Income Tax Appellate Tribunal - Mumbai
Harresh Mehta, Mumbai vs Acit Cc 44, Mumbai on 9 January, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "H"
BENCH, MUMBAI
BEFORE HON‟BLE SH. B. R. BASKARAN, AM &
HON‟BLE SH. SANDEEP GOSAIN, JM
आयकरअपीलसं./ I.T.A. No. 4158/Mum/2017
(निर्धारणवर्ा / Assessment Year: 2011-12)
Harresh Mehta, ACIT CC 44
2601, 26th floor, Shi Tapi बिधम/ Aayakar Bhavan, M. K.
HG, Marg, Gamdevi, Vs. Road,
Mumbai-400 007 Mumbai-400 020
स्थायीलेखासं ./ जीआइआरसं ./ PAN No. AALPM3811G
(अपीलाथी/Appellant) : (प्रत्यथी / Respondent)
अपीलाथीकीओरसे/ Appellant by : Shri Vijay Mehta AR
प्रत्यथीकीओरसे/Respondentby : Shri Rajore Satish
Chandra, DR
सुनवाईकीतारीख/
: 18/10/2018
Date of Hearing
घोषणाकीतारीख / 09/01/2019
:
Date of Pronouncement
आदे श / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the assessee is against the order of Ld. CIT (Appeal) - 50, Mumbai dated 09.03.17 for AY 2011-12.
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2. The solitary ground raised by the assessee is against challenging the order of Ld. CIT(A) in treating a sum of Rs. 88,573 as unexplained expenditure u/s 69C of the I.T. Act.
3. We have heard the counsels for both the parties, material placed on record as well as orders passed by the revenue authorities, we find from the records that initially the return of income was filed by the assessee for AY 2011-12 in response to notice u/s 153A declaring total income of Rs. 8,46,17,360/-. Subsequently, an assessment order u/s 143(3) r.w.s 153A was passed by the AO determining the total income of the assessee at Rs. 10,56,40,790/-. The said assessment order was set aside by the Pr. CIT (Cen)-4, Mumbai u/s 263 of the I.T. Act. In pursuant to the order of Pr. CIT, the AO passed order of assessment u/s 143(3) r.w.s 263 by adding a sum of Rs. 5,50,000/- u/s 69C of the I.T. Act.
4. Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of 3 I.T.A. No. 4158 /Mum/2017 Harresh Mehta both the parties, partly allowed the appeal of the assessee and restricted the additions at Rs. 88,573/-.
5. We have gone through the order passed by the Ld. CIT(A) and noticed that the AO had followed the findings of Ld. Pr. CIT made u/s 263 of the I.T. Act, wherein the Ld. Pr. CIT had held that the assessee had accepted the loan of Rs. 1.5 crore during the previous year from one Shri Rajmal Vanigota and paid interest of Rs. 88,573/- which constitutes interest for the part of the previous year 2010-11.
6. Ld. CIT(A) while deciding the said issue had upheld the said addition on the ground that since the assessee had not filed any appeal against the order of Ld. Pr. CIT, therefore is precluded to challenge the same and the said findings of Ld. Pr. CIT be treated as final.
7. We notice that the same Ld. CIT(A) had already passed order dated 19.09.16 in Appeal No. CIT-A 50/IT-1062/2014-15 thereby deleting the penalty imposed by AO u/s 271B of the Act 4 I.T.A. No. 4158 /Mum/2017 Harresh Mehta by holding that there was no „conclusive evidence‟ that the assessee „had accepted‟ cash loan of Rs. 1.5 crore as alleged by the AO.
8. Ld. CIT(A) had failed to appreciate that assessee had taken a categorical /specific stand from the very beginning that no such payment of cash loan was received by the assessee or no interest was ever paid to Sh. Rajmal Vanigota. Apart from that, the assessee had also filed an Affidavit of Sh. Rajmal Vanigota, wherein he had denied having arranged any loan to the assessee.
9. From the records, we notice that the AO as well as Ld. CIT(A) had not controverted the specific document filed by Shri Rajmal Vanigota in the shape of Affidavit. Even the AO had not brought on record any corroborative evidence regarding the actual payment of any interest. It is a settled legal position that no addition can be made merely on the basis of suspicious and assumptions without corroborative evidence. 5
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10. Thus, keeping in view the above discussion and also bearing in mind, the entirety of the fact and settled legal position, the impugned addition in the present case is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned additions made u/s 69C of the Act. Resultantly, this ground raised by the assessee stands allowed.
11. In the net result the appeal filed by the assessee is allowed with no order as to cost.
Order pronounced in the open court on 9th Jan 2019.
Sd/- Sd/-
(B. R. Baskaran) (Sandeep Gosain)
ले खासदस्य / Accountant Member न्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनां कDated : 09.01.2019 Sr.PS. Dhananjay 6 I.T.A. No. 4158 /Mum/2017 Harresh Mehta आदे शकीप्रनिनिनिअग्रे नर्ि/Copy of the Order forwarded to :
1. अपीलाथी/ The Appellant
2. प्रत्यथी/ The Respondent
3. आयकरआयुक्त(अपील) / The CIT(A)
4. आयकरआयुक्त/ CIT- concerned
5. यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, Mumbai
6. गार्ड फाईल / Guard File आदे शधिुसधर/ BY ORDER, उि/सहधयकिंजीकधर .
(Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai