MOHD. ILYAS CHOWDHARY, MUMBAI V. ITO 21(3(3), MUMBAI

ITA 5303/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1283 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: PRADEEP S SHETTY
• Keywords: Salary income; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 133(6); 68

Judgement Text

1 ITA NO. 5303/M/2012 B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.5303 /MUM/2012 ( / ASSESSMENT YEAR : 2009-10) MR. MOHD. IIYAS CHOWDHARY, D-1, DIAMOND ESTATE, VIDYANAGARI ROAD, KALINA, MUMBAI 400 098. / V. TO 21(3)(3), MUMBAI. ./ PAN : ACGPC3595G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI PRADEEP S. SHETTY REVENUE BY : SHRI SUMAN KUMAR, D.R. / DATE OF HEARING : 30-03-2017 / DATE OF PRONOUNCEMENT : 10-04-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 5303/MUM/2012, IS DIRECTED AGAINST THE APPELLATE OR DER DATED 7 TH JUNE, 2012 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 32, MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR T HE ASSESSMENT YEAR 2009-10, THE APPELLATE PROCEEDINGS BEFORE THE LEARN ED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 30 TH DECEMBER, 2011 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143 (3) OF THE INCOME-TAX ACT,1961 (HEREINAFTER CALLED THE AC T). 2. THE REVISED GROUNDS OF APPEAL FILED BY THE ASSES SEE WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- THUS BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE HONBLE CIT(A) HAS ERRED IN CONFIRMING ADDITION OF 2 ITA NO. 5303/M/2012 DEPOSITS OF RS. 17,18,391/- AS ASSESSEES UNDISCLOS ED INCOME. 3. AT THE OUTSET IT IS INFORMED BY LEARNED COUNSEL FOR THE ASSESSEE THAT THIS APPEAL IS FILED LATE BY 17 DAYS. IT WAS B ROUGHT TO OUR NOTICE THAT AN AFFIDAVIT DATED 22-08-2012 WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL EXPLAINING THE SAID DELAY BEING CAUSED DUE TO THE ILL-HEALTH OF THE ASSESSEE. OUR ATTENTION WAS DRAWN TO THE SAID A FFIDAVIT DATED 22- 08-2012 WHICH IS PLACED IN FILE. THE LEARNED DR OBJ ECTED TO THE CONDONATION OF DELAY. AFTER HEARING RIVAL PARTIES, WE ARE INCLINED TO CONDONE THE DELAY OF 17 DAYS IN FILING THIS APPEAL BEFORE THE TRIBUNAL IN THE INTEREST OF JUSTICE AS IN OUR CONSIDERED VIE W, THE SAID DELAY IN FILING THIS APPEAL BEFORE THE TRIBUNAL IS SATISFACT ORILY EXPLAINED BY THE ASSESSEE AND WE PROCEED TO HEAR THE APPEAL ON MERIT S. IF TECHNICALITIES ARE PITTED AGAINST THE INTEREST OF JUSTICE, THE COU RTS WILL LEAN IN FAVOUR OF SUB-SERVING THE INTEREST OF JUSTICE , PROVIDED T HERE IS NO MALAFIDE ON THE PART OF LITIGANT IN NOT FILING THE APPEAL IN TI ME AS PRESCRIBED BY LAW. 4. THE ISSUE INVOLVED IN THIS APPEAL IS IN VERY NAR ROW COMPASS. THE ASSESSEES MAIN SOURCE OF INCOME IS SALARY AND COMM ISSION INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143 (3) R.W.S. 143(2) OF 1961 ACT, THE A.O. OBSERVED THAT THE ASSESSEE HA S TWO BANK ACCOUNTS, ONE IS CURRENT ACCOUNT IN DENA BANK, KURL A (W) BRANCH AND THE SECOND IS A PERSONAL SAVING BANK ACCOUNT NO. 05 4310006242 IN DENA BANK KURLA (W) BRANCH. THE ASSESSEE WAS ASKED TO FURNISH THE BANK STATEMENTS OF BOTH THE BANK ACCOUNTS. IN RESPO NSE, THE ASSESSEE FILED BANK STATEMENT OF CURRENT BANK ACCOUNT BUT TH E ASSESSEE DID NOT FILE ANY DETAILS OF AFORESAID PERSONAL SAVING BANK ACCOUNT WITH DENA BANK. THE A.O. ACCORDINGLY ISSUED NOTICE U/S 133(6 ) OF THE ACT TO THE DENA BANK ASKING THE DETAILS OF PERSONAL SAVING BAN K ACCOUNT OF THE ASSESSEE. THE DENA BANK SUBMITTED BANK STATEMENT FO R THE PERIOD 1- 4-2008 TO 31-3-2009 WHEREBY THE A.O. OBSERVED FROM THE BANK STATEMENT THAT THE ASSESSEE HAD DEPOSITED RS. 22 L ACS. THE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF THE SAID DEPOSIT OF RS. 22 LACS BUT 3 ITA NO. 5303/M/2012 THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVID ENCE IN RESPECT OF THE SOURCES OF THE SAID DEPOSIT OF RS. 22 LACS IN S AVING BANK ACCOUNT WITH DENA BANK, HENCE, THE A.O. TREATED THE DEPOSIT OF RS. 22 LACS AS UNDISCLOSED INCOME OF THE ASSESSEE AND ADDED THE SA ME TO THE TOTAL INCOME OF THE ASSESSEE , VIDE ASSESSMENT ORDER PASS ED DATED 30 TH DECEMBER, 2011 PASSED BY THE AO U/S 143(3) OF THE A CT. 5. AGGRIEVED BY THE ASSESSMENT ORDER DATED 30-12-2 011 PASSED BY THE A.O. U/S 143(3) OF 1961 ACT, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) WHO GAVE PART RELIEF TO THE ASSESSEE WHI LE CONFIRMING ADDITION OF RS. 17,18,391/- VIDE HIS APPELLATE ORDE R DATED 7 TH JUNE, 2012. IT IS NOT BROUGHT ON RECORD BY LEARNED DR TH AT WHETHER REVENUE HAS FILED ANY APPEAL AGAINST PART-RELIEF GR ANTED BY LEARNED CIT(A) TO THE ASSESSEE. 6. AGGRIEVED BY THE APPELLATE ORDER DATED 07-06-201 2 PASSED BY LEARNED CIT(A) , THE ASSESSEE FILED SECOND APPEAL W ITH THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DOES NOT HAVE ANY EVIDENCE TO EXPLAIN THE CREDITS I N THE DENA BANK SAVING BANK ACCOUNT , EXCEPT THE RELIEF GIVEN BY TH E LD. CIT(A) AND ALSO SOME CREDITS WHICH WERE ON ACCOUNT OF INCOME EARNED BY THE ASSESSEE WHICH STOOD ALREADY DECLARED IN THE RETURN OF INCOM E FILED BY THE ASSESSEE WITH REVENUE. IT IS SUBMITTED THAT THE AS SESSEES SALARY INCOME OF RS. 2,40,000/ EARNED FROM CHOWDHARY TUBES DECLARED IN THE RETURN OF INCOME(ROI) FILED WITH THE REVENUE WA S DEPOSITED IN THE SAID SAVING BANK PERSONAL ACCOUNT WITH DENA BANK. IT IS ALSO SUBMITTED THAT THE ASSESSEE HAS DECLARED THE NET IN COME FROM COMMISSION OF RS. 1,42,695/- IN THE RETURN OF INCOM E FILED WITH THE REVENUE OF WHICH THE CREDITS OF EARNING THESE COMMI SSION INCOME WERE THERE IN THE SAID SAVING BANK ACCOUNT WITH DENA BAN K. IT IS FURTHER SUBMITTED THAT THE INTEREST INCOME OF RS. 711/- ON SAVING BANK ACCOUNT WAS CREDITED IN THE DENA BANK SAVING BANK A CCOUNT WHICH WAS DECLARED IN THE RETURN OF INCOME FILED WITH REV ENUE . THUS, IT WAS 4 ITA NO. 5303/M/2012 SUBMITTED THAT IN NUT-SHELL THESE THREE HEADS OF IN COME VIZ. SALARY INCOME OF RS. 2,40,000/- COMMISSION INCOME OF RS. 1 ,42,695/- AND INTEREST INCOME OF RS. 711/- WERE CREDITED IN THE S AID DENA BANK SAVING BANK ACCOUNT WHICH WERE VOLUNTARILY DECLARED IN THE ROI FILED BY THE ASSESSEE WITH REVENUE AND WHICH HAD ALREADY SUFFERED TAXATION AND HAS NOW AGAIN BEING TAXED BY REVENUE AS THE SAI D INCOME STOOD DEPOSITED IN DENA BANK SAVING BANK ACCOUNT AND WERE FORMING PART OF ADDITION OF RS. 17,18,391/- SUSTAINED BY LEARNED CI T(A), WHICH CAN BE VERIFIED. THE LD. COUNSEL FOR THE COUNSEL HAS FAIRL Y AGREED AND ADMITTED BEFORE US THAT THE BALANCE ADDITIONS AFTER EXCLUDIN G THE ABOVE THREE ADDITIONS CAN BE CONFIRMED BY THE TRIBUNAL AS THERE ARE NO EXPLANATIONS/ EVIDENCES TO EXPLAIN THE SOURCES AND NATURE OF THESE DEPOSITS IN SAVING BANK ACCOUNT OF THE ASSESSEE WIT H DENA BANK. THUS, IN NUT-SHELL IT WAS SUBMITTED THAT THERE IS D OUBLE ADDITION TO INCOME OF THE ASSESSEE AS THE AFORE-STATED THREE I NCOMES VIZ. SALARY INCOME OF RS. 2,40,000/- COMMISSION INCOME OF RS. 1 ,42,695/- AND INTEREST INCOME OF RS. 711/- WHICH WERE ALREADY DEC LARED IN THE RETURN OF INCOME FILED BY THE ASSESSEE WITH REVENUE, WHIC H IS NOW AGAIN BROUGHT TO TAX BY THE REVENUE LEADING TO DOUBLE TAX ATION OF THE SAME INCOME, WHICH IS NOT SUSTAINABLE IN LAW. 8. THE LD. D.R. SUBMITTED THAT CONTENTIONS OF THE A SSESSEE THAT THE SAID INCOME UNDER THREE HEADS VIZ. SALARY INCOME OF RS. 2,40,000/- COMMISSION INCOME OF RS. 1,42,695/- AND INTEREST IN COME OF RS. 711/- HAS BEEN CREDITED IN THE DENA BANK SAVING BAN K ACCOUNT OF THE ASSESSEE BEARING NUMBER 054310006242 NEEDS VERIFICA TION AND MATTER CAN BE REMITTED TO THE FILE OF THE A.O. FOR VERIFICATION. 9. WE HAVE CONSIDERED RIVAL CONTENTIONS AND ALSO PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE ASSESSEE HAD TWO BANK ACCOUNTS, ONE IS CURRENT ACCOUNT IN DENA B ANK, KURLA (W) BRANCH AND SECOND IS PERSONAL SAVING BANK ACCOUNT W ITH DENA BANK KURLA (W) BRANCH. THE ASSESSEE WAS ASKED TO FURNISH THE BANK STATEMENTS OF BOTH THE BANK ACCOUNTS WITH DENA BANK BY THE AO. 5 ITA NO. 5303/M/2012 BANK ACCOUNT STATEMENT OF CURRENT ACCOUNT WITH DENA BANK WAS PRODUCED BY THE ASSESSEE BEFORE THE A.O., WHILE THE SAVING BANK ACCOUNT STATEMENT WITH DENA BANK WAS NOT PRODUCED B Y THE ASSESSEE. THE A.O. ISSUED NOTICE U/S 133(6) OF THE ACT TO THE DENA BANK ASKING THE DETAILS OF PERSONAL SAVING BANK ACCOUNT OF THE ASSESSEE. DENA BANK SUBMITTED SAVING BANK ACCOUNT STATEMENT OF THE ASSESSEE WHEREBY THE A.O. OBSERVED THAT AN AMOUNT OF RS. 22 LACS WAS CREDITED OF WHICH THE ASSESSEE HAD NOT OFFERED ANY EXPLANATI ON AND AMOUNT OF RS 22 LACS WAS ADDED TO THE TOTAL INCOME OF THE ASS ESSE BY THE AO AS UNEXPLAINED INCOME OF THE ASSESSEE. BEFORE THE LD. CIT(A) THE ASSESSEE HAS EXPLAINED THAT THE TOTAL DEPOSITS IN T HE PERSONAL SAVING BANK ACCOUNT AT DENA BANK WAS RS. 19,87,197/- AND N OT RS. 22 LACS AS WAS COMPUTED BY THE AO . IT WAS EXPLAINED THAT THE ABOVE AMOUNT INCLUDES LIC REFUND RS. 47,247/- AND CAR LOAN RS. 2 ,21,559/- , WHICH CONTENTIONS OF THE ASSESSEE WERE ACCEPTED BY THE LD . CIT(A) AND THE BALANCE AMOUNT OF RS. 17,18,391/- WAS CONFIRMED AS ADDITIONS TO THE INCOME OF THE ASSESSEE BY LD. CIT(A) U/S 68 OF 196 1 ACT . IT IS OBSERVED THAT AGAINST THE ABOVE DECISION OF THE LD. CIT(A) GRANTING AFORESAID RELIEF TO THE ASSESSEE, THE REVENUE HAS N OT FILED ANY APPEAL AS LEARNED DR COULD NOT POINT OUT THE SAME BEFORE U S AND THE SAME HAS ATTAINED FINALITY ON THE BASIS OF MATERIAL BEFO RE US. WE FIND THAT THERE WERE THREE CREDITS IN THE SAID DENA BANK RECE IVED BY THE ASSESSEE VIZ. SALARY INCOME OF RS. 2,40,000/- COMMI SSION INCOME OF RS. 1,42,695/- AND INTEREST INCOME OF RS. 711/- WHI CH WAS CLAIMED BY THE ASSESSEE TO BE DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED WITH THE REVENUE AND CLAIMED TO BE OFFERED FO R TAXATION VOLUNTARILY BY THE ASSESSEE IN ROI FILED WITH REVEN UE . WE ARE OF THE CONSIDERED VIEW THAT THE SAME INCOME CANNOT BE TAXE D TWICE, BUT AFORESAID CONTENTIONS OF THE ASSESSEE CERTAINLY NE ED VERIFICATION BY THE AUTHORITIES BELOW . AS SUCH, WE REMIT THIS MAT TER BACK TO THE FILE OF THE A.O. FOR VERIFICATION OF THESE THREE CREDITS VIZ. SALARY INCOME OF RS. 2,40,000/- COMMISSION INCOME OF RS. 1,42,695/- AND INTEREST INCOME OF RS. 711/- IN THE SAID SAVING BANK ACCOUNT OF THE ASSESSEE 6 ITA NO. 5303/M/2012 WITH DENA BANK AND WERE ALREADY SUBJECTED TO TAX IN ROI FILED VOLUNTARILY BY ASSESSEE WITH REVENUE. IF, AFTER VER IFICATIONS, THE A.O. IS SATISFIED THAT THE AFORESAID THREE INCOMES VIZ. SALARY INCOME OF RS. 2,40,000/- COMMISSION INCOME OF RS. 1,42,695/- AND INTEREST INCOME OF RS. 711/- HAS ALREADY SUFFERED TAXATION VIDE ROI FILED WITH REVENUE, THE ASSESSEE WILL CERTAINLY BE ENTITLED FOR THE REL IEF TO SAID EXTENT AS THE SAME INCOME CANNOT BE BROUGHT TO TAX TWICE WHICH IS A FUNDAMENTAL PRINCIPLE OF LAW OF TAXATION. REGARDING THE OTHER ADDITIONS AS SUSTAINED BY LEARNED CIT(A) , AS AGREED AND ADMITTE D BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE CONFIRMING THE SAI D ADDITIONS IN THE HANDS OF THE ASSESSEE. THE AO SHALL GRANT PROPER AN D ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCOR DANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LA W. WE ORDER ACCORDINGLY. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AS PER TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH APRIL, 2017. !' # $ 10-04-2017 SD/- SD/- (JOGINDER SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER ! MUMBAI ; # DATED 10-04-2017 . ) . ./ R.K. R.K. R.K. R.K. , EX. SR. PS 7 ITA NO. 5303/M/2012 !'#$ %$' / COPY OF THE ORDER FORWARDED TO : / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. * / CIT- CONCERNED, MUMBAI 5. +, ))-. , -. , ! / DR, ITAT, MUMBAI A BENCH 6. /0 / GUARD FILE. / BY ORDER, + ) //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI