MANISH DAMJI SHAH, MUMBAI V. ITO 21(1)(3), MUMBAI

ITA 3182/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3207 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKNANA
• Assessee Lawyers: SUNEET V MAHALE
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3182/MUM/2014 ASSESSMENT YEAR : 2009-10 SHRI MANISH DAMJI SHAH 602, AASHISH APARTMENT TILAK MANDIR ROAD, VILE PARLE (E) MUMBAI 400 057 PAN AAGPS4937E VS. THE ITO 21(1)(3) , MUMBAI (APPELLANT) RESPONDENT) APPELLANT BY : SHRI SUNEET V MAHALE RESPONDENT BY : SHRI G N MAKNANA DATE OF HEARING : 23 .0 5 .201 6 DATE OF PRONOUNCEMENT : 27 .0 5 . 201 6 O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDE R OF THE CIT(A) 22, MUMBAI, IN APPEAL NO.CIT(A)-22/ITO-21(1)(3)/IT-220/ 2012-13 DATED 31.12.2013. THE ASSESSMENT WAS FRAMED BY THE ITO 21(1)(3), MUMB AI, VIDE HIS ORDER DATED 29.12.2011 U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL IS TIME BARRED BY FIFTY FIVE DAYS AND ASSESSEE HAS FILED CONDONATION PETITION SUPPORT ED BY AFFIDAVIT STATING REASONS FOR DELAY. THE LEARNED COUNSEL FOR THE ASSESSEE ST ATED THAT THERE WAS A SPLIT UP IN THE FIRM OF THE COUNSELS I.E. CHARTERED ACCOUNTANT S FIRM AND DUE TO THAT THE APPEAL COULD NOT BE FILED DUE TO THE FAILURE OF THE CHARTE RED ACCOUNTANT. IT WAS EXPLAINED ITA NO.3182/MUM/2014 SHRI MANISH DAMJI SHAH 2 THAT IN FEBRUARY, 2013 THERE WAS RE-ORGANIZATION OF M/S.A M SOLANKI & ASSOCIATES, WHO USED TO HANDLE AND APPEAR ON BEHALF OF THE ASSE SSEE IN THE ASSESSMENT AND APPELLATE PROCEEDINGS. IT WAS EXPLAINED THAT MR. S UNEET MAHALE RESIGNED FROM THE FIRM AND, SUBSEQUENTLY, SET UP ANOTHER PARTNERSHIP FIRM, MAHALE CHHEDA & ASSOCIATES, WHICH WAS REGISTERED WITH ICAI ON 12/02 /2013 AND AFTER THAT HE TOOK UP THE MATTER OF THE ASSESSEE AND FILED THE APPEAL. A CCORDING TO THE LEARNED COUNSEL THIS WAS THE REASON FOR DELAY. WHEN THIS WAS CONFR ONTED THE LEARNED SENIOR DR FAIRLY CONCEDED THAT THE CAUSE IS REASONABLE AND DE LAY CAN BE CONDONED. IN VIEW OF THE CONCESSION GIVEN BY THE LEARNED SENIOR DR AND G OING BY THE REASONS STATED, WE ARE OF THE VIEW THAT THE CAUSE IS REASONABLE AND DE LAY IS ACCORDINGLY CONDONED. THE APPEAL IS ADMITTED. 3. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A) CONFIRMING THE ACTION OF THE AO IN MAKING TH E ADDITION OF THE OPENING CASH BALANCE OF RS.2,92,000/-. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT A SURVEY U /S. 133A OF THE ACT WAS CARRIED OUT BY THE DEPARTMENT ON THE BUSINESS PREMISES OF T HE ASSESSEE I.E. M/S. SHRIMATI SAREES, A PROPRIETARY CONCERN, ON 27.02.2009 AND FR OM THERE CASH TO THE TUNE OF RS.2,92,000/- WAS FOUND. ACCORDING TO THE AO THIS CASH WAS UNACCOUNTED AND, HENCE, HE ADDED THE SAME AS UNEXPLAINED/UNACCOUNTED CASH. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), WHO AL SO CONFIRMED THE ACTION OF THE AO. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL BE FORE THE TRIBUNAL. ITA NO.3182/MUM/2014 SHRI MANISH DAMJI SHAH 3 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE D REW OUT ATTENTION TO ASSESSEES PAPER-BOOK AT PAGE 34, WHEREIN THE CLOSI NG BALANCE AS ON 31.03.2009 I.E. CASH IN HAND WAS RS.2,61,875/-. THE LEARNED C OUNSEL FOR THE ASSESSEE EXPLAINED THAT THERE WAS A CASH BALANCE OF RS.2,92, 000 AS ON 27.02.2009 IN ITS CASH BOOK AND FOR THIS HE REFERRED TO THE EXTRACT OF CAS H BOOK ENCLOSED IN ASSESSEES PAPER-BOOK AT PAGES 67 TO 80, WHEREIN CLOSING BALAN CE AS ON 27.02.2009 WAS RS.2,92,000/-. ON QUERY FROM THE BENCH, THE LEARNE D COUNSEL FOR THE ASSESSEE EXPLAINED THAT THIS EXTRACT OF CASH BOOK WAS ALSO P RODUCED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND NOTHING ADVERS E WAS POINTED OUT BY THE AO. HE FURTHER EXPLAINED THAT THESE DOCUMENTS WERE ALSO PLACED BEFORE THE CIT(A). WHEN THESE DOCUMENTS WERE CONFRONTED TO THE LEARNED SENIOR DR, HE ONLY REQUESTED FOR SETTING ASIDE THIS ISSUE TO THE FILE OF THE AO. 6. WE FIND FROM THE ABOVE FACTS THAT IN THE CASH BO OK THE ASSESSEE HAS CASH BALANCE AMOUNTING TO RS.2,92,000/- AS ON THE DATE O F SURVEY I.E. 27.02.2009, WHICH WAS FOUND BY THE REVENUE. THERE IS NO DISCREPANCY IN THE CASH FOUND AND THE CASH RECORDED IN THE BOOKS OF ACCOUNT. ACCORDINGLY, WE DELETE THE ADDITION AND ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 27 TH MAY 2016. SD/- SD/- (RAJESH KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED : 27 TH MAY, 2016. SA ITA NO.3182/MUM/2014 SHRI MANISH DAMJI SHAH 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI