ALKESH PATEL (PROP. OF M/S UMIYA GEMS), MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-5(1), MUMBAI

MA 377/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0173 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 16-05-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. KAVITHA RAJAGOPAL, JUDICIAL MEMBER MA No. 377/Mum/2023 (Arising out of ITA No. 7328/Mum/2018) (A.Y. 2014-15) Alkesh Patel (Prop. Of M/s Umiya Gems) 4/F Raghav Wadi, Ground Floor, French Bridge, Mumbai-400007 Vs. DCIT, CC-5(1) Room No. 1908, 19 Th Floor, Air India Building, Nariman Point, Mumbai-400021 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AADPP3944P Appellant .. Respondent Appellant by : Shri. Viraj Mehta Respondent by : Shri. Ujjawal Kumar Chavhan Date of Hearing 15.09.2023 Date of Pronouncement 06.11.2023 आदेश / O R D E R PER AMARJIT SINGH :- 1. This miscellaneous application filed by the assessee is directed against the order of ITAT vide ITA No. 7328/Mum/2018 dated 23.12.2022. In the miscellaneous application the assessee referred the addition of ₹ 61,61,504/- made in the case of the assessee. The assessee has compared the impugned additions with the case of Ashok V Patel vide ITA No. 6335/Mum/2018. The assessee submitted that Shri. Ashok V. Patel was also P a g e | 2 MA No. 377/Mum/2023 Alkesh Patel (Prop. Of M/s Umiya Gems) covered by the same search who was into the business of Angadiya and in his case addition of estimation of income at the rate of ₹ 125 per lac as commission income was estimated as per the AO’s order. However, in the case of the assessee the net amount of the right and left side of the loose paper was considered instead of estimation of income at ₹ 125 per lac as commission income. 2. Heard both the sides on the issue and on perusal of material on record. It is noticed that in the case of Shri. Ashok V Patel loose paper along with red diary was found and seized as per annexure A2. The assessee had explained that seized diary was like “Hindi Bahi Khata”. On the left side of the account was cash received and on the right side of the account cash returned was mentioned. In that case the AO found that said diary was running diary on which entries of plus sign represented receipt of cash and minus sign represents cash payment. In that case the assessee had admitted that he was charging commission for transfer of parcel from Mumbai to others places and after making analyses of documents seized AO has estimated the commission @ ₹ 125 per lac of the total amount of the assessee. However, in the case of the assessee different sets of paper as per the annexure A1 found and seized. The total amount of transaction on the left side of Page No. 14-15 was found to the P a g e | 3 MA No. 377/Mum/2023 Alkesh Patel (Prop. Of M/s Umiya Gems) amount ₹ 1,62,65,000/- and right side to the amount of ₹ 23,02,65,504/- was found and the AO has made aggregated addition of left and right of the amount totaling to ₹ 3,92,91,504/- as undisclosed income of the assessee. In the case of the assessee difference sets of paper was found and seized as per the annexure A1 and the Assessee could not establish that these papers were pertained to transfer of amount pertaining to Anagadia business and the assessee himself submitted that without prejudice balance of net of debit or credit be considered as its income as against the whole amount added by the AO as undisclosed income of the assessee. 3. After considering fact and material on record, the ITAT has restricted the addition to the extent of net difference of debit and credit side of transaction to the amount of ₹ 67,61,504/- as purposed by the assessee in its alternative explanation of the transaction. 4. Therefore, we consider that facts of the case of the assessee are based on the different loose paper found and seized as discussed then the case of the Ashok V Patel referred by the assessee. Therefore, we find that there is no apparent mistake on record. We consider that power of rectification u/s 244(2) of the Act can be exercised only when the mistake is sought to be rectified is an obvious patent mistake, which is apparent from record and not P a g e | 4 MA No. 377/Mum/2023 Alkesh Patel (Prop. Of M/s Umiya Gems) mistake which is required to be established by argument and long drawn process of reasoning of point on which there may conceivalely be two opinions. Therefore, we do not find any merit in the miscellaneous application of the assessee, therefore, this miscellaneous application of the assessee is dismissed. 5. In the result the miscellaneous application of the assessee is dismissed. Order Pronounced in Open Court on 16.11.2023 Sd/- Sd/- (KAVITHA RAJAGOPAL) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Place: Mumbai Date 06.11.2023 ANIKET SINGH RAJPUT/STENO आदेश की प्रतितलति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीलीय अतधकरण/ ITAT, Bench, Mumbai.