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

MA 507/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7328 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 06-09-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Business income; Rectification of order; Corroborative evidences
• Section: 254(2)

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & AMARJIT SINGH (JM) M.A. NO. 507/MUM/2019 ARISING OUT OF I.T.A. NO. 3727/MUM/2017 (ASSESSMENT YEAR 2010 - 11) MOHINI D. MORE REGENCY ESTATE BUILDING NO. 22, B/H - 33 KA LYAN SHIL ROAD DOMBIVLI (E) DISTRICT - THANE PAN : AJVPM5976B V S . ITO, WARD 3(3) 2 ND FLOOR RANI MANSION MURBAD ROAD KALYAN(W) THANE ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI SUBODH RATNAPARKHI DEPARTMENT BY SHRI AKHTAR H. ANSARI DATE OF HEARING 15.11.2019 DATE OF PRONOUNCEMENT 15 . 0 1.2020 O R D E R PER SHAMIM YAHYA (AM) : BY THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER OF THIS TRIBUNAL IN ITA NO. 3727/MUM/2017 FOR A.Y. 2010 - 1 1 VIDE ORDER DATED 9.4.2019 2. IN THE ITAT ORDER THE ISSUE RELATED TO DEPOSITS OF RS. 1,28,86,704/ - BEING DEPOSITS NOT CO - RELATED WITH BUSINESS RECEIPTS. LEARNED CIT(A) HAS UPHELD THE DECISION OF THE ASSESSING OFFICER , T HAT THE SAME WAS UNDISCLOSED RECEIP T BY THE ASSESSEE. THE ITAT HAS DECIDED THE ISSUE BY UPHOLDING THE ADDITION AS UNDER : - 17. UPON CAREFUL CONSIDERATION, WE FIND THAT UPON DETECTION OF UNDISCLOSED INCOME/RECEIPT IN THE UNDISCLOSED BANK ACCOUNT ASSESSEE HAS TRIED TO MAKE OUT A CASE THAT S HE HAS OMITTED TO SUBMIT THE ACCOUNT OF ANOTHER BUSINESS. STRANGELY THE ENTIRE UNDISCLOSED RECEIPT HAS BEEN CLAIMED TO HAVE BEEN EXPENDED ON EXPENDITURES. THIS ADMITTEDLY IS A SELF SERVING CLAIM DEVOID OF ANY CREDITABILITY. FURTHERMORE, ALL THE SUBMISSIONS IN THIS REGARD BY THE ASSESSEE ARE WITHOUT ANY SUPPORTING EVIDENCE. THEY HAVE BEEN CORRECTLY EXAMINED BY THE AUTHORITIES BELOW AND AFTER DUE EXAMINATION THE SAME HAVE BEEN REJECTED. THE MOHINI D. MORE 2 ALTERNATIVE CONTENTION OF LEARNED COUNSEL OF THE ASSESSEE THAT 8% PRO FIT OF THE UNDISCLOSED RECEIPT MAY BE ACCESSED IS NOT AT ALL AN ACCEPTABLE PROPOSITION. UNLESS IT IS COGENTLY MADE OUT THAT THE UNDISCLOSED RECEIPT IN THE BANK ACCOUNT WERE PART OF PROPER BUSINESS OF THE ASSESSEE THE SAME CANNOT BE TREATED AS BUSINESS INCO ME AND EXPENDITURE IN THIS REGARD CANNOT BE ALLOWED. IN OUR CONSIDERED OPINION IT IS SETTLED LAW THAT WHEN THE ASSESSEE CLAIMS RECEIPT TO BE NOT TAXABLE THE ONUS IS UPON THE ASSESSEE TO PROVE THE SAME. IN THE PRESENT CASE, WE NOTE THAT AUTHORITIES BELOW HA VE COGENTLY BROUGHT OUT THE BASIS OF ADDITION MADE IN THIS CASE. THE ASSESSEE 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 NEE D ANY INTERFERENCE ON OUR PART. ACCORDINGLY, WE UPHOLD THE ORDERS OF THE AUTHORITIES BELOW . 3. NOW THE ASSESSEE SEEKS TO SUBMIT THAT THE ITAT HAS ERRED IN GIVING FINDING THAT THE SAID AMOUNT IS UNDISCLOSED RECEIPT IN THE BANK ACCOUNT IN AS MUCH AS THE AS SESSING OFFICER HAS MENTIONED THE SAME TO BE SUPPRESSED TRANSPORT RECEIPT. THAT THE LEARNED CIT(A) HAS ALSO MENTIONED THAT THE SAME CONSTITUTED BUSINESS RECEIPT BEING SUPPRESSED SALE. HENCE, THE ASSESSEE HAS CONTENDED THAT SINCE THERE IS NO DISPUTE IN NATU RE OF DEPOSITS, SUGGESTION OF LEARNED COUNSEL OF THE ASSESSEE THAT 8% OF SUPPRESSED TRANSPORT RECEIPT SHOULD BE ADOPTED AS INCOME , SHOULD HAVE BEEN UPHELD. 4. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ITAT VIDE A VERY SPEAKING O RDER HAS UPHELD THE ADDITION OF RS. 1,28,86,704/ - AS UNDISCLOSED RECEIPT BY CONFIRMING THE ORDERS OF THE AUTHORITIES BELOW. NOW THE ASSESSEE IS SEEKING REVIEW OF THE ORDER WHICH IS NOT PERMISSI BLE U/S. 254(2) OF THE I.T. ACT. HENCE, HE SUBMITTED THAT THE M ISCELLANEOUS APPLICATION IS NOT MAINTAINABLE. 5. UPON CAREFUL CONSIDERATION WE NOTE THAT ADDITION OF UNDISCLOSED RECEIPT BY THE ASSESSING OFFICER WAS CONFIRMED BY LEARNED CIT(A) AND THEREFORE THE SAME WAS CONFIRMED BY THE ITAT IN THE AFORESAID APPEAL. ASSESSEES CONTENTION THAT ONLY 8% THEREOF SHOULD HAVE BEEN BROUGHT TO TAX AS INCOME AND THE ITAT HAS ERRED IN NOT ACCEPTING THE SAME IS SEEKING REVIEW OF THE ORDER NOT PERMISSIBLE UNDER THE ACT. MOHINI D. MORE 3 HENCE, THIS MISCELLANEOUS APPLICATION IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 15. 1 . 20 20 . SD/ - SD/ - (AMARJIT SINGH) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 15 / 0 1 / 20 1 9 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// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI