SAMBHAV TIRTH CHS LTD, MUMBAI V. ITO 16(2)(1), MUMBAI

ITA 311/MUM/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6759 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 13-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NO.311/MUM/2010 : ASST.YEAR 2002-2003 M/S.SAMBHAV TIRTH CHS LIMITED 2A BHULABHAI DESAI ROAD, HAJI ALI MUMBAI 400 026. PAN : AAAAS4937M. VS. THE INCOME TAX OFFICER WARD 16(2)(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH JOSHI RESPONDENT BY : SHRI R.K.GUPTA O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 06.11.2009 IN RELATI ON TO THE ASSESSMENT YEAR 2002-2003. IT IS A RECALLE D MATTER INASMUCH AS THE EAR LIER ORDER PASSED BY THE TRIBUNAL HAS BEEN RECALLE D VIDE ITS ORDER DATED 7 TH JANUARY, 2011. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.10 LAKHS RECEIVED BY THE ASSESSEE FROM M/S.DEESHA LEASECON PRIVATE LIMITED (DLPL) ON ACCOUNT OF DEPOSIT AS INCOME FRO M OTHER SOURCES. BRIEFLY STATED THE FACTS OF THIS GROUND ARE THAT DURING THE YEAR THE ASSESSEE ENTERED INTO AN AGREEMENT WITH DLPL FOR THE MAINTENANCE OF ILLUMI NATED HOARDING / DISPLA Y STRUCTURE AND FOR THE DISPLAY OF ADVERTISEMENT AT THE SAID HOARDING ADJOINING THE DEAD WALL IN THE PREMISES OF THE SOCIETY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED FOR DETAILS U/S.133(6) FROM DLPL REGARDING THE AMOUNT PAID BY THEM TO THE ASSESSEE-SOCIETY. TH E ASSESSEE HAD SHOWN A SUM OF RS.16.50 LACS AS RECEIVED. THERE WE RE TWO AGREEMENTS WITH DLPL. ONE WAS FOR MAINTENANCE OF HOARDING AND THE OTHER FO R CONSTRUCTION / DISPLAY OF HOARDINGS. AS PER THIS AGREEMENT THE ASSESSEE WAS TO RECEIVE RS .75,000 PER MONTH FOR MAINTENANCE AND RS.25,000 PER MONTH FOR DISPLA Y OF HOARDINGS. THE A.O. NOTED THAT THE ASSESSEE HAD ITA NO.311/MUM/2010 M/S.SAMBHAV TIRTH CHS LIMITED. 2 RECEIVED A SUM OF RS.7.50 LACS FOR MAIN TENANCE AND RS.2.50 LACS FOR DISPLAY OF HOARDINGS AND THESE FACTS WERE ALSO REFLEC TED IN THE STATEMEN T AND CONFIRMED BY DLPL. THE A.O. DID NOT ACCEPT THE ASSESSEES CONTENTION THAT THE SUM OF RS.10 LACS WAS ADVANCE RECEIVED BY THE ASSESSEE. HE HOWEVER TOOK IT AS ARREARS RECEIVED FROM DLPL AND ADDED THE ENTIRE SUM OF RS.16.50 LACS. IT WAS ARGUED BEFORE THE LEARNED CIT(A) THAT ONLY A SUM OF RS.6.50 LACS WA S RECEIVED AS INCOME AND THE REMAINING RS.10 LACS WAS DEPOSIT. THE LEARNED CIT( A) UPHELD THE ADDITION OF RS.16.50 LACS MADE BY THE ASSESSING OFFICER. IN THE PRESENT APPEAL WE ARE CONCERNED ONLY WITH THE ADDITION TO THE EX TENT OF RS.10 LACS. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RE LEVANT MATERIAL ON RECORD. INSOFAR AS THIS AMOUNT OF RS.10 LACS IS CONCERNED THE ASSE SSEE STATED BEFORE THE ASSESSING OFFICER IT WAS RECEIVED AS DEPOSIT AND WAS NOT IN THE NATURE OF INCOME. SIMILAR VIEW WAS GIVEN BY DLPL. COPY OF ACCOUNT OF THE ASSESSEE IN THE BOOKS OF DLPL H AS BEEN PLACED ON RECORD FROM WH ERE IT CAN BE SEEN THAT SUM OF RS.10 LACS HAS BEEN SHOWN BY THEM AS CLOS ING BALANCE RECEIVABLE. THE ASSESSEE HAS ALSO SHOWN THE SAID SUM OF RS.10 LACS AS PAYABLE TO DLPL. FURTHER DLPL ISSUED A LETTER DATED 10.10.2002 TO TH E ASSESSEE, COPY OF WHICH IS PLACED ON PAGE 10 OF THE PAPER BOOK, REITERATING THAT THE SAID SUM OF RS.10 LA CS WAS ADVANCE DEPOSIT AND WAS SO INCORPORATED IN THEIR BOOKS OF ACC OUNT. IT IS SEEN FROM THE ASSESSMENT ORDER THAT THE A.O. HAS GONE ONLY WITH THE PR ESUMPTION THAT THE ASSESSEE RECEIVED RS.10 LACS AS ARREARS OF RENT. IT IS EVIDEN T FROM HIS OBSERVATIONS ON PAGE 4 OF THE ASSESSMENT ORDER WHICH READ AS : IN ALL LIKELIHOOD RS.750000/- AND RS.250000/- WERE PAYMENTS MADE IN ARREARS BY DEE SHA LEASECON PVT. LTD. TO THE HOUSING SOCIETY AND IS LIABLE FOR TAXATI ON IN THE RELEVANT PREVIOUS Y EAR I.E. THE YEAR IN WHICH IT IS RECEIVED. THE ENTIRE OF RS.1650000/- WILL BE BROUGHT TO TAX AS INCOME FROM OTHER SOURCES. FROM THE ABOVE NARRATION OF FACTS IT IS VIVID THAT THE ASSESSEE THOUGH RECEIVED A SUM OF RS.10 LACS BUT WAS IN THE NATURE OF DEPOSIT, WHICH WAS REFLECTED SO IN ITS BOOKS OF ACCOUNT AND THE SAME TREATMENT WAS GIVEN BY DLPL BY SHOWING ITA NO.311/MUM/2010 M/S.SAMBHAV TIRTH CHS LIMITED. 3 IT AS THE AMOUNT RECEIVABLE FROM THE ASSESSEE. ONE PARTY IS SHOWING IT AS A RECEIVABLE AND THE OTHER IS SHOWING AS PA YABLE WHICH IS FURTHER BORNE OUT FROM THE LETTER OF DLPL TO THE ASSES SEE STATING THAT THE SAID SU M OF RS.10 LACS IS ONLY A DEPOSIT. IN SUCH CIRCUMSTANCES IT IS BE YOND OUR COMPREHENSION AS TO HOW THE SAID DEPOSIT CAN BE TREATED AS INCOME BY THE ASSE SSING OFFICER WHEN THERE IS NO MATERIAL OR EVIDENCE TO THE CONTRARY . WE, THEREFORE, OVERTURN THE IMPUGNED ORDER ON THIS ISSUE AND ORDER FOR THE DELETION OF ADDITION. 9. IN THE RESULT, TH E APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 22 ND DAY OF JULY, 2011. SD/- SD/- ( V.DURGA RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 22 ND JULY, 2011. DEVDAS*` COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXVII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.