MOHINI D. MORE, THANE V. ITO WD 3(3), KALYAN

MA 284/MUM/2020

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 2115 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-01-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 20-11-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH MISHRA
• Keywords: TDS
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 254(2); 72

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM M. A. N o. 2 8 4/ M u m/2 0 2 0 (A r is in g o u t of M A N o . 5 0 7/ Mu m/ 2 01 9 ) ( A s se ss m e nt Y e a r : 20 10- 1 1 ) Mohini D.More Regency Estate Building No.22, B/H-33 Kalyan Shil Road Dombivali(E) Thane-421 203 Vs . ITO, War-3(3) 2 nd Floor Rani Mansion Murbad Road Kalyan(W) Thane-400607 PA N / GI R N o . A J V PM 59 7 6 B (Appellant) : (Respondent) Appellant by : None Respondent by : Shri Rajesh Mishra D at e o f H e a ri n g : 08.10.2021 Da t e o f P r o no un c e me nt : 03.01.2022 Per Shamim Yahya, A. M.: This miscellaneous application by the assessee is directed against order of this Tribunal in M.A No.507/ M u m /2 0 19 a r is ing o u t o f I T A N o.3 72 7 / M u m /2 01 7 vid e o r d e r dated 15.01.2020. 2. Despite several notices, none has appeared on behalf of the assessee. Hence, we proceed to dispose of this disallowance application by hearing the Ld. DR and producing the records and submissions of the assessee. 3. The assessee in the said MA has made following submissions:- “The appellant is an individual having income from two proprietary firms. M/s. Moreshwar Transport is engaged in the business of transportation and M/s. Siddhivinayak Transport is engaged in the business of hire of heavy machineries like 2 M A N o s . 2 8 4 / M / 2 0 JCB, Dumper, etc. The return of income for the year under appeal was filed on 17.02.2011 declaring total income of Rs.3, 89,293/-. Assessment u/s 143(3) was completed by the Id.AO on 25.03.2015, assessing the total income at Rs.1,38, 74,251/. 2. The appellant filed appeal against the order framed u/s 143(3) before the Hon. C1T (A)-l, Thane on 15.04,2015. The Hon. CIT (A)-l, Thane dismissed the appeal and confirmed the addition vide appellate order dt. 24.02.2017. The Hon. Members, "D" Bench IT AT, Mumbai vides order dt.09.04.2019 upheld the order of the lower authorities. On the background of the above facts, the appellant submits as under. 3. On the claim of deduction for expenses against Alleged suppressed sales receipts of Rs.l, 28, 86,704/-(Ground No. 1) 3.1 The Id.AO/Hon. CIT (A) have deposits of Rs. 1, 28, 86,704/- in the bank account with Abhinav Sahaka Bank Ltd., Dombivli (E) Branch to be in the nature of suppressed transport receipts. The Id. AO h herself at para no. 10/pg. no.8 of the asst. order, worked out party wise breakup of total transport receipt of the appellant and thereafter worked out suppressed transport receipts of Rs.1,28,86/704/-. The He CIT (A) HAS ALSO AT PARA 13/PG. NO.8 & 9 Of C1T(A) order held the suppressed transport recei] to be the tune of Rs.1,28,86,704/-. It is thus the case3 that the concerned deposits in the bank account: suppressed transport receipts is not an issue in dispute. 3.2 During the course of appeal hearing before the Hon. Tribunal, the AR of the appellant argued that 10 of the suppressed transport receipts cannot be income liable for tax and suggested that 8% of suppressed transport receipts be adopted as income liable for tax in place of 100% of such suppres transport receipts considered by the lower authorities. This argument of the appellant appears at \ no.!5/pg.no.8 of the order of the Hon. IT AT. 3.3 The Hon. Members, ITAT while denying this claims have held as under (Para no.17/pg.no.9 of order). "The alternative contention of learned Counsel of the assessee that 8% profit of the in disclosed receipts may be accessed is not at all an acceptable proposition. Unless it is cogently made out that the undisclosed receipts in the bank account were part of proper business of the assessee the same cannot be treated as business income expenditure in this regard cannot be allowed. In our considered opinion it is settled law that when the assessee claims receipts to be not taxable the onus is upon assessee to prove the same. In the present case, we not that authorities below have cogently brought out the basis of addition made in his case. The assesee has totally failed to rebut the same. Hence, in the background of aforesaid discussion, we find that authorities below have passed a reasonable and proper order which does not need any interference on our part. Accordingly, we uphold the order of the authorities below. " Thus, the Hon. Members IT AT have held that it is not established by the appellant that undisclosed Receipts in the bank account are her business receipts. 3.4 The above finding contained in the IT AT order does not take into account that • The Id. AO from the bank account of the appellant has worked out party wise details of total business receipts and after deducting the disclosed business receipts, the 3 M A N o s . 2 8 4 / M / 2 0 balance suppressed transport receipts of Rs.l, 28, 86,7Q4/- are determined by the Id, AO herself (Para 10/pg. no. 8 & 9 of asst, order). • The Hon. CIT (A) also at Para 13/pg. no.8 & 9 of C1T (A) order held that the suppressed sale receipts constituted business receipts which were not subject to TDS by parties. Thus, both the lower authorities have categorically held the undisclosed deposits in the bank account to be part of business receipts only. 3.5 In view of the categorical finding in the assl. /CIT (A) order that the concerned deposits represent undisclosed business receipts, the statement in the order of the Hon. IT AT that the appellant has not cogently made out that the undisclosed receipts in the bank account were proper business receipts is not factually correct. During the course of hearing, a query on this issue was put to the AR of the appellant by the Hon. Members and the AR had pointed out that the nature of business receipts deposited in bank account is not disputed by the lower authorities. 3.6 The appellant accordingly points out that denial of deduction for expenses, even on estimate basis, by holding that the nature of deposits in the bank account to be not established by the appellant is a mistake apparent from records, which is required to be rectified u/s 254 (2) of the I.T act, 1961. The appellant reiterates that there is no dispute before lower authorities with regards to the nature of deposits and this was pointed out during appeal hearing. 4. Addition on account of difference in financial statements-Rs. 3, 48,257/- (Ground No.2) 4.1 Addition of Rs.3,48,257/- is made on account of difference in financial statements which is disputed by the appellant under ground no. 2 4.2 In support of the claim, the appellant vide written note filed during appeal proceedings had argued as under. “ In respect of the alleged difference of Rs. 3,48,257/- in the financial statement/ITR, the appellant submits that the appellant has vide letter dt. 06.01.2015(appearning at pg.no. 55 of paper book) reconciled the said difference. The appellant further submits that in case, if any addition is upheld in respect of ground no.1 with regards to suppressed receipts from transportation business, then benefit of telescoping i.e. set off one addition against the other may kindly be granted so far as the addition contested in ground no. 2 is concerned. 4.3 This ground of appeal does not seem to be adjudicated in the order of the Hon.ITAT. The appellant submits that this is a mistake apparent from the records which is required to be rectified u/s. 254(2) of the I.T.Act, 1961 or set aside the order in favour of appellant for fresh assessment. Prayer 5. In view of the above cited issue, it is most humbly prayed that the order dt. 15.01.2020 be kindly recalled and the arguments on the grounds raised in appeal be considered on merits for which I shall remain ever grateful. 4. Upon careful consideration, we note that in the submission itself, the assessee states that it is a review petition and assessee seeks a recall and review of the order. This is not 4 M A N o s . 2 8 4 / M / 2 0 permissible under section 254(2) of the I.T.Act, which permits only rectification of mistake apparent from record. Moreover, this is an MA under section 254(2) of the I.T.Act against an MA order which was itself was passed under section 254(2) of the I.T.Act. The income tax Act permits rectification of mistake under section 254(2) of the I.T.Act only with respect orders passed under section 254(1) of the Act. Hence, this MA against an MA is not maintainable also. Accordingly, this miscellaneous application stands dismissed. Order pronounced in the open court on 03.01.2022 Sd/- Sd/- (Amarjit Singh) (Shamim Yahya) Judicial Member Accountant Member Mumbai; Dated : 03.01.2022 Thirumalesh , Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai