Amarjit Singh Kohli, Mumbai vs Assessee
- CitationI.T.A. No. 248/Mum/2011
Ratio decidendi
The rule this decision rests on
On the first addition, the Tribunal holds that where a sum credited in the assessee's bank account is claimed as the refund of an earlier payment, the burden of establishing the nexus between the credit and the claimed prior payment rests on the assessee, and that where the assessee has maintained no books of account, reliance on a builder's confirmation and an unauthenticated ledger entry is insufficient without corroborating evidence such as bank statements of the earlier payment or agreements of settlement. Where the assessing officer has not adequately verified such a claim, the matter is restored to him for verification after affording the assessee reasonable opportunity of hearing and a speaking order. On the second addition, the Tribunal holds that the onus of proving the source of payments made toward credit card dues lies on the assessee, and that where the addition is restored to the assessing officer together with the principal addition, the assessee is entitled to a further opportunity to substantiate its claim that part of the payments represented its share and the balance was borne by others.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ी संजय अरोड़ा, लेखा सद य एवं ी अ मत श ु ला, या यक सद य के सम ।
BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM
आयकर अपील सं./I.T.A. No. 248/Mum/2011 ( नधा रण वष / Assessment Year: 2006-07) Amarjit Singh Kohli Income Tax Officer, Unit No. 8, Brighton Towers, बनाम/ Ward-10(3)(3), 2nd Cross Lane, Lokhandwala Complex, Vs. 4th Floor, Aaykar Bhavan, Andheri (W), Mumbai-400 053 Mumbai थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. (अपीलाथ$ /Appellant) : (%&यथ$ / Respondent)
अपीलाथ$ क' ओर से / Appellant by : Shri R. C. Jain
%&यथ$ क' ओर से/Respondent by : Shri Asghar Zain
सनु वाई क' तार,ख / : 26.02.2015 Date of Hearing घोषणा क' तार,ख / : 11.03.2015 Date of Pronouncement
आदे श / O R D E R Per Sanjay Arora, A. M.:
This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-22, Mumbai ('CIT(A)' for short) dated 20.10.2010, dismissing the Assessee's appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2006-07 vide order dated 15.12.2008.
2. The appeal raises two grounds, as under, which we shall take up in seriatim:
'1. The Learned CIT(A) erred in confirming the addition of Rs.9,17,100/- u/s.69 of the I. T. Act, 1961.
2 ITA No. 248/Mum/2011 (A.Y. 2006-07) Amarjit Singh Kohli vs. ITO
2. The Learned CIT(A) erred in confirming the addition of Rs.94,545/- u/s.69 of the Income Tax Act, 1961 as unexplained investment.'
3. The first ground contests an addition in the sum of Rs.9,17,100/- in respect of two bank deposit/s in the assessee's bank account during the relevant previous year, as unexplained investment u/s.69 of the Act. The assessee's explanation for the same was of it representing refund from a builder M/s. Kamdhenu Realtors Pvt. Ltd. (KRPL). The assessee had paid the said sum about three years ago to a builder, M/s. City Builders (CB). However, as the project did not take off, the entire sum was refunded by KRPL, who had taken over the project from CB. The addition stands made and confirmed as, in the view of the Revenue, the assessee has been unable to substantiate its case. Aggrieved, the assessee is in second appeal.
4. We have heard the parties, and perused the material on record. The issue, thus, is whether the assessee has been able to prove its claim of the impugned sum as being the refund of an amount/s paid earlier by him. Toward this, the ld. AR would during hearing take us through the confirmation from the builder (KRPL/PB pg. 14), as well as the assessee's ledger account in its books of account, reflecting a credit in the assessee's name for the said amount on 01.04.2004, i.e., upon taking over the project from CB, and payment/s to the assessee vide two cheques, i.e., for Rs.5 lacs dated 21.12.2005 and Rs.4.171 lacs dated 28.12.2005 (PB pg. 15), details of which are also specified in the confirmation letter. The ledger account, however, is not authenticated, even as the accompanying letter is. Two, as the assessee had not maintained any books of account (refer para 4 of the assessment order), copy of the assessee's bank statement or some other evidence to substantiate the payment of the said sum by the assessee would be required to establish the nexus of the impugned receipt with the assessee's claim of it being the refund thereof. The assessee may, at his option, also furnish any other evidence, viz. agreement, deed of settlement, etc., if any, toward proving its case. The matter is, accordingly, restored to the file of the Assessing Officer (A.O.) for the purpose, and who shall verify the assessee's claim/s, allowing it reasonable opportunity of hearing, and decide per a speaking order. We decide accordingly.
3 ITA No. 248/Mum/2011 (A.Y. 2006-07) Amarjit Singh Kohli vs. ITO
5. The second addition is qua the source of credit card payments to Amercian Express Bank and Standard Chartered Bank, for an aggregate of Rs.94,545/- made during the year (as listed at para 5 of the assessment order). The same stands added to the assessee's income u/s.69 C in the absence of the assessee being able to furnish proof of payment in its respect. The assessee, in reiteration of his claims before the authorities below, stated that it had effected part payments of the said sums, i.e., as representing its' share, while the balance amount was borne by other person/s, being attributable to their share. The onus, however, to exhibit so is only on the assessee. As we have restored the matter qua the principal addition of Rs.9.17 lacs to the file of the A.O., we only consider it fit and proper to do so for this addition as well, if only to allow the assessee another opportunity to substantiate its' case. We decide accordingly.
6. In the result, the assessee's appeal is allowed for statistical purposes.
प0रणामतः नधा30रती क' अपील सां4यक'य उ6े7य के लए वीकृत क' जाती है ।
Order pronounced in the open court on March 11, 2015
Sd/- Sd/-
(Amit Shukla) (Sanjay Arora) या यक सद य / Judicial Member लेखा सद य / Accountant Member मुंबई Mumbai; =दनांक Dated : 11.03.2015 व. न.स./Roshani, Sr. PS
आदे श क" # त%ल&प अ'े&षत/Copy of the Order forwarded to :
1. अपीलाथ$ / The Appellant
2. %&यथ$ / The Respondent
3. आयकर आयु त(अपील) / The CIT(A)
4. आयकर आयु त / CIT - concerned
5. @वभागीय % त नCध, आयकर अपील,य अCधकरण, मुंबई / DR, ITAT, Mumbai
6. गाड3 फाईल / Guard File आदे शानस ु ार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai
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