VIREN AHUJA, V. DCIT CIR 47,

MA 255/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3779 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 03-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI . . , , BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND SHRI RAMLAL NEGI , JUDICIAL MEMBER M.A. NOS. 255 & 256/MUM/2015 (ARISING OUT OF I .T.A. NO S . 4708 & 4322 /MUM/2013 ( / ASSESSMENT YEAR S : 200 7 - 0 8 & 2008 - 09 SHRI VIREN AHUJA, 1, NEELKANTH, ROAD NO. 6, CHEMB U R, MUMBAI - 400 071 / VS. THE DCIT,CC - 47 MUMBAI ./ ./ PAN/GIR NO. : AACPA 4809M ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI J.P. BAIRAGRA / RESPONDENT BY : SHRI PAWAN KUMAR BEERLA / DATE OF HEARING : 04.12 .2015 / DATE OF PRONOUNCEMENT : 04.12 .2015 / O R D E R PER N.K. BILLAIYA, AM: THESE MISCELLANEOUS APPLICATIONS BY THE ASSESSEE ARE DIRECTED AGAINST A CONSOLIDATED ORDER OF THE TRIBUNAL DATED 29.4.2015. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT EARLIER M.A. NOS. 115 & 116/M/2015 WERE FILED BY THE ASSESSEE AGAINST THE VERY SAM E ORDER OF THE TRIBUNAL. M.A. NOS. 255 & 256/M/ 2 3. IN THIS NEW MISCELLANEOUS APPLICATIONS I.E. M.A. NOS. 255 & 256/M/2015, THE ASSESSEE SAYS THAT WHILE ALLOWING THE EARLIER MISCELLANEOUS APPLICATIONS INADVERTENTLY THE TRIBUNAL IN ITS FINDING AT PARA - 24 & 30 OF THE ORDER REMOVED THE EXISTING OBSERVATIONS OF THE TRIBUNAL WHICH WERE THERE IN ITA NOS. 4708 & 4322/M/2013. 4. WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATIONS QUA MISCELLANEOUS APPLICATION NOS. 115 & 116/M/15 QUA ITA NOS. 4708 & 4322/M/2013. WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE. THERE IS A MISTAKE VERY MUCH APPARENT FROM THE RECORD WHILE ALLOWING THE EARLIER MISCELLANEOUS APPLICATION AT PARA - 24 & 30 OF THE ORDER OF THE TRIBUNAL, THE EXISTING OBSERVATIONS ARE FOUND MISSING. WE, TH EREFORE ALLOW THIS MISCELLANEOUS APPLICATIONS OF THE ASSESSEE. PARA - 24 OF THE ORDER OF THE TRIBUNAL SHOULD BE READ AS UNDER: 24. THIS ISSUE HAS BEEN DISCUSSED BY THE AO AT PARA - 10 OF HIS ORDER WHEREIN HE HAS MADE REFERENCE TO CERTAIN INCRIMINATING PAPERS FOUND AND SEIZED AT THE TIME OF SEARCH. SCANNED COPIES OF THE IMPUGNED DOCUMENTS ARE EXHIBITED AT PAGES 15 AND 16 OF THE ASSESSMENT ORDER. THE ASSESSEE WAS CONFRONTED WITH THESE DOCUMENTS AND WAS ALSO ASKED TO EXPLAIN THE NATURE. THE ASSESSEE VIDE HIS SUBMISSION DT. 5.12.2011 STATED THAT THIS PAGE CONTAINS SOME ROUGH NOTING WITH RESPECT TO CERTAIN PROPOSALS BEING DISCUSSED WITH A PROPOSED BUSINESS PARTNER AND WORKING OF ESTIMATED PROFITABILITY WITH REFERENCE TO DATE S AS WELL. IT IS HAVING NO OTHER FIN ANCIAL IMPLICATION. THE AO DID NOT ACCEPT THIS EXPLANATION OF THE ASSESSEE AND OBSERVED THAT THIS OFFICE HAS TO INTERPRET THE PAPERS FOR ITS CONTENTS BASED ON THE FACTS AND FIGURES. M.A. NOS. 255 & 256/M/ 3 T HE AO PROCEEDED BY HOLDING THAT RS. 5,90,00,000/ - IS PAID BY THE ASSE SSEE TO SHRI VIKRAM AGARWAL AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE AS PER DOCUMENT EXHIBITED AT PAGE NO. 15 OF HIS ORDER AND ADDED A SUM OF RS. 5,47,11,600/ - TO THE INCOME OF THE ASSESSEE AS PER DOCUMENT EXHIBITED AT PAGE NO. 16 AND THEREFORE TOT AL ADDITION OF RS. 11,37,11,600/ - MADE TO THE INCOME OF THE ASSESSEE. AND AT PARA - 30 SHOULD BE READ AS UNDER: 30. THERE IS ANOTHER ENTRY OF RS. 15 LAKHS ON DOCUMENT EXHIBITED ON PAGE NO. 15 AND ACCORDINGLY ADDITION OF RS. 5.90 CRORES WAS MADE. IN RESPECT OF DOCUMENT EXHIBITED AT PAGE NO. 16 OF THE ASSESSMENT ORDER REFERS TO SHRI VIKRAMJI CHENNAI WITH PROFIT MARGIN 70% AND 30% TO THE ASSESSEE, THE AO HAS MADE THE ADDITION OF RS. 5,47,11,6 00/ - BEING 30% OF TOTAL AMOUNT OF RS. 18,23,72,000/ - WHICH IS A SUM OF ALL THE ENTRIES MENTIONED ON THE SAID DOCUMENT WHILE THE LD. CIT(A) HAS ENHANCED THE ADDITION OF RS. 15,55,75,000/ - IN A.Y. 2008 - 09 ON THE BASIS OF ENTRIES PERTAINING TO FINANCIAL YEAR 2007 - 08 AND ADDITION OF LAST ENTRY OF RS. 2,67,97,000/ - IN A.Y. 2009 - 10, WHICH TANTAMOUNT TO ENHANCEMENT OF ADDITION BEING 100% OF TOTAL OF ALL THE ENTRIES MENTIONED ON DOCUMENT EXHIBITED PAGE NO. 16 WE FAILED TO PERSUADE OURSELVES TO GIVE ANY LOGICAL CONCLUSION/FINDING IN RESPECT OF THESE DOCUMENTS ON THE BASIS OF WHICH THE AO HAS MADE THE ADDITION. THERE IS M.A. NOS. 255 & 256/M/ 4 NOT EVEN AN IOTA OF EVIDENCE TO SHOW THAT THE AO HAS MADE AN ENQUIRY FROM THE SAID SHRI VIK RAMJEE AGARWAL. MERELY BECAUSE SOME FIGURES WERE FOUND TO BE WRITTEN IN SOME DOCUMENT, THE AO CANNOT EXTRAPOLATE 50 AND INTERPRET 50 AS 50,00,000, 575 AS 575 LAKHS WITHOUT ANY CORROBORATIVE/DEMONSTRATIVE EVIDENCE. WITHOUT THERE BEING ANY CORROBORATIVE EV IDENCE ADDITIONS MADE MERELY ON THE BASIS OF SOME ILLOGICAL AND IRRELEVANT ENTRY/JOTTING ON A PIECE OF PAPER CANNOT JUSTIFY THE ACTIONS OF THE AO AND OF THE LD. CIT(A). WE, THEREFORE, DO NOT FIND ANY MERIT IN THE ADDITIONS MADE BY THE AO ON THE BASIS OF THESE DOCUMENTS. WE DIRECT THE AO TO DELETE THE ENTIRE ADDITIONS MADE ON THE BASIS OF THESE TWO DOCUMENTS. THE APPEAL FILED BY THE REVENUE IS DISMISSED AND APPEAL FO THE ASSESSEE FOR A.Y. 2008 - 09 IS ALLOWED. 5. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE IS ALLOWED. OR DER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 4 TH DECEMBER, 2015. SD/ - SD/ - ( RAMLAL NEGI ) (N.K. BILLAIYA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 4 TH DECEMBER, 2015 . . ./ RJ , SR. PS M.A. NOS. 255 & 256/M/ 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI