LOKESH JAIN, MUMBAI V. ITO 18(2)(4), MUMBAI

ITA 2003/MUM/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3534 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 13-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N M PORWAL
• Section: 143(3); 68; 144

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 2003 / MUM/ 20 1 3 ( ASSESSMENT Y EAR : 200 1 - 20 0 2 ) SHRI LOKESH JAIN, 3, BOTAWALA CHAWL, NEW PRABHADEVI ROAD, PRABHADEVI, MUMBAI - 400 025 VS. ITO WD 18 ( 2 )( 4 ), MUMBAI PAN/GIR NO. : A DKP J 2969 A ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI N.M. PORWAL /REVENUE BY : SHRI ARUN KUMAR DATE OF HEARING : 2 3 RD MAY , 201 3 DATE OF PRONOUNCEMENT : 12 TH JUNE 2013 O R D E R TH IS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 11 - 1 - 2013 OF CIT(A) - 1 6 , MUMBAI RELA TING TO THE ASSESSMENT YEAR 200 1 - 2002 . 2 . THE ASSESSEE IS OBJECTING IN CONFIRMING THE ADDITION OF RS. 2,35,000/ - ON ACCOUNT OF DEPOSIT IN THE BANK 3 . THE FACTS GIVING RISE TO THIS APPEAL ARE THAT DURING THE ASSESSMENT PROCEEDING THE AO ASKED THE ASSESSEE TO EXPLAIN THE BANK DEPOSIT OF RS. 2,35,000/ - IN THE BANK, THEREFORE, HE MADE ADDITION UNDER SECTION 68 OF THE ACT. 4 . ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) , BEF ORE WHOM IT WAS SUBMITTED THAT THE ADDITION HAS ALREADY BEEN MADE FOR THE ASSESSMENT OF THE ASSESSEE COMPLETED UNDER SECTION 158BD, THEREFORE, THE ADDITION ITA NO. 2003 /20 1 3 2 MADE IN THE HANDS OF THE INDIVIDUAL IS NOT JUSTIFIED. HOWEVER, THE CIT(A) NOTED THAT THE ADDITION MA DE BY THE AO WAS NOT PRIOR TO THE ASSESSMENT COMPLETED UNDER SECTION 158BD OF THE ACT. THEREFORE, THE ADDITION WAS RIGHTLY MADE BY THE AO. 5 . A GGRIEVED WITH THE ORDER OF THE CIT(A), THE ASSESSEE IS NOW IN APPEAL HERE BEFORE THE TRIBUNAL. 6 . THE CONTENT ION RAISED BEFORE THE AUTHORITIES BELOW WERE REITERATED HERE BEFORE THE TRIBUNAL. IT WAS ALSO SUBMITTED THAT THIS IS SECOND ROUND BEFORE THE TRIBUNAL AS ON EARLIER OCCASION THE MATTE WAS REMANDED BACK TO THE AO FOR PASSING A FRESH ORDER AFTER AFFORDING OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . ON THE OTHER HAND, LEARNED DR, PLACED RELIANCE ON THE ORDER OF CIT(A). 8 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, I FOUND THAT THE ASSESSEE DESERVES TO SUCCEED IN PART. I NOTED T HAT IN THIS CASE THE ASSESSMENT UNDER SECTION 158 BD READ WITH SECTION 144 WAS ALSO COMPLETED VIDE ORDER DATED 27 - 9 - 2005 . IT WAS FOUND THAT IN CASE OF ONE SHRI JITENDRA KUMAR GANDHI AN AMOUNT OF RS. 9,25,000/ - WAS FOUND IN CASH. IT WAS EXPLAINED IN CASE OF JITENDRA KUMAR GANDHI THAT AN AMOUNT OF RS.2,25,000/ - WAS RECEIVED FROM THE PRESENT ASSESSEE I.E. SHRI LOKESH JAIN . IN THE CASE OF SHRI LOKESH JAIN , WHILE THE ASSESSMENT PROCEEDING UNDER SECTION 158BD WAS GOING ON, THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF RS. 2,25,000/ - GIVEN TO JITENDRA KUMAR ITA NO. 2003 /20 1 3 3 GANDHI. IT WAS EXPLAINED THAT THE AMOUNT OF RS. 2,25,000/ - WAS GIVEN OUT OF BANK BALANCE OF RS. 2,35,000/ - . IT WAS EXPLAINED THAT THE AMOUNT OF RS. 1 LAKH EACH WAS WITHDRAWN ON 1 - 1 - 2001 AND 2 - 1 - 2001, HOWEVER, TH E AO WAS NOT SATISFIED, THEREFORE, HE MADE THE ADDITION OF RS. 2, 2 5,000/ - IN THE HANDS OF THE ASSESSEE BY OBSERVING THAT UNDISCLOSED INCOME BEING CASH OF RS. 2,25,000/ - CLAIMED TO HAVE BEEN CONTRIBUTED BY THE ASSESSEE IN RESPECT OF CASH RECEIVED OF RS. 9,25,0 00/ - . IT IS SEEN THAT THE AMOUNT OF RS. 2,25,000/ - WAS WITHDRAWN FROM THE BANK ON 1 - 1 - 2001 AND 2 - 1 - 2001 BY CHEQUE OF RS. 1 LAKHS EACH, THEREFORE, IT CANNOT BE SAID THAT THE AMOUNT OF RS. 2,25,000/ - WAS NOT OUT OF THE AMOUNT FOUND DEPOSITED IN THE BANK OF THE ASSESSEE. THE ADDITION OF RS. 2, 2 5,000/ - HAS ALREADY BEEN MADE WHILE COMPLETING THE ASSESSMENT UNDER SECTION 158BD, THEREFORE, AT LEAST THE ADDITION OF RS. 2,25,000/ - SHOULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE WHILE COMPLETING THE ASSESSMENT UNDER S ECTION 143(3) . HOWEVER, THE ADDITION OF REMAINING AMOUNT OF RS. 10,000/ - WILL REMAIN IN THE HANDS OF THE ASSESSEE BECAUSE OUT OF RS. 2,35,000/ - , THE ADDITION OF RS. 2,25,000/ - WAS MADE WHILE COMPLETING THE ASSESSMENT UNDER SECTION 158BD. THERE CANNOT BE TWO A DDITION OF THE SAME AMOUNT FOR THE SAME YEAR. 9 . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I SUSTAIN THE ADDITION OF RS. 10,000/ - AND IN RESPECT OF RS. 2,25,000/ - THE MATTER IS REMANDED BACK TO THE FILE OF THE AO TO ASSESS EITHER IN THE HAN DS OF THE ASSESSEE IN ORDER COMPLETED UNDER SECTION 143(3) OR IN THE ASSESSMENT ORDER COMPLETED UNDER SECTION 158BD READ WITH SECTION 144 VIDE ORDER DATED 27 - 9 - 2005 AS DOUBLE ADDITION CANNOT BE MADE IN BOTH THE ITA NO. 2003 /20 1 3 4 ASSESSMENT OF SAME YEAR. IT IS THE CHOICE OF THE ASSESSEE WHETHER HE WANTS TO MAKE THE ADDITION IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) OR IN THE ASSESSMENT COMPLETED UNDER SECTION 158BD READ WITH SECTION 144 MENTIONED ABOVE. THE AO CAN ASK THE ASSESSEE I N WHICH ASSESSMENT ORDER HE WANTS TO SUSTAIN THE ADDITION OF THE REMAINING AMOUNT OF RS. 2,25,000/ - . I ORDER ACCORDINGLY. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF JUNE 2013 201 3 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI; DATED : 12/06 /2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGI STRAR) / ITAT, MUMBAI