Income Tax Appellate Tribunal - Mumbai
Mohd. Ilyas Chowdhary, Mumbai vs Ito 21(3(3), Mumbai on 10 April, 2017
1 ITA no. 5303/M/2012
आयकर अपील य अ
धकरण "B"
यायपीठ मब
ुं ई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI
BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER
AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No.5303/Mum/2012
( नधा रण वष / Assessment Year : 2009-10)
Mr. Mohd. IIy as Ch owdhary, बनाम/ TO 21(3)(3),
D-1, Diamond Estate, Mumbai.
v.
Vidyanag ari Road,
Kalina,
Mumbai - 400 098.
थायी ले खा सं . / PAN : ACGPC3595G
(अपीलाथ /Appellant) .. ( यथ / Respondent)
Assessee by Shri Pradeep S. Shetty
Revenue by : Shri Suman Kumar, D.R.
सन
ु वाई क तार ख /Date of Hearing : 30-03-2017
घोषणा क तार ख /Date of Pronouncement : 10-04-2 017
आदे श / O R D E R
PER RAMIT KOCHAR, Accountant Member
This appeal, filed by the assessee, being ITA No. 5303/Mum/2012, is directed against the appellate order dated 7th June, 2012 passed by learned Commissioner of Income Tax (Appeals)- 32, Mumbai (hereinafter called "the CIT(A)"), for the assessment year 2009-10, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 30th December, 2011 passed by learned Assessing Officer (hereinafter called "the AO") u/s 143 (3) of the Income-tax Act,1961 (Hereinafter called "the Act").
2. The revised grounds of appeal filed by the assessee with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called "the tribunal") read as under:-
"Thus based on the facts and circumstances of the case, the Hon'ble CIT(A) has erred in confirming addition of 2 ITA no. 5303/M/2012 deposits of Rs. 17,18,391/- as assessee's undisclosed income."
3. At the outset it is informed by learned counsel for the assessee that this appeal is filed late by 17 days. It was brought to our notice that an affidavit dated 22-08-2012 was filed by the assessee before the tribunal explaining the said delay being caused due to the ill-health of the assessee. Our attention was drawn to the said affidavit dated 22- 08-2012 which is placed in file. The learned DR objected to the condonation of delay. After hearing rival parties, we are inclined to condone the delay of 17 days in filing this appeal before the tribunal in the interest of justice as in our considered view, the said delay in filing this appeal before the tribunal is satisfactorily explained by the assessee and we proceed to hear the appeal on merits. If technicalities are pitted against the interest of justice, the Courts will lean in favour of sub-serving the interest of justice , provided there is no malafide on the part of litigant in not filing the appeal in time as prescribed by law.
4. The issue involved in this appeal is in very narrow compass. The assessee's main source of income is salary and commission income. During the course of assessment proceedings u/s 143(3) r.w.s. 143(2) of 1961 Act, the A.O. observed that the assessee has two bank accounts, one is current account in Dena Bank, Kurla (W) branch and the second is a personal saving Bank account no. 054310006242 in Dena Bank Kurla (W) Branch. The assessee was asked to furnish the bank statements of both the bank accounts. In response, the assessee filed bank statement of current bank account but the assessee did not file any details of aforesaid personal saving bank account with Dena bank. The A.O. accordingly issued notice u/s 133(6) of the Act to the Dena Bank asking the details of personal saving bank account of the assessee. The Dena Bank submitted bank statement for the period 1- 4-2008 to 31-3-2009 whereby the A.O. observed from the bank statement that the assessee had deposited Rs. 22 lacs. The assessee was asked to furnish the source of the said deposit of Rs. 22 lacs but 3 ITA no. 5303/M/2012 the assessee could not furnish any documentary evidence in respect of the sources of the said deposit of Rs. 22 lacs in saving bank account with Dena Bank, hence, the A.O. treated the deposit of Rs. 22 Lacs as undisclosed income of the assessee and added the same to the total income of the assessee , vide assessment order passed dated 30th December, 2011 passed by the AO u/s 143(3) of the Act.
5. Aggrieved by the assessment order dated 30-12-2011 passed by the A.O. u/s 143(3) of 1961 Act, the assessee filed appeal before the ld. CIT(A) who gave part relief to the assessee while confirming addition of Rs. 17,18,391/- vide his appellate order dated 7th June, 2012. It is not brought on record by learned DR that whether Revenue has filed any appeal against part-relief granted by learned CIT(A) to the assessee.
6. Aggrieved by the appellate order dated 07-06-2012 passed by learned CIT(A) , the assessee filed second appeal with the Tribunal.
7. The ld. Counsel for the assessee submitted that the assessee does not have any evidence to explain the credits in the Dena Bank saving bank account , except the relief given by the ld. CIT(A) and also some credits which were on account of income earned by the assessee which stood already declared in the return of income filed by the assessee with Revenue. It is submitted that the assessee's salary income of Rs. 2,40,000/ earned from Chowdhary Tubes declared in the return of income(ROI) filed with the Revenue was deposited in the said saving bank personal account with Dena Bank. It is also submitted that the assessee has declared the net income from commission of Rs. 1,42,695/- in the return of income filed with the revenue of which the credits of earning these commission income were there in the said saving bank account with Dena Bank. It is further submitted that the interest income of Rs. 711/- on saving bank account was credited in the Dena bank saving bank account which was declared in the return of income filed with Revenue . Thus, it was 4 ITA no. 5303/M/2012 submitted that in nut-shell these three heads of income viz. Salary income of Rs. 2,40,000/- commission income of Rs. 1,42,695/- and interest income of Rs. 711/- were credited in the said Dena Bank saving bank account which were voluntarily declared in the ROI filed by the assessee with Revenue and which had already suffered taxation and has now again being taxed by Revenue as the said income stood deposited in Dena Bank saving bank account and were forming part of addition of Rs. 17,18,391/- sustained by learned CIT(A), which can be verified. The ld. counsel for the counsel has fairly agreed and admitted before us that the balance additions after excluding the above three additions can be confirmed by the tribunal as there are no explanations/ evidences to explain the sources and nature of these deposits in saving bank account of the assessee with Dena Bank. Thus, in nut-shell it was submitted that there is double addition to income of the assessee as the afore-stated three income's viz. Salary income of Rs. 2,40,000/- commission income of Rs. 1,42,695/- and interest income of Rs. 711/- which were already declared in the return of income filed by the assessee with Revenue, which is now again brought to tax by the Revenue leading to double taxation of the same income, which is not sustainable in law.
8. The ld. D.R. submitted that contentions of the assessee that the said income under three heads viz. Salary income of Rs. 2,40,000/- commission income of Rs. 1,42,695/- and interest income of Rs. 711/- has been credited in the Dena Bank saving bank account of the assessee bearing number 054310006242 needs verification and matter can be remitted to the file of the A.O. for verification.
9. We have considered rival contentions and also perused the material available on record. We have observed that the assessee had two bank accounts, one is current account in Dena Bank, Kurla (W) branch and second is personal saving Bank account with Dena Bank Kurla (W) Branch. The assessee was asked to furnish the bank statements of both the bank accounts with Dena Bank by the AO.
5 ITA no. 5303/M/2012 Bank account statement of current account with Dena Bank was produced by the assessee before the A.O., while the saving bank account statement with Dena Bank was not produced by the assessee. The A.O. issued notice u/s 133(6) of the Act to the Dena Bank asking the details of personal saving bank account of the assessee. Dena Bank submitted saving bank account statement of the assessee whereby the A.O. observed that an amount of Rs. 22 lacs was credited of which the assessee had not offered any explanation and amount of Rs 22 lacs was added to the total income of the assesse by the AO as unexplained income of the assessee. Before the ld. CIT(A) the assessee has explained that the total deposits in the personal saving bank account at Dena bank was Rs. 19,87,197/- and not Rs. 22 lacs as was computed by the AO . It was explained that the above amount includes LIC refund Rs. 47,247/- and car loan Rs. 2,21,559/- , which contentions of the assessee were accepted by the ld. CIT(A) and the balance amount of Rs. 17,18,391/- was confirmed as additions to the income of the assessee by ld. CIT(A) u/s 68 of 1961 Act . It is observed that against the above decision of the ld. CIT(A) granting aforesaid relief to the assessee, the Revenue has not filed any appeal as learned DR could not point out the same before us and the same has attained finality on the basis of material before us. We find that there were three credits in the said Dena bank received by the assessee viz. Salary income of Rs. 2,40,000/- commission income of Rs. 1,42,695/- and interest income of Rs. 711/- which was claimed by the assessee to be declared by the assessee in the return of income filed with the Revenue and claimed to be offered for taxation voluntarily by the assessee in ROI filed with Revenue . We are of the considered view that the same income cannot be taxed twice, but aforesaid contentions of the assessee certainly need verification by the authorities below . As such, we remit this matter back to the file of the A.O. for verification of these three credits viz. Salary income of Rs. 2,40,000/- commission income of Rs. 1,42,695/- and interest income of Rs. 711/- in the said saving bank account of the assessee 6 ITA no. 5303/M/2012 with Dena Bank and were already subjected to tax in ROI filed voluntarily by assessee with Revenue. If, after verifications, the A.O. is satisfied that the aforesaid three income's viz. Salary income of Rs. 2,40,000/- commission income of Rs. 1,42,695/- and interest income of Rs. 711/- has already suffered taxation vide ROI filed with Revenue, the assessee will certainly be entitled for the relief to said extent as the same income cannot be brought to tax twice which is a fundamental principle of law of taxation. Regarding the other additions as sustained by learned CIT(A) , as agreed and admitted by the ld. counsel for the assessee, we are confirming the said additions in the hands of the assessee. The AO shall grant proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law. We order accordingly.
10. In the result, appeal of the assessee is partly allowed for statistical purposes as per terms indicated above.
Order pronounced in the open court on 10th April, 2017.
आदे श क घोषणा खुले यायालय म" #दनांकः 10-04-2017 को क गई ।
Sd/- sd/-
(JOGINDER SINGH) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
मब
ुं ई Mumbai; #दनांक Dated 10-04-2017
व.)न.स./ R.K., Ex. Sr. PS
7 ITA no. 5303/M/2012
आदेश क ! त#ल$प अ%े$षत/Copy of the Order forwarded to :
अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु*त(अपील) / The CIT(A)- concerned, Mumbai
4. आयकर आयु*त / CIT- Concerned, Mumbai
5. +वभागीय )त)न-ध, आयकर अपील य अ-धकरण, मुंबई / DR, ITAT, Mumbai "A" Bench
6. गाड0 फाईल / Guard file.
ु ार/ BY ORDER, आदेशानस स या+पत )त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai