Mr Parvez Mohd Yusuf Kokani, Nashik V. Assistant Commissioner of Income Tax, Central Circle-2, Nashik, Nashik

ITSSA 17/PUN/2023

AI Insights

The case involves Mr. Parvez Mohd. Yusuf Kokani, who appealed against the order of the Commissioner of Income Tax (Appeals), Pune-12, which was dated 30.09.2021 for the assessment year 2010-11. The primary contention of the assessee was that no incriminating material was found for the said assessment year, and thus the order under section 153A was bad in law. Additionally, the assessee contested the opening cash balance considered as nil and the addition of Rs.8,00,000 based on certain entries in the incriminating material. The Tribunal dismissed all grounds of appeal, affirming the lower authorities' decisions.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134448 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-05-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 07-05-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business expenditure; Document seized; Documents seized
• Section: 132; 144; 139; 142(1); 153A; 153

Judgement Text

आयकर अपीलीय अिधकरण ”बी” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “B” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / IT(SS)A No.17/PUN/2023 िनधाᭅरण वषᭅ / Assessment Year : 2010-11 Mr.Parvez Mohd. Yusuf Kokani, Flat No.23, Detta Royal Society, Near Ashoka Marg, Nashik – 422011. PAN: AXPK 5901 A V s The Assistant Commissioner of Income Tax, Central Circle-2, Nashik. Appellant / Assessee Respondent / Revenue Assessee by Shri Pramod Shingte – AR Revenue by Shri Deepak Garg – DR Date of hearing 25/05/2023 Date of pronouncement 25/07/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax (Appeal), Pune-12, dated 30.09.2021 for the A.Y.2010-11. The Assessee has raised the following grounds of appeal : “1. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer erred in passing an order under section 153 A for A.Y. 2010-11 especially in view of the fact that no IT(SS)A No.17/PUN/2023 Mr. Parvez Mohd. Yusuf Kokani [A] 2 incriminating material was found for the said assessment year, therefore entire order is bad in law, and deserves to be struck down. 2. On the facts and in the circumstances of the case and in law, the Learned CIT appeal erred in considering the opening cash balance as Nil, in spite of the fact, that appellant is having business income and agriculture income in previous years also therefore reasonable opening balance to the extent of Rs.6,00,000 may kindly be considered. 3. On the facts and in the circumstances of the case and in law, the lower authorities have erred it confirming the addition of Rs.8,00,000 on the basis of certain entries in the alleged incriminating material referred as page no 35, as page no annexure A -1 by disregarding appellants contention that the reliant entry does not get linked to any specific transaction, and therefore such addition can not be considered as application of cash in hand balance.” Findings and Analysis : 2. It is observed that an assessment order under section 144 r.w.s 153A of the Income Tax Act, 1961 was passed for A.Y.2010-11 on 29.12.2017 by the ld.ACIT, Central Circle-2, Nashik. The Assessing Officer(AO) made addition of Rs.5,46,000/- under the head Unexplained Business Expenditure and Rs.8 lacs under the head Unexplained Investment. It is observed that assessee had filed Return of Income under section IT(SS)A No.17/PUN/2023 Mr. Parvez Mohd. Yusuf Kokani [A] 3 139 of the Act on 31.03.2012 declaring total income at Rs.8,89,600/- and agricultural income at Rs.4,90,600/-. There was no regular assessment in the case of assessee for A.Y.2010- 11. A Search under section 132 of the Income Tax Act was carried out by the Income Tax Department on 08.09.2015 at the residential premises of the assessee. Accordingly, the AO issued notice under section 153A of the Act. Assessee had not filed any reply or any return in response to notice under section 153A of the Act. The AO issued various notices under section 142(1) and penalty notice for non-compliance under section 271(1)(b) of the Act. However, assessee had not complied to any of the notices. The AO passed an ex-party order and made the above mentioned additions. The AO has categorically referred in the assessment order the seized documents which were seized at Annexure A-1 from the premises of the assessee during the search under section 132 of the Act. Aggrieved by the assessment order, the assessee filed an appeal before the ld.CIT(A). 3. The assessee filed certain additional evidences. The ld.CIT(A) had called for Remand Report. The ld.CIT(A) after IT(SS)A No.17/PUN/2023 Mr. Parvez Mohd. Yusuf Kokani [A] 4 considering evidences filed by the assessee deleted both the additions. In these facts and circumstances of the case, when the entire addition has been deleted by the ld.CIT(A) and Department has not filed any appeal against the order of the ld.CIT(A), which means the Return of Income filed by the assessee under section 139 attains finality. Thus, there is no cause of action or any grievance for the assessee to file an appeal before this Tribunal. 4. Be it as it may be, the assessee has raised first ground as legal ground that no incriminating material was found. However, on perusal of the assessment order, ld.CIT(A)’s order and the assessee’s paper book, it is observed that there were seized material seized under section 132 of the Act. The AO and ld.CIT(A) has referred to these materials in the orders. The ld.Authorised Representative has not pointed out before us any evidence to explain that there was no seized documents. In these facts and circumstances of the case, we are convinced that there were incriminating material as mentioned in the assessment order and therefore action of the AO issuing notice under section IT(SS)A No.17/PUN/2023 Mr. Parvez Mohd. Yusuf Kokani [A] 5 153A of the Act is absolutely valid and as per law. Therefore, Ground No.1 of the assessee is dismissed. Ground No.2 : 5. The assessee’s grievance in this ground is that the ld.CIT(A) while deleting the addition has mentioned that opening cash balance was Nil. Thus, the assessee’s only grievance is that the statement of ld.CIT(A) regarding opening cash balance. However, it is observed that assessee has not filed any documents before us to prove the quantum of opening cash balance, rather it is observed that nowhere in the submission assessee has specifically mentioned the exact quantum of opening cash balance. Assessee has not filed any documentary evidence to prove opening cash balance. In these facts and circumstances of the case, we concur with the ld.CIT(A) that opening cash balance was Nil. Accordingly, Grounds No.2 of the assessee is dismissed. Ground No.3 6. The ground is regarding addition of Rs.8 lacs which has already been deleted by the ld.CIT(A) in para 4 of the order, IT(SS)A No.17/PUN/2023 Mr. Parvez Mohd. Yusuf Kokani [A] 6 therefore, we need not adjudicate the ground as there is no cause of action, accordingly, Ground No.3 is dismissed. 7. In the result, appeal of the assessee is dismissed. Order pronounced in the open Court on 25 th July, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 25 th July, 2023/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.