SHRI BALKRISHNA VITHAL SHINDE,MUMBAI vs. ITO 28(1) (2), MUMBAI

PDF · subscribers
ITA 1753/MUM/2021Status: DisposedITAT Mumbai24 August 2022AY 2011-127 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) erred in dismissing the appeal as non-maintainable based on the doctrine of merger, as the revision petition under Section 264 was not decided on merits. The Tribunal directed the CIT(A) to decide the appeal afresh after condoning the delay.

What were the facts?

The Assessing Officer (AO) made additions under Section 69A for unexplained credits in bank accounts, treating them as taxable income. The assessee claimed these credits were sale proceeds of fruits sold on a consignment basis but failed to provide supporting evidence.

What were the issues?

Whether an appeal before the CIT(A) is maintainable after a revision petition under Section 264 has been rejected without a decision on merits. Whether the doctrine of merger applies in such circumstances.

Which sections of the Income-tax Act were involved?

Section 69A,Section 144,Section 147,Section 264,Section 80C

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

Before: SHRI AMIT SHUKLA, JM & SHRI PRASHANT MAHARISHI, AM

For Appellant: Shri B. N. Rao, Ld. AR, Shri Chetan M. Kacha, DR सुनवधईकीतधरीख/
For Respondent: Shri Chetan M. Kacha

O R D E R

Per Amit Shukla, Judicial Member:

1.

The aforesaid appeal has been filed by the assessee against the impugned order dated 24.02.2020, passed by Ld. CIT(A)-26, Mumbai for the quantum of assessment passed u/s 144 r.w.s. 147 for AY 2011-12.

2.

Assessee has raised the following grounds:-

The Ld Commissioner of Income tax (Appeals) erred in dismissing the appeal holding the same as non-maintainable. The Ld Commissioner of Income tax (Appeals) ought to have given a reasonable opportunity by issuing show cause on the bases of his findings to dismiss the appeal which he has erred by failing to give the opportunity of hearing.

3.

The brief facts of the case are that, here in this case the next party assessment order was passed wherein Ld. AO has made additions u/s 69A treating all the credit entries in the bank statement aggregating to Rs. 2,74,40,897/- as taxable income, which as per the assessee were on account of collection of sale proceeds of fruits received on sale of consignment basis. The relevant facts as appeared in the impugned order are read as under:-

4.1. The assesses is an individual engaged in the trading of fruits. During the year the assessee had declared income from Business and Income from other sources as per computation of income filed. Total receipts of business had been shown at Rs. 37.30.29S/-From the ITS details of the assessee and material on records, it was seen by the AO that tie assessee was maintaining 8 bank accounts during the F.Y 2011-12. From the relevant bunk statements of the bank accounts, it was seen that there were several credits in these bank accounts which exceed the total receipts shown by the assessee. The assessee was asked to furnish his books of accounts/bills/vouchers for verification but the assessee failed to furnish any details, The show-cause notice was also issued but no compliance was made in this regard. The AO concluded that it was clear that assesses had no explanation for the large amount of credits to his bank accounts. Due to complete lack of evidences and cogent explanations, the cash deposits /other credits In the bank accounts were treated as unexplained money and Rs. 2,74,40,897/- was added u/s 69A of the IT Act to the total income of the assessee. The assesses also claimed deduction u/s 80C to Rs. 1,00,000/- but no supporting evidences were produced during the assessment proceedings. Hence, the AO rejected the claimed of Rs, 1,00,000/- as a deduction u/s. 80C.

4.

Assessee aggrieved by the order of AO filed a revision application u/s 264 before PCIT -28, Mumbai which was rejected vide order dated 08.12.2015. Thereafter assessee preferred the appeal before Ld. CIT(A) and made very detail submissions which are incorporated in the impugned appellate order. However, Ld. CIT(A) has dismissed the assessee’s appeal on the ground that assessee has already exercised the alternative remedy u/s 264. The relevant observation of Ld. CIT(A) is reads as under:-

6.

I have gone through the factual matrix of the case and the submissions made by the assessee. All the Grounds of Appeal

are effectively against the addition made by the AO in the assessment order and also against tie revisional order of the Pr. CIT-28, Mumbai wherein the revision application of the assessee u/s. 264 was rejected. 6.1 To put the facts in perspective, the assessment was completed by the AO in the instant case u/s. 144 r.w.s. 147 vide order dated 17.03.2015, Subsequently, the assessee filed a revision application u/s, 264 More the Pr. CIT-28, Mumbai on 07.04.2015. The Pr.CIT passed an order u/s. 264 on 08.12.2015 rejecting the application of the assessee. Aggrieved, the assessee then preferred the present appeal against the order of the AO along with condonation for delay. 6.2 In the backdrop of the above facts, it is pertinent to reflect upon the application of Doctrine of Merger in the instant case. As explained by the Hon'ble Apex Court in the case of Khoday Distilleries Ltd, vs. Mahadeshwara Sahakara Sakkare Karkhane Ltd. reported in [2019] 104 taxmann.com

25. (SC), there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior Court, Tribunal or Authority is subjected to a remedy available under law before a superior forum, then, though the decree or order under challenge continues to be effective and binding, nevertheless, this finality is to put in jeopardy. Once the superior court disposes of the dispute before it in any manner, /.e, either by affirming the decree or order or by settings aside or by modifying the same, if is the decree of the superior Court, Tribunal or Authority which is the final binding and operative decree and We decree or order of the lower Court, Tribunal or authority gets merged into the order passed by the superior forum. 6.3 In the instant case, the impugned assessment order had merged into the order of the Pr. CIT and therefore, applying the Doctrine of Merger, the appeal before the CIT(A) against the order of the AO becomes non-maintainable. Once the assessee has exercised the provisions of section 264, he is not left with the remedy to agitate the order of the AO against the CIT(A). With regards to the condonation application of the assessee, I am of the opinion that since the assessee has already exercised the alternative remedy u/s. 264, the present appeal becomes non- maintainable and the condonation petition of the assessee is hereby rejected. Accordingly, the appeal of the assessee is found to be not maintainable and is hereby 'Dismissed'.

More judgments on Section 69A

All 15,297 judgments and leading authorities on Section 69A →

Recent GST High Court judgments

Search GST case law →