VISHAL KARIA, MUMBAI V. ITO WD 20(3)(4), MUMBAI

ITA 3570/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1769 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 16-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD
• Assessee Lawyers: SHAILESH PARMARLD
• Keywords: Business income; Peak credit; Additional evidence
• Section: 143(3); 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.3570/MUM/2017 ( / ASSESSMENT YEAR: 2010-11) V ISHAL KARIA 204, 2 ND FLOOR, GRACE BUILDING OPP. LOTUS EYE HOSPITAL JUHU SCHEME, JUHU MUMBAI 400 049 / VS. ITO - 20 (3)( 4 ) PIRAMAL CHAMBERS LALBAUG, LOWER PAREL MUMBAI 400 012 ! ./ ./PAN/GIR NO. ASGPK-2890-Q ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI SHAILESH PARMAR LD. AR DEPARTMENT BY : CHAUDHARY ARUN KUMAR SINGH-LD.DR / DATE OF HEARING : 15/05/2019 / DATE OF PRONOUNCEMENT : 06/06/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2010-11 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME-TAX (APPEALS)-39, MUMBAI, [IN SHORT REFERRED TO AS CIT (A)], APPEAL NO. CIT(A)- 39/IT-27/ITO-20(3)(4)/12-13 DATED 10/02/2017 QUA CONFIRMATION OF CERTAIN ADDITIONS. 2 2. BRIEF FACTS ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 26/02/2013, WHEREIN THE INCOME WAS DETERMINED AT RS.139.09 LACS AFTER CERTAIN ADDI TIONS AS AGAINST RETURNED INCOME OF RS.7.25 LACS FILED BY THE ASSESS EE ON 22/06/2010.THE ADDITION OF RS.52.06 LACS MADE U/S 68 IS THE SOLE S UBJECT MATTER OF PRESENT APPEAL BEFORE US. 3. DURING ASSESSMENT PROCEEDINGS IT TRANSPIRED THAT THE ASSESSEE DEPOSITED CASH OF RS.52.06 LACS IN ONE OF HIS BANK ACCOUNTS MAINTAINED WITH ICICI BANK LTD. THE FAILURE TO FURNISH ANY EXP LANATION RESULTED INTO ADDITION OF THE SAME U/S 68. 4.1 BEFORE FIRST APPELLATE AUTHORITY, THE ASSESSEE FURNISHED ADDITIONAL EVIDENCES WHICH WERE SUBJECTED TO REMAND PROCEEDING S. THE ASSESSEE EXPLAINED THAT THE ASSESSEE ALONG WITH HIS BROTHER FORMED AN ASSOCIATION OF PERSON [AOP] TO CARRY OUT CAR HIRE BUSINESS. ACCORDINGLY, THE SAID BANK ACCOUNT WAS OPENED. THE VEHICLES WERE PURCHASED ON BANK FINANCE AND THE RECEIPTS WERE DEPOSITED IN THE SAID BANK ACCOUN T. HOWEVER, LD. AO, IN REMAND REPORT, OPPOSED THE ADMISSION OF ADDITIONAL EVIDENCES. NEVERTHELESS, REJECTING THE SAME, LD. CIT(A) PROCEE DED TO CONSIDER THE ASSESSEES SUBMISSIONS IN THE LIGHT OF THESE EVIDEN CES. 4.2 IT WAS NOTED THAT THE SAID BANK ACCOUNT WAS IN THE SOLE NAME OF ASSESSEE AND NO EVIDENCE COULD BE ADDUCED BY THE AS SESSEE TO SUPPORT THE STATED SUBMISSIONS. FINALLY DRAWING STRENGTH FR OM THE FIRST APPELLATE ORDER IN ASSESSEES OWN CASE FOR AY 2009-10, THE SA ID ADDITIONS WERE CONFIRMED. AGGRIEVED, THE ASSESSEE IS IN FURTHER AP PEAL BEFORE US. 3 5. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], DRAWING OUR ATTENTION TO THE DOCUMENTS PLACED IN THE PAPER-BOOK , PLEADED THAT THE SAID DEPOSITS WERE SOURCED OUT OF BUSINESS INCOME GENERA TED BY THE AOP DURING IMPUGNED AY AND THE INCOME BELONGED TO AOP O NLY. ALTERNATIVE PLEADINGS HAVE BEEN MADE TO DIRECT LOWER AUTHORITIE S TO ADOPT THE CORRECT FIGURES OF THE INCOME. THE LD. DR SUBMITTED THAT TH E ASSESSEE MISERABLY FAILED TO FURNISH ANY CONVINCING EVIDENCES AND THER EFORE, THE ADDITIONS WERE JUSTIFIED. 6. UPON CAREFUL CONSIDERATION, THE UNDISPUTED FACT THAT EMERGES ARE THAT THE BANK ACCOUNT UNDER QUESTION HAS BEEN HELD IN TH E SOLE NAME OF THE ASSESSEE. THE ASSESSEE COULD NOT ADDUCE ANY SINGLE EVIDENCE IN SUPPORT OF THE CLAIM THAT ANY AOP EXISTED BETWEEN HIM AND H IS BROTHER PRIOR TO OPENING OF THE SAID BANK ACCOUNT AND THE STATED DEP OSITS BELONGED TO AOP. THEREFORE, FINDING NO SUBSTANCE IN THE SAME, WE DIS MISS GROUND NOS.1 & 2. 7.1 BY WAY OF GROUND NO.3, THE ASSESSEE HAS PLEADED THAT THE CORRECT INCOME TO BE ASSESSED IS RS.36.41 LACS AND NOT RS.5 2.06 LACS AS ADOPTED BY LOWER AUTHORITIES. THE LD. AR, IN SUPPORT OF THE SAME, PLACED ON RECORD PROFIT & LOSS ACCOUNT, BALANCE SHEET, BANK STATEMEN T, CASH BOOK ETC. WHEREIN THE ASSESSEE HAS DRAWN THE ACCOUNTS AND REC ONCILED THE STATED CASH DEPOSITS. THE PERUSAL OF THE BANK STATEMENTS A S WELL AS OTHER DOCUMENTS ON RECORD WOULD REVEAL THAT THE ASSESSEE HAD OBTAINED AUTO LOAN FROM HDFC BANK LTD. THE INSTALLMENTS OF THE SA ME WAS BEING PAID THROUGH THE STATED BANK ACCOUNT. THIS FACT LENDS CE RTAIN CREDENCE TO THE SUBMISSIONS THAT THE ASSESSEE WAS INTO SOME SORT OF CAR RUNNING BUSINESS. 4 7.2 UPON PERUSAL OF ORDERS FOR AY 2009-10, WE FIND THAT THE ASSESSEE WAS SADDLED WITH SIMILAR ADDITIONS OF RS.35.98 LACS WHI CH WAS RESTRICTED TO RS.23.99 LACS BY FIRST APPELLATE AUTHORITY AFTER GI VING THE BENEFIT OF PEAK CREDIT. SIMILAR IS THE POSITION IN AY 2011-12 WHERE IN LD.AO, HIMSELF, HAS WORKED OUT THE ADDITION ON PEAK BASIS. 7.3 KEEPING IN MIND THE AFORESAID FACTORS, WE DIREC T LD. AO TO RESTRICT THE IMPUGNED ADDITIONS TO RS.36,41,497/- AS REFLECTED B Y THE ASSESSEE IN THE FINANCIAL STATEMENTS. THIS GROUND STANDS PARTLY ALL OWED. 8. RESULTANTLY, THE APPEAL STANDS PARTLY ALLOWED TO THE EXTENT INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JUNE, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06/06/2019 SR.PS:-JAISY VARGHESE ! ' ! / COPY OF THE ORDER FORWARDED TO : 1. !% / THE APPELLANT 2. &' !% / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. ( )&* , * , / DR, ITAT, MUMBAI 6. ) ,-. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI