VINEET SHARMA, MUMBAI V. ITO WD NO. 24(1)(2), MUMBAI

ITA 3593/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3051 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Source of fund

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM ./ I.T.A. NO. 3593/MUM/2014 ( / ASSESSMENT YEAR: 2009-10) SHRI VINEET SHARMA B-303, GARDEN ESTATE, BHAGAT SINGH NAGAR, PART-2, OPP. VIBGYOR SCHOOL, LINK ROAD, GOREGAON (WEST), MUMBAI-400 062. / VS. INCOME TAX OFFICER WARD NO 24(1)(2), ROOM NO.608, C-13, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI. ./ ./PAN/GIR NO. ATLPS 0343N ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VISHWAS MEHENDALE / RESPONDENT BY : NONE / DATE OF HEARING : 16/09/2016 !'# / DATE OF PRONOUNCEMENT : 21/09/2016 $% / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- 34, DATED 24 .02.2014 ON THE GROUNDS OF APPEAL MENTIONED HEREIN BELOW. 2 ITA NO. 3593/MUM/2014(A.Y. 2009-10) SHRI. VINEET SHARMA VS. ITO 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, HONBLE CIT(A)-34, HAS ERRED IN CONFIRMING THE ADDITION OF RS.11,35,00 0/- BEING PEAK AMOUNT, AS UNDISCLOSED INVESTMENT U/S 69A BY OVERLOOKING TH E FACT THAT, THE SOURCE OF FUNDS WAS PROPERLY EXPLAINED DURING THE COURSE OF A PPELLATE PROCEEDINGS BEFORE HON. CIT-A. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E BEING AN INDIVIDUAL IS A REAL ESTATE BROKER AND CONSULTANT. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE DERIVED INCOME FROM BUSINESS. THE ASSESSEE HAS FILE D THE RETURN OF INCOME ON 27.07.09 DECLARING TOTAL INCOME OF RS.4,01,260/-. T HE RETURN WAS PROCESSED U/S 143(1) OF THE IT ACT,1961. SUBSEQUENTLY THE CASE WA S SELECTED FOR SCRUTINY THROUGH CASS AND AFTER SERVING STATUTORY NOTICES AND RECEIV ING REPLY FROM THE ASSESSEE ASSESSMENT ORDER WAS PASSED BY AO THEREBY MAKING AD DITIONS U/S 69A OF THE ACT,1961 BY CONSIDERING THE PEAK AMOUNT OF RS.11,00 ,000/- OF CASH SALES CHEQUE DEPOSITED BY THE ASSESSEE AND FURTHER ADDITION OF R S.35,000/- WAS ALSO MADE ON THE GROUND THAT THE ASSESSEE FAILED TO PROVE BY WAY OF DOCUMENTARY EVIDENCE THAT SAID AMOUNT OF RS.35,000/- AS COMMISSION RECEIPT AND WA S FORMING PART OF GROSS RECEIPT. 3. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE FILED THE APPEAL BEFORE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE CASE OF THE AS SESSEE DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 24.02.2014. 3 ITA NO. 3593/MUM/2014(A.Y. 2009-10) SHRI. VINEET SHARMA VS. ITO 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE F ILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. 5. THE ONLY GROUND RAISED BEFORE US BY THE ASSESSEE IS THAT HE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.11,35,000/- BEING PEAK AMOUNT AS UNDISCLOSED INVESTMENT U/S 69A BY OVERLOOKING THE FACT THAT, TH E SOURCE OF THE FUNDS WAS PROPERLY EXPLAINED DURING THE COURSE OF APPELLATE P ROCEEDINGS BEFORE THE CIT(A). 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. LD. AR APPEARING ON BEHALF OF ASSESSEE HAS TAKEN THE SAME ARGUMENTS WHICH HE HAD SUBMITTED BEFORE CIT(A) AND THE SAME IS ALSO REPRODUCED IN PARA NO.3 OF THE CIT(A) ORDER. 3. DURING THE COURSE OF APPELLATE PROCEEDINGS THE APPELLANT HAS MADE THE FOLLOWING SUBMISSIONS. THE NATURE OF BUSINESS OF THE ASSESSEE IS OF REAL E STATE AGENCY, WHEREIN HE HAS RECEIVED HIS SHARE OF COMMISSION INTO HIS BANK DIRE CTLY IN FORM OF CASH & CHEQUE, FROM ANOTHER LOCAL BROKER MS. RENU AGARWAL DIRECTLY , WHO WAS ALSO PART OF THE SAME DEAL OF PROPERTY SITUATED OUTSIDE MUMBAI. HER PAN NUMBER WAS ALREADY SUBMITTED TO THE ASSESSING OFFICER. THESE DEPOSITS ARE ALREADY PART OF THE GROSS RECEIP TS CREDITED TO THE INCOME & EXPENDITURE ACCOUNT TOTALING TO RS. 21,57,960/-. TH US ADDING THEM AGAIN TO THE INCOME U/S. 69A OF THE IT ACT, 1961, AS UNDISCLOSED INCOME WILL LEAD TO DOUBLE TAXATION IN THE HANDS OF THE ASSESSEE, CAUSING UNDU E HARDSHIPS TO THE ASSESSEE, WHICH WE REQUEST YOUR GOODSELF NOT TO ADD TO THE TA XABLE INCOME OF THE ASSESSEE. TO PROVE COMMISSION OF RS. 35,000/- IS ALREADY INCL UDED IN THE INCOME- THE ASSESSEE HAS RECEIVED RS. 31,395/- INTO HIS BAN K BY CHEQUE FROM M/S. INFRA DREDGE ON 13/01/2009. THIS AMOUNT IS COMMISSION OF RS. 350001- AFTER TDS @ 10.3%. THE SAME IS VISIBLE IN THE APPELLANT FORM 26 AS. THE SAME IS ALREADY INCLUDED IN THE GROSS RECEIPTS CREDITED TO HIS INCO ME & EXPENDITURE ACCOUNT & ADDING THE SAME AGAIN U/S. 69A AS UNDISCLOSED INVES TMENT, WILL LEAD TO DOUBLE 4 ITA NO. 3593/MUM/2014(A.Y. 2009-10) SHRI. VINEET SHARMA VS. ITO TAXATION IN THE HANDS OF THE ASSESSEE, THEREBY CAUS ING UNDUE HARDSHIPS TO HIM, WHICH WE REQUEST YOUR GOODSELF NOT TO ADD TO THE TA XABLE INCOME OF THE ASSESSEE. WE CONTINUE WITH OUR STAND THAT THE LEARNED ASSESSI NG OFFICER HAS ADDED AGAIN THE SAME INCOME WHICH WAS ALREADY DISCLOSED IN HIS RETU RN OF INCOME TREATING IT AS UNDISCLOSED INCOME AND INVESTMENT, BASIS WHICH WE R EQUEST YOUR GOODSELF NOT TO ADD THE BANK DEPOSITS INTO INCOME OF THE ASSESSEE. 6.1 LD. CIT(A) HAS DECIDED THIS ISSUE IN PARA NO.4&5 OF ITS ORDER. THE OPERATIVE PARA IS REPRODUCED HEREIN BELOW FOR THE SAKE OF REF ERENCE: 4. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MAD E BY THE APPELLANT AND THE IMPUGNED ASSESSMENT ORDER. THE APPELLANT HAS SUBMIT TED BEFORE THE AO THAT DUE TO THE NATURE OF BUSINESS HE HAD TO ACCEPT CASH DEP OSITS AND IT IS NOT POSSIBLE TO PROVIDE ANY 3RD PARTY CONFIRMATIONS FOR SUCH CASH DEPOSITS. HE FURTHER SUBMITTED THAT HE WAS A PART OF TRANSACTION WHICH WAS NOT SIT UATED IN MUMBAI, HENCE HIS COMMISSION WAS RECEIVED BY HIS COUNTERPART IN THAT CITY AND DEPOSITED INTO HIS ICICI BANK ACCOUNT. 5. BEFORE THE APPELLATE AUTHORITY THE APPELLANT SUB MITTED THAT THE SUM TOTAL OF COMMISSION EARNED BY HIM DURING THE YEAR, BOTH ARE FORMING A PART OF THE GROSS RECEIPTS OF RS. 21,53,960/- IN PROFIT & LOSS ACCOUN T. EVEN THOUGH THE APPELLANT CLAIMS THAT THE DEPOSITS ARE PART OF THE INCOME SHO WN, HE COULD NOT EXPLAIN SATISFACTORILY BEFORE THE AO OR THE CIT(A). IN THE CIRCUMSTANCES THE APPEAL IS DISMISSED. 6.2 FROM THE CO-JOINT READING OF THE IMPUGNED ORDER AS WELL AS ARGUMENTS RAISED BY ASSESSEE WE OBSERVE THAT THE CIT(A) HAS REJECTED THE CLAIM OF THE ASSESSEE CITING THE ABSENCE OF DOCUMENTARY EVIDENCE AS WELL AS IN THE ABSENCE OF SATISFACTORY EXPLANATION. THE LD. AR, HOWEVER, DRAW N OUR ATTENTION TO THE PAPER BOOK FILED WHICH CONTAINS COPY OF PASS BOOK, BANK S TATEMENT AND LEDGER ACCOUNT ETC. LD. AR HAS ALSO RELIED UPON THE COPY OF GROSS RECEIPT SUMMARY PARTYWISE SUBMITTED BY ASSESSEE WHICH IS AT PAGE NO. 32 OF PA PER BOOK WHICH WERE FILED BEFORE THE AUTHORITIES BELOW. 5 ITA NO. 3593/MUM/2014(A.Y. 2009-10) SHRI. VINEET SHARMA VS. ITO 7. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE PART IES AND THE SUBMISSIONS DOCUMENTS AND EVIDENCES FILED BY THE ASSESSEE BEFOR E THE AUTHORITIES BELOW AS MENTIONED IN PARA 6.2 OF THIS ORDER, WE OBSERVE THA T THE CIT(A)/AO HAVE NOT EXAMINED OR CONSIDERED THE DOCUMENTS FILED BY ASSES SEE. WE, THEREFORE, CONSIDERING THE INTEREST OF JUSTICE, EQUITY AND FAI R PLAY, ARE OF THE CONSIDERED VIEW THAT THE ORDERS OF THE LD. CIT(A) ARE TO BE SET ASI DE AND THE MATTER BE RESTORED BACK TO THE FILE OF AO TO EXAMINE AND VERIFY THE DOCUMEN TS FILED BY ASSESSEE AND TO ADJUDICATE THEREON AFTER PROVIDING REASONABLE OPPOR TUNITY TO THE ASSESSEE. NEEDLESS TO MENTION HERE, THE VIEWS EXPRESSED BY US COULD NO T BE TAKEN AS AN EXPRESSION ON MERITS OF THE PRESENT CASE. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER , 2016 SD/- SD/- (JASON P. BOAZ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :21.09.2016 PS. ASHWINI 6 ITA NO. 3593/MUM/2014(A.Y. 2009-10) SHRI. VINEET SHARMA VS. ITO / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI