LITTLE AND COMPANY, MUMBAI V. ADDL CIT 11(2), MUMBAI

ITA 1080/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5738 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: PRASAD BAPAT
• Section: 143(3)

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND DR. S.T.M. PAVALAN, JM ./I.T.A. NO.1080/M/2012 ( / ASSESSMENT YEAR: 2007 - 2008 ) LITTLE AND COMPANY, CENTRAL BANK OF INDIA BUILDING, M.G. ROAD, FORT, MUMBAI - 400001. / VS. ADDL. CIT - 11(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAAFL 1697 G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRASAD BAPAT / RESPONDENT BY : SHRI SURENDRA KUMAR, DR / DATE OF HEARING : 20.1.2014 / DATE OF PRONOUNCEMENT : 31 .1.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 14.2.2012 IS AGAINST THE ORDER OF THE CIT (A) - 3, MUMBAI DATED 20.12.2011 FOR THE ASSESSMENT YEAR 2007 - 2008. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUND WHICH READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION OF RS. 25,000/ - BEING ALLEGED UNDISCLOSED PROFESSIONAL FEES RELYING ON THE INFORMATION APPEARING IN AIR. CIT (A) OUGHT TO HAVE ACCEPTED ASSESSEES CONTENTION THAT IN ABSENCE OF COM PLETE INFORMATION OF PROFESSIONAL FEES OF RS. 25,000/ - PAID / CREDITED AS PER AIR, THE APPELLANT WAS NOT LIABLE TO RECONCILE / EXPLAIN THE SAME. THE ADDITION BE DELETED. 3. DURING THE PROCEEDINGS BEFORE US , SHRI PRASAD BAPAT, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ASSESSEE IS IN A LEGAL PROFESSION AND FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 7,81,92,420/ - . ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE ASSESSED INCOME WAS DETERMINED AT RS. 7,84,39,210/ - . ONE OF THE ADDITIONS MADE BY THE AO IS ON ACCOUNT OF UNDISCLOSED PROFESSIONAL FEES. BRINGING OUR ATTENTION TO THE GROUNDS RAISED BEFORE US, LD COUNSEL FOR THE 2 ASSESSEE MENTIONED THAT THE SAID ADDITION WAS MADE BY THE AO BASED ON THE INFORMATION APPEARING IN AIR , AN IDENTICAL ISSUE W A S RAISED COMMONLY IN THE A S S E S S E E S O W N C A S E F O R AY 2008 - 2009. THE MATTER TRAVELLED UP TO THE TRIBUNAL FOR THE SAID AY AND THE SAME WAS DECIDED VIDE ITA NO.3569/M/2012 DATED 26.6.2013. WHILE ADJUDICATING THE ISSUE, TH E TRIBUNAL FELT IT NECESSARY TO REMAND THE MATTER TO THE FILES OF THE AO FOR A FRESH ADJUDICATION AS PER THE DIRECTIONS GIVEN IN PARA 3 OF THE SAID ORDER OF THE TRIBUNAL AND THE RELEVANT PORTIONS OF THE SAID PARA 3 READS AS UNDER: 3THE MATTER, ACCORDI NGLY, IN OUR VIEW IS PURELY FACTUAL. THERE IS NO CLEAR FINDING AS TO THE ACTUAL RECEIPT OF THE IMPUGNED SUMS BY THE ASSESSEE BY EITHER OF THE AUTHORITIES BELOW. IN THIS VIEW OF THE MATTER, WE, THEREFORE, RESTORE THE MATTER BACK TO THE FILES OF THE AO TO VERIFY, WITH REFERENCE TO THE ASSESEES BANK ACCOUNT/S, OR EVEN THE ACCOUNTS OF THE PAYERS, IF THESE AMOUNTS HAVE BEEN ACTUALLY RECEIVED BY THE ASSESSEE DURING THE YEAR. IF SO, THE SAME HAVE BEEN RIGHTLY BROUGHT TO TAX; IF NOT, AS WE UNDERSTAND THE ASSESSE ES CASE TO BE, NO ADDITION SOLELY ON THE BASIS AIR INFORMATION COULD NOT SURVIVE. THIS IS AS THERE IS NO MATERIAL WITH THE REVENUE, I.E., EXCEPT THE SAID INFORMATION, THAT THE AMOUNTS UNDER REFERENCE HAVE BEEN ACTUALLY RECEIVED BY THE ASSESEE AND THE SAM E CANNOT BY ANY MEANS BE REGARDED AS A CONCLUSIVE PROOF OF RECEIPT. THE ONUS TO EXHIBIT THE SAME IS SQUARELY ON THE REVENUE AS IT IS IT WHO ALLEGES THE ASSESSEE TO HAVE RECEIVED THE SAME AND FOR WHICH NO MATERIAL, APART FROM THE SAID INFORMATION HAS BEEN BROUGHT BY IT ON RECORD. WE DECIDE ACCORDINGLY. THE ASSESSEES APPEAL IS DISPOSED OF IN THE ABOVE TERMS. 4. BEFORE US, I T IS THE PRAYER OF THE LD COUNSEL THAT THE ISSUES RAISED IN THIS APPEAL SHOULD ALSO BE REMANDED TO THE FILES OF THE AO WITH IDENTICAL DIRECTIONS. 5. ON THE OTHER HAND, LD DR HAS NO OBJECTION TO THE SAID PRAYER OF THE LD COUNSEL FOR REMANDING THE MATTER TO THE FILES OF THE AO. 6. ON HEARING BOTH THE PARTIES AND CONSIDERING THE CONCURRENCE OF BOTH THE LD REPRESENTATIVES, WE ARE OF THE OPI NION THAT THE ISSUE RAISED IN THE GROUND MENTIONED ABOVE SHOULD BE REMANDED TO THE FILES OF THE AO WITH THE IDENTICAL DIRECTIONS AS GIVEN BY THE TRIBUNAL VIDE ITS ORDER DATED 26.6.2013 (SUPA). ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 S T JANUARY, 2014. S D / - S D / - (DR. S.T.M. PAVALAN) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 31 .1.2014 3 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI