IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 2867/M/09 ASSESSMENT YEAR: 2005-06 SHRI YOGESH DILIP GODAMBE, APPELLANT PROP. OF M/S NARAYAN FUEL STATION, 15, PRABHU DARSHAN, L.J. ROAD, DADAR (W), MUMBAI 400 018. (PAN AFXPG6062N) VS. INCOME TAX OFFICER, RESPONDENT 18(2)(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012. APPELLANT BY : NONE RESPONDENT BY : MR. S.K. MADHUKAR O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- XVIII, MUMBAI, PASSED ON 01.01.2009 FOR THE ASSESSMENT YEAR 2005-06. 2. GROUNDS RAISED IN THIS APPEAL IS IN RESPECT OF A DDITION OF RS. 2,15,500/- AS CASH CREDITS AND THE DISALLOWANCE OUT OF TELEPHONE EXPENSES OF RS. 7,367/-. 3. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWE VER, AFTER HEARING THE LEARNED DR, I PROCEED TO DECIDE THE APP EAL ON MERIT. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE INTRO DUCED AN AMOUNT OF RS. 4,49,000/- TO THE CAPITAL ACCOUNT OF M/S NAR AYAN FUEL STATION OF WHICH THE ASSESSEE IS THE PROPRIETOR. THE AO ASK ED THE ASSESSEE EXPLANATION AND DETAILS ABOUT THE NEW CAPITAL INTRO DUCED DURING THE ITA NO. 2867/M/09 SHRI YOGESH DILIP GODAMBE 2 YEAR. THE ASSESSEE VIDE HIS LETTER DATED 30.11.2007 FILED A CERTIFICATE FROM SHRI DILIP GODAMBE STATING THAT THE DILIP GODA MBE ADVANCED AN AMOUNT OF RS. 2,40,000/- TO THE ASSESSEE DURING FY 2004-05. TO THIS EFFECT, AN AFFIDAVIT OF SHRI DILIP GODAMBE WAS ALSO FILED WHEREIN DILIP GODAMBE STATED THAT HE HAS GIVEN LOAN OF RS. 2,15,5 00/- TO HIS SON MR. YOGESH GODAMBE, I.E. THE ASSESSEE, DURING THE F Y 2004-05 OF WHICH RS. 1,15,000/- WAS GIVEN OUT OF THEIR FAMILY SAVINGS AND RS. 1,00,000/- OUT OF LOAN RECEIVED FROM HIS SON-IN-LAW MR. VENKATESH R. MATRE. THE AO NOTICED THAT AS PER THE AFFIDAVIT DAT ED 18.12.2007 THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS. 2,15,500/- F ROM SHRI DILIP GODAMBE, FATHER OF THE ASSESSEE. HOWEVER, THE ASSES SEE THROUGH OF HIS ARS ANOTHER LETTER DATED 20.12.2007 STATED HE HAD BORROWED CASH OF RS. 2,00,000/- FROM HIS FATHER ON 10.04.2004 AND DE POSITED THE SAME WITH THE BANK IMMEDIATELY AND ISSUED DEMAND DRAFT O F RS. 3,24,675/- IN FAVOUR OF IOCL ON THE SAME DAY I.E. ON 10 TH APRIL, 2004. THE AO AFTER CONSIDERING THE ASSESSEES EXPLANATION, OBSER VED THAT THE ASSESSEE HAS NOT PROPERLY EXPLAINED THE NATURE AND SOURCE OF THE AMOUNT OF RS. 2,15,000/- INTRODUCED TO THE CAPITAL ACCOUNT THEREOF. THEREFORE, HE MADE THE ADDITION OF RS. 2,15,000/- U /S 68 OF THE ACT, WHICH HAS BEEN CONFIRMED BY THE CIT(A) OBSERVING TH AT THE ASSESSEE FAILED TO DISCHARGE HIS ONUS REGARDING GENUINENESS AND CREDITWORTHINESS CORRECTLY. HE ALSO HELD THAT THE A SSESSEE HAS FAILED TO PRODUCE NECESSARY EVIDENCE REGARDING AVAILABILITY O F FUNDS OUT OF FAMILY SAVINGS OF RS. 1.00 LAKH FROM MR. VENKATESH R. MATRE, WHO IS WORKING WITH KOTAK BANK, WHOSE PAN IS AFVPM 2649R. 5. I FIND THAT THE FACTS OF THE CASE HAVE NOT BEEN PROPERLY APPRECIATED BY THE REVENUE AUTHORITIES. I ALSO FIND THAT THE ASSESSEE IS NOT CONSISTENT IN HIS SUBMISSIONS AND HE IS CHANGIN G HIS VERSION BY VARIOUS SUBMISSIONS AS NOTED BY THE CIT(A) IN HIS O RDER AT PAGE 2. SINCE THE CORRECT FACTS ARE REQUIRED TO BE PUT ON R ECORD AFTER NECESSARY EXAMINATION AND VERIFICATION, I THEREFORE , FIND IT PROPER TO REMIT THE MATTER TO THE FILE OF THE AO WITH A DIREC TION TO RECORD ITA NO. 2867/M/09 SHRI YOGESH DILIP GODAMBE 3 COMPLETE AND CLEAR FACTS AFTER VERIFYING THE RECORD AND AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE AND DECIDE T HE ISSUE AFRESH IN ACCORDANCE WITH LAW. 6. AS REGARDS THE DISALLOWANCE OF TELEPHONE EXPENSE S OF RS. 7,367/-, THE AO DISALLOWED 1/5 TH OF THE TELEPHONE EXPENSES ON ACCOUNT OF PERSONAL ELEMENT. SINCE THE PERSONAL ELE MENT CANNOT BE RULED OUT IN RESPECT OF USAGE OF TELEPHONE, 1/5 TH DISALLOWANCE BY THE AO IS ON HIGHER SIDE, THEREFORE, I FIND THAT DISALL OWANCE TO THE EXTENT OF 10% OF THE EXPENSES IS REASONABLE. THE AO IS DIR ECTED ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 18.11.2009. SD/- (A.L. GEHLOT) ACCOUNTANT MEMB ER DATED: 18 TH NOVEMBER, 2009 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, SMC BEN CH, I.T.A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV