ASST CIT 27(2), NAVI MUMBAI V. USHA J DUTTA, MUMBAI

ITA 7663/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1413 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 30-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJIV GUBGOTRA
• Assessee Lawyers: SHRI
• Keywords: Peak credit
• Section: 69A; 148

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE SH. G. S. PANNU, VP & HONBLE SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 7663 /MUM/201 6 ( / ASSESSMENT YEAR: 2006 - 07 ) ACIT 27(2) R. NO. 420, 4 TH FLOOR, TOWER NO. 6, VASHI RLY STATION COMPLEX, VASHI, NAVI MUMBAI - 400 703 / VS. USHA J. DUTI A 7 ARUT DHARA, JOSHI LANE GHATKOPAR EAST, MUMBAI - 400 077 ./ ./ PAN NO. A BQPD9420J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI RAJIV GUBGOTRA, DR / RESPONDENTBY : SHRI PANKAJ R. TOPRANI & MS. KRUPA P. TOPRANI, ARS / DATE OF HEARING : 28 .01 .201 9 / DATE OF PRONOUNCEMENT : 24.04.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPE AL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI 2 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA DATED 07.10.2016 FOR AY 2006 - 07 ON THE GROUNDS MENTIONED HEREIN BELOW: - 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.29,76,365/ - , BY IGNORING THE FACT THAT THE PEAK CREDIT PERTAINS TO A.Y. 2006 - 07 AND NOT A.Y. 2011 - 12 AS PER HSBC BANK STATEMENT OF THE ASSESSEE. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED BY IGNORING SECTION 5 AND SECTION 69A OF THE I T ACT, WHEREBY THE UNACCOUNTED AND UNEXPLAINED PEAK CREDIT AMOUNT WAS RIGHTLY TAXED IN A.Y. 2006 - 07. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED BY NOT CONSIDERI NG THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF M/S. MORVI INDUSTRIES LTD. VS CIT (82 ITR 835), WHEREIN AS PER THE JUDGEMENT, THE INCOME IS TAXABLE IMMEDIATELY, THE YEAR IT ACCRUES. 4. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN NOT CONSIDERING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ITO VS. ATCHAIAH (CH) (1996) 218 ITR 239 (SC), WHEREIN IT IS HELD THAT THE INCOME IS REQUIRED TO BE ASSESSED CORRECTLY EVEN 3 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA THOUGH ASSESSEE MAY HAVE PAID TAX INCORRECTLY OR A WRONG P ERSON MAY HAVE BEEN ASSESSED. 5. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN NOT CONSIDERING THE DECISION IN THE CASE OF NEW JAHANGIR VAHIL MILLS LTD VS. CIT(1963) 49 ITR 137 (SC), WHEREIN IT IS HELD THAT THE DECISION GIVEN BY ANY ITO F OR ONE ASSESSMENT YEAR, CANNOT AFFECT OR BIND HIS DECISION FOR ANOTHER AS DOCTRINE OF RES JUDICATA DOES NOT APPLY TO SUCH DECISIONS. 6. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 7. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. GROUND NO. 1 TO 5 . 2. THESE GROUNDS RAISED BY THE REVENUE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION MADE BY AO , BY IGNORING THE FACT THAT THE PEAK CREDIT PERTAINS TO AY 2006 - 07 AND NOT AY 2011 - 12 AS PER HSBC BANK STATEMENT OF THE ASSESSEE, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 4 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA 3. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESS EE SUBMITTED BEFORE US THAT THIS GROUND IS COVERED BY THE ORDER OF HONBLE ITAT IN ITA NO. 4067 & 4068/MUM/2016 FOR AY 1996 - 97 & 1997 - 98 IN ASSESSEES OWN CASE, WHEREIN THE IDENTICAL GROUND RAISED IN TH E PRESENT APPEAL HAS ALREADY BEEN DECIDED ON MERITS. 4. ON THE OTHER HAND, LD. DR FAIRLY AGREED TO THE CONTENTION OF LD. AR THAT THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT THE IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN ITA NO. 4067 & 4068/MUM/2016 FOR AY 1996 - 97 & 1997 - 98 IN ASSESSEES OWN CASE . THE OPERATIVE PORTION OF THE ORDER OF HONBLE ITAT PASSED IN ITA NO. CONTAINED IN PARA NO. 11 & 12 , WHICH IS REPRODUCED BELOW: - 5 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA 11. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER ON THE BASIS OF THE INFORMATION RECEIVED FROM ADDL .DIT(INV), UNIT - II, MUMBAI, THAT THE ASSESSEE HAD BANK ACCOUNT IN HSBC BANK, GENEVA, SWITZERLAND AND THE PEAK BALANCE WAS US$ 64,242 REOPENED THE ASSESSMENT BY RECORDING THE REASONS DATED 22.03.2013 AND THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 25.03.2013 WHICH WAS DULY SERVED ON 28.03.2013. THE ASSESSING OFFICER NOTED AS PER THE STATEMENT OF THE FOREIGN BANK ACCOUNT THAT THE ACCOUNT WAS OPENED ON 21.05.1984 AND THE PEAK BALANCE AS ON DECEMBER, 2005 IS US$ 63,874/ THE ASSESSING OFFICER HAS ALSO NOTED THAT THERE IS NO DEPOSIT FURTHER EXCEPT THE BANK STATEMENT AND THE PEAK DEPOSIT DURING THE FY 2005 - 06 WAS US$ 64,242/ - . THE ASSESSING OFFICER, THEREFO RE, ASSESSED RS. 23,03,037/ - EQUIVALENT TO US$ 64,242.77 AS THE INCOME OF THE ASSESSEE EARNED OUT OF UNDISCLOSED SOURCES. THE ASSESSEE CAME IN APPEAL BEFORE THE CIT(A) WHICH WAS CONFIRMED BY THE CIT(A). BEFORE US, DURING THE COURSE OF THE SUBMISSIONS, THE ASSESSEE DID NOT PRESS THE GROUND NO. 1 RELATING TO THE VALIDITY OF THE REOPENING. THE GROUNDS NO. 2 AND 3 ARE TAKEN ON MERIT CHALLENGING THE ADDITION BEING MADE IN THE IMPUGNED ASSESSMENT YEAR. 12. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDE RED THE SAME ALONG WITH THE ORDERS OF 6 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA THE TAX AUTHORITIES BELOW. WHILE DECIDING THE ISSUE IN THE PRECEDING PARAGRAPH IN ASSESSMENT YEAR 1996 - 97 UNDER PARA 6, I HAVE ALREADY HELD THAT NO ADDITION CAN TAKE PLACE IN RESPECT OF THE US$ 64,242.77 EQUIVALENT TO RS. 31,56,247/ - DURING THE IMPUGNED ASSESSMENT YEAR, AS THE SAID AMOUNT HAS ALREADY BEEN SURRENDERED BY THE ASSESSEE DURING THE ASSESSMENT YEAR 2010 - 11 AND THE ASSESSEE HAS PAID TAX THEREON. THIS PEAK AMOUNT WAS IN FINANCIAL YEAR 2005 - 06. IN RESPECT OF THE SAME AMOUNT THE ASSESSING OFFICER HAS MADE THE ADDITION IN THE ASSESSMENT YEAR 1996 - 97. RESPECTFULLY FOLLOWING THE FINDING GIVEN IN THE PRECEDING PARAGRAPH FOR THE ASSESSMENT YEAR 1996 - 97, I DELETE THE ADDITION OF RS. 23,03,037/ - BUT SUSTAIN THE ADDITION IN RESPECT OF INTEREST BEING EARNED BY THE ASSESSEE AT US$ 662.85, US$ 700.54, US$ 700.98 AND US$ 690.63. ACCORDINGLY THE ASSESSING OFFICER IS DIRECTED TO CONVERT US$ 662.85, US$ 700.54, US$ 700.98 AND US$ 690.63 IN THE INDIAN RUPEE AND TREATED TO BE THE I NCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES BEING THE INTEREST FROM BANK. THUS, THE ADDITION OF RS. 23,03,037/ - BE REDUCED TO THAT EXTENT. 6 . AFTER HAVING GONE THROUGH THE AFOREMENTIONED ORDER PASSED BY ITAT AND CONSIDERING THE FACTS O F THE PRESENT CASE, WE 7 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA UPHELD THE DELETION OF ADDITION OF RS. 31,56,247/ - , BUT FOR LIMITED PURPOSE OF VERIFYING THE INTEREST BEING EARNED BY THE ASSESSEE , WE REMIT THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO VERIFY THE SAME AND IN CASE THE INTEREST IS FOUND TO BE EARNED BY THE ASSESSEE, THEN IN THAT EVENTUALITY, THE SAME BE TREATED AS INCOME OF ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES BEING THE INTEREST FROM BANK. WITH THESE DIRECTIONS, THESE GROUND S OF APPEAL RAISE D B Y THE REVENUE ARE PARTLY A LLOWED FOR STATISTICAL PURPOSES. GROUND NO. 6 & 7 8. THESE GROUNDS RAISED BY THE REVENUE ARE GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. 9 . IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH APRIL 2019. SD/ - SD/ - ( G. S. PANNU ) (SANDEEP GOSAIN) VICE PRESIDENT JUDICIAL MEMBER MUMBAI ; DATED : 24 . 04 .201 9 SR.PS . DHANANJAY 8 I.T.A. NO. 7663 /MUM/201 6 USHA J. DUTIA / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI