NAVIN N RAJPUT, MUMBAI V. ITO WD 19(2)(4), MUMBAI

ITA 7219/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3625 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Opportunity of being heard
• Section: 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , ! '# $%, & , ' BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.7219/M/13 ( &( !) / ASSESSMENT YEAR: 2009-10) SHRI NAVIN N. RAJPUT LODHA AQUA, ARTICA/A-1404, 14 TH FLOOR, OPP. THAKUR MALL, DAHISAR MIRA ROAD, WESTERN EXPRESS HIGHWAY, MIRA ROAD (E), MUMBAI - 401107 ( / VS. INCOME TAX OFFICER WARD 19(2)(4) MUMBAI ./ ./ PAN/GIR NO. : ADDPR3393K ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 14.03.2016 !' /DATE OF PRONOUNCEMENT: 13.05.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 12.09.2013 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX ASSESSEE BY: SHRI ANANT N. PAI DEPARTMENT BY: SHRI SUMIT KUMAR ITA NO.7219/MUM/13 A.Y.2009-10 2 (APPEALS)30, MUMBAI [HEREINAFTER REFERRED TO AS THE LEARNED CIT(A)] RELEVANT TO THE A.Y.2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER{APPEALS} ERRED IN CONFIRMING IN PART @ RS.11,61,195/- THE ADDITION MA DE BY THE LEARNED ASSESSING OFFICER U/S.69A AS UNEXPLAINE D MONEY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER {APPEALS} ERRED IN CONFIRM ING THE AD HOC DISALLOWANCES TOTALING RS.51,852/- MADE @ 20% BY THE LEARNED ASSESSING OFFICER OUT OF THE FOLLOWI NG EXPENSES CLAIMED BY THE APPELLANT IN COMPUTATION OF HIS BUSINESS INCOME:- EXPENSES CLAIMED (A) TELEPHONE RS. 16,534 (B) PETROL RS. 18,600 (C) INTEREST ON CAR LOAN RS. 86,663 (D) CAR INSURANCE RS. 20,388 (E) DEPRECIATION ON CAR RS.1,17,083 TOTAL RS.2,59,268 DISALLOWANCE @ 20% ON ABOVE - RS.51,852/- ISSUE NO. 1:- WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEARNED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD CAREFULLY. T HE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE LEARNED CIT(A) ERRED IN CONFIRMING IN PART @ RS.11,61,195/- WHICH IS THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER U/S. 69 OF THE INCOME TAX ACT, 1961 ( IN ITA NO.7219/MUM/13 A.Y.2009-10 3 SHORT THE ACT) AS UNEXPLAINED MONEY. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS PRODUCED THE BANK SUMMARY LIES AT PAGE 5 TO 18 OF THE PAPER BOOK AND ALSO THE DATE WISE CASH ACCOUNT S LIES AT PAGE 19 TO 26 OF THE PAPER BOOK. THE ANNUAL CASH SUMMARY WAS ALSO BEEN REPRODUCED BEFORE US WHICH IS AT PAGE 31 OF THE PAP ER BOOK. MONTHLY CASH SUMMARY HAS ALSO BEEN PRODUCED WHICH LIES AT P AGE 32 TO 35 OF THE PAPER BOOK. THE CONTENTION OF THE ASSESSEE IS THAT THE AMOUNT WHICH HAS BEEN TREATED AS UNEXPLAINED WAS WITHDRAWN FROM THE ACCOUNT AND SUBSEQUENTLY DEPOSITED WITH THE ABOVE M ENTIONED ACCOUNTS. NO DOUBT THESE DOCUMENTS WERE NOT PRODUC ED BEFORE THE LEARNED CIT(A) FOR CONSIDERATION. NO DOUBT IN VIEW OF THE ABOVE MENTIONED DOCUMENTS THE MATTER OF CONTROVERSY CAN B E ADJUDICATED BY EXAMINING THE RELEVANT RECORD. THEREFORE IN VIEW O F THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE AMOUNT W HICH HAS BEEN TREATED AS AN EXPLANATION U/S. 69 OF THE ACT IS REQ UIRED TO BE RE- EXAMINED A FRESH IN THE LIGHT OF THE DOCUMENTS PROD UCED BEFORE US AND BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE IN ACCORDANCE WITH LAW. ACCORDINGLY WE SET ASIDE THE FINDING OF THE LEARNED CIT(A) ON THIS ISSUE AND RESTORE THE FILE BEFORE THE ASSES SING OFFICER TO RE- EXAMINE THE MATTER A FRESH IN VIEW OF THE OBSERVATI ONS MADE ABOVE. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE FOR STATISTICAL PURPOSE. ITA NO.7219/MUM/13 A.Y.2009-10 4 ISSUE NO. 2:- THE ISSUE NO.2 IS IN CONNECTION WITH THE CONFORMITY OF AD-HOC DISALLOWANCE TO THE TUNE OF RS.51,852/- MADE @ 20% BY THE ASSESSING OFFICER CONFIRMED BY LEARNED CIT(A) IN HI S ORDER. THE ASSESSEE CLAIMED THE FOLLOWING EXPENSES:- EXPENSES CLAIMED (A) TELEPHONE RS. 16,534 (B) PETROL RS. 18,600 (C) INTEREST ON CAR LOAN RS. 86,663 (D) CAR INSURANCE RS. 20,388 (E) DEPRECIATION ON CAR RS.1,17,083 TOTAL RS.2,59,268 DISALLOWANCE @ 20% ON ABOVE - RS.51,852/- THE ASSESSING OFFICER DISALLOWED 20% EXPENSES ON TH E BASIS OF SUCH THAT THE LOG BOOK WAS NOT PRODUCED BY THE ASSESSEE AND THE ASSESSEE FAILED TO PRODUCE FULL DETAILS. THUS, THE ASSESSIN G OFFICER DISALLOWED 20% OF THE SAID EXPENSES ON ACCOUNT OF PERSONAL EXP ENDITURE. THE SAID DISALLOWANCE HAS BEEN CONFIRMED BY THE LEARNED CIT(A). BY GOING THROUGH THE ORDER PASSED BY THE AUTHORITIES B ELOW NO DOUBT FIRSTLY IT IS INCUMBENT UPON THE ASSESSEE TO RAISE CLAIM BEFORE THE AUTHORITY WITH APPROPRIATE AND JUSTIFIABLE DOCUMENT S. NO DOUBT THE LOG BOOK AND OTHER DOCUMENTS HAVE NOT BEEN PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. IN VIEW OF THE SAID CIRCUMSTANCES THE LEARNED ASSESSING OFFICER DISALLOWED THE 20% EXPEND ITURE TREATING AS PERSONAL EXPENDITURE OF THE ASSESSEE. OBSERVING TH E NATURE OF THE ITA NO.7219/MUM/13 A.Y.2009-10 5 EXPENDITURE WE ARE OF THE VIEW THAT THE DISALLOWANC ES TO THE EXTENT OF 20% IS EXCESSIVE AND END OF THE JUSTICE WOULD BE ME ET IF 10% OF THE SAID EXPENDITURE TO BE ALLOWED. THEREFORE IN THE S AID CIRCUMSTANCES WE DISALLOWED THE 10% EXPENDITURE OF THE AMOUNT TO THE TUNE OF RS.2,59,268/-. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 6. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MAY , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 13 TH MAY, 2016 MP MP MP MP ITA NO.7219/MUM/13 A.Y.2009-10 6 + ,&#$- .-)# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ( / BY ORDER, - & //TRUE COPY// //% ' /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI