ATHARV BUSINESS PVT LTD., Mumbai V. DCIT CC 1(1), Mumbai

ITA 2497/MUM/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3423 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 21-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68; 132; 143(3); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “A”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER ITA No.2497/M/2019 Assessment Year: 2008-09 M/s. Atharv Business Pvt. Ltd., Office No.211, Balaji Arcade Premises, Near Sejal Glass, S.V. Road, Kandivai (W), Mumbai – 400 067 PAN: AAACF9430A Vs. DCIT, CC 1(1), R. No.903, 9 th Floor, Pratishtha Bhavan, (Old CGO Bldg. Annex), M.K. Road, Mumbai - 400020 (Appellant) (Respondent) Present for: Assessee by : Shri Poojan Mehta, A.R. Revenue by : Smt Shailja Rai, D.R. Date of Hearing : 23 . 08 . 2022 Date of Pronouncement : 25 . 08 . 2022 O R D E R Per : Kuldip Singh, Judicial Member: The appellant, M/s. Atharv Business Pvt. Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 26.02.2019 passed by Commissioner of Income Tax (Appeals)-47, Mumbai [hereinafter referred to as the CIT(A)] qua the assessment year 2008-09 on the grounds inter alia that :- “I. The learned Commissioner of Income Tax (Appeal) has deleted addition made by Learned Assessing office on unexplained cash ITA No.2497/M/2019 M/s. Atharv Business Pvt. Ltd. 2 credit amounting to Rs. 9.00 Crores with comments / observation / order that the same shall revive if the addition in the case of Third Party / Shri Praveen Kumar Jain is deleted in the appellate proceedings. II. The appellant craves to add, amend or alter the grounds of appeal at the time of or before the hearing of appeal.” 3. Briefly stated facts necessary for adjudication of the controversy at hand are : the assessee company claimed to be into the business of trading in diamond and other commodities, investment in shares and money lending. On the basis of search and seizure operation conducted by DDIT (Inv.) Mumbai under section 132 of the Income Tax Act (for short ‘the Act’) in case of Praveen Jain & Co., at his different locations, Assessing Officer (AO) completed the assessment under section 153C read with section 143(3) of the Act by making addition on account of unaccounted cash commission income on accommodation entries earned by the assessee at the total income of Rs.9,69,67,173/- as against the returned income of Rs.9,58,882/- on protective basis. 4. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has partly allowed the appeal for statistical purposes. Feeling aggrieved assessee has come up before the Tribunal by way of filing present appeal. 5. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto. ITA No.2497/M/2019 M/s. Atharv Business Pvt. Ltd. 3 6. Undisputedly AO has framed assessment in this case at the total income of Rs.9,69,67,173/- on account of unaccounted cash commission income on accommodation entries earned by the assessee under section 153C read with section 143(3) of the Act on protective basis. It is also not in dispute that substantive addition qua the amount in question on account of unexplained cash credits relating to Spanco Group of companies amounting to Rs.47.39 crore has already been upheld in case of Pravin Jain & Co. by the Ld. CIT(A) and the addition in the hands of assessee has already been deleted. 7. In the backdrop of the aforesaid facts and circumstances of the case, the Ld. CIT(A) given the relief to the assessee by returning following findings: “22.3 Since the substantive assessment on account of unexplained cash credit relating to Spanco Group of companies amounting to Rs.47.39 crores had already been upheld in the case of Shri Parveen Kumar Jain by the undersigned, the addition of Rs. 9 crores made by the AO u/s 68 of the Act in the hands of the Appellant Company needs to be deleted, so that there is no double taxation of the same income. 22.4 However, in case the addition made in the hands of Shri Parveen Kumar Jain of the unexplained credits u/s 68 of the Act is deleted in any of the appellate proceedings, then the addition made by the AO amounting to Rs. 9 Crores u/s 68 of the Act in the hands of the Appellant Company shall revive. In this regard, it may be noted that the cash credits are appearing in the books of accounts of the Appellant Company and a detailed discussion had been made in the appellate order of Shri Parveen Kumar Jain wherein it had been held that the identity and credit worthiness of the lenders and the genuineness of the transaction had not been explained by the Appellant Company. 22.5 In view of the above facts and circumstances and the various judicial pronouncements, the Ground No. 7 raised for assessment year 2008-09 is hereby allowed with the comments that the same shall revive, if the addition made in the case of Shri Parveen Kumar Jain is deleted in the appellate proceedings.” ITA No.2497/M/2019 M/s. Atharv Business Pvt. Ltd. 4 8. Bare perusal of the order passed by the Ld. CIT(A) goes to prove that when substantive assessment qua the unexplained cash credit in question has already been confirmed in the case of Pravin Kumar Jain by Ld. CIT(A) on whose premises search and seizure operation under section 132 of the Act was conducted, by deleting the addition so made in the hands of the assessee on protective basis, the present appeal filed by the assessee is not maintainable having already been become infructuous. Because Revenue has not challenged the deletion of protective addition made by the AO by the Ld. CIT(A) on the ground that there can be no double taxation of the same income. Even otherwise from the impugned order passed by the Ld. CIT(A) no ground challenging the same has arisen in favour of the assessee as he has already got the relief and challenging the conditions imposed by the Ld. CIT(A) while deleting the protective addition in the hands of the assessee is premature. Reliance on the order passed by the co-ordinate Bench of the Tribunal in case of Shri Dilip Shah vs. DCIT, Mumbai in ITA No.5739 to 5745/M/2012 & ors. for A.Y. 2001-02 to 2007-08 order dated 25.09.2017 by the Ld. D.R. is misplaced being distinguished on facts. 9. In view of what has been discussed above present appeal filed by the assessee is hereby dismissed. Order pronounced in the open court on 25.08.2022. Sd/- Sd/- (OM PRAKASH KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 25.08.2022. * Kishore, Sr. P.S. ITA No.2497/M/2019 M/s. Atharv Business Pvt. Ltd. 5 Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.