M/S. DARSHAN KHAREDIA, MUMBAI V. THE ITO 23(2), MUMBAI

ITA 2079/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1034 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 29-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 26-03-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Capital expenditure; TDS
• Section: 271(1)(c); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 2079/MUM/2008 (ASSESSMENT YEAR: 2005-06) SHRI DARSHAN KHAREDIA INCOME TAX OFFICER - 23(2) C/O D'WIN ALUMINIUM MUMBAI 151, VEER SAMBHAJI NAGAR VS. MULUND (W), MUMBAI 400080 PAN - AACPK 9654 L APPELLANT RESPONDENT APPELLANT BY: SHRI K. GOPAL RESPONDENT BY: SHRI SUNIL KUMAR SINGH O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- XXIII, MUMBAI DATED 04.02.2008. 2. ASSESSEE HAS RAISED ONE GROUND CONTAINING SUB-GROUN DS FROM (A) TO (G) ON VARIOUS ADDITIONS MADE BY THE A.O., WHICH WERE D ISCUSSED AND DECIDED AS UNDER. GROUND NOS. 1(E) & 1(F) ARE NOT PRESSED BEIN G SMALL ADDITIONS MADE TOWARDS ENTERTAINMENT EXPENSES AND DEPOSIT FOR RENT OF RS.5,000/-. THESE ARE TREATED AS WITHDRAWN. 3. WE HAVE HEARD THE LEARNED COUNSEL AND THE LEARNED D .R. IN THIS REGARD. 4. GROUND NO. 1(A) PERTAINS TO ADDITION OF RS.30,987/- TO THE TOTAL INCOME OUT OF CAPITAL EXPENDITURE TOWARDS PURCHASE OF OFFI CE PREMISES. 5. THE ASSESSEE PURCHASED A SHOP/OFFICE IN THE HALL MA RK MALL AND SHOWN THE INVESTMENT OF RS.9,27,167/- IN THE BOOKS OF ACC OUNT. THE A.O. OBTAINED COPY OF THE AGREEMENT AND NOTICED THAT THE TOTAL VA LUE PAID AS PER THE AGREEMENT INCLUDING STAMP DUTY AND REGISTRATION FEE S WAS RS.8,98,180/- AND THUS THERE WAS AN EXCESS CLAIM OF RS.30,987/- AND T HE SAME WAS TREATED AS INCOME OF THE ASSESSEE. IT WAS THE EXPLANATION OF T HE ASSESSEE THAT THE ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 2 AMOUNT OF RS.30,840/- WAS PAID TO THE BUILDER AS OTHER AMOUNTS AND ALSO CORRECTED THE STAMP DUTY AMOUNT THAN THAT WAS TAKEN BY THE A.O. NOT SATISFIED WITH THE EXPLANATION THE A.O. MADE THE AD DITION BY DISALLOWING THE AMOUNT SO CLAIMED AND TREATING IT AS INCOME. THE CI T(A) CONSIDERED THE EXPLANATION GIVEN BY THE ASSESSEE AND STATED THAT T HE ASS 6. ESSEE HAS GIVEN VARIOUS DETAILS OF PAYMENTS OF RS.2 .00,000/-, RS.5,00,000/-, RS.1,47,000/- AND RS.80,840/- TOTALL ING TO RS.9,27,167/- BUT THIS IS NOT VERIFIABLE AS THE DEED HAS DIFFERENT P AYMENTS SO HE CONSIDERED THE EXPLANATION OF THE ASSESSEE AS INCONSISTENT AND CON FIRMED ACTION OF THE A.O. 7. WE HAVE CONSIDERED THE ARGUMENTS OF THE LEARNED COU NSEL AND PERUSED THE ORDERS OF THE A.O. AND CIT(A). IT WAS ASSESSEE S EXPLANATION THAT THE TOTAL AMOUNT PAID FOR THE OFFICE PREMISES WAS RS.9,29,167 /- AND THERE IS NO DISPUTE ABOUT THE PAYMENTS MADE BY CHEQUES, WHICH W ERE EXTRACTED IN CIT(A)S ORDER IN PARA 4. THE A.O. DOUBTED PAYMENT OF RS.30,840/- PAID TO THE BUILDER DIRECTLY BUT NOT THROUGH THE AGREEMENT. THE ASSESSEES EXPLANATION IS THAT THIS AMOUNT OF RS.30,840/- WAS PAID VIDE PARA 10 OF THE AGREEMENT TOWARDS LEGAL CHARGES AND SECURITY DEPOSIT, ETC. WH ICH THE CIT(A) CONSIDERED THAT THE TOTAL COMES TO RS.25,450/- BUT STILL HE CO NFIRMED THE ENTIRE AMOUNT OF RS.30,840/-. 8. AFTER EXAMINING THE PURCHASE DEED AND EXPLANATION O F THE ASSESSEE, WE ARE ENABLE TO ACCEPT THE STAND OF THE REVENUE AUTHO RITIES. FIRST OF ALL IT IS ASSESSEES EXPLANATION THAT HE HAD PAID AN AMOUNT O F RS.9,27,167/- TOWARDS COST OF PURCHASE OF PROPERTY IN THE MALL. IN CASE T HE A.O. DOUBTS THE FULL PAYMENT THE AO CAN RE DETERMINE THE COST OF ASSET, IN CASE THE ASSESSEE CLAIMED DEPRECIATION, OTHERWISE THE A.O. CAN EXAMIN E THE SOURCE OF INVESTMENT. HE HAS NO AUTHORITY OR JURISDICTION TO CONSIDER THE AMOUNT AS INCOME OF THE ASSESSEE. THIS IS AN INVESTMENT MADE BY THE ASSESSEE OUT OF OWN SOURCES AND RECORDED IN THE BOOKS. HOW EXCESS A MOUNT, IF AT ALL, PAID GOT CONSIDERED AS INCOME IS NOT UNDERSTANDABLE. THERE I S NO PROVISION TO TREAT PART OF THE INVESTMENT PAID THROUGH THE BOOKS OF AC COUNT AS INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATIO N. NONE OF THE PROVISIONS OF SECTIONS 68 & 69 WILL APPLY TO THIS. FOR THESE R EASONS, THE ADDITION MADE BY ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 3 THE A.O. IS DELETED. NEEDLESS TO SAY THAT THE ASSES SEE HAS GIVEN PROPER EXPLANATION AND THERE IS NO DISCREPANCY IN THE AMOU NT PAID. BOTH ON FACTS AND IN LAW THE ADDITION CANNOT BE SUSTAINED. GROUND ALLOWED. 9. GROUND NO. 1(B) PERTAINS TO CONFIRMATION OF ADDITIO N OF RS.24,000/- TO THE TOTAL INCOME OUT OF THE RENT EXPENDITURE. 10. ASSESSEE PAID A TOTAL RENT OF RS.1,37,000/- AND DEB ITED TO THE P & L ACCOUNT. THE A.O. NOTICED THAT THE ACTUAL RENT IN R ESPECT OF THE SHOP WAS @ RS.9,000/- PER MONTH FOR 9 MONTHS PERIOD. HE CONSID ERED THAT THE ASSESSEE HAS PAID ONLY AN AMOUNT OF RS.89,000/- TOWARDS FIRS T SHOP AND RESTRICTED THE AMOUNT TO RS.89,000/-. WITH REFERENCE TO THE SECOND SHOP THE ASSESSEE HAS PRODUCED RECEIPTS FOR 12 MONTHS AT RS.12,000/- STAR TING FROM MARCH 2004. THE A.O. NOTICED THAT THE AGREEMENT WAS FOR A PERIO D OF 33 MONTHS FROM 01.12.2004. CONSEQUENTLY HE WAS OF THE OPINION THAT THE ASSESSEE HAS PAID RS.3000/- PER MONTH AFTER 01-12-04 AND NOT FOR PER IOD FROM 30.03.2004 TO 30.11.2004. EVEN THOUGH HE DOUBTED THE PAYMENT FOR A PERIOD OF 9 MONTHS HE DISALLOWED THE ENTIRE AMOUNT OF RS.36,000/- PAID FO R THE SECOND PROPERTY. BEFORE THE CIT(A) THE ASSESSEE EXPLAINED THAT THE P AYMENTS WERE MADE AS UNDER: - 1 ST PREMISES: A) 15 TH APRIL TO JUNE = @ 8,000 P.M. X 2 2 MONTHS RS.20,000/- B) JULY 04 TO MARCH 05 = @9,000 P.M. X 9 = 9 MONTHS RS.81,000/- TOTAL: RS.1.01,000/- 2 ND PREMISES @ 3,000 X 12 MONTHS = RS.36,000/- GRAND TOTAL: RS.1,01,000 + RS.36,000 = RS.1,37,000 /- 11. HOWEVER, THE CIT(A) CONSIDERED THAT THERE WAS NO ME NTION THAT THE RENEWAL AGREEMENT IS FOR THE SECOND PREMISES. HE, H OWEVER, STATED THAT THE PROPERTY WAS USED ONLY FOR 4 MONTHS DURING THE YEAR . ACCORDINGLY HE HELD THAT ONLY RS.12,000/- SHOULD HAVE BEEN ALLOWED INSTEAD O F DISALLOWING THE ENTIRE AMOUNT OF RS.36,000/-. HE ALLOWED THE SUM OF RS.12, 000/- AND DISALLOWED THE BALANCE RS.24,000/-, WHICH WAS CONTESTED IN THE GROUND. ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 4 12. AFTER EXAMINING RECORD AND PERUSING THE EXPLANATION , WE ARE UNABLE TO SUSTAIN THE ORDER OF THE CIT(A) IN THIS REGARD. THE ASSESSEE IS IN OCCUPATION OF THE TWO PROPERTIES FOR WHICH RENTS WERE PAID AS EXP LAINED ABOVE. ASSESSEE HAS PRODUCED THE RENT RECEIPTS @ RS.3,000/- PER MONTH F OR ALL THE 12 MONTHS. THE PROPERTY WAS IN OCCUPATION FROM EARLIER YEARS AND T HE AGREEMENT DATED 01.12.2004 WAS ONLY RENEWAL OF AGREEMENT AS THE ASS ESSEE WAS ALREADY IN POSSESSION OF THE PROPERTY AND WAS PAYING RENT EARL IER ALSO. SINCE THE ASSESSEE HAS FURNISHED ALL THE RENT RECEIPTS FOR 12 MONTHS, THERE IS NO BASIS FOR A.O. TO DISALLOW THE ENTIRE RENTAL AMOUNT, EVEN THOUGH HE CONSIDERS THAT THE PROPERTY WAS NOT IN OCCUPATION FOR 9 MONTHS. TH E CIT(A) WAS GRACIOUS ENOUGH TO ALLOW 4 MONTHS RENT ON THE PRETEXT THAT T HERE IS NO MENTION OF RENEWAL IN THE AGREEMENT. CONSIDERING THE ARGUMENTS AND THE RECEIPTS FILED BY THE ASSESSEE, WE ARE OF THE OPINION THAT THE AUT HORITIES BELOW ARE NOT JUSTIFIED IN DISALLOWING THE ENTIRE RENTAL CLAIMED FOR THE PROPERTIES OCCUPIED BY THE ASSESSEE. IT IS NOT THE CASE OF THE A.O. THAT T HE ASSESSEE HAS NOT OCCUPIED THE PROPERTY NOR UTILISED FOR BUSINESS PURPOSES. IN VIEW OF THIS, THE A.O. IS DIRECTED TO ALLOW THE RENTAL AMOUNT AS CLAIMED. 13. GROUND NO. 1(C) PERTAINS TO ADDITION OF RS.10,000/- TO THE TOTAL INCOME OUT OF PROFESSIONAL FEES. 14. THE A.O. NOTICED THAT THE ASSESSEE HAS DEBITED PROF ESSIONAL FEES OF RS.10,000/-. THE ASSESSEE EXPLAINED THAT THE PROFES SIONAL FEES OF RS.10,000/- WAS A PROVISION FOR INCOME TAX AND AUDIT FEES. THE A.O. DISALLOWED THE AMOUNT STATING THAT NO PROVISIONS CAN BE ALLOWED IN I.T. ACT AND THE SAME IS ADDED TO THE INCOME. FURTHER, HE ALSO NOTED THAT TH E SO CALLED PROVISION IS NOT APPEARING IN THE BALANCE SHEET OF THE ASSESSEE. BEF ORE THE CIT(A) IT WAS EXPLAINED THAT THE AMOUNT OF RS.10,000/- WAS A PROV ISION FOR INCOME TAX AND AUDIT FEES PAYABLE AND A COPY OF THE LEDGER ACCOUNT IN THE CASE OF TALATI & CO. WAS FURNISHED. THE CIT(A) NOTICED THAT ON 31.03.200 5 PROFESSIONAL FEES HAS BEEN PROVIDED ONLY AS PER VOUCHER NO. 69 & 70. PAYM ENT OF RS.25,000/- SHOWN TO HAVE BEEN MADE WAS AGAINST RS.20,000/- THA T HAD BEEN BROUGHT FORWARD AS OPENING CREDIT BALANCE. THUS HE GIVES A FINDING THAT RS.10,000/- WAS A PROVISION ONLY. ACCORDINGLY HE CONFIRMED ACTI ON OF THE A.O. ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 5 15. AFTER CONSIDERING THE ARGUMENTS OF THE LEARNED COUN SEL AND EXPLANATION AND ACCOUNT COPY ON RECORD, WE ARE OF THE OPINION T HAT THE ASSESSEE DESERVES TO SUCCEED ON THIS GROUND. THERE IS NO BASIS FOR DI SALLOWING THE AMOUNT OF EXPENSES PROVIDED FOR INCOME TAX AND AUDIT FEES. TH E BASIS FOR DISALLOWANCE BY THE A.O. AND CONFIRMATION BY THE CIT(A), AT THE BEST, CAN BE STATED AS IMMATURE AND ON PRESUMPTIONS WITHOUT UNDERSTANDING THE PRINCIPLE OF ACCOUNTANCY. THERE IS NO NEED TO STATE MORE THAN TH IS. THE A.O. IS DIRECTED TO ALLOW THE AMOUNT. GROUND ALLOWED. 16. GROUND NO. 1(D) PERTAINS TO CONFIRMATION OF ADDITIO N OF RS.12,46,950/- TO THE TOTAL INCOME BEING DIFFERENCE IN SALE EXPENS ES. 17. THE ADDITION MADE BY THE A.O. CAN AT BEST BE EXTRAC TED TO UNDERSTAND THE ISSUE. THIS IS AS UNDER: - 4. THE ASSESSEE WAS ASKED VIDE THIS OFFICE LETTER DATED 28.05.2007 TO FURNISH THE ACCOUNT OF AUTUMN ESTATES AND INVEST MENTS PVT. LTD. FOR ADVANCE OF RS.12,46,950/- IN THE LAST YEAR AND OFFE RED TO TAX IN THE CURRENT YEAR. VIDE LETTER DATED 26.06.2007 THE ASS ESSEE FURNISHED THE COPY OF THE SAID LEDGER ACCOUNT WHICH SHOWS SALES A ND LABOUR CHARGES OF RS.18,82,650/- INCLUDING RS.12,46,950/-. HOWEVER , THE ASSESSEE HAS NOT FURNISHED DETAILED SALES AND LABOUR CHARGE ACCOUNTS. THE STATEMENT OF SALES EXCEEDING RS.100,000/- FURNISHED BY THE ASSESSEE SHOWS THE AMOUNT OF RS.635,700/- RECEIVED FROM AUTU MN ESTATES AND OFFER TO TAX. THEREFORE THE DIFFERENCE OF RS.12,46, 950/- IS ADDED TO THE ASSESSEES INCOME AND TAXED ACCORDINGLY. PENALTY PR OCEEDINGS UNDER SECTION 271(1)(C) ARE INITIATED. 18. BEFORE THE CIT(A) THE ASSESSEE HAS GIVEN STATEMENTS , ONLY PART OF WHICH WAS EXTRACTED BY THE CIT(A) IN PARA 13 AS UNDER: - 13. BEFORE ME, THE A.R. CONTENDED AT PARA 4 OF HIS WRITTEN SUBMISSION AS UNDER: - THROUGH OVERSIGHT THE DETAILS OF SALES INCLUDED TH E WRONG FIGURE OF SALES TO AUTUMN AS RS.6,35,700/- INSTEAD OF RS.1 8,82,650/- AND HENCE THE A.O. HAS ADDED BACK THE DIFFERENCE OF RS.12,46,950/- TO THE TOTAL INCOME. 19. VIDE PARA 14 THE CONTENTIONS WERE DISMISSED BY THE CIT(A) STATING AS UNDER: - 14. INDEED, I FIND THAT THE A.R. HAS HIMSELF GIVEN A REASON TO THE A.OS ACTION AND AT THE SAME TIME HAS ADMITTED TO THE FACT THAT A WRONG FIGURE HAD BEEN PROVIDED TO THE A.O. NEVERTHELESS, THE A. R. HAS NEITHER ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 6 PROVIDED THE NATURE OF RS.12,46,950/-, THE ODD FIGU RE OF ALLEGED ADVANCE RECEIVED FROM THE SAID PARTY. THERE IS N O EVIDENCE OF THE CLAIMED SALES. NO PROOF IS THERE FOR THE SALES MADE OR MODE OF PAYMEN TS RECEIVED FOR EITHER RS.12,46,950/- OR FOR THE OTHER AMOUNT OF THE TOTAL FIGURE OF RS.18,82,650/-. IN FACT, NOTHING IS ESTABLISHED BEY OND THE CLAIM. THE FIGURE APPEARS TO BE ALL THE MORE INCONSISTENT WHEN ONLY RS.12,52,232/- WAS SHOWN TO HAVE BEEN RECEIVED FROM THE SAID PARTY IN ONLY 4 TDS CERTIFICATES. THEREFORE, I DISMISS THE GROUND. 20. AFTER CONSIDERING THE ARGUMENTS OF THE LEARNED A.R. AND THE LEARNED D.R. AND EXAMINING THE PAPER BOOK IN THIS REGARD, W E ARE UNABLE TO ACCEPT THE ASSESSING OFFICERS ACTION. FIRST OF ALL THE REASON S FOR DISALLOWANCE BY THE A.O. IS NOT AT ALL CORRECT. THE ASSESSEE HAS RECEIVED AN ADVANCE OF RS.12,46,950/- FOR THE YEAR ENDING 31.03.2004. THIS CAN BE SEEN FR OM THE ACCOUNT COPY PLACED IN PAGE NO. 51 WHEREIN FROM 26.06,2003 TO 31 .03.2004 THE AMOUNT RECEIVED WAS RS.37,66,671/-. THE ASSESSEE HAS ACCOU NTED FOR SALES AND LABOUR CHARGES IN THAT YEAR AT RS.25,19,721/- LEAVI NG A CLOSING BALANCE OF RS.12,46,950/- DURING THE YEAR THE ASSESSEE FURTHER RECEIVED AN AMOUNT OF RS.6,35,700/- FROM THE SAID PARTY AND THE ENTIRE AM OUNT OF RS.18,82,650/- HAS BEEN TAKEN AS SALES AND LABOUR CHARGES AS ON 31 .032005 AND THE ACCOUNT HAS BEEN CLOSED. THIS RS.18,82,650/- IS FIGURING IN THE TOTAL WORK DONE FROM M/S. AUTUMN ESTATE & INVESTMENT PVT. LTD. VIDE BILL NO. BW/MA/28 DATED 31.03.2005. THE ASSESSEE ALSO HAS FURNISHED TOTAL S ALES AND LABOUR CHARGES RECORDED TO THE EXTENT THAT THE ASSESSEE HAS ACCOUN TED FOR THE ADVANCE RECEIVED IN THIS YEAR AS ITS SALES. THE ASSESSEE AL SO CLAIMED TDS MADE ON THAT BILL AND EVEN THE CIT(A) CONFIRMS THAT TDS ON THE A MOUNT TO THE EXTENT OF RS.12,50,282/- WAS CLAIMED IN FOUR TDS CERTIFICATES . INSPITE OF RECORDING THESE FACTS THE A.O. TREATED THE ENTIRE AMOUNT OF R S.12,82,650/- AS INCOME OF THE ASSESSEE WITHOUT EXAMINING THE LEDGER COPIES BE CAUSE THE ASSESSEE HAS INFORMED ONLY THE AMOUNT RECEIVED(RS.6,35,700) DURI NG THE YEAR INSTEAD OF TOTAL BILLS RAISED. THE CIT(A) ALSO, FOR THE REASON S BEST KNOWN TO HIM, IGNORED THE CLARIFICATION GIVEN AND EVEN AFTER RECORDING TH E FINDING THAT THE TDS AMOUNT WAS UPTO RS.12,52,232/- STILL DISMISSED THE GROUND. WE ARE UNABLE TO ACCEPT THE ACTION OF THE A.O. AND THE CIT(A) FOR TH E REASON THAT THE ASSESSEE HAD ACCOUNTED FOR THE TOTAL RECEIPTS AS INCOME UNDE R THE HEAD SALES AND LABOUR CHARGES. THEREFORE, THERE IS NO NEED TO CON SIDER THE ADVANCE RECEIVED ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 7 AGAIN AS INCOME DURING THE YEAR. ASSESSEES GROUND IS ALLOWED. A.O. IS DIRECTED TO DELETE THE ADDITION SO MADE. 21. GROUND NO. 1(G) IS WITH REFERENCE TO ADDITION OF RS .68,600/- TO THE TOTAL INCOME BEING BALANCE OF OLD SUSPENSE ACCOUNT. 22. PARA 21 OF THE CIT(A)S ORDER GIVES THE NATURE AND REASONS OF CONFIRMING THE AMOUNT, WHICH IS AS UNDER: - 21. GROUND NO. 1(H) HAS BEEN TAKEN AGAINST RS.68,6 00/- ADDED AS UNEXPLAINED LIABILITY SHOWN IN A SUSPENSE ACCOUNT I N THE BALANCE SHEET. DURING THE ASSESSMENT PROCEEDINGS, THE EXPLANATION OFFERED WAS THAT THE SAID AMOUNT HAD BEEN CREATED AGAINST SOME UNIDENTIF IABLE MATURITY AMOUNT OF FIXED DEPOSIT LONG AGO. THE SAME HAD BEEN CARRIED OVER YEAR AFTER YEAR SINCE A.Y. 2001-02. THE SAME ARGUMENT WA S REITERATED BEFORE ME. AND I HAVE NO HESITATIONS TO CALL THE SAME AS A N UN-ESTABLISHED CLAIM. THAT THE SUSPENSE ACCOUNT HAD BEEN CREATED AGAINST SOME FD MATURITY WAS ONLY THE APPELLANTS CLAIM. THERE IS NO EVIDENC E. AT THE END OF THE DAY, THE LIABILITY IS NOT PROVED TO BE TRUE. THEREF ORE, I UPHOLD THE AOS DECISION BY VIRTUE OF WHICH THE BOGUS LIABILITY H AS BEEN BROUGHT TO TAX. THE GROUND IS DISMISSED. 23. AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE A ND EXAMINING THE RECORD, WE ARE UNABLE TO SUSTAIN THE ACTION OF THE CIT(A). FIRST OF ALL THERE IS NO CLAIM OF THE ASSESSEE TOWARDS EXPENDITURE OF RS. 68,600/-. IT IS ALSO NOT A LIABILITY PAYABLE TO SOME THIRD PARTY, WHICH CAN BE BROUGHT TO TAX AS INCOME OF THE ASSESSEE UNDER SECTION 41(1). IT IS ASSESSEES EXPLANATION THAT SOME UNIDENTIFIABLE AMOUNT OF FIXED DEPOSIT WAS CARRIED OVER FROM A.Y. 2001-02 WHICH CAN BE VERIFIED FROM ASSESSEES BALANCE SHEET FROM THAT PERIOD ONWARDS. HOW THIS CAN BE TREATED AS INCOME IN THIS YEAR WAS NOT EXPLAINED AS NEITHER IT WAS A CLAIM NOR A LIABILITY. THE AMOUNT IS DELETED. GROUND OF THE ASSESSEE IS ALLOWED. 24. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JULY 2010. SD/- SD/- (R.S. PADVEKAR) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 23 RD JULY 2010 ITA NO. 2079/MUM/2008 SHRI DARSHAN KHAREDIA 8 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXIII, MUMBAI 4. THE CIT XXIII, MUMBAI CITY 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.