SONAL JAYESH CHHEDA, MUMBAI V. ITO 19(1)(4), MUMBAI

ITA 2197/MUM/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2165 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 15-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAV
• Keywords: Unexplained cash credit
• Section: 147

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SANJAY ARORA , A M ./ I.T.A. NO. 2197 /MUM/2015 ( / ASSES SMENT YEAR S : 2008 - 09 ) SONAL JAYES CHHEDA A/1, GROUND FLOOR, SAMRAT CHS, JUHU ROAD, SANTACRUZ (W), MUMBAI - 400 054 / VS. INCOME TAX OFFICER 19(1)(4), PIRAMAL CHAMBER, LALBAUG, MUMBAI 400 012 ./ ./ PAN/GIR NO. ABHPC 2239 H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI JITENDRA SANGHAVI / RESPONDENT BY : SHRI VISHWAS JADHAV / DATE OF HEARING : 30.11.2015 / DATE OF PRONOUNCE MENT : 30.11.2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 34 , MUMBAI (CIT(A) FOR SHORT) DATED 12.3.2015 , PARTLY ALLOWING THE A SSESSEES APPEAL C ONTESTING ITS ASSESSMENT U/S.143(3) R/W S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 . 2. EXPLAINING THE FACTS OF THE CASE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUN SEL , THAT A SUM OF RS.1,48,584/ - WAS 2 ITA NO. 2197/MUM/2015 (A.Y. 2008 - 09) SONAL JAYES CHHEDA VS. ITO VOLUNTAR IL Y OFFERED TO TAX AS SPECULATION INCOME BY THE ASSESSEE . THE ASSESSING OFFICER (A.O.), HOWEVER, CONSIDERED THE SAME TO BE IN THE NATURE OF ACCOMMODATION ENTR Y/S , AND BROUGHT THE SAME TO TAX U/S.68 AT RS.1,50,58 1/ - . IN DOING SO, HE OMITTED TO ALLOW THE ASSESSEE CREDIT FOR THE SUM ALREADY OFFERED TO TAX BY WAY OF SPECULATION INCOME. THIS ANOMALY WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A). FURTHER , THAT THE AMOUNT HAD BEEN RIGHTLY OFFERED AS SPECULATIVE INCOME, WA S ALSO PLEADED BEFORE HIM. THE LD. CIT(A), HOWEVER, CONFIRMED THE ASSESSMENT OF THE SAID INCOME AS FROM OTHER SOURCES, EVEN AS HE ALLOWED DEDUCTION FOR RS.1.4 9 LACS, ALREADY RETURNED. THE ASSESSEE HAS BEEN ACCORDINGLY ADVERSELY IMPACTED ON TWO COUNTS, I.E. , THE ASSESSMENT OF INCOME AS AN UNEXPLAINED CREDIT U/S.68 AND, TWO, AN INCREASE IN QUANTUM BY RS . 1997 . THE LD. DEPARTMENTAL REPRESENTATIVE (DR) , ON THE OTHER HAND, WOULD SUBMIT THAT THAT IN FACT WAS THE ONLY PLEA BY THE ASSESSEE BEFORE THE LD. CIT(A), AN D FOR WHICH HE WOULD REFER TO PARA 3 OF THE IMPUGNED ORDER. THE LD. AR WOULD, IN REJOINDER , SUBMIT THAT GROUND 1 BEFORE THE LD. CIT(A) SPECIFICALLY RAISED THE SAID (FIRST) ISSUE , WHICH READS AS UNDER : 1. THE LD. AO ERRED IN MAKING ADDITION OF RS.1,50,581/ - AS INCOME FROM UNDISCLOSED SOURCE WITHOUT ANY DOCUMENTARY EVIDENC E ON RECORD. 3. THE PARTIES HAVE BEEN HEARD, AND THE MATERIAL ON RECORD PERUSED. THE LD. CIT(A), AS A READING OF PARA 4 OF HIS ORDER SHOWS , CONTAINS TWO FINDINGS : A) T HE A SSESSING OFFICER (A .O. ) HAVING RIGHTLY BROUGHT THE INCOME OF RS.1,50,581/ - TO TAX AS INCOME FROM OTHER SOURCES; AND B) O F THE A.O. HAVING RETURNED THE SAID INCOME AS OF SPECULATI VE BUSINESS, AT RS.1,48,584/ - . WHILE THERE IS BASIS, IN THE FORM OF COMPUTATION OF INCOME (FORM ING PART OF THE RETURN OF INCOME), TO WHICH HE ADVERTS, FOR THE L A TTER FINDING, NOTHING IS OBSERVE D IN THE IMPUGNED ORDER FOR THE FIRST FINDING, I.E., APART FROM REFERENCE TO THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. THIS MAY WELL BE ON ACCOUNT OF LIMITED 3 ITA NO. 2197/MUM/2015 (A.Y. 2008 - 09) SONAL JAYES CHHEDA VS. ITO SUBMISSIONS BY THE ASSESSEES COUNSEL, WHO IS THE SAME AS BEFORE THIS T RIBUNAL, AS INDICATED PER PARA 3 OF THE IMPUGNED ORDER , I.E., LIMITED TO A DOUBLE ADDITION ONLY . RAISING AN ISSUE IN GROUND OF APPEAL IS , AFTER ALL , QUITE DIFFERENT FROM AGITAT ING BY ADVANCING COGENT REASONS , BACKED BY MATERIAL S AND EXPLANATIONS, IN SUPPORT THEREOF. IT MAY, AT THE SAME TIME, WELL BE THAT THE ASSESSEE , AS THE LD. AR WOULD VEHEMENTLY ARGUE, HAD STATED ITS CASE IN PURSUANCE TO ITS G ROUND 1, WHICH THOUGH MAY FIND NO REFLECTION IN THE ORDER AS FINALLY P AS SED, AS WHERE THE MATTER IS DEEMED AS PRIMARILY ACADEMIC BY THE ADJUDICATING AUTHORITY. THE LD. AR , ON BEING CONVEYED TH IS, SO THAT IN VIEW OF THE CONTRARY CLAIMS, THE RECORD OF THE FIRST APPELLATE AUTHORITY WOULD REQ UIRE BEING EXAMINED FOR THE PURPOSE , WOULD SUBMIT THAT HE IS AGREEABLE TO NOT PRESS THIS ISSUE IF NO ADVERSE VIEW OF THE INCOME BEING ASSESSED AS INCOME FROM OTHER SOURCES IS DRAWN QUA THE ASSESSMENT OF SIMILAR INCOME FOR OTHER YEARS/S. T HE MATTER IS ESSEN TIALLY FACTUAL, SO THAT AN INCOME FOR ANOTHER YEAR WOULD HAVE TO BE, SIMILARLY, ASSESSED ONLY AFTER PROPER CONSIDERATION OF THE FACTS OF THE CASE , AND THE CASE AS ADVANCED . I N MY VIEW , NO PRECEDENCE VALUE OF THE SAID ASSESSMENT WOULD OBTAIN, PARTICULARLY I N THE FACTS AND CIRCUMSTANCES OF THE CASE. THE DIFFERENCE OF RS . 1 , 997/ - WAS ALSO CONCEDED TO BY THE LD. AR. IN VIEW OF THE FOREGOING AND SUBJECT TO OUR OBSERVATION AFORE - SAID I DECLINE INTERFERENCE. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 30, 201 5 SD/ - (S ANJAY ARORA) / A CCOUNTANT MEMBER MUMBAI ; DATED : 30 . 11 .201 5 . . ./ ROSHANI , SR. PS 4 ITA NO. 2197/MUM/2015 (A.Y. 2008 - 09) SONAL JAYES CHHEDA VS. ITO / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / C IT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI