Abhay Vasantrao Upadhye, Kolhapur V. Income-tax Officer, Ward - 2(2), Kolhapur

ITA 276/PUN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5474 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-05-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.276/PUN/2018 / ASSESSMENT YEAR : 2009-10 ABHAY VASANTRAO UPADHYE, FLAT NO.13B, TAKSHAK APARTMENT, NAGALA PARK, KOLHAPUR-416003 PAN : ABBPU9589N VS. ITO, WARD-2(2), KOLHAPUR (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A)-2, KOLHAPUR ON 28-11-2017 IN RELATION TO THE AS SESSMENT YEAR 2009-10. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMA TION OF ADDITION OF RS.10.00 LAKH. 3. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT THE ASSESSING O FFICER (AO) REOPENED THE ASSESSMENT ON THE GROUND THAT THE ASSE SSEE APPELLANT BY SHRI KISHOR PHADKE RESPONDENT BY SHRI RAJESH GAWALI DATE OF HEARING 15-05-2019 DATE OF PRONOUNCEMENT 16-05-2019 ITA NO.276/PUN/2018 ABHAY V. UPADHYE 2 DEPOSITED A SUM OF RS.39,37,546/- IN HIS BANK ACCOUNT AN D MADE WITHDRAWALS RS.30.00 LAKH AND RS.9,30,000/- ON 20-10-20 08 AND 23-10-2008 RESPECTIVELY. AS AGAINST THAT, THE RETURNED INCO ME WAS ONLY RS.3,18,740/-. THE ASSESSEE REMAINED UNREPRESEN TED BEFORE THE AO. HE, THEREFORE, MADE AN ADDITION OF RS.39,37,546/- TOWARDS UNEXPLAINED CASH DEPOSITS IN BANK ACCOUNT. THE LD. CIT(A ) SUSTAINED THE ADDITION AT RS.10.00 LAKH BY ACCEPTING THE ASSES SEES EXPLANATION THAT THE REMAINING AMOUNT REPRESENTED HIS INCOME FR OM CONTRACTS ON WHICH THE ASSESSEE HAD OFFERED INCOME UNDER THE PRESUMPTIVE SCHEME OF TAXATION. AGGRIEVED BY SUCH AN ADDITIO N, THE ASSESSEE HAS APPROACHED THE TRIBUNAL. 4. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEV ANT MATERIAL ON RECORD. THE ASSESSEE IS A CONTRACTOR AND REC EIVED A SUM OF RS.39,82,670/- FROM MOHITE & MOHITE ENGINEERS & CONTRA CTORS PVT. LTD. BY CHEQUE AFTER DEDUCTION OF TAX AT SOURCE OF RS .45,124/-. THIS AMOUNT CONSISTED OF ADVANCE OF RS.10.00 LAKH AND CH ARGES FOR WORK DONE AT RS.29.82 LAKH. THE ASSESSEE WAS NOT MAIN TAINING ANY BOOKS OF ACCOUNT AND THUS OFFERED INCOME U/S.44AD OF THE INCOME- TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT). AS THE ADVANCE OF RS.10.00 LAKH RECEIVED FROM MOHITE & MOHITE ENGINEERS & ITA NO.276/PUN/2018 ABHAY V. UPADHYE 3 CONTRACTORS PVT. LTD. WAS TO BE RETURNED SINCE THE ASSESSEE COULD NOT CARRY OUT THE WORK IN THAT RESPECT, THE ASSESSEE RE-DEPOSITE D RS.10.00 LAKH IN HIS BANK ACCOUNT AND THEREAFTER, ISSUED A CHEQUE OF EQUAL AMOUNT TO MOHITE & MOHITE ENGINEERS & CONTRACTORS PVT. LTD. TOWARDS REFUND. A COPY OF THE ASSESSEES BANK AC COUNT IS AVAILABLE AT PAGE 27 OF THE PAPER BOOK, WHICH SHOWS DEPOS IT OF RS.39,37,546/- THROUGH A CHEQUE TRANSACTION AND NOT CASH AS ALLEGED BY THE AO. THE ASSESSEE WITHDREW THE AMOUNTS OF RS.30.0 0 LAKH AND RS.9.30 LAKH ON 22-10-2008 AND 23-10-2008 RESPE CTIVELY. AS THE ASSESSEE COULD NOT CARRY OUT THE WORK FOR WHICH ADV ANCE OF RS.10.00 LAKH WAS RECEIVED, HE RE-DEPOSITED RS.10.00 LA KH IN THREE TRANSACTIONS OF RS.4,95,000, RS.4,95,000 AND RS.10,00 0/- ON 04-03-2009, 06-03-2009 AND 07-03-2009 RESPECTIVELY AND THEREAFTER ISSUED CHEQUE OF RS.10.00 LAKH TO MOHITE & MOHITE ENGINEERS & CONTRACTORS PVT. LTD. TOWARDS REFUND. THIS IS APPARENT FROM THE BANK STATEMENT OF THE ASSESSEE. THE LD. CIT(A) HAS ACCE PTED THE ASSESSEES CONTENTION IN SOFARAS DEPOSIT OF RS.39.37 LAKH IN THE BANK ACCOUNT IS CONCERNED. HE, HOWEVER, DID NOT AGREE WITH THE ASSESSEES CONTENTION THAT A SUM OF RS.10.00 LAKH WAS RE- DEPOSITED FROM THE EARLIER WITHDRAWALS FOR REFUNDING THE AMOUNT TO MO HITE & MOHITE ENGINEERS & CONTRACTORS PVT. LTD. ON TRIVIAL REASONS. ITA NO.276/PUN/2018 ABHAY V. UPADHYE 4 ADMITTEDLY, A SUM OF RS.39,30,000/- WAS WITHDRAWN. AS THE ASSESSEE CARRIED OUT THE WORK ONLY FOR A SUM OF RS.29.8 2 LAKH, THE EXCESS AMOUNT OF RS.10.00 LAKH WHICH WAS INITIALLY GIVEN AS ADVANCE TO THE ASSESSEE WAS WITHDRAWN BY THE ASSESSEE BU T RE- DEPOSITED IN THE SAME BANK ACCOUNT FOR ISSUING A CHEQUE TO MOHITE & MOHITE ENGINEERS & CONTRACTORS PVT. LTD. TOWARDS REFUND. TRANSACTIONS OF RECEIPT OF AMOUNT, CASH WITHDRAWALS, REDEPO SIT OF CASH AND REFUND HAVE TAKEN PLACE DURING THE YEAR ITSELF. UNDER SUCH CIRCUMSTANCES, THERE CAN BE NO QUESTION OF MAKING ADDITION I N RESPECT OF CASH DEPOSIT OF RS.10.00 LAKH MADE BY THE ASS ESSEE ON 04-03-2009, 06-03-2009 AND 07-03-2009 FOR REPAYING A SUM OF RS.10.00 LAKH TO MOHITE & MOHITE ENGINEERS & CONTRACTORS PVT. LTD. ON 07-03-2009. I, THEREFORE, ORDER TO DELETE THE A DDITION OF RS.10.00 LAKH SUSTAINED BY THE LD. CIT(A). 5. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MAY, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 16 TH MAY, 2019 ITA NO.276/PUN/2018 ABHAY V. UPADHYE 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-2, KOLHAPUR 4. THE PR. CIT-2, KOLHAPUR 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 15-05-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 15-05-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *