ITO 19(1)4, MUMBAI V. STIVAN S. SWAMY, MUMBAI

ITA 2169/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79136 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEERJA PRADHAN
• Keywords: Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.2169/MUM/2013 (ASSESSMENT YEAR: 2008-09) THE INCOME TAX OFFICER WARD 19(1)(4) ROOM NO.308, 3 RD FLOOR PIRAMAL CHAMBERS, LALBAUG MUMBAI-400 012. VS. SHRI STIVAN S. SWAMY ROOM NO.7, RAJPAL CHAWL PRABHAT COLONY, SANTACRUZ (E) MUMBAI-400 055. (APPELLANT) (RESPONDENT) P ERMANENT ACCOUNT N O. : AIFPS 1236 B ASSESSEE BY : SHRI ANANT N. PAI REVENUE BY : MS. NEERJA PRADHAN DATE OF HEARING : 18/06/2014 DATE OF PRONOUNCEMENT : 18/06/2014 O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS APPEAL IS FILED BY THE REVENUE AND IT IS DIREC TED AGAINST THE ORDER PASSED BY THE CIT(A) DATED 22/01/2013 FOR THE ASSESSMENT YEAR 2008-09. GROUND OF APPEAL READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS.13,60,000/- BEING UNEXPLAINED UNDISCLOSED INCOME ON ACCOUNT OF RECEIPT FROM SHRI BIPIN B. SHAH PROP. OF M/S. OS SIA ENTERPRISES IGNORING THE FACTS THAT SHRI BIPIN B. SHAH UPON BEI NG SUMMONED, CONFIRMED THE AMOUNT OF RS.13,60,000/- WITH TDS CER TIFICATE IN THE NAME OF THE ASSESSEE AS MENTIONED BY AO IN HIS REMAND REPORT DATED 27/07/2012. ITA NO.2169/M/13 AY:08-09 2 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF AO BE RESTOR ED. 2. AN AMOUNT OF RS.13,60,000/- WAS ADDED TO THE INC OME OF THE ASSESSEE ON ACCOUNT OF DIFFERENCE IN CONTRACT RECEI PTS. IT WAS FOUND BY AO THAT AS PER AIR INFORMATION IT WAS REPORTED THAT THE ASSESSEE HAD RECEIVED RECEIPTS OF RS.26,86,353/- FROM M/S. OSSIA ENTERPRISES OUT OF WHICH ASSESSEE HAD OFFERED ONLY A SUM OF RS.81,982/ -. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE DIFFERENCE. AS PER REPLY RE CEIVED FROM THE ASSESSEE THE WORK EXECUTED WAS ONLY TO THE TUNE OF RS.81,982/-. IT WAS EXPLAINED THAT M/S. OSSIA ENTERPRISES HAS SHOWN THE DIFFERENCE AS CONTRACT EXPENSES OF RS.13,60,900/- AND RS.7,95,870 /- FOR THE ASSESSMENT YEAR 2008-09 AND 2009-10 RESPECTIVELY. A O ISSUED NOTICE U/S.133(6) TO M/S. OSSIA ENTERPRISES WHEREIN IT WA S CONFIRMED THAT AN AMOUNT OF RS.13,62,227/- WAS SHOWN AS CLOSING BALANCE. IN THI S MANNER AO ADDED A SUM OF RS.13,60,000/- TO THE INCO ME OF ASSESSEE. 3. BEFORE CIT(A), SOME MORE DETAILS WERE FILED ALO NG WITH AFFIDAVIT. CIT(A) CALLED FOR THE REMAND REPORT. VIDE REMAND RE PORT DATED 25/07/2012 IT WAS MENTIONED BY AO THAT HE HAS VERIF IED THE DETAILS AND ALSO CONFIRMED FROM AO ABOUT M/S. OSSIA ENTERPRISES AND FOUND THAT SIMILAR ADDITION WAS MADE IN THE CASE OF M/S. OSSIA ENTERPRISES WHERE AN AMOUNT OF RS.12,78,018/- WAS DISALLOWED OUT OF R S.13,60,000/- CLAIMED BY M/S. OSSIA ENTERPRISES ON ACCOUNT OF BOG US EXPENSES AND RELIEF WAS GIVEN ONLY IN RESPECT OF RS.81,982/- FOR WHICH ASSESSEE HAS SHOWN THE RECEIPTS. IT WAS MENTIONED IN THE REMAND REPORT THAT IN THESE CIRCUMSTANCES THE DECISION MAY BE TAKEN ON MERITS O F THE CASE. THE REMAND REPORT HAS BEEN REPRODUCED IN THE ORDER OF C IT(A), THEREFORE, NOT REPRODUCED HERE FOR THE SAKE OF BREVITY. ON THE BAS IS OF REMAND REPORT SUBMITTED BY AO AND THE AFFIDAVIT FILED BY ASSESSEE THAT ASSESSEE DID NOT RECEIVE ANY AMOUNT OTHER THAN RS.81,982/- FOR WHICH INCOME WAS ITA NO.2169/M/13 AY:08-09 3 ALREADY SHOWN, THE LD. CIT(A) HAS DELETED THE ADDIT ION. THE REVENUE IS AGGRIEVED AND HENCE, FILED AFOREMENTIONED GROUNDS. 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE BEEN CAREFULLY CONSIDERED. AFTER CAREFUL CONSIDERATION O F THE FACTS MENTIONED IN THE ORDER OF CIT(A) AND REMAND REPORT OF AO, WE ARE OF THE OPINION THAT LD. CIT(A) DID NOT COMMIT ANY ERROR IN GRANTING REL IEF TO THE ASSESSEE. AS THE EXCESS OF RS.12,78,018/- HAS NOT BEEN SHOWN TO BE RECEIVED BY THE ASSESSEE AND THE SAID AMOUNT HAS ALSO BEEN ADDED TO THE INCOME OF M/S. OSSIA ENTERPISES ON ACCOUNT OF BOGUS CLAIM OF EXPEN SES. THEREFORE, WE DECLINE TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A) AND APPEAL FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JUNE, 2014. SD/- SD/- (RAJENDRA) ACCOUNTANT MEMBER (I.P. BANSAL ) JUDICIAL MEMBER MUMBAI, DATED: 18/06/2014. 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.