MADHU P. KEWALRAMANI, MUMBAI V. ITO 19(3)(3), MUMBAI

ITA 1294/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9301 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 24-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: G R NAIK
• Keywords: Opportunity of being heard

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R.K.GUPTA , J M ITA NO. 1294 / MUM/ 20 1 2 ( ASSESSMENT Y EAR : 200 7 - 20 0 8 ) MADHU P. KEWALRAMANI, 301, DJ VU APTS. 77 HILL ROAD, B ANDRA (W) , MUMBAI - 50 VS. ITO 19 (3)(3) , MUMBAI PAN/GIR NO. : A AIPK 3430 C ( APPELLANT ) .. ( RESPONDENT ) /A SSES SEE BY : MR. G.R.NAIK /RE VENUE BY : MR. MOHIT JAIN DATE OF HEARING : 6 TH DEC ., 2012 DATE OF PRONOUNCEMENT : 12 TH DEC. ,2012 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 25 - 11 - 2011 OF LEANED CIT(A) - 30 , MUMBAI RELA TING TO THE ASSESSMENT YEAR 200 7 - 0 8 . 2 . THE FIRST ISSUE IS AGAINST CONFIRMING THE DISALLOWANCE OF RS. 56,014/ - , BEING DIFFERENCE BETWEEN THE GROSS AMOUNT SHOWN IN THE TDS CERT IFICATES AND DECLARED BY THE ASSESSEE. ITA NO. 1294 /20 1 2 2 3 . DURING THE ASSESSMENT, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SHOWN GROSS RECEIPTS OF RS. 16,80,309/ - . OUT OF WH I CH ASSESSEE HAS SH OWN RECEIPTS OF RS. 3,32,256/ - FROM AZTEE SOFTWARE LIMITED AND RS.3,43,2 42/ - FROM M/S TRIGENT SOFTWARE LIMITED, WHEREAS, AS PER TDS CERTIFICATE, THESE RECEIPT S ARE OF RS. 3,65,740/ - AND RS. 3,65,772/ - . ACCORDINGLY, THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE EXCESS RECEIPT BE NOT ADDED TO THE TOTAL INCOME. AS PER THE ORDER OF THE ASSESSING OFFICER, NO EXPLANATION WAS OFFERED. ACCORDINGLY, HE ADDED THE DIFFERENCE TOTALING TO RS. 56,014/ - . LEARNED CIT(A) HAS ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 4 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON R ECORD, I FOUND THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER. AS PER SUBMISSIONS OF LEARNED AR , IT WAS SUBMITTED THAT IN FACT, AN ORDER WAS CANCELLED WHICH WAS NOT TAKEN INTO CONSIDERATION BY THE PARTY FROM WHO THE RECEIPTS WERE REC EIVED AND ACCORDINGLY THEY ISSUED CERTIFICATE OF THE ORIGINAL RECEIPT SHOWN BY THEM. IT HAS ALSO BEEN REQUESTED BY THE LEARNED AR THAT THE MATTER CAN BE SENT BACK TO THE FILE OF THE ASSESS ING OFFICER, SO THAT RECONCILIATION AS WELL AS AMENDED CERTIFICATE C OULD BE FILED. IN VIEW OF THESE FACTS, I RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE IT AFRESH AFTER AFFORDING THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . THE NEXT ISSUE IS IN REGARD TO CONFIRMING ADDITION OF RS. 1,79,907/ - . THE ASSESSING OFFICER NOTED THAT THIS AMOUNT HAS BEEN INTRODUCED BY ITA NO. 1294 /20 1 2 3 THE ASSESSEE AS CAPITAL BY DEPOSITING THE CASH IN BANK . SINCE NO DETAILS WERE FILED, THEREFORE, HE ADDED THE SAME UNDER SECTION 68. LEARNED CIT(A) ALSO CONFIRMED THE ACTION OF THE ASSES SING OFFICER. 6 . AFTER CONSIDERING THE SUBMISSION OF THE LEARNED AR THAT THE ASSESSEE COULD NOT FILE RECONCILIATION OF CASH AVAILABLE IN PAST SAVINGS THE SOURCE OF DEPOSIT IN THE BANK AS THE ASSESSEE IS A LADY AND COULD NOT GATHER THE REQUIRED DETAILS. TH EREFORE, IT WAS REQUESTED THAT THE MATTER SHOULD BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER, FURTHER GIVING ONE OPPORTUNITY. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ORDER AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . REMAINING ISSUE IS AGAINST CONFIRMING 20% OF TELEPHONE EXPENSES AND STAFF WELFARE EXPENSES. 8 . THE ASSESSING OFFICER DISALLOWED 20% EXPENSES. LEARNED CIT(A) HAS ALSO CONFI RMED THE ACTION OF THE ASSESSING OFFICER. 9 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, I FEEL THAT IF A DISALLOWANCE OF RS. 5000/ - OUT OF TELEPHONE EXPENSES AND RS. 2000/ - OUT OF STAFF WELFARE EXPENSES, IS CONFIRMED THAT WILL ME T THE END OF JUSTICE AS DISALLOWANCE MADE CONFIRMED BY THE LOWER AUTHORITIES IS ON HIGHER SIDE. I ORDER ACCORDINGLY. ITA NO. 1294 /20 1 2 4 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF DEC. 2012. 2012 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 12 /12 / 2012 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) - X, MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI