DCIT CEN CIR 10, MUMBAI V. PERCY SORABJI CHOWDHRY, MUMBAI

ITA 5624/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1773 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-12-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 05-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.5624/MUM/2014 ASSESSMENT YEAR: 2011-12 DCIT, CENRAL CIRCLE-10, ROOM NO.802, 8 TH FLOOR, OLD. CGO ANNEXE BLDG. M.K. ROAD, MUMBAI-400020 / VS. M/S PERCY SORABJI CHOWDHRY, 1501 A, RUSHTOMJEE REGENCY, RUSTOMJEE, ACRES, J.S. ROAD, DAHISAR (W), MUMBAI-400068 ( / REVENUE) ( !' # /ASSESSEE) PAN. NO.AAFPC4467Q $ % # & / DATE OF HEARING : 08/12/2016 % # & / DATE OF ORDER: 21/12/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 23/06/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ! / REVENUE BY SHRI RAJAT MITTAL-DR !' # ! / ASSESSEE BY MS. NIRMALA SOLANKI ITA NO. 5624/MUM/2014 M/S PERCY SORABJI CHOWDHARY, 2 DELETING THE ADDITION OF RS.99,09,932/- MADE U/S 69 A OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) BY THE A SSESSING OFFICER HOLDING THAT THE EXCESS CASH FOUND FROM THE RESIDENCE OF THE ASSESSEE REPRESENTS RECEIPT ON SALE OF FLAT, CAR PARKING, TRANSFER FEE, SCRAPS SALES ETC AND THE SAME HAS BEE N OFFERED IN THE RETURN OF INCOME OF KEYSTONE REALTORS PVT. L TD. FOR ASSESSMENT YEAR 2011-12, WITHOUT APPRECIATING THE F ACT THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE ESTABLI SHING THE NEXUS BETWEEN THE EXCESS CASH FOUND FROM THE RESIDE NCE WITH INCOME OFFER TO TAX IN THE RETURN OF INCOME OF KEYS TONE REALTORS PVT. LTD. 2. DURING HEARING, SHRI RAJAT MITTAL, LD. DR, ADVANCED ARGUMENTS, WHICH IS IDENTICAL TO THE GROUN D RAISED, BY DEFENDING THE ADDITION MADE IN THE ASSESSMENT OR DER. ON THE OTHER HAND, MS. NIRMALA SOLANKI, LD. COUNSEL FO R THE ASSESSEE DEFENDED THE IMPUGNED ORDER BY PLACING REL IANCE UPON THE FACTUAL FINDING RECORDED BY THE LD. COMMIS SIONER OF INCOME TAX (APPEAL). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT A SEARCH AND SEIZURE ACTION U/S 132(1) OF THE ACT WAS CARRIED OUT IN THE CASE OF RUSTOMJEE EVERSHINE GROUP ON 21/10/2010. THE CASE OF THE ASSESSEE WAS ALSO COVER ED IN THE SEARCH. THE ASSESSEE FILED RETURN ON 28/11/2011 FOR ASSESSMENT YEAR 2011-12, DECLARING INCOME AT RS.1,51,31,475/- AND THE CONSEQUENT ASSESSMENT WAS COMPLETED VIDE ORDER DATED 21/03/2013, U/S 143(3) O F THE ITA NO. 5624/MUM/2014 M/S PERCY SORABJI CHOWDHARY, 3 ACT AT INCOME OF RS.2,50,41,410/-, ADDING THE CASH SEIZED FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE, AMOU NTING TO RS.99,14,550/-. 2.2. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCO ME TAX (APPEAL), THE SUBMISSIONS MADE BEFORE THE LD. A SSESSING OFFICER AS WELL AS BEFORE THE FIRST APPELLATE AUTHO RITY WERE CONSIDERED ALONG WITH THE STATEMENT RECORDED FROM S HRI BOMAN IRANI AND FINALLY, THE ADDITION WAS DELETED. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS T RIBUNAL. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT THERE IS UNCONTROVERTED FINDING IN THE IMPUGNED ORDER THAT D URING COURSE OF SEARCH, POST-SEARCH INVESTIGATIONS AND AL SO DURING ASSESSMENT PROCEEDINGS, NO INDEPENDENT SOURCE OF IN COME, WITH RESPECT TO THE PRESENT ASSESSEE, WAS FOUND AND THE ONLY SOURCE OF INCOME WAS FROM M/S KEYSTONE REALTORS PVT . LTD., IN WHOSE HANDS UNDISCLOSED INCOME WAS DISCLOSED IN THE RETURN FILED FOR ASSESSMENT YEAR 2011-12 THAT TO AS PER THE INCOME ADMITTED IN THE STATEMENT RECORDED FROM SHRI BOMAN IRANI. EVEN THE AMOUNT OF RS.16,03,203/- WAS FOUND WITH RESPECT TO CASH BALANCE, AS PER BOOKS OF ACCOUNTS O F THE COMPANY AGAINST WHICH PHYSICAL CASH WAS RS.21,91,80 0/-. IN REPLY TO QUESTION NO. 15, DURING RECORDING OF ST ATEMENT, ON 21/10/2010, SHRI BOMAN IRANI STATED THAT THE BALANC E MUST ITA NO. 5624/MUM/2014 M/S PERCY SORABJI CHOWDHARY, 4 BE WITH THE DIRECTORS AND WILL BE RECONCILED WITH T HE CASH BALANCE. SO FAR AS, THE EXCESS CASH IS CONCERNED, WHICH WAS FOUND FROM THE COMPANY AND DIRECTORS WAS EXPLAINED TO BE ON ACCOUNT OF OPERATION ACTIVITIES I.E. CASH RECEIP T ON SALE OF FLAT, SCRAP SALES, TRANSFER FEES, CAR PARKING AND O THER REVENUE RELATED MATTERS, WHICH WAS OFFERED IN THE RETURN OF INCOME OF M/S KEYSTONE REALTORS PVT. LTD. FOR ASSESSMENT YEAR 2011- 12. IT IS ALSO NOTED THAT NO SHOW-CAUSE NOTICE WAS ISSUED TO THE ASSESSEE BEFORE MAKING THE ADDITION. THIS FACTU AL MATRIX WAS ALSO OPINED TO BE CORRECT BY THE LD. COMMISSION ER OF INCOME TAX (APPEAL) AND NOT CONTROVERTED BY THE REV ENUE. IT SEEMS THAT THE ADDITION WAS MERE BASED UPON THE STA TEMENT RECORDED BY THE DEPARTMENT. CONSIDERING THE TOTALI TY OF FACTS AND UNCONTROVERTED FINDING RECORDED IN THE IMPUGNED ORDER, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE FIRST APPELLATE AUTHORITY, THEREFORE, WE AFFIRM THE SAME, RESULTING INTO DISMISSAL OF APPEAL OF THE REVENUE. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 08/12/2016. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER $ MUMBAI; ( DATED : 21/12/2016 F{X~{T? P.S / /. .. ITA NO. 5624/MUM/2014 M/S PERCY SORABJI CHOWDHARY, 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1# ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1# / CIT(A)- , MUMBAI, 5. 34 .# , 0 *+& * 5 , $ / DR, ITAT, MUMBAI 6. 6! 7$ / GUARD FILE. ! / BY ORDER, /3+# .# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI