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Income Tax Appellate Tribunal, MUMBAI BENCHES “J”, MUMBAI
Before: SHRI B.R.BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
These two appeals have been preferred by the assessee against common order dated 30/10/2015 passed by the Ld. CIT (Appeals)-48 Mumbai for the Asst. Years 2008-09 and 2011-12 respectively, whereby the Ld. CIT(A) dismissed the seven appeals filed by the assessee including the aforesaid two appeals, filed against the assessment orders passed u/s 143(3) r.w.s. 153A of the Income Tax Act, 1961 (in short ‘the Act’). Since in issues involved in both the appeals are common, same were clubbed, heard together and are being disposed of by this common order for the sake of convenience.
Brief facts of the case are that search and seizure action u/s 132(1) was carried out in Loha Ispaat Group of cases on 22.2.2012 and on subsequent dates and the assessee was also covered under the same. Notice u/s 153A was accordingly issued to the assessee and in response thereof the assessee filed return of income for the AY 2008-09 declaring the total income of Rs. 5,95,530/-. Thereafter notice under section 143 (2) of the Act was issued on which certain details were furnished by the assessee. The assessee had shown received unsecured loans to the tune of Rs.15,00,000/-from different parties, in her return of income. But the AO rejecting the explanation given by the assessee, added the said amount to the income of the assessee under the head income from other sources and assessed the income of the assessee at Rs. 20,45,530/-.
Aggrieved, the assessee challenged the assessment order before the Ld. CIT(A). The Ld. CIT(A) After hearing the appellant/assessee dismissed the appeal of the assessee holding that the assessee has failed to prove the identity, creditworthiness and genuineness of the creditors .
The assessee is in appeal before the Tribunal on the following effective grounds:-
“1. On facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in not providing the Appellant a reasonable opportunity of being heard.
2. On facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the action of the learned Assessing Officer in making the addition of Rs. 15,00,000 in respect of loan from Messrs. Gupta Traders as unexplained cash credits u/s 68 of the Income Tax Act, 1961.”
The Ld. Counsel for the assessee at the outset pointed out that the Mumbai Tribunal has dealt with the identical issue in assessee’s own case, for the assessment year 2007-08 and after taking into consideration the Bench has restored to the file of AO for fresh adjudication. The Ld. Counsel further submitted that since the issue involved in the present appeal is identical the same may be sent back to the AO for fresh adjudication in terms of the directions issued by the Tribunal in the aforesaid case.
The Ld. departmental representative fairly admitted that the similar issue has been restored to the file of AO by the Tribunal in assessee’s own case for the assessment year 2007-08.
We have perused the material placed on record in the light of the submissions made by the parties. We notice that vide order dated 30.9.2016, the coordinate Bench has restored the identical issue to the file of AO in assessee’s own case aforesaid holding as under:-
“7. We have considered the submissions of the parties and perused the material available on record. As could be seen, the only grievance of the assessee is, before treating the unsecured loans as unexplained cash credits under section 68 of the Act, the Departmental Authorities have not given adequate opportunity of being heard to the assessee. In this context, it is the submission of the learned Authorised Representative that certain tournaments have taken place after completion of assessment in assessee’s case viz. assessment orders passed in case of Loha Ispat Ltd and some of the creditors which may have bearing on the genuineness of unsecured loans. To prove such fact, the assessee has also submitted before us the assessment orders passed in case of Loha Ispat Ltd, Shri Rajesh Poddar (HUF) and Dhani Devi P for the very Thatsame assessment year. On appeal of the aforesaid orders, we have noticed that these orders have been passed after completion of assessment in case of assessee. Moreover, prima facie, it appears that they have not been submitted before the learned Commissioner (Appeals) either. Thus these documents, in our view, have to be examined by the Departmental Authorities to find out whether they have bearing on the issue of genuineness of the unsecured loan. Further, the assessee should also get a fair opportunity to prove the genuineness of the loan transaction on the basis of aforesaid documentary evidence. Keeping this in view, we are inclined to restore the matter back to the file of Assessing Officer for deciding afresh. Needless to mention, the Assessing Officer must afford adequate opportunity to the assessee to represent his case and the Assessing Officer should pass the order after considering the submissions of the assessee and the documentary evidence brought on record. At the same time, we direct the assessee to comply to the notice to be issued by the Assessing Officer and appeared before him on the date fixed with necessary evidence to establish her claim. In the event of any failure on the part of assessee to comply to the notices/queries raised by the Assessing Officer, the Assessing Officer will be at liberty to complete the assessment on the basis of material on record in accordance with the. In view of the aforesaid decision, there is no need to adjudicate the merits of the addition made under section 68 of the act at this stage.”
Respectfully following the decision of the coordinate Bench passed in assessee’s own case for the assessment year 2007-08 in the identical matter, we restore the sole ground of this appeal to the file of AO to decide the issue afresh in accordance with the direction given by the coordinate Bench in ITA No 5831/Mum/2015(supra).
ITA No. 5835/Mum/2015 A.Y. 2011-12
The facts of this case and ground raised by the assessee in this appeal are identical to the assessee’s own case for the assessment year 2008-09. Since we have restored the sole ground of appeal in the said case by following the decision rendered by the coordinate Bench in assessee’s own case for the assessment year 2007-08, we also restore the issue involved in this appeal to the file of AO to adjudicate the same afresh in accordance with the direction given by the coordinate Bench in ITA No 5831/Mum/2015(supra).
In the result, the assessee’s appeals for Asst. year 2008-09 & 2011-12 are allowed for statistical purposes.