SMT. SARITA LODHA, MUMBAI V. THE DY CIT, CENTRAL CIRCLE-4(4), MUMBAI

MA 85/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3922 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 17-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND MS KAVITHA RAJAGOPAL, HON'BLE JUDICIAL MEMBER MA NO. 85/MUM/2022 [ARISING OUT OF ITA.No. 236/MUM/2021 (A.Y. 2010-11) Smt Sarita Lodha C/o. G.P. Mehta & Co. CAS 807, Tulsiani Chambers Nariman Point Mumbai - 400021 PAN: AAJPL2956P v. DCIT – Central Circle – 4(4) 19 th Floor, Air India Building Nariman Point, Mumbai – 400021 (Appellant) (Respondent) MA NO. 86/MUM/2022 [ARISING OUT OF ITA.No. 1336/MUM/2020 (A.Y. 2011-12) Shri Shripal Raj Lodha C/o. G.P. Mehta & Co. CAS 807, Tulsiani Chambers Nariman Point Mumbai - 400021 PAN: AAJPL2949L v. DCIT – Central Circle – 4(4) 19 th Floor, Air India Building Nariman Point, Mumbai – 400021 (Appellant) (Respondent) Assessee by : None Department by : Shri S.N. Kabra Date of Hearing : 03.06.2022 Date of Pronouncement : 15.06.2022 2 MA NO. 85 & 86/MUM/2022 Shri Shripal Raj Lodha & others O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through these Miscellaneous Applications assessee requested to rectify certain mistakes crept in ITAT order in ITA.No. 236/Mum/2021 and ITA.No. 1336/Mum/2021 dated 05.01.2022. 2. None appeared on behalf of the assessee, the issue involved in this Miscellaneous Application relating to typographical mistake. Therefore, with the assistance of Ld. DR the hearing was completed. 3. Assessee in both the Miscellaneous Applications filed similar contentions except for figures. Plea of the assessee in M.A.No.85/Mum/2022 is reproduced below: - “1. In the case of the above assessee the Hon’ble ‘G’ Bench, ITAT, Mumbai decided the appeal of the assessee in ITA 236/MUM/2021 along with the other appeals vide their consolidated order dt.05.01.2022 as per copy enclosed herewith. 2. The Appellants above named beg to present this application for rectification of certain mistakes which are apparent from record in the said Order. 3. Ground No, 4 in the said appeal reads as under: “The Learned lower authorities have grossly erred in making/upholding an aggregate addition of Rs.35,00,000/- being the amount of squared up loans without bringing any material on record to support their assertions. In the absence of any incriminating material impugned addition of Rs. 35,00,000/- is wholly unwarranted.” 3 MA NO. 85 & 86/MUM/2022 Shri Shripal Raj Lodha & others 4. Hence the aforesaid appeal was related to addition made for unsecured loan of Rs. 35,00,000/under sec 68 as confirmed by the Commissioner of Income Tax (Appeals). However the following typographical mistakes appeared in the order dt. 05.01.2022 passed by the Hon’ble Bench in the above appeal. “In para 27 on page No.25 of the appellate order dt. 05.01.2022 in ITA 236/MUM/2021, the reference of receipt of share capital and share premium is given where as it is unsecured loan for which addition was made u/s 68 hence instead of “share capital and share premium” the words “unsecured loans” should have been typed. Consequently in para 30 on page No. 27 of the appellate order dt. 05.01.2022, the words “unsecured loan” should have been typed instead of “share capital and share premium”. Further in para 30 on page No. 28, instead of “and hence no addition towards denial of exemption u/s 10(38) could be done” the words “and hence no addition u/s 68 could be done” should have been typed. The above issues are only typographical mistake and therefore a corrigendum to the appellate order dt. 05.01.2022 may be issued in ITA 236/MUM/2021 by disposing of this miscellaneous application and oblige.” 4. Considered the submissions of the assessee filed through Miscellaneous Application and verified the order passed on 05.01.2022 and we observe that there is a typographical error in the above said Para No. 27 and Para No. 30 and further we noticed that the mistake had crept due to the bench deciding the larger issue of “share capital and share premium” in the other connected appeals. In this specific assessment year, the Assessing Officer has dealt with facts of share capital and unsecured loans. However, Assessing Officer proceeded to make addition only in respect of unsecured loans. Thus, there was no issue of share 4 MA NO. 85 & 86/MUM/2022 Shri Shripal Raj Lodha & others capital in the appeals in ITA.No. 236/Mum/2021 and ITA.No. 1336/Mum/2021. The mistake apparent on record is rectified, the corrected Para No. 27 and Para No. 30 are reproduced below: - “27. The Ld AR submitted that the jurisdictional High Court has held that incriminating material would be (i) books of account, other documents found in the course of search that were not produced in the course of the original assessment; and (ii) undisclosed income or property discovered in the course of search. He submitted that in the facts of the present case, the books of account which recorded the transaction of receipt of unsecured loans were already disclosed before the Assessing Officer and the same were also produced during the assessment proceedings, for the years where there were scrutiny assessment. Further, there is no undisclosed income or property which was discovered during the course of the search which has any bearing on the issue of receipt of share capital and share premium by the Assessee from the investee companies in various years. 5 MA NO. 85 & 86/MUM/2022 Shri Shripal Raj Lodha & others 28. ..... 29. ..... 30. Considered the rival submissions and material placed on record, we noticed that there was a search operation carried in the group concerns of Uma Polymers and the assessee also searched along with other members of the family i.e., Smt Sarita Lodha and Smt Shruti Lodha in search operation. With regard to case of the assesse and Smt Sarita Lodha for the Assessment Year 2010-11 and 2011-12 which are not abated. We observed from the record that there was no incriminating material found during the search in relation to addition made in these two appeals. It is fact on record that whatever addition made by the Assessing Officer relating to unsecured loans which are already available on record and assessee has already disclosed the same while filing the return of income and balance sheet. There is nothing on record which shows that new incriminating material was found during search. Therefore, the courts have held that no addition can be 6 MA NO. 85 & 86/MUM/2022 Shri Shripal Raj Lodha & others made in the case of unabated assessment years without there being incriminating material found during search. We observe from the various decisions and particularly the Hon’ble Jurisdictional High Court in the case of Continental Warehousing Corporation reported in 374 ITR 645 (Bom), which observed that the expression ‘incriminating material’ would mean any evidence or material found during search which were not submitted or produced in the course of filing return of income / original assessment and any undisclosed income or property discovered during search. But in the given case, we observe that no such material or income was found during search but AO relied completely on the information forwarded by the investigation wing post search. Therefore, the assessments made in A.Y.2011-12 in the case of Shripal Raj Lodha and in A.Y.2010-11 in the case of Smt Sarita Lodha, being unabated assessments, and hence no addition u/s. 68 of the Act could be done. Accordingly, the additions made thereon are hereby deleted. In the result, appeals filed by 7 MA NO. 85 & 86/MUM/2022 Shri Shripal Raj Lodha & others the assessee i.e. Shri Shripal Raj Lodha and Smt Sarita Lodha are partly allowed.” 5. In the result, Miscellaneous Applications filed by the assessee are allowed as indicated above. Order pronounced in the open court on 15.06.2022. Sd/- Sd/- (KAVITHA RAJAGOPAL) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 15.06.2022 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum