SHRI M.N. KOTIAN, MUMBAI V. THE ITO WD 2(1), MUMBAI

ITA 1543/MUM/2008

• Counselvise Citation: 154319914 RSA 2008
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-06-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 03-03-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RK GUPTA
• Assessee Lawyers: N A KULKARNI
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B,MUMBAI BEFORE SHRI R.S. SYAL (AM) & SMT. ASHA VIJAYARAGHAV AN (JM) I.T.A. NO.1543/MUM/2008 (A.Y.2000-01) SHRI N.M. KOTIAN, C/O. N.A. KULKARNI, 1 ST FLOOR, WADAL BLDG., MANPADA RD., DOMBIVLI (E). PAN: ABHPK3777E VS. INCOME-TAX OFFICER, WARD 2(1), 2 ND FLOOR, RANI MANSON, MURBAD RD., KALYAN (W). APPELLANT RESPONDENT APPELLANT BY SHRI N.A. KULKARNI. RESPONDENT BY SHRI R .K. GUPTA O R D E R PER R.S. SYAL, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT(A) ON 31-10-2007 IN RELATION TO THE ASSTT. YEAR 2000-01. 2. THIS APPEAL IS TIME-BARRED BY 15 DAYS. THE LD. A .R. EXPLAINED THE REASONS FOR SUCH DELAY. NO SERIOUS OBJECTION WAS TAKEN BY T HE LD. D.R. WE, THEREFORE, CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING ON MERITS. 3. THE ASSESSEE HAS FILED THE SOLITARY REVISED GROU ND OF APPEAL WHICH READS AS UNDER : THE CIT(A)1 THANE HAS ERRED IN NOT PROPERLY DECIDI NG THE YEAR OF ASSESSMENT ALSO ERRED IN CONFIRMING THE ASSESSMENT YEAR OF LOWER AUTHORITY. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 19-12-2000 DECLARING I NCOME OF RS.1,52,501/-. SURVEY U/S.133A WAS CARRIED OUT ON 13-03-2001. DURI NG THE COURSE OF SURVEY, ITA NO. 1543/M/08 N.M. KOTIAN 2 THE ASSESSEE DECLARED A SUM OF RS.22,06,200/- AS HI S ADDITIONAL INCOME FOR ASST. YEAR 2000-01 SUBJECT TO VERIFICATION. ON 14-0 3-2001, THE ASSESSEE ADDRESSED ONE LETTER TO DDI (INVESTIGATION) INTIMA TING THAT THE FIGURE OF ADDITIONAL INCOME OVER AND ABOVE THE REGULAR INCOME WAS FINALLY DETERMINED AT RS.19,03,800/- ON WHICH HE AGREED TO PAY TAXES ALSO . SINCE THE ASSESSEE DID NOT FILE THE RETURN OF INCOME DECLARING ADDITIONAL INCOME AGREED TO DURING THE COURSE OF SURVEY, NOTICE U/S.148 WAS ISSUED ON 05-0 3-2003. NO RETURN IN RESPONSE TO NOTICE U/S.148 WAS FILED. THE AO ISSUED NOTICES U/S.143(2) AND 143(1) REQUESTING THE ASSESSEE TO FILE THE RETURN A ND ATTEND HIS OFFICE. THOUGH THE ASSESSEE ATTENDED ON THE PRESCRIBED DATE BUT DI D NOT FILE ANY RETURN. SUBSEQUENTLY, NOTICE WAS ALSO ISSUED BY THE AO, IN RESPONSE TO WHICH HE ATTENDED THE OFFICE OF AO AND STATED THAT HE HAD FI LED THE RETURN FOR THE YEAR UNDER CONSIDERATION BUT HAD NOT PAID TAXES ON ADDIT IONAL INCOME DECLARED. THE AO NOTED THAT THE ASSESSEE HIMSELF AGREED DURING HE COURSE OF SURVEY U/S.133A AND ALSO FILED A CLARIFICATORY LETTER 14-0 3-2004 ADMITTING THE ADDITIONAL INCOME OF RS.19.03 LAKHS BUT WAS NOT OF FERED FOR TAXATION. HE, THEREFORE, MADE THE ADDITION TO THE EXTENT OF RS.1 9.03 LAKHS. THIS ADDITION WAS UPHELD IN THE FIRST APPEAL. HOWEVER, WHEN THE MATTE R CAME UP BEFORE THE TRIBUNAL, THE MATTER WAS RESTORED TO THE FILE OF CI T(A) WITH THE FOLLOWING DIRECTION : WE ARE OF THE VIEW THAT THE MATTER HAS TO BE RESTO RED BACK TO THE FILE OF THE LD. CIT(A). HE IS DIRECTED TO RE- CONSIDER THE ISSUE AND RECORD A CLEAR FINDING AS TO WHICH ASSESSMENT YEAR THE SAID UNDISCLOSED TRANSACTIONS RELATE. THE LETTER DATED 14/03/01 FILED BY THE ASSE SSEE REFERS TO THE INCOME OF RS.19,03,800/- OF THE CURR ENT YEAR AND THE ASSESSMENT YEAR 2000-01 IS NOT MENTIONED. NO DOUBT THE ASSESSEE HAS ACCEPTED SUCH UNDISCLOSED INCOME BUT SAME HAS TO BE TAXED IN THE RELEVANT ASSESSMENT YEAR. AS SUCH, THE MATTER IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO BE D ECIDED AFRESH IN VIEW OF THE OBSERVATIONS MADE ABOVE. ITA NO. 1543/M/08 N.M. KOTIAN 3 5. THE LD. CIT(A) AGAIN TOOK UP THE MATTER. A FTER HEARING THE ASSESSEE, THE ADDITION WAS RE-CONFIRMED IN THE YEAR UNDER CONSIDE RATION. 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. THERE IS NO DISPUTE ON THE FACT THAT THE SURVEY ACT ION WAS TAKEN UPON THE ASSESSEE U/S.133A ON 13-03-2001 IN WHICH THE ASSESS EE OFFERED SOME ADDITIONAL INCOME, THE FIGURE OF WHICH WAS EVENTUALLY AGREED T O BY THE ASSESSEE AT RS.19,03,800/- ON THE BASIS OF DETAILS INCORPORATED ON PAGE 3 OF THE ASSESSMENT ORDER. THE SAID INCOME WAS NOT OFFERED FOR TAXATION THOUGH THE ASSESSEE ADMITTED TO OFFER SUCH INCOME FOR TAXATION. NOW, FR OM THE GROUND NOTED ABOVE, IT IS SEEN THAT THE ASSESSEE IS ALLEGING THAT THE CIT( A) HAD FAILED TO PROPERLY DECIDE THE YEAR OF ASSESSMENT. ON A PERTINENT QUERY, THE L D. A.R. ADMITTED THAT THE SAID AMOUNT OF INCOME OF RS.19.03 LAKHS, WHICH WAS OFFER ED FOR TAXATION DURING THE COURSE OF SURVEY, WAS NEITHER INCLUDED IN THE REVIS ED RETURN FOR ASSTT. YEAR 2000-01 NOR IN ANY RETURN, BEING ORIGINAL OR REVISE D, FOR ASSTT. YEAR 2001-02. IT SHOWS THAT THOUGH THE ASSESSEE ADMITTED ADDITIONAL INCOME OF RS.19.03 LAKHS BUT FAILED TO OFFER IT FOR TAXATION IN ANY OF THE YEARS . IT IS OBSERVED FROM THE IMPUGNED ORDER THAT DURING THE COURSE OF SURVEY THE ASSESSEE AGREED FOR THE ADDITIONAL INCOME FOR THE ASSTT. YEAR 2000-01, WHIC H IS UNDER CONSIDERATION. IN SUCH A SITUATION, WE ARE SATISFIED THAT THE ADDITIO N HAS BEEN RIGHTLY MADE AND CONFIRMED IN THIS YEAR ITSELF. WE, THEREFORE, UPHOL D THE IMPUGNED ORDER. 7. IN THE RESULT, THE APPEAL IS DISMISSED. ITA NO. 1543/M/08 N.M. KOTIAN 4 ORDER PRONOUNCED ON THE 08TH DAY OF JUNE, 201 1. SD/- SD/- (SMT. ASHA VIJAYARAGHAVAN) (R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 08TH JUNE, 2011. NG: COPY TO : 1. ASSESSEE. 2.DEPARTMENT. 3 CIT(A)-1,THANE. 4 CIT-1, THANE. 5.DR,A BENCH,MUMBAI. 6. MASTER FILE (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. ITA NO. 1543/M/08 N.M. KOTIAN 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 02-06-11 SR.PS/ 2 DRAFT PLACED BEFORE AUTHOR 03-06-11 SR.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/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO AR 10 DATE OF DISPATCH OF ORDER *