DARSHAK GALA, MUMBAI V. DCIT CEN CIR 2(2), MUMBAI

ITA 4143/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0438 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 13-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 16-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B PRUSETH
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Search and seizure
• Section: 153A; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI MANJUNATHA G, ACCOUNTANT MEMBER ITA NO.4143/M/2016 ASSESSMENT YEAR: 2008-09 SHRI DARSHAK GALA, 93, DADISETH AGIARY LANE, KALBADEVI ROAD, KALBADEVI, MUMBAI 400 002 PAN: AOBPG 3304E VS. DY. CIT CENTRAL CIRCLE 2(2), 8 TH FLOOR, OLD CGO BLDG. ANNEXE, M.K. ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI HARI S. RAHEJA, A.R. REVENUE BY : SHRI B. PRUSETH, D.R. DATE OF HEARING : 17.05.2017 DATE OF PRONOUNCEMENT : 19.06.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 29.04.2016 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2008-09. 2. THE EFFECTIVE GROUND OF APPEAL TAKEN BY THE ASSE SSEE IS IN RELATION TO THE CONFIRMATION OF ADDITION OF RS.2,04,264/-. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE W AS COVERED UNDER SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF T HE ACT. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS MAD E ADDITION OF RS.2,04,264/- ON ACCOUNT OF OPENING BALANCE CAPITAL BY INVOKING P ROVISIONS OF SECTION 68 OF THE ACT. THE AO, ON PERUSAL OF THE BALANCE SHEET, OBSERVED THAT ASSESSEE HAD CAPITAL BALANCE OF RS.2,04,264/- AND ACCORDINGLY, A SKED THE ASSESSEE TO GIVE THE DETAILS AND EVIDENCES FROM WHERE THE OPENING CAPITA L WAS ARRIVED. SINCE THE ITA NO.4143/M/2016 SHRI DARSHAK GALA 2 ASSESSEE DID NOT PROVIDE THE DETAILS AND COULD NOT CORRELATE THE FIGURES APPEARING IN THE BALANCE SHEET WITH THE BOOKS OF AC COUNTS, THE AO ADDED THE AMOUNT OF RS.2,04,264/- UNDER SECTION 68 OF THE ACT . 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) DISMISSED THE SAME. 4. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMI TTED THAT DURING THE SEARCH AND SEIZURE ACTION NO INCRIMINATING EVIDENCE RELATING TO THE ASSESSEE MORE PARTICULARLY RELATED TO CAPITAL AMOUNT WAS FOU ND FOR THE YEAR UNDER CONSIDERATION. THE AO HAS NOT MENTIONED ANY INCRIM INATING EVIDENCE RELATING TO THE ASSESSEE AND MORE PARTICULARLY RELATED TO CA PITAL ACCOUNTS WAS FOUND IN THE YEAR UNDER CONSIDERATION. THE AO HAS NOT MENTI ONED ANY SUCH INCRIMINATING EVIDENCE IN THE ASSESSMENT ORDER BASE D ON WHICH HE HAS ARRIVED AT ADDITION ON ACCOUNT OF OPENING BALANCE CAPITAL. THE ASSESSEE HAS RELIED UPON THE DECISION OF SPECIAL BENCH OF MUMBAI ITAT I N THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. AND HE HAS ALSO RELIED UPON T HE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS LTD. AND PRAYED FOR DELETION OF ADDITION. 5. THE LD. D.R. HAS RELIED UPON THE ORDER OF THE RE VENUE AUTHORITIES. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND FR OM THE LD. CIT(A)S ORDER THAT THE ASSESSEE WAS COVERED SEARCH AND SEIZURE OP ERATION CONDUCTED ON 22.03.2010. THE ASSESSEE WAS SERVED WITH THE NOTIC E AND ASSESSEE FILED THE RETURN FOR A.Y. 2008-09 AND AO HAS MADE THE ADDITIO N ON ACCOUNT OF OPENING BALANCE OF RS.2,04,264/- BEING AN OPENING CAPITAL F ROM EARLIER YEARS CAPITAL. IT WAS SHOWN IN THE BALANCE SHEET BUT ASSESSEE WAS UNABLE TO PRODUCE ANY EVIDENCE, THEREFORE ADDITION WAS MADE. WE FIND THA T THE ASSESSEE WAS COVERED UNDER SECTION 153A AND ASSESSEE HAS FILED THE RETUR N AS PER THE PROVISIONS OF ITA NO.4143/M/2016 SHRI DARSHAK GALA 3 SECTION 153A AND ASSESSMENT WAS MADE. AS PER THE P ROVISIONS OF SECTION 153A ONLY ASSESSMENTS WHICH ARE PENDING AS ON DATE OF SEARCH ARE ABATED AND AO IS THERE TO MAKE THE ASSESSMENT OF SUCH YEARS BA SED ON INFORMATION AVAILABLE ON RECORD AND MATERIAL FOUND AS A RESULT OF SEARCH. WE FIND THAT ASSESSEE WAS NOT HAVING ANY MATERIAL OR EVIDENCE WH ICH SHOWS THAT ASSESSEE HAS UNDISCLOSED INCOME AND AO HAS ACCEPTED THE RETU RN FILED BY THE ASSESSEE. WE FIND THAT THE SIMILAR ISSUE HAD COME UP BEFORE I TAT AND THE SPECIAL BENCH OF THE ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTI CS LTD. VS. DCIT [2012] 18 ITR (TRIB) 106 HAS DECIDED AS UNDER: (I) IN ASSESSMENTS THAT ARE ABATED, THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS THE JURISDICTION CONFERRED ON HIM BY S. 153 A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE 6 ASSESSMENT YEARS SEPARATELY: (II) IN OTHER CASES, IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF IN CRIMINATING MATERIAL I.E. (A) THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS FOUND IN THE COURSE OF THE SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND ( B) UNDISCLOSED INCOME OR PROPERTY DISCLOSED IN THE COURSE OF SEARCH. 7. RESPECTFULLY FOLLOWING THE DECISION OF THE SPECI AL BENCH OF ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (S UPRA), WE ALLOW THE APPEAL OF THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 19.06.2017. SD/- SD/- (MANJUNATHA G) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.06.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// ITA NO.4143/M/2016 SHRI DARSHAK GALA 4 [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.