DHIRAJ HARIBHAI PATEL HUF, MUMBAI V. ITO 20 (2) (1), MUMBAI

ITA 2757/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5755 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 03-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MITRA
• Assessee Lawyers: AZIZ MUTVALLI
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 2757 / MUM . /2018 ( ASSESSMENT YEAR : 20 11 12 ) DHIRAJ HARIBHAI PATE L (HUF) NEW PATEL SAW MILL 47, NEW NAGARDAS ROAD ANDHERI (E), MUMBAI 400 069 PAN AACHP5974Q . APPELLANT V/S INCOME TAX OFFICER WARD 2 0(2)( 1 ), MUMBAI . RESPONDENT ASSESSEE BY : SHRI AZIZ MUTVALLI REVENUE BY : SHRI S.K. MITRA DATE OF HEARING 10 . 12 .201 8 DATE OF ORDER 30.01.2019 O R D E R A FORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 12 TH JANUARY 2018 , PASSED BY THE LEARNED COMMISSIONER (APPEALS) 36 , MUMBAI, FOR THE ASSESSMENT YEAR 20 11 12 . 2 . IN GROUND NO.1, THE ASSESSEE HAS CHALLENGED THE ADDITION OF ` 6,71,684, MADE ON THE BASIS OF INFORMATION CONTAINED IN FORM NO.26AS. 2 DHIRAJ HARIBHAIPATAL (HUF) 3 . BRIEF FACTS ARE, THE ASSESSEE IS A HINDU UNDIVIDED FAMILY (HUF). FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2011, DECLARING TOTAL INCOME OF ` 1,58,592. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT AS PER THE AIR INFORMATION AVAILABLE ON RECORD, THE TOTAL RECEIPT OF THE ASSESSEE FOR THE RELEVANT PREVIOUS YEAR AS MENTIONED IN FORM NO.26AS, IS ` 7,46,950, WITH TDS OF ` 74,698. WHEREAS, HE OBSERVED , THE TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME IS ` 1,58,592, WITH TDS CLAIMED OF ` 3,320. THEREFORE, HE CALLED UPON THE ASSESSEE TO EXPLAIN THE DIFFERENCE. IN RESPONSE, IT WAS SUBMITTED BY THE ASSESSEE TH AT IT HAS CORRECTLY OFFERED THE INCOME AND CLAIMED TDS. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE REPLY OF THE ASSESSEE THAT IT HAS NEITHER RECEIVED THE BALANCE INCOME NOR CLAIMED THE TDS. HE ALSO REJECTED ASSESSEES CLAIM THAT THE DIFFEREN TIAL INCOME ALONG WITH TDS PERTAINS TO THE INDIVIDUAL ACCOUNT. THUS, ULTIMATELY, HE ADDED BACK THE AMOUNT OF ` 6,71,684, TO THE INCOME OF THE ASSESSEE. 4 . THOUGH, THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, H E ALSO SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. 5 . T HE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , OUT OF ` 6,71,684, SHOWN IN THE NAME OF THE ASSESSEE IN FORM NO.26AS, AN AMOUNT OF ` 2,43,000, HAS BEEN OFFERED AT THE HANDS OF THE INDIVIDUAL. 3 DHIRAJ HARIBHAIPATAL (HUF) IN THIS CONTEXT, HE DREW OUR ATTENTION TO A CERTIFICATE DATED 17 TH JANUARY 2017, ISSUED BY THE M/S. BHAVAN PATEL & CO., CHARTERED ACCOUNTANTS. AS REGARDS THE BALANCE AMOUNT, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN RESPECT OF THREE PARTIES, NOTI CES ISSUED UNDER SECTION 133(6) THOUGH WERE SERVED BUT NO REPLY WAS RECEIVED. THEREFORE, THE RECEIPT SHOWN AGAINST THESE PARTIES CANNOT BE TREATED AS INCOME OF THE ASSESSEE. THUS, HE SUBMITTED , THE ADDITION MADE SHOULD BE DELETED. 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER (APPEALS). 7 . I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, ON THE BASIS OF INFORMATION CONTAI NED IN FORM NO.26AS, THE ASSESSING OFFICER HAS HELD THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF ` 6,71,684, FROM FIVE PARTIES. HOWEVER, IN COURSE OF PROCEEDING BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSING OFFICER ON THE DIRECTION OF THE LEARNED COMM ISSIONER (APPEALS) CONDUCTED F RESH ENQUIRY TO CROSS VERIFY THE ALLEGED RECEIPTS BY THE ASSESSEE AS PER FORM NO.26AS. AS COULD BE SEEN FROM THE REMAND REPORT DATE 7 TH JUNE 2017 OF THE ASSESSING OFFICER, THOUGH, HE ISSUED NOTICE S UNDER SECTION 133(6) OF THE ACT TO ALL THE PARTIES , HE RECEIVED REPLY ONLY FROM ONE PARTY I.E., PARAMOUNT 4 DHIRAJ HARIBHAIPATAL (HUF) HEALTH SERVICES AND INSURANCE TPA PVT. LTD., CONFIRMING THAT THE PAYMENT WAS MADE TO THE ASSESSEE. THE REST OF THE NOTICES ISSUED UNDER SECTION 133(6) OF THE ACT, THOUGH, W ERE SE RVED ON THREE PARTIES, HOWEVER, NO REPLY WAS RECEIVED. IN RESPECT OF MEDI ASSIST TPA, THE NOTICE RETURNED BACK UNSERVED. THUS, EXCEPT THE INFORMATION CONTAINED IN FORM NO.26AS, THE ASSESSING OFFICER HAD NO OTHER MATERIAL BEFORE HIM TO PROVE THAT THE ASSESSEE HAS RECEIVED ANY AMOUNT FROM THE OTHER PARTIES EXCEPT PARAMOUNT HEALTH SERVICES AND INSURANCE TPA PVT. LTD. THEREFORE, THE CLAIM OF THE ASSESSEE THAT IT HAS NOT RECEIVED ANY INCOME FROM THE CONCERNED PARTIES IS BELIEVABLE. FURTHER, THE CONTENTION OF THE A SSESSEE THAT OUT OF THE AMOUNT OF ` 6,71,684, AN AMOUNT OF ` 2,43,975, HAS BEEN OFFERED AS INCOME IN THE HANDS OF THE INDIVIDUAL APPEARS TO BE CORRECT. THEREFORE, MERELY ON THE BASIS OF AIR INFORMATION, WITHOUT BEING BACKED BY ANY OTHER EVIDENCE, NO ADDITION CAN BE MADE IN RESPECT OF AMOUNT SHOWN TO HAVE BEEN RECEIVED FROM MEDI ASSIST INDIA PVT. LTD., UNITED HEALTHCARE INDIA PVT. LTD. AND ME D SAVE HEALTHCARE (TPA) LTD. HOWEVER, THE SAME CANNOT BE SAID ABOUT THE AMOUNT OF ` 46,046, RECEIVED FROM PARAMOU NT HEALTH SERVICES AND INSURANCE TPA PVT. LTD., WHO HAS CONFIRMED OF HAVING PAID THE AMOUNT TO THE ASSESSEE. THEREFORE, I DIRECT THE ASSESSING OFFICER TO RESTRICT THE ADDITION TO ` 46,046, AND DELETE THE BALANCE AMOUNT. HOWEVER, TDS CREDIT, IF ANY, CORRESP ONDING TO THE AFORESAID 5 DHIRAJ HARIBHAIPATAL (HUF) RECEIPT WOULD BE ALLOWED TO THE ASSESSEE. GROUND RAISED IS PARTLY ALLOWED. 8 . IN VIEW OF THE DECISION IN GROUND NO.1, GROUND NO.2, NEED NOT BE ADJUDICATED SEPARATELY. 9 . IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.01.2019 SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 31.01.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI