ITO 19(2)(4), MUMBAI V. MANOJ HIRJI VISARIA, MUMBAI

ITA 7054/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3129 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Keywords: Peak credit; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 7054/MUM/2013 ASSESSMENT YEAR: 2009-10 THE ITO , 19 (2) ( 4 ) , ROOM NO. 310, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI- 400012. VS. SHRI. MANOJ HIRJI VISARIA. B-11, 2 ND FLOOR, THE NEEL GAGAN CHS, 7 TH GOLIBAR ROAD, SANTACRUZ (E), MUMBAI- 400 055. PAN- AAAPV3674R (APPELLANT) (RESPONDENT) & CO NO. 15/MUM/2015 (ITA NO. 7054/MUM/2013) ASSESSMENT YEAR: 2009-10 SHRI. MANOJ HIRJI VISARIA. B-11, 2 ND FLOOR, THE NEEL GAGAN CHS, 7 TH GOLIBAR ROAD, SANTACRUZ (E), MUMBAI- 400 055. PAN- AAAPV3674R VS. THE ITO, 19 (2)(4), ROOM NO. 310, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI- 400012. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. VINITA MENON RESPONDENT BY : SHRI. ASHOK MEHTA DATE OF HEARING: 13/06/2016 DATE OF PRONOUNCEMENT: 13/06/2016 O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL ITA NO 7054/MUM/2013 HAS BE EN PREFERRED BY THE REVENUE AGAINST ORDER DATED 06/09/2013 PASSED BY TH E LD. CIT(A)-30, MUMBAI FOR THE ASST. YEAR 2009-10. 2 ITA NO. 7054/MUM/2013 & CO NO. 15/MUM/2015 ASSESSMENT YEAR: 2009-10 THE ASSESSEE HAS ALSO FILED CROSS OBJECTION NO. 15 /MUM/2015. SINCE THE SAID APPEAL AND CROSS APPEAL PERTAIN TO THE SAME ASSESSE E FOR THE SAME ASSESSMENT YEAR, BOTH WERE CLUBBED AND HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 7054/MUM/2013 A.Y. 2009-10 1. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER DA TED 06/09/2013 PASSED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUND S:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING THE A.O. TO TAKE THE PEAK CREDIT AND TO CALCULATE G.P.@ 12.6% AS AGAINST TOTAL CASH DEPO SIT IN THE UNDISCLOSED BANK ACCOUNT WITHOUT APPRECIATING THE F ACT THAT THE ASSESSEE COULD NOT PROVIDE EVIDENCE IN RESPECT OF C ASH DEPOSIT OUT OF CASH WITHDRAWALS. 2. THE APPELLANT PRAYS THAT THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW RS.10,00,000/-. HENCE, AS PE R THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEAL IS NO T MAINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT I N DEPARTMENTS APPEAL IS BELOW RS. 10 LAKHS, WE FIND THAT THE ISSUE RAISED I N APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE C IRCULAR. SINCE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID TH AT THE INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRE SENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMIS S THE SAME IN LIMINE . 3 ITA NO. 7054/MUM/2013 & CO NO. 15/MUM/2015 ASSESSMENT YEAR: 2009-10 CO 15/MUM/2015. THE ASSESSEE HAS FILED THE PRESENT CROSS OBJECTION ON THE FOLLOWING GROUNDS:- 1. THE LEARNED ASSESSING OFFICER ERRED IN STATING THAT THE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) ERRED IN DIRECTING THE AO TO TAKE THE PEAK C REDIT AND TO CALCULATE G.P. @ 12.6% AS AGAINST TOTAL CASH DEPOS IT IN THE UNDISCLOSED BANK ACCOUNT WITHOUT APPRECIATING THE F ACT THAT THE ASSESSEE COULD NOT PROVIDE EVIDENCE IN RESPECT OF C ASH DEPOSIT OUT OF CASH WITHDRAWALS. 2. THE LEARNED CIT(A) ERRED IN ADDING BOTH THE PE AK CREDIT RS. 1,63,312/- AND THE GROSS PROFIT OF RS. 2,54,318/- O N THE SAME AMOUNT OF RS. 20,24,823/-. 2. SINCE WE HAVE ALREADY DISMISSED THE APPEAL FILE D BY THE REVENUE, THE PRESENT CROSS OBJECTION OF THE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME IS THEREFORE DISMISSED. 3. IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT AND CROSS OBJECTION FILED BY THE ASSESSEE FOR THE A.Y. 2009-10 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COU RT ON 13 TH JUNE, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 13/06/2016 4 ITA NO. 7054/MUM/2013 & CO NO. 15/MUM/2015 ASSESSMENT YEAR: 2009-10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA