PATIYIL BALAKRISHNAN, MUMBAI V. INCOME TAX OFFICER 28(2)(1), MUMBAI

ITA 5572/MUM/2018

• Counselvise Citation: [2019] 114 COUNSELVISE.COM (IT) 2233 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AKHTAR H ANSARILD
• Keywords: Presumptive income
• Section: 43B; 143(3); 37; 28

Judgement Text

1 ITA NO.5572/MUM/2018 PATIYIL BALAKRISHNAN ASSESSMENT YEAR-2013-14 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5572/MUM/2018 ( / ASSESSMENT YEAR:2013-14) PATIYIL BALAKRISHNAN B-11, 1/4 SHIV PALM BEACH MUMBAI-400 706. / VS. I.T.O., 28(2)(1) VASHI, MUMBAI-400 703 !'# ./ ./PAN/GIR NO. AAFPB-0334-F ( ! /APPELLANT ) : ( ' ! / RESPONDENT ) ! / APPELLANT BY : NONE ' ! / RESPONDENT BY : SHRI AKHTAR H. ANSARI- LD. DR / DATE OF HEARING : 14/11/2019 / DATE OF PRONOUNCEMENT : 20/11/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2013-14 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME-TAX (APPEALS)-26, MUMBAI [IN SHORT REFERRED TO AS CIT( A)], APPEAL NO. CIT(A)- 26/IT-345/2015-16 DATED 15/06/2018 QUA CONFIRMATION OF CERTAIN ADDITIONS. 2 ITA NO.5572/MUM/2018 PATIYIL BALAKRISHNAN ASSESSMENT YEAR-2013-14 2. NONE HAS APPEARED FOR ASSESSEE AND NO VALID ADJO URNMENT APPLICATION IS ON RECORD. LEFT WITH NO OPTION, WE P ROCEED WITH THE MATTER EX- PARTE QUA THE ASSESSEE AFTER PERUSAL OF MATERIAL ON RECORD AND AFTER HEARING THE REVENUE. 3. FACTS ON RECORD WOULD REVEAL THAT THE ASSESSEE B EING RESIDENT INDIVIDUAL STATED TO BE ENGAGED AS CIVIL AND MECHAN ICAL CONTRACTOR WAS ASSESSED FOR YEAR UNDER CONSIDERATION U/S 143(3) ON 28/01/2016 WHEREIN THE INCOME OF THE ASSESSEE WAS DETERMINED AT RS.23. 50 LACS AFTER CERTAIN ADDITIONS AS AGAINST RETURNED INCOME OF RS.6.97 LAC S E-FILED BY THE ASSESSEE ON 25/11/2013. ONE OF THE DISALLOWANCES OF RS.7.39 LACS WAS U/S 43B, BEING DUTIES AND TAXES DEBITED TO THE PROFIT & LOSS ACCOUNT BUT NOT PAID BEFORE DUE DATE OF FILING OF RETURN. ANOTHER D ISALLOWANCE OF RS.9.12 LACS WAS ON ACCOUNT OF UNSUBSTANTIATED SALARY & WAG ES. 4. THE LEARNED FIRST APPELLATE AUTHORITY DELETED DI SALLOWANCE U/S 43B SINCE THE ASSESSEE HAD NOT DEBITED THE TAXES AND DU TIES IN THE PROFIT & LOSS ACCOUNT. HOWEVER, DISALLOWANCE ON ACCOUNT OF SALARY AND WAGES WAS NOT ADJUDICATED IN VIEW OF THE FACT THAT NO SUCH GROUND WAS TAKEN BEFORE LEARNED FIRST APPELLATE AUTHORITY. 5. UPON PERUSAL OF GROUNDS TAKEN BY THE ASSESSEE BE FORE FIRST APPELLATE AUTHORITY, WE FIND THAT IT WAS THE CONTENTION OF TH E ASSESSEE THAT SINCE THE INCOME WAS OFFERED UNDER PRESUMPTIVE TAXATION, NO D ISALLOWANCE U/S 28 TO 37 WOULD BE WARRANTED. THE DISALLOWANCE OF SALARY, PRIMA FACIE, IS UNDER SECTION 37(1). THEREFORE, WE DIRECT LD. CIT(A) TO A DJUDICATE THE ISSUE OF SALARY DISALLOWANCE AFTER AFFORDING REASONABLE OPPO RTUNITY OF BEING HEARD TO 3 ITA NO.5572/MUM/2018 PATIYIL BALAKRISHNAN ASSESSMENT YEAR-2013-14 THE ASSESSEE. FOR THE SAID PURPOSE, THE MATTER STAN D REMITTED BACK TO THE FILE OF LD. CIT(A). 6. RESULTANTLY, THE APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER, 2019 SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 20/11/2019 SR.PS:-**PP,SPS '( )( / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. +, % - , - , / DR, ITAT, MUMBAI 6. ,./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.