SATISH SARAF, MUMBAI V. DCIT- CC 4(3), MUMBAI

ITA 2844/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5915 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: A K GHOSH
• Keywords: Unexplained investment
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO. 2844 /MUM/201 8 (A.Y: 2014 - 15) SHRI SATISH SARAF C - 2201, RUSTOMJEE ELANZA NEAR INORBIT MALL, MALAD (W) MUMBAI 400 064 PAN: AAGPS 5830 G V. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 4(3) AIR INDIA BUILDING, NARIMAN POINT MUMBAI 400 021 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.K. GHOSH DEPARTMENT BY : SHRI CHAITANYA ANJARIA DATE OF HEARING : 03 .06.2019 DATE OF PRONOUNCEMENT : 26 .07 .2019 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 51, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 2 0.02.2018 FOR THE A.Y. 2014 - 15. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND IN LAW THE LD. CIT(A) ERRED TO HOLD THAT JE WELLERY VALUED AT RS. 42,47,935/ - WAS SEIZED DURING THE COURSE OF SEARCH (PARA 2 OF THE IMPUGNED ORDER). 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND IN LAW THE LD. CIT(A) ERRED IN NOT ALLOWING THE BENEFIT OF TELESCOPING OF UNEXPLAI NED INVESTMENT IN JEWELLERY & CA SH AGGREGATING TO RS. 28,12,216/ - AGAINST THE 2 ITA NO. 2844/MUM/2018 (A.Y: 2014 - 15) SHRI SATISH SARAF UNDISCLOSED INCOME DETERMINED BY TH E AO AMOUNTING TO RS. 35,34,998/ - FOR THE AY 2010 - 11 TO 2014 - 15. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT GROUND N O. 1 IS NOT PRESSED . IN VIEW OF THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE GROUND NO. 1 IS DISMISSED AS NOT PRESSED. 4. COMING TO THE SECON D GROUND OF APPEAL I.E. NOT ALLOWING BENEFIT OF TELESCOPING OF UNEXPLAINED INVESTMENT IN J EWELLERY AND CASH AGAINST UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER FOR THE A.Y. 2010 - 11 TO 2014 - 15 , I FIND THAT IN THE COURSE OF THE SEARCH CASH OF .25 ,05,000/ WAS FOUND AND JEWELLERY WORTH OF . 3 , 12 , 216 / - WA S FOUND IN THE ASSESSEES GROUP AND THIS WAS BROUGHT TO TAX U/S. 69A OF THE ACT AS UNEXPLAINED INCOME. THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN THE SOURCES FOR THE SAID INVESTMENTS BEFORE THE ASSESSING OFFICER. BEFORE THE LD.CIT(A) THE ASSESSEE CONTENDED THA T THE ASSESSING OFFICER FAILED TO ALLOW THE BENEFIT OF TELESCOPING OF UNDISCLOSED INCOME OF . 33 , 56 , 941/ - ASSESSED FOR THE A.YS. 2010 - 11 TO 2014 - 15 AS COMMISSION INCOME WHILE COMPLETING THE ASSESSMENTS U/S. 153A OF THE ACT . THE ASSESSEE CONTENDED THAT BOTH THE UNDISCLOSED INCOME AND INVESTMENT CAN NOT BE ASSESSED AS INCOME OF THE ASSESSEE AND THIS WILL AMOUNT TO DOUBLE ADDITION. LD.CIT(A) REJECTED THE CONTENTIONS OF THE ASSESSEE AND REJECTED THE BENEFIT OF TELESCOPING IN THE ABSENCE OF CONCRETE EVIDENCES. 3 ITA NO. 2844/MUM/2018 (A.Y: 2014 - 15) SHRI SATISH SARAF 5. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. ON A SPECIFIC QUERY RAISED BY ME AS TO WHETHER THE ASSESSEE IS MAIN TAINING BOOKS OF ACCOUNTS, IT IS SUBMITTED THAT NO BOOKS OF ACCOUNTS WERE MAINTAINED . IN THE ABSENCE OF DATE WISE CASH BOOK AND THE UN ACCOU NTED RECEIPTS AS ITS DEPLOYMENT OF INVESTMENTS, IT MAY NOT BE POSSIBLE TO VERIFY THE INCOME AND THE INVESTMENTS . HOWEVER, AT THE SAME TIME THERE CANNOT BE ANY DOUBLE TAXATION OF INCOME. IT IS THE CONTENTION OF THE ASSESSEE THAT UNDISCLOSED INCOME IN THE FORM OF COMMISSION WAS ALREADY TAXED AND THE SAID INCOME WAS INVESTED IN JEWELLERY AND CASH, SO THERE CANNOT BE ANY TAX ON THIS INVESTMENT. THIS CONTENTION CANNOT BE BRUSHED ASIDE. THEREFORE, SINCE THIS CONTENTION WAS NEITHER RAISED BEFORE THE ASSESSING OFFICER NOR HE HAS EXAMINED, I FEEL IT APPROPRIATE TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO PRODUCE EVIDENCES TO SUPPORT HIS CONTENTIONS THAT THE COMMISSIONED INCOME IS INVESTED IN JEWELLERY AND IS IN THE FORM OF CASH. THUS , THE ISSUE IN APPEAL IS RESTOR ED TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO EXAMINATION OF THE CONTENTIONS OF THE ASSESSEE I.E. TELESCOPING OF UNEXPLAINED INVESTMENT IN JEWELLERY AND CASH AGAINST UNDISCLOSED INCOME DETERMINED FOR A.Y. 2010 - 11 TO 2014 - 15 AFTER PROVIDING ADEQUATE OP PORTUNITY TO THE ASSESSEE. ASSESSEE MAY FILE ALL THE NECESSARY INFORMATION BEFORE THE ASSESSING OFFICER IN SUPPORT OF HIS CONTENTIONS. 4 ITA NO. 2844/MUM/2018 (A.Y: 2014 - 15) SHRI SATISH SARAF 6. I N THE RESULT, A PPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 26 TH JULY , 2019 SD / - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 26 / 0 7 / 2019 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM