MILIND BHOLE,MUMBAI vs. ITO WARD 2 (3), THANE

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ITA 6645/MUM/2019Status: DisposedITAT Mumbai20 December 2022AY 2010-1110 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal dismissed grounds related to Section 40A(3) and excess rent payment. It confirmed the addition of interest income but directed the AO to grant credit for TDS. For other disallowed expenses, the Tribunal allowed 50% of the expenditure as a deduction.

What were the facts?

The assessee appealed against an order that partly allowed his appeal against the AO's assessment. The AO had made additions for interest income, estimated rent for a vacant flat, disallowed expenses due to lack of TDS and evidence, and disallowed cash payments under Section 40A(3).

What were the issues?

Whether interest income appearing in Form 26AS is taxable even if not offered by the assessee, and the allowability of expenses paid in cash without proper evidence.

Which sections of the Income-tax Act were involved?

Section 40A(3),Section 250,Section 199

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

For Respondent: Shri. Ujjawal Chavan SRAR
Hearing: 22.09.2022Pronounced: 20.12.2022
1.

This appeal is filed by assessee against the order of the Commissioner of income tax (appeals) – one, Mumbai dated 21/8/2019 for assessment year 2010 – 11 wherein the appeal filed by the assessee against the assessment order passed by the learned assessing officer i.e. income tax Officer, Ward – 2 (3) Thane was partly allowed.

2.

The assessee is aggrieved with that. Appellate order and in appeal before us raising following grounds of appeal: – “Being aggrieved by the order passed by the learned Commissioner of Income Tax (Appeals) u/s. 250 of

1. On the facts and in the circumstances and in law, the learned Commissioner of Income Tax (Appeals) has erred in allowing the addition of interest of ₹ 3,69,293/- received from J& K Bank merely on the basis of Form 26AS without appreciating the fact that the said interest was not received during the assessment year under appeal. The learned Commissioner of Income Tax (Appeals) ought to have allowed the various contentions of appellant under the facts and circumstances of the case.

2. On the facts and circumstances and in law, the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition on account of rent in respect of vacant flat owned by the Appellant by estimating the rent without appreciating various contentions of the Appellant. The learned Commissioner of Income Tax (Appeals) ought to have allowed the various contentions of appellant under the facts and circumstances of the case.

3. On the facts and circumstances and in law, the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of ₹ 8,36,347/- on account of disallowance of expenses on account of salary and such other genuine business expenses incurred by the Appellant during the course of the Profession. The learned

4. On the facts and in the circumstances and in law, the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of disallowance of expenditure to the extent of ₹ 1,19,000/- by applying provisions of section 40A(3) of Income Tax Act, 1961. The learned Commissioner of Income Tax (Appeals) ought to have allowed the various contentions of appellant under the facts and circumstances of the case.

5. On the facts and in the circumstances and in law, the learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance of ₹ 24,000/- towards rend paid by the Appellant during the course of his profession. The learned Commissioner of Income Tax (Appeals) ought to have allowed the various contentions of appellant under the facts and circumstances of the case.

6. On the facts and circumstances and in law, the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of disallowance of ₹ 45,556/- merely on estimation by the learned Assessing Officer without appreciating the fact that the Appellant is Professional. The learned Commissioner of Income Tax (Appeals) ought to have allowed the various contentions of appellant under the facts and circumstances of the case.”

4.

During the course of assessment proceedings, a. On the basis of form number 26AS, learned AO found that assessee has received interest income of Rs.369,293/– from Jammu and Kashmir bank Ltd, Mumbai, However, assessee has not offered this income as his interest income in the return of income. Therefore, the assessee was issued a show cause notice. The assessee submitted that said income was credited to the account of the assessee nor TDS certificate was issued to him by the deductor and therefore the same interest income has not accrued. The learned assessing officer rejected the same and made an addition to the extent of Rs 369,293/–. b. Further assessee has one house property whose annual letable value was disclosed by the assessee at Rs. 12,000 P.a. @ Rs. 1000 per month. The learned assessing officer found that same is also not supported by any evidence and therefore the learned AO found it to be very low compared to the prevailing market rate and adopted Rs. 6000 per c. The learned AO further found that assessee has debited various expenditure in its books of account without deduction of tax at source and no evidence was available whether same is incurred wholly and exclusively for the purposes of the business or not. Therefore, the learned assessing officer disallowed the total expenditure incurred by the assessee of Rs. 836,347. d. Assessee has made cash payment of certain expenditure. Therefore, the learned assessing officer held that same is disallowable u/s 40 A (3) of the act. The learned AO disallowed a sum of Rs 119,000/– on account of rent for the reason that same is paid in cash. e. AO further found that assessee has made the claim of deduction of Rs 168,000 towards rent of a godown. The assessee was asked to produce the rent agreement. The rent agreement was dated 1/9/2018 where the terms and conditions were agreed upon for the rent of Rs 12,000 per month. Therefore, the learned assessing officer held that total rent payable for the whole year is only Rs 144,000 where the assessee has claimed deduction of Rs 168,000 and

6.

The assessee aggrieved with the above order has preferred an appeal before the learned and CIT – A, who disposed of the appeal of the assessee wide order dated 21/8/2019. The addition/disallowance is retained by the learned CIT – A, are contested before us.

7.

We have heard the rival contentions and perused the orders of the lower authorities. The inception itself the learned authorized representative did not press the disallowance u/s for 40A (3) of Rs 119,000 as well as the alleged excess payment of godown rent of Rs 24,000/–. Accordingly, both these grounds of appeal are dismissed.

10. Ground number 6 of the appeal is with respect to the ad hoc allowances of Rs 15,522/– being 10% of advertisement, miscellaneous expenditure and travelling and conveyance expenditure as no evidences for verification could be produced. The learned assessing officer made the disallowance at the

11.

Accordingly appeal of the assessee is partly allowed.

Order pronounced in the open court on 20.12.2022.

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