Income Tax Appellate Tribunal - Mumbai
Dcit Cc 3(4) Cen Rg 3, Mumbai vs Yogesh Thakkar, Navi Mumbai on 20 June, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "SMC", MUMBAI
Before Shri B R Baskaran, Accountant Member
ITA Nos.6805 & 6806/Mum/2016
Assessment Years : 2008-09 & 2007-08
Dy CIT Central Cir. 3(4) Shri Yogesh Thakkar
Mumbai 31, Adarsh CHS, Bawan Bunglow,
Vs. Panvel, Navi Mumbai 400 026
PAN AAPPT1825P
(Appellant) Respondent)
CO 72 & 73/Mum/2017
(Arising out of ITA Nos.6806 & 6805/Mum/2016
For Assessment Years : 2007-08 & 2008-09)
Shri Yogesh Thakkar Dy CIT Central Cir. 3(4)
Navi Mumbai 400 026 Mumbai
Vs.
PAN AAPPT1825P
(Cross-Objector) Respondent)
Appellant By : Shri F Shankaran
Cross-objector By : Shri Manish Sanghvi
Date of Hearing : 20.06.2017 Date of Pronouncement : 20.06.2017
ORDER
The appeals filed by the Revenue and the cross-objections filed by the assessee are directed against the common order dated 08.08.2016 passed by the learned CIT(A)-51, Mumbai, and they relate to assessment years 2007-08 and 2008-09.
2
Shri Yogesh Thakkar
2. In the appeal filed by the Revenue for A.Y. 2008-09, the quantum in dispute is only `.20 lacs and the tax effect thereon will be less than 10 lacs. Hence, in view of the Circular No.21/2015 dated 10.12.2015 issued by the CBDT, the Revenue is precluded from pursuing this appeal. Accordingly, I dismiss the appeal filed by the Revenue for A.Y. 2008-09 on account of tax effect.
3. Now I take up appeal for A.Y. 2007-08, wherein the Revenue is contesting the relief of ` 57.50 lacs granted by the CIT(A).
4. I have heard the parties and perused the record. The assessee is a Director in M/s. Thakkar Popatlal Velji Sales Ltd. The Revenue carried out search and seizure operation u/s. 132 of the Act in the premises of the assessee on 05.06.2007. During the course of search, the assessee admitted additional income of ` 60 lacs relating to investment made in M/s. Persian Agro Hot Enterprises. Based on the statement, the Assessing Officer assessed the sum of ` 60 lacs in A.Y. 2007-08. In the appellate proceedings, the assessee contended that it has given an advance of ` 2.5 lacs only for purchase of shares in M/s. Persian Agro Hot Enterprises and the additional income of ` 60 lacs was offered erroneously in the statement. When the matter reached Tribunal, the ITAT restored the matter back to the file of the Assessing Officer for examining this issue afresh with an observation that no addition can be made simply on the basis of admission made in the Statement. In the set aside proceedings, the Assessing Officer again assessed the amount of ` 60 lacs. However, the learned CIT(A) restricted the addition of `.2.50 lacs, giving 3 Shri Yogesh Thakkar a finding that the assessee has invested a sum of `.2.50 lacs only and not ` 60 lacs. Aggrieved by the order of the CIT(A), the Revenue is in appeal before this Tribunal.
5. I heard the parties. I noticed that the learned CIT(A) has granted relief with the following observations:
"I have considered the arguments of the assessee. The undisputed fact is that kaccha cash book was seized and this cash book reflected entry of Rs 2.5 lakhs only and not of Rs 60 lakhs. Assessee states that the purchase of shares finally did not take place and hence only Rs 2.5 lakhs is paid. Assessee however declared Rs 60 lakhs on this issue but later retracted his stand. As observed by Hon'ble ITAT, addition cannot be made only on the basis of statement. ITAT restored the matter to AO only for examination of the issue as to whether Rs 60 lakhs is paid and whether the shares have been finally purchased. AO made no further inquiry into this aspect. Once assessee says that shares have not been finally purchased onus is upon the AO to prove that the said shares have infact been purchased and that Rs 60 lakhs have been paid. AO did not do any further enquiry in this regard. Instead he relied on seized documents which only reflect an entry of Rs 2.5 lakhs. In the background of the above facts and in view of the clear of Hon'ble ITAT, addition to the extent of Rs 60 lakhs only based on the statement and entry of Rs 2.5 lakhs cannot be made. However, AO in this regard of ITAT directions simply repeated the addition without any further enquiry or evidence. Therefore, I am unable to agree with the stand of the Assessing Officer. An addition of `.2.5 lakhs only is called for as there is corroborative evidence to that extent in the seized material."
6. Before me, the Revenue did not furnish any material to contradict the finding given by the learned CIT(A). Hence, I have no other option but to confirm the order passed by the learned CIT(A).
7. In the Cross-objections, the assessee has requested to telescope the addition of `.2.50 lacs against the additional income offered by the company M/s. Thakkar 4 Shri Yogesh Thakkar Popatlal Velji Sales Ltd. I am unable to agree with the plea of the assessee, as the assessee and the company are two different persons and income of one person cannot be telescoped with the income of the other person. Accordingly, I reject the cross-objections filed for both the years.
8. In the result, both the appeals of the Revenue and the cross-objections of the assessee are dismissed.
Order pronounced in the open court on this day of 20th June 2017 Sd/-
(B R Baskaran) ACCOUNTANT MEMBER Mumbai, Dated : 20th June, 2017.
SA Copy of the Order forwarded to :
1. The Appellant.
2. The Respondent.
3. The CIT(A), Mumbai.
4. The CIT
5. The DR, 'SMC' Bench, ITAT, Mumbai BY ORDER //True Copy// (Assistant Registrar) Income Tax Appellate Tribunal, Mumbai