DY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-6(2), MUMBAI V. SAMIRA CONSTRUCTION INDIA LTD, MUMBAI

ITA 860/MUM/2022

AI Insights

The case involves two appeals by the Dy. Commissioner of Income Tax against the consolidated order of the CIT (A) for the assessment years 2010-11 and 2011-12. The appeals were related to the deletion of protective additions made in the hands of Samira Construction India Ltd., which were initially added on a protective basis due to substantive additions made in the hands of a sister concern, Samira Habitats India Ltd. The CIT (A) had deleted these additions based on the substantive additions confirmed in the case of Samira Habitats India Ltd. However, subsequent to the appeals, the co-ordinate bench set aside the CIT (A)'s orders in the case of Samira Habitats India Ltd., leading to the restoration of the protective additions in the case of Samira Construction India Ltd. to the CIT (A) for re-adjudication.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 299192 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2022
• Appeal Filed By: Department
• Order Result: PartlyAllowed
• Bench Allotted: E
• Next Hearing Date: 17-10-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 01-05-2022
• Other Referred Cases: Samira Habitats India Ltd.
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Set aside
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI PAVAN KUMAR GADALE, JM ITA No. 859/Mum/2022 (Assessment Year 2010-11) ITA No. 860/Mum/2022 (Assessment Year 2011-12) D y. Com m iss ioner of Incom e T ax Centra l C i rcle 6(2 ) Room No.1903, 19 th Floo r, Air Ind ia Bu ild in g Nar im an Point, Mum bai-400 021 Vs. Sam ira Con stru ctio n India Ltd. G-8, Sh rikant Cha m bers Ne xt to R.K. Stud io , Sion-T rom ba y Roa d, Chem bur, Mum bai-400 071 (Appellant) (Respondent) PAN No. AALCS6406L Assessee by : Ms. Vinita Shah, AR Revenue by : Shri H.N. Singh, CIT DR Date of hearing: 18.10.2022 Date of pronouncement : 29.12.2022 O R D E R PER PRASHANT MAHARISHI, AM: 01. These are two appeals filed by the ld. Assessing officer against the consolidated order of the ld. CIT [A] for two years where the addition made by the ld. AO in the hands of assessee on protective basis is deleted. 02. ITA No. 859/Mum/2022 for A.Y. 2010-11 is filed by the Dy. Commissioner of Income Tax, Central Circle-6(2), Mumbai, (the Assessing Officer) against the appellate order passed by the Commissioner of Income-tax Page | 2 ITA No. 859 & 860/Mum/2022 Samira Constructions India Ltd; A.Y. 10-11 (Appeals)-54, Mumbai [ The ld. CIT (A)] for A.Y. 2010-11 on 25 th February 2022 and appellate order passed on the same date for A.Y. 2011-12. 03. The learned Assessing Officer has raised following grounds of appeal:- “1. On the facts and circumstances of the case and in law, whether the learned CIT (A) is justified in deleting the addition made on protective basis in the hands of the assessee , even though the sustentative addition has not reached finality.” 04. In both the appeals, the grievance of the learned Assessing Officer is that the learned CIT (A) has deleted the addition made in the hands of this assessee on protective basis even though the substantive addition has not reached finality. 05. The brie fact of the case shows that for A.Y. 2010-11 the assessee filed its return of income on 14 th October 2010 at ₹ nil. Search under Section 132(1) of the Income-tax Act, 1961 (the Act) on 21 st March, 2013 was conducted on Samira group. Notice under Section 153A was issued on 2 nd May, 2014, in response to which the return at ₹ nil was filedon 9 th December, 2014. The assessment order under Section 143(3) read with section 153A of the Act was passed on 15 th March, 2014 assessing the total income of the assessee at ₹1,12,57,000/-. The learned Assessing Officer made an addition of ₹1,12,57000/- on protective basis in the hands of the assessee and substantively in the hands of the sisters concern i.e. Samira Habitats India Ltd. Page | 3 ITA No. 859 & 860/Mum/2022 Samira Constructions India Ltd; A.Y. 10-11 06. On appeal before the learned CIT (A), the addition related to interest paid on cash loan and unexplained expenditure of ₹1,12,57,000/- was deleted because of the reason that the learned CIT (A) vide order dated 30 th December, 2021 upheld the same addition on substantive basis in case of Samira Habitats India Ltd. As the substantive addition was made in the case of other assessee, the protective addition in the hands of the assessee was deleted. 07. Similarly, for A.Y. 2011-12, the addition of ₹2,07,78,750/- was deleted as substantive addition in the hands of Samira Habitats India Ltd. was confirmed. The learned Assessing Officer is aggrieved with the same. 08. At the time of hearing, the learned Counsel submitted that in case of Samira Habitats India Ltd. in ITA No.393,395 to 397 and 532/Mum/2022 for A.Y. 2008-09, 2010-11 to 2013-14, the orders of the learned CIT (A) were contested and by order dated 19 th July, 2022, the co-ordinate bench has set aside the issue back to the learned CIT (A) for fresh adjudication. Therefore, the substantive addition has also gone back to the learned CIT (A) and therefore, the protective additions should also go back to the learned CIT (A). 09. The learned Departmental Representative vehemently supported the order of the learned Assessing Officer. However, he contested that the learned CIT (A) has wrongly deleted the addition on protective basis, despite substantive addition has not reached the finality. Page | 4 ITA No. 859 & 860/Mum/2022 Samira Constructions India Ltd; A.Y. 10-11 010. We have carefully considered the rival contention. The only issue in this appeal is that the learned CIT (A) has deleted the protective addition in the hands of the assessee after confirming the addition on substantive basis in case of Samira Habitats India Ltd. When the orders of the learned CIT (A) in case of Samira Habitats India Ltd. were challenged before the co-ordinate Bench by the assessee, the co-ordinate Bench vide order dated 19 th July, 202 has set aside the orders of the learned CIT (A) in case of that assessee back to his file. Therefore, now the substantive addition is also sent back to the file of the learned CIT (A), therefore in all fairness the order of the learned CIT (A) in case of the assessee are also required to be sent to the file of the learned CIT (A). Accordingly, we restore both these orders back to the file of the learned CIT (A) and direct him to decide the issue along with the appeal of Samira Habitats India Ltd. 011. In the result, both the appeals of the learned Assessing Officer are allowed for statistical purposes. Order pronounced in the open court on 29.12.2022. Sd/- Sd/- (PAVAN KUMAR GADALE) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 29.12.2022 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. CIT Page | 5 ITA No. 859 & 860/Mum/2022 Samira Constructions India Ltd; A.Y. 10-11 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai