YUSUF ASHRAF SHAIKH,MUMBAI vs. INCOME TAX OFFICER - WARD 27(3)(1), MUMBAI, MUMBAI
IN THE INCOME-TAX APPELLATE TRIBUNAL “G” BENCH,
MUMBAI
BEFORE JUSTICE (RETD.) C. V. BHADANG, PRESIDENT
&
SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER
&
SA No.116/MUM/2025
(A.Y. 2018-19)
Yusuf Ashraf Shaikh
D Sector, P Line, Room No.
12, Cheeta Camp, Trombay,
Mumbai
–
400
088,
Maharashtra v/s.
बनाम
Income Tax Officer, Ward –
27(3)(1),
IT Office,
Vashi
Railway
Station
Building,
Navi Mumbai – 400 703,
Maharashtra
स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: BPNPS7154G
Appellant/अपीलार्थी
..
Respondent/प्रतिवादी
Appellant by :
Shri Chirayu Panarkar,AR
Respondent by :
Shri Swapnil Choudhary, (Sr.AR)
Date of Hearing
16.10.2025
Date of Pronouncement
07.11.2025
आदेश / O R D E R
PER PRABHASH SHANKAR [A.M.] :-
The present appeal arising from the appellate order dated
04.09.2024 is filed by the assessee against the order passed by the Learned Commissioner of Income-tax (Appeals)/National Faceless
Appeal Centre, Delhi [hereinafter referred to as “CIT(A)”] pertaining to assessment order passed u/s. 143(3) of the Income-tax Act, 1961
[hereinafter referred to as “Act”] dated 06.04.2021 for the Assessment
Year [A.Y.] 2018-19.The Stay Application referred above has been w.r.t.
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Yusuf Ashraf Shaikh, Mumbai to the impugned order is also considered in this composite order for the sake of convenience.
2. In various grounds of appeal, the assessee has agitated the addition of Rs 2,32,18,352/- made in respect of Cash deposits in the bank account. It is claimed that the ld.CIT(A) erred in making such addition as, on one hand he accepted the fact that the assessee was a distributor of Money of Airtel Payment Bank and on the other hand, made the addition of MONEY as turnover and thereby applying the gross profit rate on Money transaction, thereby ignoring the fact that these transactions were not part of the turnover but only commission was earned on them. It is claimed that the ld.CIT(A) passed the order without giving opportunity of hearing to him.
3. At the outset,it was pointed out by the Registry that the instant appeal is delayed by 146 days. In this regard, an application for condonation of the delay alongwith an affidavit has been filed by the assessee submitting that he received the appellate order on 04.09.2024. It is contended that being aggrieved by the said order and also for stay of demand recovery, as advised by his Counsel, the assessee filed Writ
Petition before the Hon’ble Bombay High Court to avail the remedy u/s 253 of the Act. However, the hon’ble High Court on 24.03.2025 directed
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Yusuf Ashraf Shaikh, Mumbai to avail the remedy before the ITAT. The appeal was filed thereafter, leading to delay which may be condoned.
4. On careful consideration of the submissions of the assessee, we are of the considered opinion that the delay in filing of the present appeal was not intentional but for bonafide reasons. Rejection of the request for condonation may cause genuine hardship to the assessee. In this connection, reliance could be placed on the landmark decision of hon’ble Supreme Court which inter alia held in Collector, Land
Acquisition v Mst. Katiji And Others- 167 ITR 471 (SC) that “ordinarily, a litigant does not stand to benefit by lodging an appeal late……..Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated….Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period…. A litigant does not stand to benefit by resorting to delay.
In fact, he runs serious risk.”Accordingly, in the interest of justice, we condone the delay and proceed to adjudicate the grounds of appeal filed by the assessee.
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Yusuf Ashraf Shaikh, Mumbai
Facts in brief are that the assessee is an individual, working as the distributor of Bharti Airtel. Return of income for the year under consideration was filed declaring total income of Rs.9,57,100/-. Subsequently, the case was selected for Limited scrutiny for the scrutiny of “high value cash deposits in SFT”. Notice u/s 143(2) of the Act was issued and served upon the assessee which however, remained non complied. Subsequent show cause notice was also not responded.Consequently,the AO observed that the assessee did not have any supporting document to justify the amount of cash deposited in his bank accounts and assessed him by making addition of Rs.15,28,88,700/- to its income invoking provisions of section 69A of the Act,treating it as Unexplained Money. 6. Aggrieved, the assessee filed appeal before the ld.CIT(A) contesting the addition and filed certain additional evidences which were admitted by him. With regard to the addition of Rs.15,68,88,700/- u/s 68 of the Act as made by the AO,based on a remand report from the AO, he deleted the addition. However, from the Remand report, it was noticed by him that the assessee had not disclosed one bank account in the ITR/audit report as result of which he suppressed turnover of Rs.40,52,07,196/-. Therefore, a notice of enhancement was issued to P a g e | 5 A.Y. 2018-19
Yusuf Ashraf Shaikh, Mumbai him proposing to make addition of Rs.2,32,18,352/- on account of undisclosed GP@ 5.73 on undisclosed turnover of Rs.40,52,07,196/-.
Before him,it was explained by the assessee that his business consisted of two different activities i.e. trading of recharge coupon as distributor of Bharati Airtel Ltd in which he claimed to have earned only commission which is reflected in 26AS statement. The second business activity is claimed to be ‘business correspondent’ of Airtel payments bank limited.
In this business, the assessee claimed to have earned only commission and the same was reflected in the 26AS statement. He further submitted that in respect of distribution of coupons of Bharati Airtel Ltd, GST was applicable, hence the same was shown as turnover net of discount.
6.1 The ld.CIT(A) further observed that from the agreement entered with Bharati Airtel Ltd that the assessee had been entrusted with job of promotional activities of the product/service of Bharati Airtel
Ltd and he was required to raise quarterly invoices including GST for the said work and the Bharati Airtel Ltd was supposed to make payment against theinvoices after verification and satisfaction about the work done. There was no clause of commission payment in the above referred agreement. The assessee, on the basis of 26AS statement, has contended that he had received commission of Rs.55,26,744/- for the above work
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Yusuf Ashraf Shaikh, Mumbai from Bharati Airtel Ltd and TDS was deducted u/s 194H at the rate of 5%. However, he had not submitted any basis of commission payment of Rs.55,26,744/- received from Bharati Airtel Ltd, such as ledger account or confirmation letter etc. from it to justify his claim. The assessee submitted that he had made oral request to Bharati Airtel Ltd to provide the ledger and confirmation letter but they were not received at the relevant time. The ld.CIT(A) further observed that onus was on the assessee to substantiate the claim with supporting evidence which he failed to do. In view of the above, contention of the appellant is not acceptable. The assessee had claimed on the basis of 26AS statement, that he has received commission of Rs.8,39,142/- for the above work from the Bank and TDS was deducted u/s 194H at the rate of 5%.
However, he had not submitted any basis of commission payment of Rs.8,39,142/- received from Bank such as ledger account or confirmation letter etc to justify the claim.
6.2 From the above discussion, he concluded that though the source of cash deposits of Rs.15,28,88,700/- was explained by the assessee but no proper explanation was submitted for suppression of the turnover of Rs.40,52,07,196/-. Therefore, addition of Rs.2,32,18,352/- was made on account of Gross Profit @ 5.73 on undisclosed turnover of P a g e | 7
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Yusuf Ashraf Shaikh, Mumbai
Rs.40,52,07,196/- since all the indirect expenses had already been debited to the profit and loss account. As a result the addition made by the AO of Rs.15,28,88,700/- was deleted but the addition of Rs.2,32,18,352/- was made as per enhancement notice.
It may be stated there that in the course of hearing before the Bench, the ld.AR has made a request for admission of an additional evidence in terms of Rule 29 of ITAT Rules.It is stated that w.r.t. the addition of Rs 2,32,18,352/-,the issue pertained to proper characterization and quantum of income from activities undertaken as Business correspondent of Airtel Payments Bank. The additional evidence is a letter issued by the above named concern dated 06.09.2024 confirming that for the relevant period, the assessee received Rs. 8,38,630/- only as commission against generation of turnover of Payment Bank amounting to Rs 40,88,44,167/-.This letter directly corroborates the assessee’s consistent position that only commission income constituted its turnover and the turnover generated as Business Correspondent was not his turnover.It is submittedthat the said confirmation could not be produced during appellate proceedings as the impugned order was passed on 04.09.2024 while the letter was issued by Airtel on 06.09.2024.As such, it could not be produced before
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Yusuf Ashraf Shaikh, Mumbai him. It is contented that no prejudice will be caused to the Revenue and conversely refusal thereof would risk a decision without critical third party confirmation that addresses the dispute. In this regard, the assessee has also filed a sworn affidavit affirming above facts.
8. We have heard the rival submissions and perused the material on record. We are of opinion that the additional evidence submitted is important to adjudicate the dispute in hand and thus fulfills the conditions of Rule 29 of the Income-tax (Appellate Tribunal) Rules,
1963. Accordingly, we admit the additional evidence under the aforesaid Rules. However, as the ld.CIT(A) deserves the opportunity to consider this evidence. Thus, in the interest of justice, we are of considered opinion matter needs to be restored to him for considering the issue afresh. Accordingly, we restore the issue in dispute to the ld.CIT(A) for deciding the issue in hand afresh in the light of additional evidence submitted by the assessee, in accordance with the law. He is directed to provide sufficient opportunity of hearing to the assessee who is also directed to submit the evidence before him.
Accordingly, this grounds of appeal is, therefore, allowed for statistical purpose.
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Yusuf Ashraf Shaikh, Mumbai
In the result, the appeal stands allowed for statistical purposes. SANo.116/MUM/2025(A.Y. 2018-19)
The instant Stay application is filed by the assessee against the assessment order passed u/s. 143(3)of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated 06.04.2021 for the Assessment Year [A.Y.] 2018-19. 11. In this regard, it is submitted that the assessee has already paid Rs 1,42,08,302/- out of total demand of Rs 2,90,84,118/- which is well above the threshold limit of 20%. 12. Considering the above fact that the appeal has already been restored to the ld.CIT(A) for due adjudication, we order that the demand will remain stayed till passing of fresh order by him. Order pronounced in the open court on 07/11/2025. [Justice (Retd. ) C. V. BHADANG] [PRABHASH SHANKAR] PRESIDENT ACCOUNTANT MEMBER
Place: म ुंबई/Mumbai
ददनाुंक /Date 07.11.2025
Lubhna Shaikh / Steno
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आदेश की प्रतितलति अग्रेतिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त / CIT
4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT,
Mumbai
5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि ////
आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt.