SHRI JAY M. MATHURIA, MUMBAI V. THE ITO WD 12(2)(1), MUMBAI

ITA 1787/MUM/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9017 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 21-12-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 12-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: MATHURIA
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI PRAMOD KU MAR,(AM) ITA NO.1787/MUM/2008 ASSESSMENT YEAR : 1998-99 SHRI JAY M. MATHURIA C/O., J.M. MATHURIA & ASSOCIATES KASSINATH BUILDING, 2 ND FLOOR 6/4, JAGANNATH SHANKAR SHETH ROAD DHOBI TALAO MUMBAI-400 002. ..( APPELLANT ) P.A. NO. (AAGPM 7002 E) VS. INCOME TAX OFFICER WARD 12(2)(1) 137, AAYAKAR BHAVAN M.K. MARG MUMBAI-20. ..( RESPONDENT ) APPELLANT BY : SHR I M.S. MATHURIA RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER D.K. AGARWAL (JM). THIS APPEAL ARISES AS A RESULT OF ORDER DATED 4.6.2010 P ASSED BY THE TRIBUNAL IN MISCELLANEOUS PETITION NO.71/M/2010 A RISING OUT OF ITA NO.1787/MUM/2008 FOR ASSESSMENT YEAR 1998-99 WHEREIN TH E TRIBUNAL HAS RECALLED ITS ORDER DATED 5.8.2009 ONLY F OR THE LIMITED PURPOSE TO DISPOSE OF THE ISSUE PERTAINING TO ADDITION OF RS.34,598/-. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSIN G OFFICER WHILE TREATING THE SALE PROCEEDS RECEIVED BY THE ASSESSEE AMOUNTING TO RS.11,53,280/- AS UNEXPLAINED CASH CREDIT U/S.68 OF T HE INCOME ITA NO.1787/M/08 A.Y:98-99 2 TAX ACT, 1961 (THE ACT), ALSO ADDED RS.34,598/- BEING 3% COMMISSION ON ESTIMATE BASIS ON THE AFORESAID SALE VALUE U/S.69C OF THE ACT. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITION MADE B Y THE ASSESSING OFFICER. ON FURTHER APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL , THE TRIBUNAL WHILE RELYING ON THE ORDER OF THE SPECIAL B ENCH OF THE TRIBUNAL IN MANOJ AGGARWAL VS. DCIT 113 ITD 377 (DEL.)(SB) DE LETED THE ADDITION OF UNEXPLAINED CASH CREDIT OF RS.11,53,280/- . 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE SUBMITS THAT SINCE THE MAIN ADDITION OF RS.11,53,280/- HAS BE EN DELETED BY THE TRIBUNAL , THEREFORE, THE ADDITION OF COMMISSION OF RS.34,598/- MAY ALSO BE DELETED. 4. ON THE OTHER HAND THE LD. DR SUPPORTS THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) . 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE TRIBUNAL HAS DELETED THE ADDITION OF UNEXPLAINED CASH CREDIT U/S.68 RS.11,53,280/- WHICH WAS MADE BY THE ASSESSING OFFICER TREA TING THE SALE PROCEEDS RECEIVED BY THE ASSESSEE AS UNEXPLAINED CASH CRED IT. SINCE THE TRANSACTION OF SALE HAS BEEN HELD TO BE GENUIN E, THEREFORE, WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIF IED IN UPHOLDING THE ADDITION OF RS.34,598/- MADE BY THE ASSESSING OFFICER U/S.69C OF THE ACT ON THE GROUND THAT THE SAME IS COST FOR ARRANGIN G SUCH SALE. ACCORDINGLY THE ADDITION OF RS.34,598/- MADE BY THE ASSE SSING OFFICER ITA NO.1787/M/08 A.Y:98-99 3 AND SUSTAINED BY THE LD. CIT(A) IS DELETED. THE GRO UND TAKEN BY THE ASSESSEE IS, THEREFORE, ALLOWED. 6. IN THE RESULT ASSESSEE'S APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7.1.2011. SD/- SD/- (PRAMOD KUMAR) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 7.1.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.