GOPAL AGARWAL, MUMBAI V. ACIT CC-38, MUMBAI

ITA 4823/MUM/2012

• Counselvise Citation: 482319914 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 13-05-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 23-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHA KALA CHANDA
• Assessee Lawyers: DHARMESH SHAH
• Section: 131; 132

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNALG BENCH, MUMB AI BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIVEK VAR MA, JM . , ! ! ! ! ' # , $ % % % % & && & ITA NO. 4823/MUM /2012 ASSESSMENT YEAR-2001-02 SHRI GOPAL AGARWAL, A-304, NIRANJAN APTS. HIRA NAGAR, LINK ROAD, MULUND (W), MUMBAI-400080 ' ' ' ' / VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-38, AAYKAR BHAVAN, GR. FLOOR, MUMBAI-400020 ( ./ PAN :AAJPA1324L ( () /ASSESSEE ) .. ( *+() / RESPONDENT ) () , - / ASSESSEE BY : SHRI DHARMESH SHAH , - / REVENUE BY : SMT.ABHA KALA CHANDA ' , . / DATE OF HEARING : 15/05/2014 /01 , . / DATE OF PRONOUNCEMENT : 28 /05/2014 2 2 2 2 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 23/07/2012 IS AGAINST THE ORDER OF THE CIT (A)-41, MUMBAI DATED 02/07/201 2 FOR THE ASSESSMENT YEAR 2006-07. 2. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE BROUG HT OUR ATTENTION TO THE ADDITIONAL GROUND AND THE SAME IS REPRODUCED AS UNDER.- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED IN AFFIRMING THE ACTION OF THE AO IN MAKING T HE FOLLOWING ADDITIONS MADE UNDER SEC.143(3) R.W.S. 153C OF THE ACT IN ABSENCE OF ANY INCRIMINATING SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH AND THE ADDITIONS ARE BAD IN LAW. A. RS.4,45,122/- ON THE BASIS OF BANK DEPOSITS. B. RS.3,75,352/- BEING 2% OF THE SALARY AND WAGES PAID . C. RS.10,000/- CAPITAL INTRODUCED D. RS.3,60,000/- BEING INCOME FROM BOMBAY RAYON FASHIO NS LTD. 2 ITA NO.4823/MUM/2012. SHRI GOPAL AGARWAL 3. HE HAS ALSO FILED WRITTEN SUBMISSION DATED 15/05 /2014 JUSTIFYING THE REASONS FOR FILING ADDITIONAL EVIDEN CES. HE ALSO SUBMITTED THAT ADDITIONAL GROUNDS BEING LEGAL IN NA TURE REQUIRED TO BE ADJUDICATED IN VIEW OF THE SETTLED JUDICIAL P OSITION IN THE MATTER. FURTHER, HE STATED THE ITEM (B) OF THE SAID GROUND IS NOT PRESSED. THEREFORE CONSIDERING THE SAME, WE ADMIT THE REST OF ADDITIONAL GROUND AS BEING LEGAL IN NATURE. 4. FURTHER, THE LD. COUNSEL BROUGHT OUR ATTENTION T O THE SUBMISSION THAT THE ADDITIONS MADE IN THE ASSESSMEN T WHICH IS COMPLETED U/S143(3) OF THE ACT R.W.S. 153(C) OF TH E ACT DO NOT HAVE THE SUPPORT OF ANY INCRIMINATING MATERIAL SEIZ ED DURING THE SEARCH ACTION U/S 132 OF THE ACT FROM THE PREMISES OF THE SEARCHED PARTY. BRINGING OUR ATTENTION TO THE FOUR ADDITIONS NARRATED IN THE ADDITIONAL GROUNDS, LD. COUNSEL MENTIONED THE ADDIT IONS OF RS.3,75,352/- BEING 2% OF THE SALARY AND WAGES PAID IS NOT PRESSED. BRINGING OUR ATTENTION TO THE OTHER ADDIT IONS OF RS.4,45,122/- ON THE BASIS OF BANK DEPOSITS IN THE BANK ACCOUNT WITH AXIS BANK. (EARLIER IT WAS UTI BANK) AND ALSO OF RS.10,000/- BEING CAPITAL INTRODUCED IN THE BANK ACCOUNT WITH A XIS BANK, LD. COUNSEL STATED THAT THESE ADDITIONS ARE MADE OUT O F THE DEPOSITS IN THE BANK ACCOUNT ALONGWITH THE AXIS BANK WHICH I S FORMERLY KNOWN AS UTI BANK. BRINGING OUR ATTENTION TO PAGE 1 OF THE PAPER BOOK (BANK EXTRACT) AND PAGE-12 (BALANCE SHEET SHOW ING THE DETAILS OF THE BANK ACCOUNTS WERE UTI BANK (AXIS BA NK). LD. COUNSEL ARGUED VEHEMENTLY, MENTIONING THAT THE ACCO UNT IN QUESTION IS AN ACCOUNTED ONE IN THE BOOKS OF THE AS SESSEE. IN SUPPORT OF THE ABOVE, LD. COUNSEL FOR THE ASSESSEE FILED A BANK EXTRACT COPY FROM THE UTI BANK (I.E. AXIS BANK), AN D READ OUT THE CLOSING BALANCE AT THE END OF THE PREVIOUS YEAR AT RS.32.50 AND THE SAME IS EXACTLY THE SAME AS REFLECTED IN THE BALANC E SHEET REFERRED 3 ITA NO.4823/MUM/2012. SHRI GOPAL AGARWAL TO ABOVE. CONSIDERING THE AMOUNT NATURE OF THE BAN K ACCOUNT, THE ADDITIONS MADE BY THE AO IN THIS REGARD ARE NOT BAS ED ON ANY INCRIMINATING MATERIAL SEIZED DURING SEARCH OPERATI ON U/S 132 OF THE ACT. ON THE OTHER HAND, LD. DR RELY ON THE ORD ER OF THE REVENUE. 5. WE FIND MERIT IN THE COUNSEL ARGUMENTS. FURTHER , IT IS A SETTLED PROPOSITION VIDE THE DECISION OF THIS TRIBU NAL IN THE CASE OF B.R. MACHINE TOOLS PVT. LTS. ITA NO.4174 TO 4177/MU M/2013 DATED 06/12/2013. WHICH IS RELEVANT TO THE PROPOSI TION ADDITIONS ARE NOT SUSTAINABLE WHEN THERE IS NO INDICATION OF INCRIMINATING MATERIAL HAVING BEEN FOUND IN THE COURSE OF SEARCH TO BE USED AGAINST THE ASSESSEE. RELEVANT PARA 26 OF THE SAI D ORDER IS RELEVANT AND THE SAME READS AS UNDER. 26.THE ABOVE ADDITIONAL GROUNDS ARE, IN EFFECT THE CONCISE GROUNDS OF APPEAL. SINCE THE BASIS OF ADDITIONAL GROUNDS HAS ALREADY BEEN DECIDED BY US IN ITA NO.4174/MUM/2013, WE SHALL FOLLOW THE SAME ORDER AND HOLD THAT THE ADDITIONS MADE U/S 153C ARE SUSTAINABLE. AS TH ERE ARE NO INDICATIONS OF ANY INCRIMINATING MATERIAL HA VING BEEN FOUND IN THE COURSE OF SEARCH TO BE USED AGAINST TH E ASSESSEE, THE SAME ARE DELETED, AS PER OUR OBSERVATIONS IN PARA 21 ABOVE. 6. REGARDING THE ADDITION OF RS.3.60 LAKHS, BEING I NCOME FROM BOMBAY RAYON FASHIONS LTD, IT IS SUBMITTED THAT THE ASSESSING OFFICER MADE ESTIMATED ADDITIONS BASED ON THE STATE MENT RECORDED DURING THE ASSESSMENT PROCEEDINGS U/S 131 OF ACT. IT IS THE CASE WHERE AO ESTIMATED THE INCOME FOR PERSONAL USE AT T HE RATE OF RS.30,000/- PER MONTH AND THE SAME IS NOT SUPPORTED BY ANY INCRIMINATING MATERIAL. AS STATED ABOVE, SUCH ADDI TIONS ARE NOT SUSTAINABLE IN LAW. THEREFORE, WE ARE OF THE OPINIO N THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED IN HIS FAVOUR. 7. CONSIDERING THE ABOVE DECISIONS OF THE TRIBUNAL ON THE ADDITIONAL GROUND AND THE VALIDITY OF THE ADDITIONS , THE 4 ITA NO.4823/MUM/2012. SHRI GOPAL AGARWAL ADJUDICATION OF REGULAR GROUNDS FILED BY THE ASSESS EE ON MERITS BECOME AN ACADEMIC EXERCISE. THEREFORE, THE SAID G ROUND ARE DISMISSED AS ACADEMIC. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2014. 2 , /01 3 4'5 28 TH MAY, 2014 0 , 9 & SD/- SD/- VIVEK VARMA D.KARUNAKARA RAO (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) MUMBAI , 4' 4' 4' 4' DATED: 28/05 /2014 F{X~{T? P.S. 2 , *$.:' ;'1. / COPY OF THE ORDER FORWARDED TO : (1) $' #<. / THE ASSESSEE; (2) / THE REVENUE; (3) =() / THE CIT(A); (4) = / THE CIT, MUMBAI CITY CONCERNED; (5) '@9 *$.$' , , / THE DR, ITAT, MUMBAI; (6) 9# A / GUARD FILE. +'. *$. / TRUE COPY 2' / BY ORDER B / C / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI,