MUDAR YAKUBALI KUDRATI, MUMBAI V. ITO 13(2)(1), MUMBAI

ITA 3795/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0693 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Assessee Lawyers: CHETAN KARIAAR
• Keywords: Unexplained cash credit; Business income; Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.3795/MUM/2014 (ASSESSMENT YEAR- 2009-10) MUDAR YAKUBALI KUDRATI 701, 7 TH FLOOR, MASIRA HEIGHTS, 37, HUSAIN PATEL MARG, MAZGAON, MUMBAI-400010. PAN: AAEPK4469P VS. ITO 13(2)(1), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. CHETAN KARIA-AR REVENUE BY : SH. M.C OMI NINGSHEN (DR) DATE OF HEARING : 25.04.2017 DATE OF PRONOUNCEMENT : 17.05.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE U/S 253 OF THE INCOME-TAX A CT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-24, MUMBAI DATED 1 0.02.2014 FOR AY-2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ADDITION OF RS. 13,80,500/- U/S 68 BEING PEAK OF CA SH DEPOSITS IN BANK ACCOUNT. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ADDITION OF RS. 3,00,850/- BEING CHEQUE DEPOSITED I N BANK ACCOUNT. 3) WITHOUT PREJUDICE, THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) ERRED IN DIRECTING ADDITION OF RS. 2,12,166/- BEING PROFIT OF H.M. TRADING CORPORATION. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RET URN OF INCOME FOR RELEVANT AY ON 29.08.2009 DECLARING TOTAL INCOME AT RS. 2,99,577/- . THE ASSESSMENT WAS COMPLETED ON 29.12.2011 U/S 143(3) OF THE ACT. DURI NG THE ASSESSMENT PROCEEDING, THE ASSESSING OFFICER (AO) NOTICED THAT ASSESSEES INCOME FROM BUSINESS OF PROPRIETORSHIP OF M/S H.M. TRADING CORP ORATION WAS NOT INCLUDED BY ITA NO. 379 5/M/2014- MUDAR YAKUBALI KUDRATI 2 THE ASSESSEE IN HIS RETURN OF INCOME. THE ASSESSEE WAS ASKED TO FILE PROFIT & LOSS ACCOUNT OF M/S H.M. TRADING CORPORATION. THE ASSESS EE SUBMITTED THE PROFIT & LOSS ACCOUNT OF SAID BUSINESS FOR TAXATION. THE AO WAS NOT SATISFIED WITH THE PROFIT & LOSS ACCOUNT OF M/S H.M. TRADING CORPORATI ON AND THE SAME WAS REJECTED AND ON THE BASIS OF PEAK THEORY THE AO MA DE THE ADDITION OF RS. 13,80,350/- AND A SUM OF RS. 3,008,50/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN BANK ACCOUNT. ON APPEAL BEFORE THE LD. CIT(A), BOTH THE ADDITION WAS SUSTAINED. FURTHER, AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR REVENUE AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE ARGUED THAT O N THE BASIS OF ASSESSMENT ORDER UNDER CONSIDERATION, THE AO THE REOPENED THE ASSESS MENT FOR AYS 2008-09 AND 2011-12 AND MADE THE SEPARATE ASSESSMENT FOR THE BU SINESS INCOME OF M/S H.M. TRADING CORPORATION. THE LD AR FOR THE ASSESSEE PRA YED THAT THE GROUND NO.1 TO 3 WHICH ARE INTERCONNECTED ISSUE MAY BE RESTORE TO TH E FILE OF AO TO DECIDED THE SAME IN ACCORDANCE WITH THE ASSESSMENT ORDER PASSED FOR AY 2008-09 AND 2011- 12. THE LD DR FOR THE REVENUE NOT DISPUTED THAT THE INCOME FROM THE ASSESSEES CONCERN NAMELY M/S H.M. TRADING IS ASSESSED IN AY 2008-09 AND 2011-12 SEPARATELY IN THE ASSESSMENT ORDER PASSED UNDER SEC TION 143(3) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND PERUSED THE ORDER OF THE AUTHORITIES BELOW. WE HAVE ALSO SEEN THE ASSESS MENT ORDER FOR AY 2008-09 AND 2011-12 PASSED UNDER SECTION 143(3) RWS 147 OF THE ACT. CONSIDERING, THE PRAYER OF LD AR FOR THE ASSESSEE THAT THE BUSINESS INCOME OF M/S H.M. TRADING CORPORATION WAS NOT OFFERED IN THE ORIGINAL RETURN OF INCOME AND ON THE BASIS OF WHICH THE ASSESSMENT FOR EARLIER AND SUBSEQUENT Y EAR WAS REOPENED UNDER SECTION 147. THE ASSESSING OFFICER COMPLETED THE ASSESSMEN T FOR YEAR FOR AY 2008-09 AND 2011-12 AND TAXED THE INCOME FOR THOSE YEARS. HENCE , THE GROUNDS OF APPEAL ARE RESTORED TO THE FILE OF AO TO DECIDE THE ISSUE AFRE SH AFTER GIVING THE OPPORTUNITY TO THE ASSESSEE IN ACCORDANCE WITH LAW, KEEPING IN VIE W THE ASSESSMENT ORDER FOR AY ITA NO. 379 5/M/2014- MUDAR YAKUBALI KUDRATI 3 2008-09 AND 2011-12. THE ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE AND PROVIDE ALL DETAILS AND INFORMATION TO THE AO. THUS THE GRO UNDS OF APPEAL RAISED BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH DAY OF MAY 2017. SD/- SD/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 17/05/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/