DEVANG H. KAPASI HUF, MUMBAI V. ITO WD 22(1)(1), NAVI MUMBAI

ITA 3685/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101129 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP
• Assessee Lawyers: H S RAHEJA
• Section: 133(6); 131; 2

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI , . . , , , BEFORE SHRI B.R.BASKARAN , AM AND SHRI LALIT KUMAR , J M ITA NO. 3685 /MUM/201 4 : ASST.YEAR 2009 - 2010 SHRI DEVANG H.KAPASI HUF B - 607, ARIHANT BUILDING SUDHA PARK, BEHIND GARODIA NAGAR GHATKOPAR (EAST) MUMBAI 400 077. PAN : AAAHD3276M / VS. THE INCOME TAX OFFICER WARD 22(1)(1) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI H.S.RAHEJA /RESPONDENT BY : SHRI MOURYA PRATAP / DATE OF HEARING : 12.08. 2015 / DATE OF PRONOUNCEMENT : 23.9 .2015 / O R D E R PER LALIT KUMAR (JM) : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 03 - 03 - 2014 PASSED BY LD CIT(A) - 33, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2009 - 10. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSES SEE IS A TRANSPORT CONTRACTOR UNDER THE NAME M/S SHIKA TRANSPORT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE IS SHOWING HUGE CREDITORS BALANCE, WHICH WAS UNLIKELY IN A TRANSPORT BUSINESS. HENCE, THE AO ISSUED NOTICES U/ S 133(6) OF THE ACT TO ALL THE CREDITORS, BUT NONE OF THEM RESPONDED BACK TO THE SAID NOTICES. HENCE THE AO EXAMINED THE ITA NO. 3685 /MUM/201 4 . SHRI DEVANG H KAPASI HUF 2 ASSESSEE U/S 131 OF THE ACT, WHEREIN HE ADMITTED THAT HE HAS BEEN PROVIDING ACCOMMODATION BILLS BY GETTING COMMISSION INCOME OF 0.5%. ACCORDINGLY, THE AO SEGREGATED THE GROSS RECEIPTS DECLARED BY THE ASSESSEE INTO (A) RECEIPTS PERTAINING TO ACCOMMODATION BILLS AND (B) RECEIPTS PERTAINING TO GENUINE TRANSPORT TRANSACTIONS. THE AO ESTIMATED INCOME FROM RECEIPTS PERTAINING TO ACCOMMODATI ON BILLS @ 0.5% PLUS TDS AMOUNT DEDUCTED THERE FROM. IN RESPECT OF GENUINE TRANSPORT BILLS, THE AO ESTIMATED THE INCOME AT 5% OF THE RECEIPTS. AGAINST THE INCOME SO ESTIMATED, THE AO ALSO ALLOWED DEDUCTION OF RS.96,724/ - AND ACCORDINGLY DETERMINED THE TOT AL INCOME AT RS.11,32,430/ - . 3. THE ASSESSEE FILED APPEAL BEFORE LD CIT(A) CHALLENGING THE ORDER OF LD CIT(A) IN ESTIMATING THE INCOME FROM GENUINE TRANSPORT CHARGES AT 5%. THE ASSESSEE FILED AN AFFIDAVIT BEFORE THE LD CIT(A) TO THE EFFECT THAT HE HA S NOT CARRIED ON ANY GENUINE TRANSPORT BUSINESS AND HENCE ENTIRE RECEIPTS CONSISTS OF RECEIPTS PERTAINING TO PROVIDING ACCOMMODATION BILLS ONLY. ACCORDINGLY IT WAS PRAYED THAT THE ESTIMATE OF INCOME AT 5% ON THE ALLEGED GENUINE TRANSPORT RECEIPTS SHOULD B E REDUCED TO 0.5%. HOWEVER, THE LD CIT(A) DID NOT CONSIDER THE AFFIDAVIT AND ACCORDINGLY CONFIRMED THE ASSESSMENT ORDER. 4. BEFORE US, THE LD A.R MAINLY PLEADED THAT THE TAX AUTHORITIES SHOULD HAVE ESTIMATED THE INCOME @ 0.5% ON THE ENTIRE RECEIPTS BY CONSIDERING THE AFFIDAVIT FILED BY THE ASSESSEE. WE NOTICE THAT THE RECEIPTS PERTAINING TO GENUINE TRANSPORT BUSINESS WAS RS.14.47 LAKHS OUT OF WHICH INCOME WAS ESTIMATED AT 5% THEREOF AMOUNTING TO RS.72,355/ - . THE PLEA OF THE ASSESSEE IS THAT THE INCOM E SHOULD BE ESTIMATED AT 0.5% ON THE ABOVE SAID AMOUNT OF ITA NO. 3685 /MUM/201 4 . SHRI DEVANG H KAPASI HUF 3 RS.14.47 LAKHS ALSO. IN SUPPORT OF THIS CONTENTION, THE ASSESSEE HAS PLACED RELIANCE ON THE AFFIDAVIT FILED BY THE ASSESSEE. 5. WITH REGARD TO THE RECEIPTS PERTAINING TO ACCOMMODATION BILLS, THE ASSESSEE SEEMS TO HAVE PROVED THE SAME BY SHOWING HIS BANK ACCOUNT WHEREIN THE CHEQUE RECEIVED FROM THE PARTIES HAVE BEEN IMMEDIATELY WITHDRAWN BY WAY OF CASH. THE EXPLANATION OF THE ASSESSEE WAS THAT THE CHEQUES RECEIVED FROM THE PARTIES WERE DEPOSIT ED INTO THE BANK ACCOUNTS AND THE CASH WAS IMMEDIATELY WITHDRAWN THEREAFTER AND HANDED OVER TO THE PARTIES. IF THE ASSESSEE IS ABLE TO DEMONSTRATE THAT THE VERY SAME MODALITY WAS FOLLOWED IN RESPECT OF RS.14.47 LAKHS ALSO, THEN THE ASSESSEES CLAIM FOR ES TIMATING INCOME AT 0.5% PLUS TDS AMOUNT CAN BE ADMITTED. HOWEVER, THIS FACT REQUIRES VERIFICATION AT THE END OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMIN E THE BANK ACCOUNTS AND OTHER EXPLANATIONS FURNISHED BY THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 23 RD DAY OF SEPTEMBER , 2015 . SD SD ( B.R.BASKARAN ) ( LALIT KUMAR ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 23 RD SEPTEMBER , 2015 . ITA NO. 3685 /MUM/201 4 . SHRI DEVANG H KAPASI HUF 4 DEVDAS* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT , MUMBAI. 4. / CIT(A) - 33 , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI