ASHOK ADVANI, MUMBAI V. ITO 12(1)(2), MUMBAI

ITA 3548/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8907 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-09-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 19-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE S HRI G.S. PANNU (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3548 /MUM/20 1 4 ASSESSMENT YEAR: 2009 - 10 SH. ASHOK ADVANI, 14 TH FLOOR, NIRMAL, NARIMAN POINT, MUMBAI - 400021 PAN: ADIPA7508C VS. THE ITO 12(1)(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI RAJESH KUMAR YADAV (DR) DATE OF HEARING: 24/10 /201 7 DATE OF PRONOU NCEMENT: 27 / 10 /201 7 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 26/02/2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 23 , MUMBAI , FOR THE A S S ESSMENT YEAR 2009 - 10 , WHEREBY THE LD . CIT (A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3 ) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. BRIEF FAC TS OF THE CASE ARE THAT THE ASSESSEE A PARTNER IN THE FIRM M/S BUSINESS INDIA AND DIRE CTOR IN M/S BUSINESS INDIA PUBLICATION INDIA LTD., M/S BUSINESS INDIA HOLDINGS PVT. LTD. AND M/S BUSINESS INDIA TELEVISION INTERNATIONAL LTD., FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING THE TOTAL INCOME OF RS. 2,90,000 / - . SINCE, THE CASE WAS SELECTED FOR SCRUTINY NOTICE U/S 143 (2) AND 142 (1) WAS SERVED UPON THE ASSESSEE AND IN RESPONSE THEREOF THE AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE AO AND FILED THE DETAILS CALLED FOR . 2 ITA NO. 3548 / MUM/2014 ASSESSMENT YEAR: 2009 - 10 3. AS PER THE AIR INFORMATION, THE ASS ESSEE HAD RECEIVED AN AMOUNT OF RS. 11,00,000/ - FROM M/S ALDEIA BRANCA REAL ESTATE RESORTS AND PROPERTIES PVT. LTD., GOA DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY , THE ASSESSEE WAS ASKED TO SUBMIT THE DETAIL S ALONG WITH THE SUPPORTING DOCUMENTS. ACCORDINGLY, THE AR OF THE ASSESSEE SUBMITTED AS UNDER: MR. ASHOK ADVANI HAS GIVEN AN INTEREST FREE ADVANCE OF RS. 11,00,000 / - AROUND 15 - 20 YEARS BACK. HOWEVER , WHILE REPAYING THE SAID ADVANCE, THROUGH OVER SIGHT, THE COMPANY DEDUCTED TAX AT SOURCE OF RS. 1,24,630/ - ON THE SAID REPAYMENT. IT WAS PURELY A LOAN REPAYMENT. IT IS NOT THE INCOME OF MR. ASHOK ADVANI. 4. IN THE ABSE NCE OF ANY DOCUMENTARY EVIDENCE, THE AO TREAT E D THE SAID AMOUNT AS UNEXPLAINED INVESTMEN T U/S 69 OF THE ACT. AFTER MAKING OTHER ADDITIONS AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 15,27,000/ - (ROUNDED OFF). IN FIRST APPEAL, THE LD. CIT (A) CONFIRMED THE ADDITION OF RS. 11,00,000/ - MADE BY THE AO. 5 . AGGRIEVED BY THE ORDER OF LD . CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND : - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 11,00,000/ - BEING THE REPAYMENT OF LOAN BY ALDEIA BRANCA REAL ESTATES RESORTS AND PROPERTIES PVT. LTD. TO THE ASSESSEE. 6. THIS CASE WAS FIXED FOR HEARING ON 24/10/2017. WHEN THE CASE WAS CALLED UP FOR HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE. WE NOTICE THAT ON THE LAST THREE SUCCE SSIVE DATES OF HEARING, THE CASE WAS ADJOURNED DUE TO NONE APPEARANCE OF THE ASSESSEE. FROM THE ACKNOWLEDGEMENT ATTACHED WITH THE FILE, WE ARE SATISFIED THAT THE ASSESSEE HAS RECEIVED THE NOTICE ON 3 ITA NO. 3548 / MUM/2014 ASSESSMENT YEAR: 2009 - 10 19/09/2017 WELL IN ADVANCE BEFORE THE DATE OF HEARING. FRO M THE CONDUCT OF THE ASSESSEE, WE ARE SATISFIED THAT THE ASSESSEE IS NO LONGER INTERESTED IN PURSUING ITS APPEAL. WE, THEREFORE, DECIDED TO DISPOSE OF THE APPEAL ON THE BASIS OF MATERIAL ON RECORD AFTER HEARING THE DEPARTMENTAL REPRESENTATIVE (DR). 7. THE LD. DR RELYING ON THE FINDINGS OF THE AUTHORITIES BELOW SUBMITTED THAT THERE IS NO INFIRMITY IN THE FINDINGS OF THE LD. CIT (A). THE ASSESSEE HAS FAILED TO SUBSTANTIATE ITS CLAIM THAT THE AMOUNT OF RS. 11,00,000/ - RECEIVED BY THE ASSESSEE AS REPAYMENT O F THE LOAN ADVANCED TO ALDEIA BRANCA REAL ESTATE RESORTS AND PROPERTIES PVT. LTD. 8. WE HAVE PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BY THE LD. DR. THE LD. CIT (A) HAS DISMISSED THE CONTENTION OF THE ASSESSEE HOLDING THAT THER E IS NO BASIS TO BELIEVE THAT THE AMOUN T IN QUESTION HAD BEEN G IVEN BY THE ASSESSEE AS ADVANCE AND THE DEBTOR RETURNED THE SAME . THE LD. CIT(A) HAS AFFIRMED THE ACTION OF THE AO AND DISMISS ED THIS GROUND OF APPEAL HOLDING AS UNDER: AS STATED EARLIER, T HE PERSON MAKING PAYMENT OF RS. 11,00,000/ - HAS CLEARLY STATED THAT THE PAYMENT TO BE IN THE NATURE OF PROFESSIONAL/TECHNICAL SERVICES ON WHICH TAX AT SOURCE HAS ALSO BEEN DEDUCTED BY THE PAYER. THE RECEIPT IN THE HANDS OF THE ASSESSEE WOULD, THEREFORE, BE INCOME ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS AND PROFESSION. SINCE THE ASSESSEE HAD NOT DISCLOSED THIS INCOME IN THE RETURN OF INCOME FILED BY HIM, THE EXPLANATION REGARDING THE REFUND OF LOAN GIVEN EARLIER APPEARS TO HAVE BEEN CREATED IN ORDER TO ESCAPE THE CONSEQUENCE OF TAXATION OF THIS AMOUNT. THEREFORE, THE ENTIRE INCOME OF RS. 11,00,000/ - IS HE LD TO BE ASSESSABLE IN THE HANDS OF THE ASSESSEE. THE PROVISIONS OF SECTION 69 OF THE I.T. ACT,1961 IS NOT APPLICABLE IN THE FACTS OF THE CASE SINCE THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAD GIVEN THE ADVANCE IN THE F.Y. IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN QUESTION. HENCE, THE ADDITION OF RS. 4 ITA NO. 3548 / MUM/2014 ASSESSMENT YEAR: 2009 - 10 11,00,000/ - TO THE TOTAL INCOME IS UPHELD, THOUGH NOT U/S 69 OF THE I.T. ACT,1961. THE GROUND OF APPEAL FILED BY THE ASSESSEE IS DISMISSED. 9. A S PER THE AIR INFORMATION, THE ASSESSEE HAS RECEIVED THE A MOUNT OF R S. 11,00,000/ - FROM M/S. ALDEIA BRANCA REAL ESTATE RESORTS & PROPERTIES LTD. GOA DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION AS FEES FOR PROFESSIONAL/TECHNICAL SERVICES. SINCE, THE ASSESSEE HAS FAILED TO SUBSTANTIATE ITS CONTENTION, THE LD. CIT(A) HAS RIGHTLY HELD THAT THE ASSESSEE HAS RECEIVED THE AMOUNT IN QUESTION AS FEES FOR PROFESSIONAL /TECHNICAL SERVICES RENDERED BY HIM TO THE COMPANY. HENCE, W E DO NOT FIND ANY LEGAL OR FACTUAL INFIRMITY IN THE FINDINGS OF THE LD. CIT (A). WE , THEREFORE, UPHOLD THE ORDER PASSED BY THE LD. CIT (A) AND DISMISSED THE SOLE GROUND OF APPEAL OF THE ASSESSEE. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2009 - 2010 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH OCTOBER , 2017 . SD/ - SD/ - ( G.S. PANNU ) ( RAM LAL NE GI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 27 / 10 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5 ITA NO. 3548 / MUM/2014 ASSESSMENT YEAR: 2009 - 10 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI