NAIMESH MISHRA, MUMBAI V. ITO 17(3)(3), MUMBAI

ITA 4787/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7899 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN LD
• Keywords: Unexplained investment; Business income; Income from undisclosed sources; Principle of natural justice
• Section: 143(3); 69

Judgement Text

ITA.NO.4787/MUM/2013 NAIMESH RAMAKANT MISHRA ASSESSMENT YEAR-2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.4787/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) NAIMESH RAMAKANT MISHRA 204,70/74, SAIKRIPA K.K.MARG, JACOB CIRCLE MUMBAI-400 018 / VS. INCOME TAX OFFICER 17(3)(3) ROOM NO. 613 PIRAMAL CHAMBERS JIJEEBHAI LANE, MORARJI MILLS PAREL, MUMBAI-400 012 ! ./ ./PAN/GIR NO. AANPM-5267-C ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : V. JENARDHANAN, LD. SR. DR / DATE OF HEARING : 23/10/2017 / DATE OF PRONOUNCEMENT : 13/12 /2017 / 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 THE LD. COMMISSIONER O F INCOME-TAX (APPEALS)-29 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-29/RG-17/265/11-12 DATED 20/03/2013 BY RAISING THE FOLLOWING GROUNDS O F APPEAL:- 1. THE LD. AO ERRED IN LAW AND ON FACTS IN VIOLATIN G THE PRINCIPAL OF NATURAL JUSTICE, BY IGNORING THE SUBMISSIONS MADE BY THE APPELLANT. ITA.NO.4787/MUM/2013 NAIMESH RAMAKANT MISHRA ASSESSMENT YEAR-2009-10 2 2. THE LD. AO. ERRED IN LAW AND ON FACTS IN ASSESSI NG INTEREST ON FDR, WITH UBI, WHICH HAS MATURED IN THE YEAR UNDER CONSIDERATION, OF RS.3,38,340/- AS UNACCOUNTED INCOME FROM OTHER SOURCES U/S 69A OF TH E INCOME TAX ACT, 1961. THE LD. COMMISSIONER UPHELD THE ORDER OF THE A.O. 3. THE LD. A.O. ERRED IN LAW AND ON FACTS IN MAKING AN ADDITION IN RESPECT OF CASH OF RS.25,25,137/-DEPOSITED IN UNION BANK OF INDIA W AS ON ACCOUNT OF CASH RECEIVED ON SALE OF TICKETS ON BEHALF OF PATEL TOUR S & TRAVELS, WHEREIN THE APPELLANT IS A DIRECTOR. THE LD. A.O TREATED THE SA ID AMOUNT AS UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT,1961,BY IGN ORING SUBMISSIONS LIKE CONFIRMATION LETTER AND COPY OF BALANCE SHEET OF PA TEL TOURS & TRAVELS AND CASH SUMMARY OF THE APPELLANT FOR THE YEAR UNDER CO NSIDERATION. FURTHER, THE LD. COMMISSIONER IGNORED THE SUBMISSIONS MADE BY TH E ASSESSEE AND MADE AN ADDITION ON THE BASIS THAT THE CONFIRMATIONS COU LDNT BE PROVIDED. 4. THE LD. A.O. ERRED IN LAW AND ON FACTS IN MAKING AN ADDITION IN RESPECT OF CASH OF RS.7,01,280/- DEPOSITED IN UNION BANK OF INDIA O N ACCOUNT OF CASH RECEIVED ON SALE OF JEWELRY, BY THE APPELLANT AT THE TIME OF HIS MARRIAGE. THE LD. A.O. TREATED THE SAID AMOUNT AS UNEXPLAINED INVESTMENT U /S 69 OF THE INCOME TAX ACT,1961, BY IGNORING SUBMISSIONS LIKE CASH SUMMARY OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION AND VARIOUS BILLS IN RESPE CT OF SALE OF GOLD JEWELRY TO SHAMANGILAL DESHMAL JAIN. 5. THE LD. A.O .ERRED IN LAW AND ON FACTS IN MAKING AN ADDITION OF RS.1,30,083/- IN RESPECT OF OPENING CASH BALANCE. 6. THE LD. A.O. ERRED IN LAW AND ON FACTS IN LEVYIN G INTEREST U/S.234A,234B,234C AND 234D OF THE ACT. 7. THE LD. A.O. ERRED IN LAW AND ON FACTS IN INITIA TING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. NONE HAS APPEARED FOR ASSESSEE DESPITE BEING PROVID ED WITH ADEQUATE OPPORTUNITIES OF BEING HEARD ON VARIOUS OCCASIONS A S PER ORDER SHEET ENTRIES AND NO ADJOURNMENT APPLICATION IS ON RECORD . LEFT WITH NO OPTION, WE PROCEED TO DISPOSE-OFF THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING LD. DEPARTMENTAL REPRESENT ATIVE [DR]. GROUND NO. 6 & 7 IS RELATED WITH IMPOSITION OF INTEREST AN D INITIATION OF PENALTY. THE SAME BEING CONSEQUENTIAL IN NATURE, DO NOT REQU IRE ANY INTERFERENCE ON OUR PART AND HENCE DISMISSED IN LIMINE. THE ONLY EFFECTIVE GROUNDS ARE GROUND NUMBERS 1 TO 5, WHICH ASSAILS THE CONFIR MATION OF CERTAIN ADDITIONS. THE ASSESSMENT FOR IMPUGNED AY WAS FRAME D BY LD. INCOME TAX OFFICER-17(3)(3) [AO] U/S 143(3) ON 30/12/2011. 2.1 FACTS LEADING TO THE SAME ARE THAT THE ASSESS EE BEING RESIDENT INDIVIDUAL DERIVING BUSINESS INCOME AND INCOME FROM OTHER SOU RCES WAS ITA.NO.4787/MUM/2013 NAIMESH RAMAKANT MISHRA ASSESSMENT YEAR-2009-10 3 ASSESSED ON 30/12/2011 AT RS.41,49,330/- AS AGAINST RETURNED INCOME OF RS.4,04,490/- FILED BY THE ASSESSEE ON 15/02/2010. 2.2 UPON PERUSAL OF ANNUAL INFORMATION RETURN [AIR], IT WAS NOTED THAT THE ASSESSEE RECEIVED CERTAIN PROFESSIONAL FEES, COMMISSION INCOME, AND INTEREST ON FIXED DEPOSIT RECEIPTS [FDR] AND ALSO FOUND TO HAVE DEPOSITED CASH OF RS.22.82 LACS & RS.3.38 LACS IN T WO BANK ACCOUNTS MAINTAINED WITH UNION BANK OF INDIA. 2.3 THE ASSESSEE ADMITTED THAT PROFESSIONAL FEES OF RS.50,000/- AND INTEREST ON FDR WAS NOT OFFERED TO TAX AND HENCE, T HE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. QUA CASH DEPOSIT OF RS.33.56 LACS, THE ASSESSEE ATTRIBUTED THE SAME PARTLY TO CASH RECEIVE D ON SALE OF TICKETS FOR RS.25.25 LACS ON BEHALF OF PATEL TOURS & TRAVELS AND PARTLY TO SALE OF GOLD JEWELLERY . IN SUPPORT, THE ASSESSEE SUBMITTED LEDGER ACCOUNT OF PATEL TOURS & TRAVELS LTD. WHEREIN HE WAS THE DIRECTOR. HOWEVER, THE ASSESSEE FAILED TO EXPLAIN AS TO WHY THE CASH WAS N OT DEPOSITED IN THE BANK ACCOUNT OF THE COMPANY. RESULTANTLY, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. SIMILARLY, THE ASSESSEE COU LD NOT SUBSTANTIATE THE SALE OF JEWELLERY WITH SUFFICIENT EVIDENCES, WH ICH LED TO ANOTHER ADDITION OF RS.7.01 LACS IN THE HANDS OF THE ASSESS EE. FINALLY, THE ASSESSMENT WAS FRAMED U/S 143(3) AT RS.41.49 LACS. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 20/03/2 013. THE LD. CIT(A) ON FACTUAL MATRIX AND AFTER CONSIDERING ASSE SSEES SUBMISSIONS AND DOCUMENTARY EVIDENCES, CONCLUDED THAT THE ASSES SEE FAILED TO SUBSTANTIATE THE CASH DEPOSITED IN THE BANK ACCOUNT . IT WAS ALSO NOTED THAT THE ENTITY NAMELY PATEL TOURS & TRAVELS LTD. R EFLECTED INCOME FROM ITA.NO.4787/MUM/2013 NAIMESH RAMAKANT MISHRA ASSESSMENT YEAR-2009-10 4 COMMISSION ONLY AND WAS NOT ENGAGED IN SALE OF TICK ETS. RESULTANTLY, THE ASSESSEES APPEAL GOT DISMISSED. AGGRIEVED THE ASSE SSEE IS IN FURTHER APPEAL BEFORE US. THE LD. DR HAS RELIED ON THE STAN D OF LOWER AUTHORITIES. 4. WE HAVE HEARD THE CONTENTIONS AND PERUSED RELEVA NT MATERIAL ON RECORD. UPON PERUSAL OF THE APPELLATE ORDER, WE FIN D THAT THE ASSESSEE MISERABLY FAILED TO EXPLAIN THE DEPOSIT OF CASH IN THE BANK ACCOUNTS AND COULD NOT SUBSTANTIATE THE SAME WITH ANY COGENT MAT ERIAL. THE COMPLETE ONUS WAS ON ASSESSEE TO RECONCILE THE VARIOUS ADDIT IONS, WHICH HE HAS FAILED TO DISCHARGE. THE ASSESSEE HAS ALREADY CONCE DED THE OTHER ADDITIONS VIZ. COMMISSION INCOME AND INTEREST ON FD R DURING ASSESSMENT PROCEEDINGS. HENCE, UPON PERUSAL OF THE FACTS OF THE CASE, WE FIND THAT OUR INTERFERENCE, IN THE MATTER, IS NO T REQUIRED AT ALL. 5. RESULTANTLY, THE ASSESSEES APPEAL STANDS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DECEMBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARW AL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 13.12. 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