 have erred in adding Rs. 363500/- on account of cash deposits in the bank.
Your appellant has made cash deposits of Rs.363500/- into his Dena Bank, Vile Parle Branch a/c no.013110008919. Your Appellant has received deposits for trading from various persons in the month of April 2008.The amounts received have been deposited in the above bank. A list of names and address of the persons along with their PAN No & confirmation of the person who have given the deposits has been submitted to the Learned Income-tax Officer & the Learned CIT(A)- 32, hence there is no reason to treat the same as unexplained in the hands of your appellant.
The explanations and submissions were given to the Learned Income Tax Officer.
Your Appellant requests Your Honour to kindly delete the additions made by the Learned Income Tax Officer and up held by the Learned Commissioner of Income Tax.”
At the outset, we have noted that this appeal is posted for hearing several times since October, 2014 and have been adjourned from time to time at the request of the assessee. None appeared on behalf of assessee when the appeal was called for hearing on 4th April 2017 nor any application for adjournment was moved by the assessee. Under these circumstances, we proceed to decide the appeal on merits after considering the submission of the assessee available on record after hearing ld. D.R. The assessee had also earlier filed paper book containing 24 pages which is placed in file.
Brief facts of the case are that during the year under consideration, the assessee was engaged in the business of share trading . During the course of assessment proceedings u/s 143(3) r.w.s. 143(2) of 1961 Act, the A.O. noticed that the assessee had deposited cash on various dates in his savings bank account No.
3 1088/Mum/2013
013110008919 with Dena Bank, Vile Parle branch. The assessee was asked to submit cash book along with the narration for each entry. The assessee submitted cash book. On perusal of the cash book, the A.O. observed that the assessee had taken cash deposit for trading from 19 persons from 10.4.2008 to 30.4.2008 ranging between Rs. 17,500/- to Rs. 20,000/-. The A.O. rejected the contention of the assessee that it has received trading deposits as it was found by the AO that assessee is giving conflicting statements as some time the assessee is claiming to be sub-broker and while some time the assessee was claiming that he is not sub-broker but trader in shares. hence, the AO made addition of Rs. 3,63,500/- received as cash deposits by treating the said amount as assessee’s un-explained income u/s 68 of the Act, vide assessment order dated 28-12-2011 passed by the AO u/s. 143(3) of 1961 Act.
Aggrieved by the assessment order dated 28-12-2011 passed by the A.O. u/s 143(3) of 1961 Act, the assessee filed first appeal before the ld. CIT(A).
Before the ld. CIT(A), the assessee contended that confirmations of all the 19 persons along with their PAN and addresses from whom cash depoists of Rs. 3,63,500/- were received by the assessee during the previous year relevant to impugned assessment year , were duly submitted before the A.O. on 23-12-2011 during the assessment proceedings u/s 143(3) r.w.s. 143(2) of 1961 Act and there was no reason to treat the same as unexplained income in the hands of the assessee.
The ld. CIT(A) considered the submission of the assessee but doubted the genuineness of these cash transaction as copy of income-tax
4 1088/Mum/2013
returns filed by such lenders filed with the Revenue were not enclosed by the assessee . The ld. CIT(A) also doubted that the assessee who is trading in shares will receive such cash deposits from persons in cash and not by cheque. The learned CIT(A) also held that these deposits do not inspire confidence as no interest was paid, no sources as well reasons of repayment in cash of these deposits were satisfactorily explained by the assessee. The ld. CIT(A), thus confirmed the addition made by the A.O. as the assessee failed to satisfactorily explain the nature and source of these cash credit entries to the tune of Rs. 3,63,500/- , vide appellate orders dated 26-11-2012 passed by learned CIT(A).
Aggrieved by the appellate orders dated 26-11-2012 passed by ld. CIT(A), the assessee is in appeal before the tribunal.
None appear before the tribunal on behalf of the assessee when the appeal was called for hearing. On the other hand, the ld. D.R. relied on the orders of the authorities bellow and submitted that the assessee has not proved genuineness , creditworthiness and identities of the lenders of these cash deposits.
We have heard ld. D.R. and carefully perused the material available on record including paper book filed by the assessee. We have observed that during the year under consideration the assessee was engaged in the business of share and commodity trading . The assessee has claimed loss on share trading including F & O , while claimed profit on commodity trading , in the return of income filed with the Revenue(ref pb/page 23) .The assessee’s account are audited u/s 44AB of 1961 Act and tax-audit report was obtained by the assessee for relevant previous year (pb/page 21-22). The assessee had received cash deposits of Rs. 3,63,500/- from 19 persons from 10.4.2008 to 30.4.2008. The cash deposit in each case was claimed to be below Rs. 20,000/- each and the said cash was claimed by the assessee to have been deposited in Dena Bank, which is doubted by 5 1088/Mum/2013
the revenue as to genuineness , credit-worthiness of the creditors as the amounts were received as well repaid in cash and no interest was also paid . However, the confirmations from these creditors carrying name, address and PAN were filed but copies of tax-returns of these creditors were not filed by the assessee. In our considered view, all these confirmations from creditors filed by the assessee need verification by the authorities below so as to ensure that mandate of Section 68 of 1961 Act was fulfilled. In the fitness of the matter and in the interest of justice, we are inclined to set aside and restore this issue back to the file of the AO for de-novo determination of the issue on merits after examination of all these details submitted by the assessee. The assessee is directed to produce all necessary and relevant evidences and explanations before the A.O. to substantiate its claim in its defence to satisfy mandate of Section 68 of 1961 Act i.e. as to identity and creditworthiness of creditors and genuineness of credit transaction , which evidences and explanations submitted by the assessee shall be admitted by the AO in the interest of justice . Needless to say that proper and adequate opportunity of being heard shall be provided by the A.O. to the assessee in accordance with principles of natural justice in accordance with law. We order accordingly.
In the result, appeal filed by the assessee in ITA no. 1088/Mum/2013 is allowed for statistical purposes as per terms indicated above.
Order pronounced in the open court on 10th April, 2017. आदेश क" घोषणा खुले "यायालय म" "दनांकः 10-04-2017 को क" गई । (JOGINDER SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER मुंबई Mumbai; "दनांक Dated 10-04-2017 व."न.स./ R.K. R.K. R.K., Ex. Sr. PS R.K.
6 1088/Mum/2013
आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. आयकर आयु"त(अपील) / The CIT(A)- concerned, Mumbai 4. आयकर आयु"त / CIT- Concerned, Mumbai "वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, मुंबई / DR, ITAT, Mumbai “A” Bench 5. 6. गाड" फाईल / Guard file. आदेशानुसार/ BY ORDER, स"या"पत ""त //// उप/सहायक पंजीकार (Dy./Asstt.