THE ACIT CC-43, Mumbai V. M/S. VIRENDRA DATTATRAY MHAISKAR, Mumbai

ITA 4523/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1490 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 14-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 03-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A P SINGH
• Assessee Lawyers: MITESH SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVAN , JM ITA NO.4523/MUM/2008 : ASST.YEAR 2006-2007 THE ASSTT.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 43 MUMBAI. VS. SHRI VIRENDRA DATTATRAY MHAISKAR M-12, YASHOVARDHAN OFF D.KOTNIS ROAD, MAHIM MUMBAI 400 016. PA NO.AACPM8689D. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.P.SINGH RESPONDENT BY : SHRI MITESH SHAH O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 19.3.2008 I N RELATION TO THE ASSESSMENT YEAR 2006-2007. 2. ONLY GRIEVANCE IS AGAINST THE DELETION OF ADDITI ON OF RS.27,50,000. THE FACTS OF THE CASE ARE THAT THE ASSESSEE, AT MATERIAL TIME , WAS DIRECTOR OF M/S.IDEAL ROAD BUILDERS PRIVATE LIMITED AND ALSO HAD PROPRIETORSHI P CONCERN NAMED M/S.MHAISKAR UDYOG WHICH WAS ENGAGED IN THE BUSINESS OF TOLL COL LECTION, HIRING MACHINERIES AND METAL CRUSHING. THERE WAS AN ACTION U/S.132 IN THE CASE OF ASSESSEE AT NEW DELHI AIRPORT ON 11.07.2005 AS A RESULT OF WHICH CASH OF RS.27,50,000 WAS FOUND IN THE POSSESSION OF ASSESSEE, OUT OF WHICH A SUM OF RS.27 ,00,000 WAS SEIZED. THE ASSESSING OFFICER OBSERVED THAT WHEN THE STATEMENT OF THE ASSESSEE WAS RECORDED U/S.131 AT NEW DELHI AIRPORT HE STATED THAT THE CAS H AMOUNTING TO RS.25 LAKHS WAS BANK WITHDRAWALS AND BALANCE CASH FROM TOLL OPERATI ON. SUBSEQUENTLY THE A.O. RECORDED STATEMENT OF SHRI MAHESH G.KARTHEKAR, ACCO UNTANT AT THE OFFICE COMPLEX OF THE ASSESSEE WHO DENIED THE FACT OF HANDING OVER OF RS.25 LAKHS TO THE ASSESSEE, ITA NO.4523/MUM/2008 SHRI VIRENDRA DATTATRAY MHAISKAR. 2 AS WAS CLAIMED AT NEW DELHI AIRPORT. FURTHER VERIFI CATION FROM THE BANK ALSO BELIED THE ASSESSEES VERSION. ON BEING SHOW CAUSED THE ASSESSEE STATED THAT THE SUM OF RS.27,50,000 WAS SHOWN BY THE ASSESSEE AS `E XTRA RECEIPTS OF TOLL COLLECTION IN THE BOOKS OF ACCOUNT OF M/S.MHAISKAR UDYOG. HOWEVER CONSIDERING THE FACT THAT THE ASSESSEE COULD NOT PROVE THE GENU INENESS OF CASH OF RS.27.50 LAKHS FOUND FROM HIM, THE A.O. MADE SUCH ADDITION. THE LE ARNED CIT(A) DELETED THE ADDITION. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE STATEMENT OF ASSESS EE WAS RECORDED ON 11.07.2005 BY DDIT (INVESTIGATION) IN WHICH IT WAS STATED AS UNDE R:- THE CASH HAS BEEN STATED BY ME AS WITHDRAWN FROM T HE MUMBAI OFFICE HAS ALSO STATED THAT CASH WAS GIVEN TO ME. H OWEVER, THERE ARE CERTAIN DISCREPANCIES IN MY STATEMENT AND STATEMENT RECORDED BY MUMBAI. IN ORDER TO AVOID LITIGATION AND TO BUY PEA CE OF MIND TO OFFER THE SAME I.E. 27.5 LAKHS IS AN ADDITIONAL INCOME FO R ASSTT. YEAR 2006- 07. THE RELEVANT TAX LIABILITY TO BE ADJUSTED FROM CAS H FOUND. 4. THUS THE ASSESSEE ENTERED A SUM OF RS.27.50 LAKH S IN HIS BOOKS OF ACCOUNT AS `EXTRA RECEIPTS IN CASH COLLECTION REGISTRATION OV ER AND ABOVE THE NORMAL TOLL COLLECTION AND OFFERED THE SAME AS INCOME FOR THE Y EAR IN QUESTION. SEPARATE ENTRY WAS PASSED IN THE LEDGER IN THE TOLL COLLECTION REG ISTRATION WHERE THIS AMOUNT WAS SHOWN AS EXTRA RECEIPTS COLLECTED. WHEN SUCH EXTRA RECEIPTS HAVE BEEN INCLUDED IN THE INCOME OF THE ASSESSEE PURSUANT TO THE DECLARAT ION MADE ON THE DATE OF SEARCH BEFORE DDIT, THERE IS NO POINT IN AGAIN MAKING A SE PARATE ADDITION OF RS.27.50 LAKHS ON THE BASIS OF EARLIER STATEMENT RECORDED. N O EVIDENCE CONTRARY TO THE LE. CIT(A)S FINDING COULD BE PRODUCED BY THE LEARNED D EPARTMENTAL REPRESENTATIVE ITA NO.4523/MUM/2008 SHRI VIRENDRA DATTATRAY MHAISKAR. 3 SHOWING THAT THE AMOUNT OF RS.27.50 LAKHS WAS NOT S EPARATELY INCLUDED IN THE BOOKS OF ACCOUNT AS EXTRA RECEIPTS IN ACCORDANCE WI TH THE DECLARATION MADE BY THE ASSESSEE ON THE DATE OF SEARCH. WE, THEREFORE, APPR OVE THE VIEW TAKEN BY THE LEARNED CIT(A), AS OBVIOUSLY ONE AMOUNT CANNOT BE T AXED TWICE, VIZ, FIRSTLY BY THE ASSESSEE HIMSELF OFFERING IT FOR TAXATION HIMSELF A ND SECONDLY BY THE ASSESSING OFFICER MAKING SEPARATE ADDITION FOR IT. 5. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2010. SD/- SD/- (ASHA VIJAYARAGHAVAN) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : JUNE, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A) CENTRAL-II, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.