BHAVESH C JAIN, MUMBAI V. ITO 14(1)(4), MUMBAI

ITA 984/MUM/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6007 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B D JAIN
• Section: 143(3); 142(1); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 984/MUM/2014 (ASSESSMENT YEAR: 2009-10) SHRI BHAVESH C. JAIN OFFICE NO. 71, 3RD FLOOR DIAMOND MANSION DR. VIGAS STREET CORNER KALBADEVI ROAD MUMBAI 400002 VS. INCOME TAX OFFICER - 19(1)(1) MUMBAI PAN AISPJ8444R APPELLANT RESPONDENT APPELLANT BY: SHRI BHUPENDRA SHAH RESPONDENT BY: SHRI B.D. JAIN DATE OF HEARING: 03.07.2018 DATE OF PRONOUNCEMENT: `12.07.2018 O R D E R PER R.C. SHARMA, AM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-25, MUMBAI DATED 07.11.2013 FOR A.Y. 2009-10 IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT (HEREINAFTER THE ACT). 2. IN THIS APPEAL THE ASSESSEE IS AGGRIEVED FOR THE AD DITION OF ` 15,95,038/-. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUS ED. BRIEFLY STATED, THE ASSESSEE FILED RETURN OF INCOME FOR A.Y . 2009-10 ON 30.11.2009 DECLARING TOTAL INCOME OF ` 1,40,778/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THE CASE WAS SELECTED FO R SCRUTINY UNDER CASS AND NOTICES UNDER SECTION 143(2) AND 142(1) WERE IS SUED AND SERVED ON THE ASSESSEE. THE ORDER UNDER SECTION 143(3) WAS PA SSED ON 30.12.2011, MAKING ADDITION OF CASH DEPOSITS OF ` 15,95,000/- UNDER SECTION 69 OF THE ITA NO. 984/MUM/2014 SHRI BHAVESH C. JAIN 2 ACT AND THEREBY DETERMINING THE TOTAL INCOME AT ` 17,35,778/-. BY THE IMPUGNED ORDER THE CIT(A) CONFIRMED THE ACTION OF T HE AO, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS CAREFULLY AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOU ND FROM RECORD THAT THE ASSESSEE IS CARRYING ON BUSINESS OF DISCOUNTING OF CHEQUES, WHEREIN CASH WAS ACCEPTED AND AFTER DEDUCTING HIS COMMISSION ASS ESSEE WAS ISSUING CHEQUES TO THE PARTIES. SIMILARLY, WHILE MAKING PAY MENTS THE ASSESSEE WAS ACCEPTING CHEQUES AND AFTER DEDUCTING HIS COMMISSIO N USED TO PAY THE CASH TO THE PARTIES. DURING THE COURSE OF ASSESSMEN T THE AO DID NOT AGREE WITH THE ASSESSEES NATURE OF BUSINESS AND THEREFOR E ADDED THE ENTIRE AMOUNT OF CASH DEPOSIT IN ASSESSEES ACCOUNT. IT WA S THE CONTENTION OF THE LEARNED A.R. THAT ALL THE BUSINESS TRANSACTIONS PER TAINING TO THE ADDITION OF ` 1,95,000/- ARE PROPERLY REFLECTED IN THE BOOKS OF A CCOUNT/CASH BOOK FILED BEFORE THE AO, THEREFORE THE ADDITION IS NOT WARRAN TED UNDER SECTION 69 OF THE ACT. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 30 TH NOVEMBER, 2009 VIDE MACHINE NO. 1414004087 SHOWING DETAILS OF ALL ITEMS OF PROFIT & LOSS ACCOUNT, BALA NCE SHEET AND THE CAPITAL ACCOUNT, ETC. THE ASSESSEES PROFIT & LOSS ACCOUNT IS BASED ON THE TRANSACTIONS RECORDED IN THE BOOKS OF ACCOUNTS, COP Y OF WHICH HAS BEEN FILED BEFORE YOUR GOODSELF BY WAY OF PAPER BOOK COM PRISING PAGES 1 TO 41. COPY OF CASH BOOK FOR THE PERIOD 1 ST APRIL, 2008 TO 31 ST MARCH, 2009 APPEARS AT PAGES 13 TO 18 OF THE PAPER BOOK. 5. FROM THE RECORD WE FIND THAT SMALL CASH WAS DEPOSI TED BY THE ASSESSEE AGAINST WHICH HE USED TO ISSUE CHEQUES. IN COME ON ACCOUNT OF DISCOUNT AND COMMISSION WAS OFFERED TO TAX IN THE R ETURN BUT SINCE THE ASSESSEE DID NOT FILE ANY CONFIRMATION FROM THE PER SONS FROM WHOM CASH WAS RECEIVED, THE AO MADE ADDITION IN RESPECT OF TH E ENTIRE CASH DEPOSITED IN THE BANK. WE FIND THAT THERE WAS ALSO WITHDRAWAL OF CASH FROM THE VERY SAME BANK ACCOUNT, ACCORDINGLY CREDIT FOR THE SAME WAS REQUIRED TO BE GIVEN TO BY THE ASSESSEE. KEEPING IN VIEW THE TOTAL ITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND NATURE OF BUSINESS OF THE ASSESSEE WE ITA NO. 984/MUM/2014 SHRI BHAVESH C. JAIN 3 RESTORE THE MATTER TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE DIRECT ACCORDINGLY 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY, 2018. SD/ - SD/ - (AMARJIT SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 12 TH JULY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -25, MUMBAI 4. THE CIT - 14, MUMBAI 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.