DCIT 22(2), NAVI MUMBAI V. RAJMANI RAMDULAR SINGH, MUMBAI

ITA 7726/MUM/2012

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8628 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 06-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PURUSHOTTAM KUMAR SR
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.7726/M/2012 ASSESSMENT YEAR: 2009-10 DCIT-22(2), TOWER NO.6, 4 TH FLOOR, VASHI RAILWAY STATION BLDG. COMPLEX, VASHI, NAVI MUMBAI VS. SHRI RAJMANI RAMDULAR SINGH, L/H RAJESH R. SINGH, 1/1, GHANSHYAM BAUG, CAMA LANE, HANSOTI ROAD, GHATKOPAR (W), MUMBAI-86 PAN: APAPS1053E (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI PURUSHOTTAM KUMAR SR. A.R. REVENUE BY : SHRI SHAILESH PARMAR, D.R. DATE OF HEARING : 20.09.2017 DATE OF PRONOUNCEMENT : 02.11.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 30.10.2012 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE HAS FILED THE RETURN DECLARING TOTAL INCOME OF RS.18,91,070/-. THE ASSESSEE LATE SHRI RAJMANI SIN GH WAS PARTNER IN ITA NO.7726/M/2012 SHRI RAJMANI RAMDULAR SINGH 2 REGISTERED FIRM RAJESH BUILDERS AND HIS MAIN AND PR INCIPAL SOURCE OF INCOME WAS ONLY FROM THE SAID FIRM. A SURVEY ACTIO N WAS CARRIED OUT ON 23.12.08 AT THE BUSINESS PREMISES OF PARTNERSHIP FIRM AT ITS OFFICES AND SITES AND THE DEPARTMENT HAD SEIZED VARIOUS DOC UMENTS AND OTHER BOOKS OF ACCOUNTS WHICH WERE FOUND DURING THE COURS E OF SUCH SURVEY. THE STATEMENT OF ASSESSEE DURING THE SEARC H WAS RECORDED WHEREIN HE HAS AGREED TO MAKE DISCLOSURE OF RS.4,00 ,00,000/- TO MITIGATE THE DISCREPANCIES FOUND IN THE SEIZED MATE RIAL. HOWEVER, DURING THE TIME OF SURVEY AS WELL AS DURING THE TIM E OF ASSESSMENT TIME AND AGAIN IT HAS BEEN CATEGORICALLY STATED THA T THE LATE ASSESSEE DID NOT HAVE ANY OTHER SOURCE OF INCOME OTHER THAN HIS INCOME FROM THE FIRM M/S. RAJESH BUILDERS ONLY. THE LATE ASSES SEE HAD CATEGORICALLY STATED THAT THE ENTIRE IMPOUNDED MATE RIALS BELONGED TO THE BUSINESS ACTIVITY OF THE FIRM ONLY AND SAME SHO ULD BE CONSIDERED ACCORDINGLY. THE AO HAS MADE THIS ADDITION AS PROT ECTIVE BASIS ON THE GROUND THAT LATE LATE SHRI RAJMANI SINGH HAS MA DE DECLARATION. THE ADDITION HAS BEEN MADE IN HANDS OF THE SAID FIR M M/S. RAJESH BUILDERS. 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A) HAS ALLOWED THE APPEAL BY OBSERVING AS UNDER: 3.3 I HAVE ALSO GONE THROUGH THE SAID APPELLATE OR DER PASSED IN APPEAL NO.CIT(A)-33/504/11-12. AS IT IS CLEAR FROM THE READING OF THE SAID ORDER THAT OUT OF THE TOTAL AMOUNT OF RS.4,10,66,22 2/-, ADDITION OF RS.23,00,0000/- WAS MADE IN THE HANDS OF APPELLANT IN A.Y. 2009-10, AND IT WAS CONFIRMED ALSO ON TWO COUNTS ; FIRSTLY THAT THIS WAS AN AMOUNT OF RS.23,00,000/- WAS ADDED IN THE HANDS OF APPELLANT WHICH PERTAINS TO HIM WHEREAS THE BUILDINGS PERTAIN TO PARTNERSHIP FI RM FOR WHICH DECLARATION WAS MADE OF THE APPELLANT IN THE CAPACI TY OF PARTNER OF THE ASSESSEE FIRM. SECONDLY ALSO FOR THE REASON THAT TH IS AMOUNT OF ITA NO.7726/M/2012 SHRI RAJMANI RAMDULAR SINGH 3 RS.23,00,000/- WAS UNDISCLOSED RECEIPT IN THE HANDS OF APPELLANT ADDED ON SUBSTANTIVE BASIS. HAVING DECIDED THAT THE AMOUNT OF RS.23,00,000/ ONLY PERTAINED TO THE APPELLANT IN HI S INDIVIDUAL CAPACITY SAME WAS UPHELD IN THE HANDS OF THE APPELLANT ON SUBSTAN TIVE BASIS IN THE YEAR 2009-10. IN VIEW OF THIS FACT THAT THE ADDITION MADE OF RS.4 ,10,66,222/- ON PROTECTIVE BASIS IN THE HANDS OF APPELLANT IN A.Y. 2009-10, THE SUBJECT MATTER IN THIS APPEAL, IM OF THE VIEW THAT SAME IS NOT SUSTAINABLE AND HENCE IS DELE TED HEREWITH. GROUND NO.1 IS ALLOWED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMITTED THAT THE SIMILAR ADDITION HAS BEEN MADE IN THE HANDS OF M/S. RAJESH BUILDERS AND M/S. RAJESH BUILDERS HAS ACCEPTED THIS AMOUNT. THE M/S. RAJESH BUILDERS HAS OFFERED THIS AMOUNT IN RESPONSE TO NOT ICE U/S 148 PRIOR TO ASSESSMENT YEARS 2002-03 TO 2004-05, 2005-06 TO 2008-09 AND 2009-10 AND ALL THESE AMOUNTS WERE OFFERED TO TAXAT ION. THEREFORE, WE ARE OF THE VIEW THAT THIS ADDITION IS NOT CALLED FOR AND THE LD. CIT(A) IS JUSTIFIED IN DELETING THE SAME. THE LD. A.R. SUBMITTED THE YEAR WISE BREAK-UP OF THE INCOME IN TABULATED FORM WHICH IS REPRODUCED AS UNDER: PERIOD AY AMOUNT RUPIA REMARKS 07-06-2002 TO 31- 03-2004 2003-04 AND 2004-05 1,01,58,050 BEYOND BLOCK PERIOD 01-04-2004 TO 31- 03-2005 2005-06 1,29,62,000 OFFERED AS INCOME IN RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT BY THE PARTNERSHIP FIRM RAJESH BUILDERS AND ACCEPTED BY THE LD. AO 01-04-2005 TO 31- 03-2006 2006-07 33,54,000 01-04-2006 TO 31- 03-2007 2007-08 60,20,002 01-04-2007 TO 31- 03-2008 2008-09 62,72,170 01-04-2008 TO 31- 03-2009 2009-10 23,00,000 ADDITION MADE IN THE HANDS OF RAJESH BUILDERS ITA NO.7726/M/2012 SHRI RAJMANI RAMDULAR SINGH 4 AND CONFIRMED BY LD. CIT(A). NO APPEAL FILED AGAINST THE ADDITION CONFIRMED. TOTAL 4,10,66,222 THE ENTIRE ADDITION MADE BY THE LD. AO IN THE HANDS OF APPELLANT IN THE AY 2009-10 ON PROTECTIVE BASIS 5. IN RESPECT OF THE GROUND TAKEN BY THE REVENUE RE GARDING DELETION OF ADDITION OF RS.3,68,880/- MADE ON PROTE CTIVE BASIS, WE FIND THAT THE AO AT THE TIME OF SURVEY ASKED THE AS SESSEE TO EXPLAIN ABOUT ONE PAPER WHICH SHOWED CASH DEPOSIT OF RS.40, 00,000/- IN PRATAP CO-OP BANK LIMITED TO WHICH THE LATE ASSESSE E REPLIED THAT THE SAME REPRESENTED CASH DEPOSIT IN THE BANK FROM THE INCOME OF THE FIRM M/S. RAJESH BUILDERS. THE AO HAS MADE THE INT EREST ON PRORATE BASIS WHICH IS WORKED OUT TO RS.3,69,880/-. THE AO ADDED THIS AMOUNT IN THE HANDS OF THE ASSESSEE. 6. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS ALLOWED THE CLAIM BY OBSERVING AS UNDER: 4.1 AS IT IS CLEAR THAT ADDITION OF RS.34,84,461/- BEING 40% OF RS.87,11,152/- WAS CONFIRMED ON SUBSTANTIVE BASIS I N THE HANDS OF THE APPELLANT FIRM M/S. RAJESH BUILDERS, THE PARTNERSHI P FIRM IN A.Y. 2009- 10 IN THE APPEAL BEARING NO. CIT(A)-33/504/11-12 DA TED 29.07.2012 AND HENCE, THE INCOME BY WAY OF INTEREST ON THE SAID AM OUNT WORKED OUT AT RS.3,69,180/- ALSO HAS TO BE ADDED IN THE HANDS OF FORM ONLY. IN VIEW OF THIS THE ADDITION MADE FOR THE INTEREST AMOUNT IN T HE HANDS OF APPELLANT IS NOT SUSTAINABLE AND HENCE DELETED HERE WITH. THE GROUND NO.2 IS ALLOWED. ITA NO.7726/M/2012 SHRI RAJMANI RAMDULAR SINGH 5 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. WE FIND THAT THIS SUBSTANTIVE ADDITION HAS BEEN CONFIR MED IN CASE OF M/S. RAJESH BUILDERS. THEREFORE, WE ARE OF THE VIEW THA T LD. CIT(A) IS JUSTIFIED IN HIS ACTION AND OUR INTERFERENCE IS NOT REQUIRED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 02.11.2017. SD/- SD/- (RAJESH KUMAR) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 02.11.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.