UNIMAX FINANCE PVT. LTD., MUMBAI V. ITO WARD 7(3)-2, MUMBAI

ITA 6547/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84302 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 07-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Assessment record

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI . . , BEFORE SHRI I.P. BANSAL, JM ./ I.T.A. NO.6547/MUM/2013 ( / ASSESSMENT YEAR : 2005-06 UNIMAX FINANCE PRIVATE LIMITED, 699, CHANDRA VILLA, DR. DINSHAW MASTER ROAD, PARSI COLONY, DADAR (E), MUMBAI. / VS. THE INCOME TAX OFFICER, WARD 7 (3)-2, MUMBAI. ! ./ '# ./ PAN/GIR NO. : AAACO 0618H ( $ / APPELLANT ) .. ( %& $ / RESPONDENT ) APPELLANT BY SHRI MEHUL SHAH RESPONDENT BY SHRI NEIL PHILIP ' ()! / DATE OF HEARING : 01/12/2014 *+ ' ()! / DATE OF PRONOUNCEMENT : 01/12/2014 , / O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-13 MUMBAI DATED 30/08/2013 FOR ASSESSMENT YEAR 2005- 06. GROUNDS OF APPEAL READ AS UNDER: BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFIC ER 7 (3) - 2, MUMBAI AND LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) - 13, THIS APPE AL PETITION IS FILED ON THE FOLLOWING AMONGST OTHER GROUNDS OF APPEAL, WHICH IT IS PRAYED MAY BE CONSIDERED WITHOUT PREJUDICE TO ONE ANOTHER. 1. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) ERRED IN UPHOLDING ACTION OF THE ASSESSING OFFICER IN ADDING RS.733,033 ALLEGING BENEFIT DERIVED IN DEAL WITH GO LD STAR FINVEST SEC. P. LTD. WITHOUT BRINGING ANY MATERIAL OR EVIDENCE ON RECORD . 2. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) FAILED TO APPRECIATE THAT, Y OUR APPELLANT WAS MERELY A SUB- BROKER WHO DID NOT DERIVE ANY BENEFIT FOR ITSELF; A ND IF AT ALL SOME BENEFIT WAS ./ I.T.A. NO.6547/MUM/2013 ( / ASSESSMENT YEAR : 2005-06 2 DERIVED, THE SAME WAS IN FORM OF BROKERAGE RANGING BETWEEN 0.5% TO 1% ON THE AMOUNT OF ALLEGED BENEFIT OF RS. 733,033 WHICH WAS ALREADY OFFERED FOR TAXATION. 2. THE APPEAL IS TIME BARRED BY ONE DAY. THE ASSES SEE FILED AN APPLICATION AS WELL AS AFFIDAVIT FOR CONDONATION OF DELAY. THE RE ASON EXPLAINED BY THE ASSESSEE IS THAT DUE TO DIWALI HOLIDAYS OFFICE OF CONSULTANT WAS CLOSED, THEREFORE, THERE WAS A DELAY OF ONE DAY. AFTER HEARING BOTH THE PARTIE S, AS THE DELAY IS SMALL AND SUPPORTED BY THE REASON, I CONDONE THE DELAY AND AD MIT THE APPEAL TO BE DECIDED ON MERITS. 3. UPON THE INFORMATION RECEIVED FROM DDIT(INV.), M UMBAI THE ASSESSMENT OF THE ASSESSEE WAS RE-OPENED. ACCORDING TO INFORMATI ON THE ASSESSEE HAD DERIVED BENEFIT OF THE TRANSACTIONS TO THE TUNE OF RS.7,33, 033/- AS THE TRANSACTION ENTERED INTO BY THE ASSESSEE WITH M/S. GOLD STAR F INVEST SEC. P. LTD. WERE BOGUS. THE ASSESSEE WAS REQUIRED TO EXPLAIN. IN REPLY IT WAS SUBMITTED THAT ASSESSEE IS NOT TRADING IN THE SHARES AT ITS OWN BU T IS ACTING ONLY AS SUB-BROKER. THE BROKERAGE EARNED BY THE ASSESSEE VARIES FROM 0 .5% TO 1.0%, THEREFORE, ASSESSEE CANNOT BE CONSIDERED TO BE BENEFICIARY OF THE AFOREMENTIONED TRANSACTION OF RS.7,33,033.20. IT WAS ALSO MENTION ED THAT SINCE THEN THE ASSESSEE COMPANY IS NON-OPERATIONAL AND DIRECTORS A RE JUST INVOLVED IN CLEARING OLD ACCOUNTS AND ENTANGLING FINANCIAL MESS. DUE TO DIS-CONTINUATION OF OFFICE EVEN DATA GOT DISRUPTED AND LOST. IN VIEW OF THES E EXPLANATION OF THE ASSESSEE AS NO DETAILS IN RESPECT OF CLIENTAL FROM WHOM THE BRO KERAGE WAS RECEIVED AND IN ABSENCE OF OTHER DETAILS THE AO HAS TREATED THE SA ID AMOUNT AS UNEXPLAINED AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. FOR THE REASONS DESCRIBED BY THE AO, LD. CIT(A) ALSO HAS UPHELD THE ADDITION. THE A SSESSEE IS AGGRIEVED, HENCE, HAS FILED THIS APPEAL. 4. DURING THE COURSE OF HEARING BEFORE ME IT WAS SUBMITTED BY LD. AR THAT LATER ON THE DATA FROM THE COMPUTER HAS BEEN RECOVE RED AND ASSESSEE HAS PREPARED THE BOOKS, COPY OF WHICH WAS SUBMITTED BEF ORE ME WITH A REQUEST TO ADMIT THE SAME AND IT WAS REQUESTED THAT THE MATTER MAY BE RESTORED BACK TO THE ./ I.T.A. NO.6547/MUM/2013 ( / ASSESSMENT YEAR : 2005-06 3 FILE OF AO WITH A DIRECTION TO EXAMINE THE CASE OF THE ASSESSEE THAT IT HAD ACTED ONLY AS SUB-BROKER. 5. LD. DR HAS PRODUCED BEFORE ME ASSESSMENT RECORD ACCORDING TO WHICH THE ASSESSEE HAD ENTERED INTO TRANSACTIONS WITH M/S. GOLD STAR FINVEST SEC. PVT. LTD. THE DETAIL IS ALSO GIVEN IN THE INFORMATION RECEIVED BY THE AO. 5.1 I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMIS SIONS. THIS APPEAL WAS PARTLY HEARD ON 27/11/2014 WHEN THE ASSESSEE WAS ASKED T O SUBMIT THE BOOKS OF ACCOUNT RETRIEVED BY IT FROM THE COMPUTER. LD. DR WAS ALSO DIRECTED TO GIVE COPY OF INFORMATION RECEIVED BY THE AO FROM THE DDI T(INV). ONLY AFTER RECEIVING THE BOOKS OF ACCOUNT RETRIEVED BY THE ASSESSEE FRO M THE COMPUTER TO ENSURE THAT THE INFORMATION MAY NOT BE UTILIZED BY THE ASSESSEE FOR PREPARING BOOKS OF ACCOUNTS. PARTIES WERE DIRECTED TO APPEAR ON 1/12 /2014. 5.2 ON 1/12/2014 LD. AR OF THE ASSESSEE HAS SUBMIT TED COPY OF THE ACCOUNTS WHICH WAS ALSO GIVEN TO LD. DR. UPON HANDING OVER THE COPY OF THE ACCOUNTS LD. DR HAD HANDED OVER THE COPY OF INFORMATION TO THE ASSESSEE. 5.3 IN THIS VIEW OF THE SITUATION I RESTORE THE M ATTER TO THE FILE OF AO WITH A DIRECTION TO VERIFY THE BOOKS OF ACCOUNT MAINTAINE D BY THE ASSESSEE AND TO RE- ADJUDICATE THE IMPUGNED ISSUE AS PER LAW AFTER GIVI NG THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. I DIRECT ACCORDINGLY. 6. SINCE THE MATTER IS BEING RESTORED TO THE FILE OF AO I DO NOT EXPRESS ANY OPINION ON THE MERITS OF THE CASE. ./ I.T.A. NO.6547/MUM/2013 ( / ASSESSMENT YEAR : 2005-06 4 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 01/12/2014 . , ' *+ ! - ./ 01/12/2014 + ' 0 SD/- . . (I.P.BANSAL) /JUDICIAL MEMBER MUMBAI; . DATED 01/12/2014 , , , , ' '' ' %(1 %(1 %(1 %(1 21( 21( 21( 21( / COPY OF THE ORDER FORWARDED TO : 1. $ / THE APPELLANT 2. %& $ / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- 4. 3 / CIT 5. 140 %( , , / DR, ITAT, MUMBAI 6. 05 6 / GUARD FILE. , , , , / BY ORDER, &1( %( //TRUE COPY// 7 77 7 / 8 8 8 8 ' ' ' ' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . .VM , SR. PS