SHRI AMISH MODI, MUMBAI V. DCIT CC-2(1), MUMBAI

ITA 4584/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5567 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Charitable institution; Accommodation entries; Set aside
• Section: 271(1)(c); 143(3); 68

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) I.T.A. NO. 4584/MUM/2018 (ASSESSMENT YEAR 2009 - 10) I.T.A. NO. 4585 /MUM/ 201 8 (ASSESSMENT YEAR 20 1 0 - 1 1 ) I .T.A. NO. 4586/MUM/2018 (ASSESSMENT YEAR 2011 - 12) SHRI AMISH MODI B/404, JYOTI TOWER S.V. ROAD, ANAND ASHRAM KANDIVALI (WEST) MUMBAI - 400 067. PAN : AFXPM2914F V S . DCIT CC - 2(1) ROOM NO. 804 8 TH FLOOR PRATISHTHA BHAVAN MUMBAI. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE OF HEARING 8 .7 . 201 9 DATE OF PRONOUNCEMENT 20 . 7 . 201 9 O R D E R THESE ARE APPEALS BY THE ASSESSEE AGAINST SEPARATE ORDERS OF LEARNED CIT(A) FOR RESPECTIVE ASSESSMENT YEARS. SINCE ISSUES ARE COMMON AND CONNECTED AND APPEALS WERE HEARD TOGE THER THESE ARE BEING CONSOLIDATED AND DISPOSED OF BY THE COMMON ORDER FOR THE SAKE OF CONVENIENCE. A.Y. 2009 - 10 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEAL, HOWEVER I NOTE THAT FOR A.Y. 2009 - 10, NO ADDITION WAS DONE BY THE ASSESSING OFFICER IN ASSESSMENT ORDER U/S. 143(3) READ WITH SECTION 153C OF THE ACT. THE I NCOME RETURNED WAS FOR RS. 3,92,662/ - AND NO ADDITION WAS DONE . L EARNED CIT(A) HAS TAKEN NOTE THEREOF AND HAS ALSO NOTED THAT NO ADDITION WAS DONE IN THIS REGARD. HENCE, HE HAS TREA T ED GR IEVANCE OF THE ASSESSEE TO BE INFRUCTUOUS . I FIND MYSELF FULLY IN AGREEMENT WITH THE ABOVE. SINCE NO ADDITION WAS DONE BY THE ASSESSING OFFICER, THIS APPEAL BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. 2 3. FOR A.Y. 2010 - 11, THE ISSUE IN DISPUTE IS ADDITIO N OF RS. 8,00,000/ - AS CASH CREDIT U/S. 68 AND ADDITION OF RS. 1,00,275/ - AS COMMISSION INCOME. 4. ONE OF THE GRIEVANCES RAISED BY THE ASSESSEE IS THAT ORIGINAL ASSESSMENT IN THIS CASE WAS ALREADY COMPLETED ON THE DATE OF INITIATION OF SEARCH AND HENCE T HESE ADDITIONS DO NOT GET ABATED . HENCE, IT IS THE PLEA THAT DEHORSE INCRIMINATING MATERIAL FOUND NO ADDITION IS PERMISSIBLE. I NOTE THAT ADDITION IN A.Y. 2010 - 11 HAS BEEN DONE ON ACCOUNT OF CASH CREDIT U/S. 68 OF RS. 8,00,000/ - AND COMMISSION OF RS. 1,00, 275/ - . I NOTE THAT WHILE DEALING WITH THE ADDITION THE ASSESSING OFFICER HAS MENTIONED THAT ADDITION U/S. 68 WAS DONE ON EXAMINATION OF BALANCE - SHEET. SIMILAR IS THE POSITION OF ADDITION OF COMMISSION INCOME. THERE IS NO WHISPER IN THE ASSESSMENT ORDER THA T ANY INCRIMINATING MATERIAL WAS SEIZED IN RESPECT OF ADDITION WHICH HAS BEEN DONE. IT IS CLEAR THAT SEARCH WAS CONDUCTED ON 27.10.2014 AND ASSESSMENT YEAR INVOLVED A.Y. 2010 - 11 WAS NOT ABATED ASSESSMENT. HENCE ON THE TOUCHSTONE OF HON'BLE JURISDICTIONAL H IGH COURT DECISION IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (374 ITR 645) , NO ADDITION WAS PERMISSIBLE DEHORSE INCRIMINATING MATERIAL FOUND. SINCE NO INCRIMINATING MATERIAL HAS BEEN MENTIONED WITH RESPECT TO ADDITION MADE, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION. A.Y. 2011 - 12 5. IN THIS APPEAL THE ASSESSEE IS AGGRIEVED BY THE ADDITION OF RS. 30,743/ - AS COMMISSION INCOME AND RS. 12,36,000/ - IN RESPECT OF AMOUNT DEBITED IN THE BANK ACCOUNT AS UNEXPLAINED DEPOSIT U/S . 68 OF THE ACT. 6. I T IS NOTE D THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS ONLY MENTIONED THE FOLLOWING : - THE ASSESSEE VIDE LETTER DATED 17/11/2016 VIDE PARA 3 WAS ASKED BY THE COMMISSION INCOME FOR PROVIDING ACCOMMODATION ENTRIES THROUGH SH RI RASHMIKANT JHAVERI'S PROPRIETARY CONCERN TO M/S . NAVJEEVAN CHARITABLE TRUST OF RS. 30.743/ - SHOULD NOT BE TAXED AS YOUR INCOME. THE ASSESSEE VIDE HIS LETTER DATED 23/11/2016 CONFIRMED TO CONSIDER 3 COMMISSION INCOME IN HIS COMPUTATION OF INCOME. THE COMMI SSION INCOME OFFERED WAS NOT DISCLOSED IN THE RETURN OF INCOME THEREFORE THE SAME IS TAXED AS UNDISCLOSED INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S. 271(1)(C) O F THE ACT ARE INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME . 7. FR OM THE ABOVE IT IS APPARENT THAT NO INCRIMINATING MATERIAL WAS FOUND WITH REGARD TO ADDITION MADE. FURTHERMORE, FROM WHERE ADDITION OF RS. 12,36,000/ - FOR A.Y. 2011 - 12 HAS BEEN DONE IS NOT CLEAR FROM THE ASSESSMENT ORDER. MOREOVER, THERE IS NO MENTIONED OF ANY INCRIMINATING MATERIAL FOUND WITH REGARD TO ADDITION MADE. ASSESSMENT YEAR INVOLVED IS A.Y. 2011 - 12, SEARCH WAS CONDUCTED ON 27.10.2014 HENCE THIS IS ALSO NOT A CASE OF ABATED ASSESSMENT. IN THESE CIRCUMSTANCES, IN MY CONSIDERED OPINION DECISION OF HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (SUPRA) IS SQUARELY APPLI CABLE . SINCE ADDITION HAS NOT BEEN BASED UPON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH NO ADDITION DEHORSE ANY INCRIMINATING MATERIAL IS SUSTA INABLE. HENCE THE ORDERS OF AUTHORITIES BELOW ARE SET ASIDE AND THE ADDITION IS DELETED. 8. IN RESULT, ASSESSEES APPEAL FOR A.Y. 2009 - 10 IS DISMISSED AS INFRUCTUOUS AND ASSESSEES APPEALS FOR A.YS. 2010 - 11 & 2011 - 12 ARE ALLOWED. ORDER HAS BE EN PRONO UNCED IN THE COURT ON 20 . 7 . 201 9 . SD/ - (SH A MIM YAHYA ) ACCOUNTANT MEMBER MUMBAI ; DATED : 20 / 7 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE AP PELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 4 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI