ITO WD 1(3), THANE V. ABDUL AZIZ SAYED, THANE

ITA 588/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71040 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 02-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 21-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B B SHASTRI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL I II I BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . . . ! ! ! ! , ' ' ' ' #$ #$ #$ #$ BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA, AM , AM , AM , AM ./ I.T I.TI.T I.T.A. NO. .A. NO. .A. NO. .A. NO. 588/MUM/2011 588/MUM/2011 588/MUM/2011 588/MUM/2011 ( % % % % & & & & / ASSESSMENT YEAR : 2007-08) INCOME TAX OFFICER, WARD 1(3), VARDAAN BUILDING, MIDC, WAGLE ESTATE, THANE / VS. SHRI ABDUL AZIZ SAYED PROP. M/S EXCEL TRANSPORT BOMBAY, ROOM NO. 04, NEAR GALAXY APTT., FATIMA COLONY, KAUSA, MUMBRA, DISTT. THANE 400612 $' ' ./ ( ./ PAN/GIR NO. : BAZPS4496L ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ') ') ') ') , , , , / APPELLANT BY : SHRI B. B. SHASTRI *+') *+') *+') *+') - -- - , , , , /RESPONDENT BY : NONE - -- - .' .' .' .' / DATE OF HEARING : 2 ND SEPTEMBER 2013 /0& /0& /0& /0& - -- -.' .' .' .' /DATE OF PRONOUNCEMENT: 6 TH SEPTEMBER 2013 #1 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 22.9.2010 OF COMMISSIONER OF INCOME TAX(APPEALS) FO R THE ASSESSMENT YEAR 2007-08. 2. THE ONLY GROUND RAISED BY THE REVENUE AS UNDER: 1. THE CIT(A) HAS ERRED IN DELETING AN ADDITION OF ` 27,98,185/- AND CONFIRMING ONLY 8% OF THE AMOUNT AS INCOME OF T HE ASSESSEE FROM THE UNDISCLOSED BANK ACCOUNT. THE CIT(A) HAS A LSO FAILED IN APPRECIATING THE FACT THAT THE ASSESSEE HAS ALREADY CLAIMED THE ENTIRE EXPENDITURE IN THE P&L ACCOUNT. THEREFORE, F URTHER RELIEF ON ACCOUNT OF EXPENDITURE GIVEN FROM THE DEPOSITS M ADE IN THE BANK IS NOT CORRECT. ITA NO. 588/M/2011 SHRI ABDUL AZIZ SAYED 2 3. NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE WH EN THIS APPEAL WAS CALLED FOR HEARING DESPITE NOTICE OF HEARING HA S BEEN DULY SERVED ON THE ASSESSEE. WE FURTHER NOTE THAT THE NOTICE OF HE ARING WAS ALSO SERVED ON THE EARLIER OCCASION BUT NONE HAD APPEARED ON BE HALF OF THE ASSESSEE EVEN ON THE LAST DATE OF HEARING I.E. 11.6.2013. IN VIEW OF THE FACTS AND CIRCUMSTANCES WE PROPOSE TO HEAR AND DISPOSE OF THI S APPEAL EX-PARTE. 4. WE HAVE HEARD THE LD. DR AND CAREFULLY PERUSED T HE ORDERS OF THE AUTHORITIES BELOW. NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE THEREFORE, WE HAD NO PRIVILEGE TO HEAR THE ASSESSEE . THE ASSESSEE IS PROPRIETOR OF PROPRIETORSHIP CONCERN M/S EXCEL TRAN SPORT BOMBAY. DURING THE ASSESSMENT PROCEEDING THE AO NOTICED FROM THE A IR DATA RELATED TO THE ASSESSEE THAT CERTAIN RECEIPTS IN THE BANK ACCO UNT OF THE ASSESSEE HAS NOT BEEN SHOWN IN THE PROFIT AND LOSS ACCOUNT, THE DETAILS WHICH ARE GIVEN BY THE AO IN THE ASSESSMENT ORDER AS UNDER: NAME OF THE PARTY AMOUNT OF RECEIPT BOMBAY GOODS FREIGHT CARRIER 85,100 CHETAN TRANSPORT CO. 73,700 EKTA CARGO MOVERS PVT. LTD. 25,000 JAMNADAS G THAKKAR (SHREE CHAMUNDA ROADWAYS) 07,400 M/S SHRI DINESH ROADLINES 1,86,000 NARESH R GOYAL 79,250 RELIABLE TRANS IMPEX SERVICES PVT. LTD. 21,800 SANJAY KUMAR GOEL, PROP GTC LTD. 1,39,000 SURESH BIHARILAL YADAV (SHREE SUPER LAXMI ROADWAYS) 24,600 THE SUBHASH GOODS TRANSPORT CO 3,87,435 VIRSEN VITHALDAS THAKKAR 17,68,800 TOTAL TOTAL TOTAL TOTAL 27,98,185 ITA NO. 588/M/2011 SHRI ABDUL AZIZ SAYED 3 THE AO ACCORDINGLY MADE AN ADDITION OF ` 27,98,185 /- TO THE TOTAL INCOME OF THE ASSESSEE. THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE DID NOT DISCLOSE THE ABOVE RECEIPTS IN THE RETURN O F INCOME. BEFORE THE CIT(A) THE ASSESSEE CONTENDED THAT THE ASSESSEE DOE S NOT OWN ANY TRANSPORT VEHICLE AND EARNS HIS INCOME AS TRANSPORT RECEIPTS ON COMMISSION BASIS. THUS, THE ASSESSEE PLEADED THAT T HE ENTIRE RECEIPTS OF THE ASSESSEE CANNOT BE TREATED HIS INCOME AND CLAIM ED THAT ONLY 5% OF THE TOTAL HIRE CHARGES IS THE MARGIN OF THE ASSESSE E. THE CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND ESTIMATED THE IN COME @ 8% OF UNDISCLOSED RECEIPTS. 5. IT IS PERTINENT TO NOTE THAT WHEN THE ASSESSEE D OES NOT HAVE ANY VEHICLE AND EARNS ONLY COMMISSION INCOME THEN IN TH E ABSENCE OF THE PROPER DETAILS OF THE EXPENDITURE INCURRED FOR EARN ING THE COMMISSION INCOME ESTIMATION OF 8% OF THE RECEIPTS ON ACCOUNT OF COMMISSION IS NOT JUSTIFIED. THE CIT(A) HAS NOT CONDUCTED ANY INQUIRY IN RESPECT OF ACTUAL EXPENDITURE IF ANY INCURRED BY THE ASSESSEE FOR EAR NING THE COMMISSION INCOME IN QUESTION AND WHETHER THE SAME HAS NOT BEE N ALREADY DEBITED TO THE PROFIT AND LOSS ACCOUNT. ACCORDINGLY, WE SET AS IDE THE ORDER OF THE CIT(A) AND REMIT THE ISSUE TO THE RECORD OF THE ASS ESSING OFFICER FOR LIMITED PURPOSE OF VERIFICATION AND EXAMINATION OF ANY EXPE NDITURE INCURRED BY THE ASSESSEE FOR EARNING THE COMMISSION INCOME IN Q UESTION AND ACCORDINGLY DECIDE THE ISSUE. NEEDLESS TO SAY THE A SSESSEE TO GIVE AN OPPORTUNITY OF HEARING BEFORE DECIDING THE ISSUE. ITA NO. 588/M/2011 SHRI ABDUL AZIZ SAYED 4 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF SEPTEMBER 2013 SD/- SD/- ( . . ! ) ' #$ (N. K. BILLAIYA) ACCOUNTANT MEMBER ( ) % #$ (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 6 TH SEPTEMBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI