ANUJ PRAVINCHANDRA SHAH, MUMBAI V. ASST CIT CEN CIR 42, MUMBAI

ITA 1232/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1122 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Loose papers
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.1232/MUM/2016 ASSESSMENT YEAR : 2011-12 SHRI ANUJ PRAVINCHANDRA SHAH, 46, HIRA NIWAS, 1 ST FLOOR, MODY STREET, FORT, MUMBAI [PAN : AADPS 4937 M] VS. ASST . COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 42, MUMBAI ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI SANJAY PARIKH , AR RESPONDENT BY : SHRI SATISHCHANDRA RAJORE , DR DATE OF HEARING : 2 8 - 11 - 201 8 DATE OF PRONOUNCEMENT : 30 - 11 - 201 8 O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-49 , MUMBAI, DATED 01-01-2016 IN APPEAL NO. CIT(A)-49/IT-39/2014 -15. THE ASSESSMENT WAS FRAMED BY THE ACIT, CENTRAL CIRCLE-4 2, MUMBAI U/S. 143(3) OF THE INCOME TAX ACT, 1961 [HEREIN AFT ER REFERRED TO AS ACT] FOR THE AY 2011-12, VIDE HIS ORDER DATED 28-03-2014. ITA NO. 1232/MUM/2016 2 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ADDITION OF 29,01,843/- BASED ON LOOSE PAPERS AS AGAINST 12,00,000/-. FOR THIS, ASSESSEE HAS RAISED THE FOL LOWING GROUND OF APPEAL: 1. THE LEARNED CIT(APPEALS) OUGHT TO HAVE DELETED THE ENTIRE ADDITION OF 29,01,843/- BASED ON LOOSE PAPERS AS AGAINST 12,00,000/- DELETED BY HIM. 3. BRIEFLY STATED FACTS ARE THAT A SURVEY ACTION HA S BEEN CONDUCTED ON THE ASSESSEE ON 10-01-2011. THE SURVE Y ACTION WAS A PART OF A SEARCH ACTION CONDUCTED ON THE LODH A GROUP OF COMPANIES. DURING THE COURSE OF SEARCH OPERATION ON LODHA GROUP OF CASES, LOOSE PAPERS NUMBERED 1 TO 49 SEIZE D AND IDENTIFIED AS ANNEXURE A-1 FROM THE PREMISES OF SHR I SOMNATH NAIR ON WHOM ALSO SEARCH WAS CONDUCTED. FROM THESE PAPERS, THE AO MADE ADDITION AMOUNTING TO 19,01,843/-. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). TH E CIT(A) ALSO CONFIRMED THE ADDITION. AGGRIEVED, NOW, THE ASSESS EE CAME IN SECOND APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. BEFORE US, ASSESSEE CONTENDED THAT OUT OF THIS 19,01,843/-, IT IS CONTESTING ONLY FOR 15 LAKHS. ITA NO. 1232/MUM/2016 3 LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE SEIZED PAPERS FILED IN ASSESSEES PAPER BOOK AT PAGE NOS. 11 & 12, WHEREIN ON PAGE 11 THE RELEVANT ENTRIES OF 5 LAKHS ON 27-12- 2010 AND ANOTHER ENTRY OF 5 LAKHS ON 27-12-2010 IS REFLECTD. ON PAGE NO. 12 OF THE SEIZED PAPERS THE ENTRY OF 10 LAKHS IS DATED 04-01-2011 AND ANOTHER ENTRY OF 10 LAKHS ON 03-01- 2011 IS REFLECTED. LD. COUNSEL FURTHER DREW OUR AT TENTION TO THE PEAK WORKED OUT BY THE ASSESSEE AND THE RELEVANT EN TRIES DISCLOSED, READS AS UNDER: ANUJ P. SHAH A.Y. 2011-2012 WORKING OF PEAK SR.NO. DATE PAID RECEIPT BALANCE 1 .. .. .. .. 2 .. .. .. ... .. .. .. .. .. 14 27.12.2010 28.12.2010 5,00,000 44,50,000 15 .. .. .. .. .. .. .. .. .. 19 03.01.2011 04.01.2011 10,00,000 -- 61,02,103 4.1. LD. COUNSEL FOR THE ASSESSEE CLEARLY STATED TH AT ONCE THE ENTRIES ARE CONSIDERED FOR 27-12-2010 I.E., AMOUNTI NG TO 5 LAKHS EACH, THE SAME CANNOT BE CONSIDERED AGAIN IN THE PEAK. SIMILARLY ABOUT 10 LAKHS ALSO, THE 10 LAKHS ON 04-01-2011 ITA NO. 1232/MUM/2016 4 AND 03-01-2011 IS ONCE CONSIDERED, IT CANNOT BE CON SIDERED AS DOUBLE. AND, THIS TANTAMOUNT TO DOUBLE ADDITION IN THE CASE OF ADDITION PEAK ENTRY. WE FIND FORCE IN THE ARGUMENT OF LD. COUNSEL AND HENCE WE DELETE THE ADDITION OF 15 LAKHS OUT OF THE TOTAL PEAK COMPUTED BY AO AT 19,01,843/-. WHILE CONSIDERING THE PEAK ADDITION THE ENTRY RECORDED IN THE LOOSE PAPERS CANNOT BE CONSIDERED TWICE I.E. THE SAME ENT RY. HENCE, WE DELETE THE ADDITION OF 15 LAKHS AND ALLOW THE APPEAL OF ASSESSEE PARTLY. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF NOVEMBER, 2018 SD/- SD/- (MANOJ KUMAR AGGARWAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 30 TH NOVEMBER, 2018 TNMM ITA NO. 1232/MUM/2016 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A),MUMBAI 4. THE CIT 5. DR, A BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI