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DCIT -17(1), 1st Floor, Room no. 113, Piramal Chambers, Lalbaug, Parel, Mumbai Vs M/s Kamar Infrastructure, 20, Hussain Patel Road, Wadi B, Mazgaon, Mumbai -400 010,
August, 19th 2014
                 "A" Û ,

                 MUMBAI BENCH "A", MUMBAI
      ^               ,    ^  [,Û                             ¢
                . : 3468/      3468//2013, [[ 2009-10
                   ITA No. : 3468/Mum/2013, AY 2009-10
DCIT -17(1),                         Vs M/s Kamar Infrastructure,
1st Floor, Room no. 113,                20, Hussain Patel Road,
Piramal Chambers,                       Wadi B, Mazgaon,
Lalbaug, Parel,                         Mumbai -400 010,
Mumbai                                    .:PAN: AAHFK 5238 P
(Appellant)                            ×(Respondent)
           Appellant by           :    Shri Pitambar Das
         Respondent by            :    Shri Mitesh Thakkar
 /Date of Hearing                     : 11-08-2014
/Date of Pronouncement                : 13-08-2014
      Û. .
^  [, Û.

      The appeal is filed by the department against the order of CIT(A)
29, Mumbai, dated 25.02.2013, wherein the issue relates to deletion of
Rs. 45,00,000/- added by the assessee u/s 68 of Income Tax Act,
1961. The assessee has shown the following unsecured loans:
              1) Mr. Salim Merchant                  Rs. 25,00,000/-
              2) M/s Pokharna Metal Syndicate        Rs. 20,00,000/-

2.    The AO called for details about the genuineness of the above
unsecured loans i.e. identity, genuineness and credit worthiness of the

3.    The assessee was unable to provide the same. The AO therefore,
added the same to the income of the assessee.

4.    The assessee approached the CIT(A), before whom, the assessee
submitted details like ROI, bank statements, confirmation and balance
                                    2                         M/s Kamar Infrastructure
                                                              ITA No. 3468/Mum/2013

sheet of both the parties. The assessee also submitted details of
sources of funds of both the parties.

5.    The CIT(A), considering the details and the case laws cited,
which have been reproduced in the impugned order accepted the
credits to be genuine in all respects and deleted the addition as made.

6.    Against this order of the case CIT(A), the department is aggrieved
and has raised the following grounds:
      "1.    On the facts and in the circumstances of the case and in law, the Ld.
             CIT(A) has erred in deleting the addition of Rs. 45,00,000/- made by
             the AO u/s 68 of the I T Act without appreciating the fact that credit
             worthiness of the loanees could not be established as they were
             showing only meager income in their return and also the funds of third
             parties, the credit worthiness of whom was not established, were
             routed through the bank account of above parties.
      2.     On the facts and in the circumstances of the case and in law, the Ld.
             CIT(A) has erred in deleting the addition of Rs. 45,00,000/- made by
             the AO u/s 68 of the I T Act by accepting the additional evidences in
             contravention of Rule 46A of the IT Rules and without affording an
             opportunity to the AO to carry out appropriate investigation with
             reference to such additional evidences.
      3.     The appellant prays that the order of the CIT(A) on the above grounds
             be reversed and that of the Assessing Officer be restored".

7.    Before us, the DR submitted that the CIT(A) violated the
accepted principle of natural justice by not allowing the AO to consider
the evidence that was placed before the CIT(A). The DR submitted that
the CIT(A) should have afforded an opportunity to the AO to look into
the evidence and give comments on his satisfaction on the evidence.
This according to the DR was gross violation of natural justice.

8.    The DR, therefore, submitted that the issue must be restored to
the file of the AO.

9.    The AR on the other hand strongly objected to the arguments of
the DR and submitted that the order of CIT(A) was legally correct.
                                    3                M/s Kamar Infrastructure
                                                     ITA No. 3468/Mum/2013

10.    We have heard the arguments and have perused the orders of
the revenue authorities. It is a fact that the CIT(A) considered the
entire evidence on his own and did not afford any opportunity to the
AO to examine the issue in the light of the evidence. This may be
acceptable as coterminous powers of the CIT(A), but in deliverance of
justice, it is not desirable. We, therefore, set aside the order of the
CIT(A) on the issue of addition of Rs. 45,00,000/- and restore the
same to the file of the AO for fresh adjudication.

11.    Since we have restored the issue to the AO, ground no. 1
becomes academic.

12.    In the result, the appeal filed by the department is treated as
allowed for statistical purposes.

Order pronounced in the open Court on 13th August, 2014.

    Sd/-                                              Sd/-
 (       )                                           ( [)
  (B R BASKARAN)                                   (VIVEK VARMA)
ACCOUNTANT MEMBER                                JUDICIAL MEMBER

Mumbai, Date: 13th August, 2014

/Copy to:-

1)   /The       Appellant.
2)   ×/The Respondent.
3)   The CIT (A)-29, Mumbai.
4)    ­17, Mumbai/The CIT-17, Mumbai.
5)    "",,
     The D.R. "A" Bench, Mumbai.
6) [ 
                         4                M/s Kamar Infrastructure
                                          ITA No. 3468/Mum/2013

   Copy to Guard File.

                                /By Order
   / / True Copy / /


                             Dy./Asstt. Registrar
                              I.T.A.T., Mumbai
*Chavan, Sr. PS
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