SHYAM BAHADUR SINGH, MUMBAI V. ACIT CIR 10, MUMBAI

ITA 3966/MUM/2010

• Counselvise Citation: 396619914 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 27-12-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 14-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATBIR SINGH
• Assessee Lawyers: B N RAO
• Keywords: Income from undisclosed sources
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 3966/MUM./2010 (ASSESSMENT YEAR : 2003-04 ) MR. SHYAM BAHADUR SINGH 22, SHYAM KUNJ, VIKHROLI (E) MUMBAI 400 083 PAN AAEPS9263M .. APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-10, MUMBAI .... RESPONDENT ASSESSEE BY : MR. B.N. RAO REVENUE BY : MR. SATBIR SINGH DATE OF HEARING 27.12.2011 DATE OF ORDER 13.01.2012 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL PREFERRED BY THE ASSESSEE, IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 16 TH FEBRUARY 2010, PASSED BY THE COMMISSIONER (APPEALS)-XXXIII, MUMBAI, FOR ASSESSMENT YEAR 2003- 04, ON THE FOLLOWING GROUNDS:- 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDITION OF ` 1,25,144 AS THE SOURCE OF SUCH ACQUISITION AS NOT EXPLAINED. SHE OU GHT TO HAVE APPRECIATED THAT THE ACQUISITION OF ASSET WAS OUT O F INCOME DISCLOSED IN MR. SHYAM BAHADUR SINGH ITA NO.3966/MUM./2010 2 THE HANDS OF THE MAIN ENTITY SHRI SAI STONE CRUSH Q UARRY. SHE OUGHT TO HAVE APPLIED TELESCOPING ON THIS PART OF THE EXP ENSES AS BEING INCURRED OUT OF THE INCOME DISCLOSED BY THE FLAGSHI P FIRM . 2. WE HAVE HEARD THE LEARNED COUNSEL, MR. B.N. RAO, RE PRESENTING THE ASSESSEE AND THE LEARNED DEPARTMENTAL REPRESENTATIV E, MR. SATBIR SINGH, REPRESENTING THE REVENUE. 3. THE ASSESSEE IS ONE OF THE PARTNERS IN A PARTNERSHI P FIRM I.E., SHRI SAI STONE CRUSHING QUARRY. THE ASSESSEE FIRM, WHILE ITS FILING RETURN OF INCOME UNDER SECTION 153A OF THE INCOME TAX ACT, 1961, DIS CLOSED ADDITIONAL INCOME OF ` 45,07,399. THE ASSESSING OFFICER HAD MADE ADDITION S AND ASSESSED THE INCOME AT ` 92,26,579. THE COMMISSIONER (APPEALS) HAD GRANTED RELIEF OF ` 33,78,732, RESULTING IN THE NET ADDITIONAL INCOME O F ` 58,47,847 AND OUT OF THIS ADDITIONAL INCOME, ONLY ` 21,08,435, WAS UTILI SED. THIS LEAVES AN UNUTILISED AMOUNT INCOME OF ` 37,39,412, WHICH WAS AVAILABLE TO THE PARTNERS. THE ASSESSEES CLAIM IS THAT HE HAD MADE ACQUISITIONS OF ` 1,25,144, FROM OUT OF THIS SURPLUS FUNDS. 4. THE COMMISSIONER (APPEALS) DISMISSED THE CLAIM OF T HE ASSESSEE ON THE GROUND THAT THE ASSESSEE AND THE FIRM IN WHICH HE IS ONE OF THE PARTNERS ARE DIFFERENT TAXABLE ENTITIES. 5. IN OUR OPINION, THE REASON CITED BY THE COMMISSIONE R (APPEALS) IS BAD- IN-LAW. THE SURPLUS INCOMEOF THE FIRM HAS TO BE TEL ESCOPED WITH THE UTILISATION OF THE PARTNER. THE UNACCOUNTED INCOME OF THE FIRM IS SHARED BY THE PARTNERS AND IS UTILISED BY THEM. WE FIND THAT THE DELHI A BENCH OF THE TRIBUNAL IN OM PRAKASH SURESH KUMAR V/S ACIT, (2004 ) 91 TTJ (DEL.) 193, HELD AS FOLLOWS:- ALL THE HEADS UNDER WHICH DIFFERENT ADDITIONS HAVE BEEN MADE HAVING BEEN COMPLIED BY THE ASSESSEE AND THE DEPARTMENT NO T BEING IN A POSITION TO CHALLENGE THE SAME, THE NET TAXABLE INC OME SHOWN BY THE ASSESSEE HAS TO BE TAXED IN HIS HANDS ALONE WHICH T AKES CARE OF UNEXPLAINED JEWELLERY FOUND WITH THE LADIES AND UND ISCLOSED STOCK, ETC. AND NOTHING MORE REMAINS TO BE ADDED IN THE HANDS O F DIFFERENT PERSONS AND ASSESSEE WILL GET THE BENEFIT OF TELESC OPING ADJUSTMENT IN RESPECT OF UNDISCLOSED INCOME ALREADY FINALLY ASSES SED IN THE HANDS OF PARTNERSHIP FIRM . MR. SHYAM BAHADUR SINGH ITA NO.3966/MUM./2010 3 6. APPLYING THE ABOVE PROPOSITION LAID DOWN BY THE TRI BUNAL, WE GRANT RELIEF TO THE ASSESSEE. THIS GROUND IS, THUS, ALLOW ED. 7. GROUND NO.2, READS AS FOLLOWS:- 2. THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDITION OF ` 20,000 ON ACCOUNT OF LOWER WITHDRAWAL OF HOUSEHOLD EXPENSE S. 8. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT WISH TO PRESS THIS GROUND. LEARNED DEPARTMENTAL REPRESENTATIVE HA S NO OBJECTION. CONSEQUENTLY, THIS GROUND IS DISMISSED AS NOT PRESSED . 9. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JANUARY 2012 SD/- B.R. MITTAL JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 13 TH JANUARY 2012 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, E BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI