JAYESH VINODKUMAR TANNA, MUMBAI V. ACIT-25(3), MUMBAI

ITA 1152/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0600 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-10-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 09-04-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68; 132; 143(3); 153A

Judgement Text

P a g e | 1 ITA No.1152/Mum/2023 Jayesh Vinodkumar Tanna Vs. ACIT-25(3) IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA No.1152/Mum/2023 (A.Y. 2007-08) JayeshVinodkumarTanna, 701 Ram Kripa, DevjiBhimji Lane, Mathuradas Road, Kandivali (W), Mumbai – 400067 Vs. ACIT-25(3) Mumbai स्थायी लेखा सं./जीआइआर सं./PAN/GIR No:AAAPT8415A Appellant .. Respondent [ Appellant by : Jayant Bhatt Respondent by : Ajay Singh Date of Hearing 10.10.2023 Date of Pronouncement 23.10.2023 आदेश / O R D E R Per Amarjit Singh (AM): This appeal filed by the assesse is directed against the order passed by the ld. CIT(A) NFAC, dated 15.03.2023 for A.Y. 2007-08. The assessee has raised the following grounds before us: “1. On the facts and circumstances of the Appellant's case and in law the Ld. Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.13,60,000/- made by invoking the provisions of Section 68 of the Income Tax Act, 1961 without appreciating the fact that the appellant has offered the said amount as income in application filed and accepted u/s 245C(1) of the Act before the Hon'ble Income Tax Settlement Commission. 2. On the facts and circumstances of the Appellant's case and in law the Ld. Commissioner of Income Tax (Appeals) erred in not accepting the appeal filed before him as infructuous due to the fact that addition P a g e | 2 ITA No.1152/Mum/2023 Jayesh Vinodkumar Tanna Vs. ACIT-25(3) made in the order u/s 143(3) of the Act was offered as income in application filed and accepted u/s 245C(1) of the Act before the Hon'ble Income Tax Settlement Commission, thereby lending the appeal filed before the Hon'ble Commissioner of Income Tax (Appeal) as infructuous. 3. The Appellant craves leaves to add, to amend, alter, modify and / or withdraw any or all of the above grounds of appeal, each of which are without prejudice to one another. 2. Fact in brief is that return of income declaring total income of Rs.15,34,792/- was filed on 30.10.2007. During the course of assessment the assessing officer noticed that there was cash deposit transaction of Rs.13,60,000/- in the bank account of the assessee maintained with KapalCo-operative Bank on 31.03.2007. Since the assessee has not filed any reply therefore, the assessing officer has treated the amount as undisclosed income u/s 68 of the Act. 3. The assessee filed the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee. 4. During the course of appellate proceedings before us the ld. Counsel submitted that a search action u/s 132 of the Act was carried in the case of the assesseeand his group concerns on 10.09.2009. Since, search action was carried out, therefore, assessment proceedings initiated u/s 143(3) get abatedhowever, the AO has made invalid assessment u/s 143(3) of the Act on 23.12.2009 and made addition of Rs.13,60,000/-. The assessing officer has also issued noticed u/s 153A of the Act and against the proceedings initiated u/s 153A of the Act the assessee has filed application before the settlement commission. The settlement commission has passed order u/s 245D(4) of the Act on 20.06.2022 and computed the total income at Rs.31,61,182/- including the income which has been assessed u/s 143(3) of the Act to the amount of Rs.28,94,792/-.The ld. Counsel submitted that impugned addition made by the AO u/s 143(3) has been included in the income determined by the settlement commission P a g e | 3 ITA No.1152/Mum/2023 Jayesh Vinodkumar Tanna Vs. ACIT-25(3) therefore the decision of the ld. CIT(A) for sustaining such addition is not justified. On the other hand, the ld. D.R supported the order of lower authorities. 5. Heard both the sides and perused the material on record. Before completion of assessment proceedings u/s 143(3) of the Act a search and seizure action u/s 132 of the Act has been carried out in the case of the assessee on 10.09.2009. However, the AO has passed order u/s 143(3) of the Act on23.12.2009 in respect of pending assessment proceedings and made addition of Rs.13,60,000/- u/s 68A of the Act on account of cash deposit reflected in the saving bank of the assessee maintained with the Co-operative Bank. As discussed against the assessment proceedings initiated because of search action the assessee has made application before the Income Tax Settlement Commission and the settlement commission has passed order u/s 245D(4) of the Act and determined total income at Rs.31,61,182/- including the income assessed u/s 143(3) of the Act. Considering the above facts that same income has been taxed as per the order of the Settlement Commission therefore, the decision of the ld. CIT(A) in sustaining the impugned addition made u/s 143(3) of the Act is not justified. Accordingly, the grounds of appeal of the assessee are allowed. 6. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 23.10.2023 Sd/- Sd/- (KuldipSingh) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 23.10.2023 P a g e | 4 ITA No.1152/Mum/2023 Jayesh Vinodkumar Tanna Vs. ACIT-25(3) Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविवनवध, आयकर अपीलीय अवधकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai. No. Details Date Initials Designation 1 Draft dictated on Sr.PS/PS 2 Draft Placed before author Sr.PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member JM/AM 5 Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date on which file goes to the AR 10 Date of Dispatch of order