Sandeep Kondiba Lokhande, Pune V. Income-tax Officer,

MA 73/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3713 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN SINGH
• Assessee Lawyers: HETAL GALA; SANJAY AMATE
• Section: 44AD

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM $$ . / MA NO.73/PN/2014 (ARISING OUT OF ITA NO.2503/PN/2012) & & / ASSESSMENT YEAR : 2009-10 SHRI SANDEEP KONDIBA LOKHANDE, BANER GAON, NEAR BHAIRAVANATH MANDIR, LOKHANDE CHAWL, TALUKA HAVELI, PUNE 411 045 PAN NO.ABJPL5633J . / APPLICANT V/S ITO, WARD-4(4), PUNE . / RESPONDENT / APPLICANT BY : MS. HETAL GALA & MR. SANJAY AMATE / DEPARTMENT BY : MR. DHEERAJ KUMAR JAIN SINGH / ORDER PER R.K. PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUES TS THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT ON 30-04-2014 SINCE CERTAIN MISTAKES HAVE CREPT IN THE ORD ER OF THE TRIBUNAL. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A LABOUR CONTRACTOR AND HAS FILED HIS RETURN OF INCOME D ECLARING / DATE OF HEARING : 16.10.2015 / DATE OF PRONOUNCEMENT:28.10.2015 2 MA NO.73/PN/2014 TOTAL INCOME AT RS.6,7,730/-. THE AO COMPLETED THE ASSES SMENT U/S.143(3) BY MAKING AN ADDITION OF RS.17,67,700/- AS UNEXPLAIN ED CASH DEPOSIT AND ANOTHER RS.2,30,940/- BEING AMOUNT RECE IVED FROM SCCL, RAMAGUNDAM-3. THUS, AS AGAINST THE RETURNED INCOM E OF RS.6,17,730/- THE AO COMPLETED THE ASSESSMENT ON A TOTA L INCOME OF RS.26,16,370/- WHICH WAS CONFIRMED BY THE CIT(A). ON FURTH ER APPEAL VIDE ORDER DATED 30-04-2014 THE TRIBUNAL DISMISSE D THE APPEAL FILED BY THE ASSESSEE. 3. REFERRING TO THE MISCELLANEOUS APPLICATION THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD DECLARED HIS INCOME U/S.44AD SINCE THE ASSESSEE HAS NOT MAINTAINED ANY BOOK S OF ACCOUNT AS PER THE PROVISIONS OF SECTION 44AA AND 44AB. FURTHER, DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL, IT WAS SU BMITTED THAT THE CASH DEPOSITED IN THE BANK ACCOUNT ARE OUT O F THE WITHDRAWALS FROM THE SAID BANK ACCOUNT. THESE WERE DEPO SITED ONLY TO AVAIL LOAN FROM THE BANK. REFERRING TO PAGE 120 OF THE PAPER BOOK SHE SUBMITTED THAT THE CASH DEPOSITED AND CASH WITHDRA WN ARE ALMOST MATCHING. FURTHER, TIME LAG BETWEEN THE CASH DEPO SITS AND CASH WITHDRAWALS IS HARDLY 2 TO 3 DAYS. HOWEVER, THE TR IBUNAL AT PARA 5 IN PAGE 3 OF THE ORDER HAS HELD THAT WITHDRAWALS ARE MUCH LESS THAN THE DEPOSITS WHICH IS CONTRARY TO THE FACTS BE FORE THE TRIBUNAL. SHE ACCORDINGLY SUBMITTED THAT THESE ARE CERTAIN APPAR ENT ERRORS IN THE ORDER OF THE TRIBUNAL WHICH REQUIRE MODIFICAT ION. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE TRIB UNAL SHOULD BE RECALLED AND THE MATTER SHOULD BE HEARD AFRESH. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND SUBMITTED THAT THE TRIBUNAL HAS PASSED A REASONED ORDE R FOR NON- 3 MA NO.73/PN/2014 ACCEPTANCE OF THE PLEA. THEREFORE, THE ORDER OF THE TRIB UNAL BEING IN ACCORDANCE WITH LAW AND THERE BEING NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, THE SAME NEED NOT BE RECALLED/MODIFIE D AND THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SHOULD BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME U/S.44AD IS NOT BO RNE OUT OF RECORDS. AS PER THE PROVISIONS OF SECTION 44AD THE MINIMU M PERCENTAGE OF PROFIT THAT HAS TO BE SHOWN IS 8%. HOWEVER , THE ASSESSEE HAS SHOWN AROUND 25% PROFIT WHICH IS MORE THA N THE PRESCRIBED PERCENTAGE GIVEN U/S.44AD. THEREFORE, IT CANNO T BE SAID THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME UNDER T HE PROVISIONS OF SECTION 44AD. 6. AS REGARDS THE ARGUMENT OF THE LD. COUNSEL FOR THE A SSESSEE THAT THE TRIBUNAL HAD NOT CONSIDERED THE DEPOSITS IN TH E BANK ACCOUNT BEING OUT OF CASH WITHDRAWALS, WE FIND THE TRIBUNA L AFTER CONSIDERING THE FINDINGS GIVEN BY THE CIT(A) CAME TO THE CONCLUSION THAT THERE IS NO MATERIAL TO INDICATE THAT IN FUTURE THE A SSESSEE HAD AVAILED OF ANY LOAN FACILITY FROM THE BANK. THE TRIBUNAL HAD FURTHER OBSERVED THAT AT PAGE 20 OF THE PAPER BOOK ONLY MONT H-WISE DETAILS OF CASH DEPOSITED AND CASH WITHDRAWN FROM THE BANK WAS GIVEN WHICH SHOWS THAT IN EACH OF THE MONTHS THE AMOUNTS WITH DRAWN ARE MUCH LESSER THAN THE CASH DEPOSITED. IN ABSENCE OF AN Y SPECIFIC EXPLANATION FURNISHED BY THE ASSESSEE REGARDING THE SOUR CE OF THE DEPOSITS THE TRIBUNAL UPHELD THE ORDER OF THE CIT(A) WHERE IN HE HAD GIVEN A CATEGORICAL FINDING THAT THE ASSESSEE WAS NOT AB LE TO EXPLAIN 4 MA NO.73/PN/2014 THE PURPOSE AND THE REASON OF WITHDRAWALS IN SMALL AMOUNT SUCH AS RS.1,000/- AND RS.2,000/- FROM THE ATM AND AGAIN RE-DEPO SITING THE SAME. THUS, IN OUR OPINION, WHEN THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS DEVOID OF ANY MERIT AND HAS TO BE DISMISS ED. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS T HE TRIBUNAL TO RECTIFY THE ORDER WHICH AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN LAW. WE ACCORDINGLY DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28-10-2015. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 28 TH OCTOBER, 2015. LRH'K ( )+$ ,$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - II , PUNE 4. THE CI T - II , PUNE 5. $ ''(, (, IQ.KS / DR, ITAT, A PUNE; 6. , / GUARD FILE. / BY ORDER , $ ' //TRUE COPY// $ ' //TRUE COPY// ./ ' ( / SR. PRIVATE SECRETARY (, IQ.KS / ITAT, PUNE