ARUN H. MEHTA, MUMBAI V. ACIT 16(2), MUMBAI

ITA 2129/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0065 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 27-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Opportunity of being heard
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO . 2129 /M/ 20 1 7 ( ASSESSMENT YEAR : 2012 - 13 ) MR. ARUN H. MEHTA FLAT NO.4, 1 ST FLOOR, BANDRIKESHWAR BUILDING, 82, MARINE DRIVE, E ROAD, MUMBAI - 400002 . VS. CIT(A) - 5 MUMBAI ./ ./ PAN/GIR NO. : AAAPM 7514 R ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING : 28 . 0 8 .2018 DATE OF PRONOUNCEMENT : 19.09. 201 8 O R D E R PER AMARJIT SINGH, JM: THE PRESENT APPEA L HA S BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 07 . 1 2 .201 6 PASSED BY THE COMMIS S IONER OF INCOME TAX (APPEALS) - 5 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2012 - 13 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1 GROUND NO. 1 R ADDITION U/S. 68: 1.1 ON THE F ACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER U/S. 68 ON ACCOUNT OF CHEQUE NO.0787818 D ATED 23/02/2012 FOR RS.4,12,500/ - RECEIVED ASSESSEE BY: SHRI ARUN MEHTA DEPARTMENT BY: SHRI CHAITANYA ANJARIA (DR) ITA. NO. 2129 /M/201 7 A.Y. 2012 - 13 2 FROM LIC TOWARDS MATURI TY AMOUNT OF THE LIG POLICY NO 89120322 4 ALTHOUGH T HE RELEVANT PROOF IN THE FORM OF COPY OF THE LIC POLICY AND THE STATUS REPORT OF THE SAID POLICY CLEARLY STATING THE CHEQUE NUMBER, DATE AND AMOUNT, ALSO REFLECTING THE SAME IN THE COPY OF THE BANK PASSBOOK OF THE APPELLANT WERE PROVIDED TO THE LEARNED ASS ESSING OFFICER. (COPIES ATTACHED, ANNEXURES 'A' AND 'B' RESPECTIVELY). ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT DELETING THE SAID ADDITION GROUND NO. 2 - ADDITION OF MISCELLANEOUS EXPENSES @_50%: 2 . 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING RELIEF IN RESPECT OF MISCELLANEOUS EXPENSES ALTHOUGH HE DISCUSSED ABOUT THE SAME IN THE ORDER ALONG WITH THE SIMILAR OTHER AD - HOC ADDITION MADE BY THE ASSESSING OFFICER AND GRANTED RELIEF IN RESPECT OF OTHER EXPENSES. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 27 . 09 .20 12 DECLARING TOTAL IN COME TO THE TUNE OF RS.2,56,16,859 / - FOR THE A.Y 2012 - 13 . THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY . SUBSEQUENTLY , NOTICE U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSES SEE IS AN ADVOCATE BY PROFESSION AND DECLARED HIS INCOME UNDER THE HEAD INCOME FROM PROFESSION, CAPITAL GAIN AND INCOME FROM OTHER SOURCES. THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.2,72,33,270/ - . THEREAFTER, THE ASSESSEE HAS FILED AN APPEA L BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE BUT ASSESSEE WAS NOT SATISFIED ON THE ISSUES RAISED ABOVE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO. 1 : - ITA. NO. 2129 /M/201 7 A.Y. 2012 - 13 3 4 . UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF THE DISALLOWANCE OF RS.4,12,500 / - U/S 68 OF THE ACT. THE ASSESSEE RECEIVED THE LIC MATURITY AMOUNT OF RS.4,12,500/ - . THE AO REJECTED THE CLAIM OF THE ASSESSEE ON ACCOUNT OF NON - FURNISHING THE COGENT DOCUMENT. THE CIT(A) HAS REJECTED THE CL AIM OF THE ASSESSEE ON ACCOUNT OF THIS FACT THAT THE AO HAS RECTIFIED THE SAME. NOTHING CAME INTO NOTICE THAT THE CLAIM OF THE ASSESSEE HAS BEEN RECTIFIED BY THE AO. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE NECESSARY DOCUMENTS IN CONNECT ION WITH THE RECEIPT OF AMOUNT OF LIC MATURITY WERE FURNISHED WHICH WERE NOT CONSIDERED PROPERLY, THEREFORE, THE FINDING OF THE CIT(A) IS LIABLE TO BE SET ASIDE IN ACCORDANCE WITH LAW. ON APPRAISAL OF THE CIT(A) ORDER, WE NOTICED THAT THE CIT(A) HAS THE PA SSED THE ON E LINE ORDER IN WHICH IT HAS BEEN MENTIONED THAT THE ASSESSING OFFICER HAS RECTIFIED THE ORDER WHEREAS THERE IS NO RECTIFICATION ON THE FILE. THE ASSESSEE HAS RECEIVED THE AMOUNT THROUGH CHEQUE BEARING NO. 0787818 DATED 23.02.2012 OF RS.4,12,500/ - RECEIVED FROM THE LIC TOWARDS MATURITY OF THE LIC POLICY NO.891203224 AND ALSO READY TO FURNISH THE STATUS REPORT ETC. THE CIT(A) HAS NO T DECIDED THE ISSUE ON THE BASIS OF ANY COGENT AND CONVINCING EVIDENCE OF RECORD, TH EREFORE, THE FINDING OF THE CIT(A) IS HEREBY ORDERED TO BE SET ASIDE AND THE ISSUE IS HEREBY ORDER TO BE RESTORED BEFORE THE AO TO EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE EVIDENCE ADDUCED ON RECORD. NEEDLESS TO SAY THAT THE ASSESSING OFFICER WOULD PRO VIDE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ITA. NO. 2129 /M/201 7 A.Y. 2012 - 13 4 BEFORE PASSING THE ORDER IN ACCORDANCE WITH LAW. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NOS. 2 : - 5. ISSUE NO. 2 IS IN CONNECTION WITH THE CONFIRMATION OF T HE MISCELLANEOUS EXPENSES TO THE EXTENT OF 50%. THE MISCELLANEOUS EXPENSES ARE IN CONNECTION WITH THE DINING, RE FRESHMENTS AND TRAVELLING ETC. T HE PAYMENT WAS MADE THROUGH CREDIT CARD. THE AO DECLINED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF 50% ON ACCOU NT OF EXPENSES OF PERSONAL ELEMENT OF THE ASSESSEE. HOWEVER, THE ASSESSEE FAILED TO PROVE THE NEXUS OF THE EXPENSES WITH THE BUSINESS. THE CIT(A) HAS CONFIRMED THE ADDITION OF DI SALLOWANCE TO THE EXTENT OF 50%. T HE EXPENSES HAVE DULY BEEN REFLECTED IN THE LEDGER ACCOUNT. ADMITTEDLY, THE PAYMENT WAS IN CONNECTION WITH THE DINING, REFRESHMENT, TRAVELLING ETC. THE ASSESSEE I S A N ADVOCATE BY PROFESSION . HE HAS TO ARRANGE THE MEETING WITH THE CLIENTS AND TO EXPAND THE AMOUNT IN CONNECTION WITH HIS PROFESSION BUT IT IS INCUMBENT UPON THE ASSESSEE TO PROVE HIS CLAIM. DECLINING, THE CLAIM OF THE ASSESSEE TO THE EXTENT OF 50% IS IN THE HIGHER SIDE. TAKING INTO ACCOUNT, ALL THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT IT W OULD BE IN THE INTEREST OF JUSTICE IF THE CLAIM OF THE ASSESSEE BE RESTRICTED TO THE EXTENT OF 10% OF THE EXPENSES CREDIT ED BY HIM . ACCORDINGLY, WE ALLOWED THE CLAIM OF THE ASSESSEE. ACCORDINGLY, THIS ISSUE IS BEING DECIDED IN FAVOUR OF THE ASSESSEE AGAINS T THE REVENUE. ITA. NO. 2129 /M/201 7 A.Y. 2012 - 13 5 6 . IN RESULT, APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED . ORDER P RONOUNCED IN THE OPEN COURT ON 19.09 . 2 018 . SD/ - SD/ - ( R. C. SHARMA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 19.09 . 2018 VIJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI