ABBAS MOHD SHAIKH, MUMBAI V. ITO 21(1)(1), MUMBAI

ITA 4444/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9854 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Assessee Lawyers: NEHA PARANJPE LD
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

ITA NO 4444/MUM/2013 ABBAS MOHD SHAIKH ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 4444/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) ABBAS MOHD SHAIKH ROAD NO.13 NAVARANG PAINTERS JVPD,JUHU MUMBAI 400 049 / VS. INCOME TAX OFFICER 21(1)(1) MUMBAI ./ ./PAN/GIR NO. AABPS-3911-R ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ASSESSEE BY : NEHA PARANJPE, LD. AR REVENUE BY : SAURABH DESHPANDE, LD. DR / DATE OF HEARING : 24/08/2017 / DATE OF PRONOUNCEMENT : 06 /09/2017 ITA NO 4444/MUM/2013 ABBAS MOHD SHAIKH ASSESSMENT YEAR 2009-10 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 ASSAILS THE ORDER OF LD. COMMISSIONER OF IN COME TAX (APPEALS)-32 [CIT(A)], MUMBAI DATED 02/01/2013 QUA CONFIRMATION OF CERTAIN ADDITIONS. 2.1 FACTS LEADING TO THE DISPUTE ARE THAT THE ASSES SEE BEING RESIDENT INDIVIDUAL ENGAGED AS PROPERTY CONSULTANT & PROVIDING GARDENING / PUBLISHING SERVICES UNDER PROPRIETORSHIP CONCERN NAMELY HOTLINE SERVICE WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 29/12/20 11 AT RS.12,85,460/- AFTER CERTAIN ADDITIONS / DISALLOWANCES AS AGAINST RETURNED INCOME OF RS.4,59,690/- E-FILED BY THE ASSESSEE ON 22/09/2009. THE ASSESSEE HAS SUFFERED ADDITIONS OF RS.2,61,762/ - AGAINST LABOR CHARGES , RS.4,00,000/- TOWARDS CASH LOANS AND RS.1,64,009/- ON ACCOUNT OF DRAWINGS, WHICH ARE THE SUBJECT MATTER OF THIS APPEAL. 2.2 THE DISALLOWANCE AGAINST LABOR CHARGES DEBITED FOR RS.17,45,081/- WAS AN ADHOC DISALLOWANCE OF 15% SINCE THE SAME WAS NOT FULLY SUPPORTED BY DOCUMENTARY EVIDENCES. THE ADDITION OF RS.4 LACS WAS MADE AGAINST CASH DEPOSITED BY THE ASSESSEE IN THE BANK, STATED TO BE LOANS , AGAINST WHICH NO CONFIRMATIONS ETC. COULD BE FILE D BY THE ASSESSEE. LASTLY, THE DISALLOWANCE OF RS.1,64,009/- HAS BEEN MADE AGAINST CASH RECEIVED IN THE DRAWINGS ACCOUNT . 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH PARTIAL SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 02/01/2 013 WHERE THE ITA NO 4444/MUM/2013 ABBAS MOHD SHAIKH ASSESSMENT YEAR 2009-10 3 ASSESSEE GOT RELIEF TO THE EXTENT OF 5% AGAINST LABOR CHARGES WHEREAS THE OTHER ADDITIONS WERE CONFIRMED. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. COUNSEL FOR ASSESSEE [AR], WHILE DRAWING OUR ATTENTION TO THE PAPER BOOK , CONTENDED THAT THE ASSESSEE, AT PRESENT , IS IN POSSESSION OF REQUISITE DOCUMENTARY EVIDENCES TO SU BSTANTIATE THE CASH LOANS WHICH MAY BE GOT VERIFIED BY THE LOWER AUTHORITIES . REGARDING ADDITION AGAINST DRAWINGS, THE LD. AR CONTENDED THA T THE ASSESSEE INCURRED CERTAIN EXPENDITURE ON BEHALF OF OTHER FAM ILY MEMBERS THROUGH BANK WHICH WAS LATER ON REIMBURSED IN CASH BY THE F AMILY MEMBERS TO THE ASSESSEE AND THEREFORE, THE ADDITION THEREOF WA S NOT JUSTIFIED. SIMILARLY, THE LD. AR CONTENDED THAT DISALLOWANCE O F 10% AGAINST LABOR CHARGES WAS ON THE HIGHER SIDE SINCE THE ASSESSEE WAS ENGA GED IN LABOR INTENSIVE WORK. PER CONTRA, LD. DR PLACED RELIANCE ON THE FINDINGS OF LOWER AUTHORITIES. 5. HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELE VANT MATERIAL ON RECORD. REGARDING ADDITION OF RS.4 LACS ON ACCOUNT OF CASH LOANS , WE FIND THAT THE ASSESSEE HAS PLACED CERTAIN CASH LOAN CONFIRMATIONS IN THE PAPER-BOOK AND THEREFORE, THE SAME BEING ADDITIONAL EVIDENCES , ARE RESTORED BACK TO THE FILE OF LD. AO FOR NECESSARY V ERIFICATION AND RE- ADJUDICATION AS PER LAW AFTER EXAMINING THE SAME. T HE ASSESSEES GROUNDS STANDS ALLOWED FOR STATISTICAL PURPOSES. 6. AFTER APPRECIATING THE CAPITAL ACCOUNT, CASH SUMMARY, CASH BOOK AND DRAWINGS ACCOUNT, WE FIND STRENGTH IN THE ARGUMENTS OF LD. AR THAT THE ASSESSEE WAS REIMBURSED IN CASH FOR EXPENSES IN CURRED ON BEHALF OF THE OTHERS. THE TOTAL DRAWINGS MADE BY THE ASSESSEE DURING THE YEAR ARE ITA NO 4444/MUM/2013 ABBAS MOHD SHAIKH ASSESSMENT YEAR 2009-10 4 RS.3,10,309/- AGAINST WHICH THE ASSESSEE HAS RECEIV ED CASH REIMBURSEMENTS OF RS.1,64,009/- AND THE NET BALANCE OF DRAWINGS ACCOUNT I.E. RS.1,46,300/- HAS BEEN DEBITED IN THE CAPITAL ACCOUNT. THE CASH RECEIVED FOR RS.1,64,009/- HAS BEEN REFLECTED IN THE CASH SUMMARY. THEREFORE, THE SAME BEING FULLY EXPLAINED, REQUIRE DELETION. THE ASSESSEES GROUND STANDS ALLOWED. 7. THE ASSESSEE HAS SUFFERED ADHOC ADDITION OF 10% AGAINST LABOR CHARGES , WHICH IS ON THE HIGHER SIDE KEEPING IN VIEW THE A SSESSEES NATURE OF BUSINESS AND THEREFORE, WE RESTRICT THE S AME TO 5% WHICH RESULT INTO THIS GROUND BEING ALLOWED PARTIALLY. 8. RESULTANTLY, THE ASSESSEES APPEAL STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH SEPTEMBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06. 09.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. #&. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI