NITIN M. PARAKH HUF, NAVI MUMBAI V. ITO WD 22(3)(3), NAVI MUMBAI

ITA 162/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6009 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 12-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: DR P DANIAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' B ' BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 162 /MUM/ 2016 (ASSESSMENT YEAR: 2010 - 11 ) SHRI NITIN M. PARAKH HUF F - 149, APMC ONION POTATO MARKET , TURBHE NAVI MUMBAI 400705 VS. INCOME TAX OFFICER - 22(3)(3) MUMBAI PAN AACJM4873Q APPELLANT RESPONDENT APPELLANT BY: DR. P. DANIAL RESPONDENT BY: SHRI SUMAN KUMAR DATE OF HEARING: 05 .07.2018 DATE OF PRONOUNCEMENT: 12 . 07.2018 O R D E R PER R.C. SHARMA, AM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 26 , MUMBAI DATED 23 . 12 .201 5 FOR A.Y. 20 10 - 1 1 IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED C.I.T.(A) ERRED IN CONFI RMING AN AMOUNT OF RS.9,18,220/ - EVE N THOUGH CONFIRMATIONS WERE FILED AGAINST CESSATION OF LIABILITY WHEN THE A.O. DID NOT DISTURB NEITHER PURCHASES NOR THE SALES. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING AN AMOUNT OF RS.6,30,076/ - BEING THE PURCHASE PRICE ALREADY PAID BY THE ASSESSEE EVEN THOUGH THE LIABILITY WAS OF PREVIOUS YEARS. 3. THE LEARNED CIT(A) ERRED IN CONFIRMING THE A.O.'S DISTURBANCE OF THE ASSESSMENT OF EAR LIER YEARS AND CONFIRMING THE BALANCE IN SUNDRY CREDITORS AGAINST THE DECISION OF THE S.C. IN THE CASE OF CIT V. KESARIA TEA CO. LTD. ITA NO. 162 /MUM/ 2016 SHRI NITIN M. PARAKH HUF 2 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITIONS ERRONEOUSLY MADE OUT OF SUNDRY CREDITORS BY THE A.O. 3. RIVAL CONTEN TIONS HAVE BEEN HEARD AND RECORD PERUSED. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN TRADING OF ONION, GARLIC AND POTATO. DURING THE SCRUTINY ASSESSMENT THE AO MADE ADDITION ON ACCOUNT OF CESSATION OF LIABILITY. BY THE IMPUGNED ORDER T HE CIT(A) DELETED THE ENTIRE ADDITION EXCEPT THE FOLLOWING AFTER CALLING FOR REMAND REPORT FOR WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US: - 1. NAMDEV JADHAV (KOLHE) ` 3,21,360/ - 2. SHANKAR D. RASAL ` 1,09,564/ - 3. MAHENDRA BORA ` 2,28,960/ - 4. MANISHKUMAR AJME RA ` 2,58,336/ - --------------- ` 9,18,220 THE CIT(A) HAS ALSO CONFIRMED ADDITION OF ` 6,30,076/ - BEING PURCHASES ALLEGED TO BE ALREADY PAID BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT DURING A.Y. 2016 - 17 THE ASSESSEE HAS PAID THE OUTSTANDING AMOUNT TO NAMDEV JAHADAV AMOUNTING TO ` 3,21,360/ - BY WAY OF ACCOUNT PAYEE CHEQUE. IN RESPECT OF THE AMOUNT DUE FROM MANISHKUMAR AJMERA AND SHANKAR D. RASAL, THE AMOUNT HAS BEEN WRITTEN BACK IN THE PROFIT & LOSS ACCOUNT DURING A.Y. 2017 - 18 RELEVANT TO FINANCIAL YEAR 2016 - 17 AND ALSO PAID TAX THEREON. 5. IN VIEW OF THE ABOVE WE RESTORE THE MATTER BACK TO THE FILE OF THE AO TO VERIFY THE FACTUAL P OSITION AND IF THE AO FOUND THAT AMOUNT DUE TO NAMDEV JHADAV HAS ALREADY BEEN PAID BY CHEQUE, THEN NO ADDITION IS WARRANTED. SIMILARLY THE AO SHOULD VERIFY IF THE ASSESSEE HAS, FOR THE AMOUNT DUE FROM MANISHKUMAR AJMERA, MAHENDRA BORA AND SHANKAR D. RASAL WRITTEN BACK IN THE PROFIT & LOSS ACCOUNT FOR A.Y. 2017 - 18 AND ALSO PAID TAX THEREON, NO ADDITION SHOULD BE MADE. WE DIRECT ACCORDINGLY. ITA NO. 162 /MUM/ 2016 SHRI NITIN M. PARAKH HUF 3 6. SIMILARLY THE AMOUNT DUE TO VIPUL TRADERS AMOUNT TO ` 6,30,076/ - WAS ALSO ALLEGEDLY TO BE PAID ON 31.03.2012. THE ASSESS EE HAS ALSO FILED CONFIRMATION AND PAN CARD OF VIPUL TRADERS. SINCE THE PAYMENT HAS BEEN MADE, THE ADDITION SHOULD NOT BE MADE AGAIN. IN THE INTEREST OF JUSTICE WE RESTORE THIS ISSUE ALSO TO THE FILE OF THE AO TO VERIFY THE ACTUAL PAYMENT BY VERIFYING THE CASH BOOK AS WELL AS FROM THE PARTY CONCERNED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY, 2018 . SD/ - SD/ - ( AMARJIT SINGH ) ( R.C. SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 12 TH JULY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) - 26 , MUMBAI 4. THE CIT - 28 , MUMBAI 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.