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Income Tax Appellate Tribunal, “B” Bench, Mumbai
THE INCOME TAX APPELLATE TRIBUNAL “B” Bench, Mumbai Shri Shamim Yahya (AM) & Shri Pavankumar Gadale (JM)
I.T.A. No. 5264/Mum/2013 (Assessment Year 2008-09) I.T.A. No. 1995/Mum/2012 (Assessment Year 2008-09) I.T.A. No. 1466/Mum/2014 (Assessment Year 2010-11)
Vs. DCIT, CC-39 Shri Morya House Makers Shop No. 17, Jai Jawan 112 Aayakar Market, Sector-17, Vashi Bhavan Navi Mumbai-400705. M.K. Road Mumbai-400020. PAN: AALFM5320Q (Appellant) (Respondent)
Assessee by None Department by Shri Rahul Raman & Shri Chandra Vijay Date of Hearing 17.06.2021 Date of Pronouncement 13.08.2021
O R D E R Per Shamim Yahya (AM) :- These are appeals by the assessee against respective orders of learned CIT(A) for assessment years 2008-09 & 2010-11.
Since the appeals were heard together so consolidated and dispose of by this common order.
ITA No. 1995/Mum/2012
Grounds of appeal read as under : [1] On the facts and in law as well as in the circumstances of the Appellant's case the CIT (A) has erred in sustenance of impugned estimation of Net Profit at Rs. 89,50,560/- made by the Assessing Officer without taking cognizance of various documents / confirmations filed with him. [2] On the facts and in law, the CIT (A) has erred in sustenance of additions of Rs.17,37,413/- made u/s.40 (a) (ia) without taking cognizance of written submissions made by the Appellant. [3] On the facts and in law, the CIT (A) has erred in sustenance of additions of Rs. 1,15,000/- made u/s. 68 without taking cognizance of
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written submissions supported by confirmation by the person booking the flat under construction. [4] You are kindly requested to delete impugned aggregate additions of Rs.53,29,443/- as per the provisions of the Act and oblige. [5] The above grounds of appeal are without prejudice to one another and the Appellant crave leave to add, to alter and/or amend any of the foregoing grounds and to make new or additional submissions at the hearing of the appeal as well as to submit fresh documents and information as advised.
Apropos ground No. 1
Brief facts are that from the perusal of the seized documents and statements recorded during the course of search, the AO has observed that the assessee has suppressed profit on sale of its project named 'Morya Apartment', Plot No. E- 33, Sector-3, Kharghar sold to M/s. Yerala Medical Trust and Research Centre. As per the registered agreement dated 13.06.07 the sale consideration has been shown at Rs. 1,00,00,000/-. However, as per the statement of Shri Madan Kolambekar recorded on 23.01.09 in reply to Q. No.9, he has stated that he had received cash of Rs.25 lakhs on sale of the above project and had offered the same for taxation. Moreover, page No.45 of Annexure A-3 seized from the residence of Shri Madan Kolambekar during the course of search on 22.01.09 is copy of duly signed receipt dated 27.01.07 in respect of Rs.25,00,000/- showing this amount of cash received by Shri Madan Kolambekar from M/s. Yerala Medical Trust and Research Centre. The copy of this seized page no. 45 is also enclosed as Annexure O-l to the assessment order. The AO has further observed that this seized page no. 45 is duly signed receipt dated 27.01.07 which shows the total sale consideration for this project at Rs.1,75,00,000/- which establishes that Rs.75,00,000/- was received in cash which was not accounted for by the assessee. Accordingly, show cause notice was issued to the assessee to explain the suppressed receipt of Rs.75,00,000/-. In response to this show cause notice, the AR of the appellant has submitted its reply which is reproduced at page 15 of the assessment order. In its reply, the AR of the appellant has admitted that the project building constructed, Plot No. E-33, Sector - 3, Kharghar was sold to
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M/s. Yerala Medical Trust and Research Centre for cost of Rs.1,75,00,000/-. The AO has considered the reply of the appellant and also noticed that in the P & L account attached with the return of income for the year under consideration, the assessee has shown sale consideration of this project at Rs. 1,69,00,000/- instead of Rs.1,75,00,000/-. Again a show cause notice was issued to the assessee to explain the same. In response to this show cause notice, the appellant has failed to submit any reply before the AO, therefore, the treated the difference amount of Rs.6,00,000/- as undisclosed income of the assessee. Further, the AO has noticed that as per assessee's own calculation and admission, the net profit of the project was shown at Rs.10,92,968/- without considering the profit suppression of Rs.75,00,000/-. Therefore, the AO has observed that the net profit of the project was at Rs.85,92,968/-. As per the P & L account submitted alongwith the return of income, the assessee has shown the net profit from the sale of this project at Rs.85,87,525/-. However, as per the computation of total income enclosed with the return of income, the assessee has computed the total income at Rs.89,50,560/- whereas in the return of income the total income has been shown at Rs.54,73,530/-. The copy of the computation of total income is also enclosed with the assessment order as Annexure O-2. Thus, the AO has adopted the total income at Rs.89,50,560/- shown in the computation chart by the assessee itself.
Upon assessee’s appeal learned CIT(A) held as under :
“I have considered the submissions of the appellant, order of the AO and facts of the case carefully. It is noticed the AO has observed that the assessee has suppressed the profit on sale of project named 'Morya Apartment' sold to M/s. Yerala Medical Trust and Research Centre for a consideration of Rs.1,75,00,000/-. As per the agreement dated 13.06.07 the sale consideration was shown at Rs.1,00,00,000/-. But, as per the statement of Shri Madan Kolambekar and the seized page no, 45 of Annexure A-3 seized from his residence, it is duly signed receipt dated 27.01.07 in which the sale consideration of this project was shown at Rs.1,75,00,000/-. Thus, there was a suppression of Rs.1,75,00,000/- received in cash by the assessee. Accordingly, the AO has given a show cause notice to the assessee to explain the same. In response to this show
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cause notice, the AR of the appellant has submitted its reply which is reproduced at page 15 of the assessment order in which the assessee has admitted the sale price at Rs.1,75,00,000/-. From the perusal of the P & L account, the AO has noticed that the assessee has shown the profit at Rs.85,87,525/- but as per the computation chart filed alongwith the return, the total income has been shown at Rs.89,50,560/-. But in the return of income filed, the total income has been shown at Rs.54,73,530/-.
Thus, the AO has adopted the total income at Rs.89,50,560/- as computed in the computation chart. On the other hand, the AR of the appellant has failed to submit any reply or any evidence to rebut the finding of the AO. From the perusal of the seized paper page no.45 and computation chart filed alongwith the return which are attached with the assessment order as Annexure O-1 and 0-2 respectively, it is clear that the sale consideration of the property named 'Morya Apartment' was at Rs.1,75,00,000/- in place of Rs.1,00,00,000/- shown by the assessee. When it was confronted during the assessment proceedings, the assessee has admitted that the actual sale consideration was at Rs.1,75,00,000/- and Rs.75,00,000/- was received in cash which was not accounted for. However, in the P & L account filed alongwith the return, the assessee has shown the profit at Rs.85,87,525/-. Even in the statement recorded during the course of search, Shri Madan Kolambekar has also admitted that he has received the cash which was not declared in the original transaction. As per the computation chart, the appellant has rightly shown the income from business at Rs.85,87,525/- as declared in the P & L account. The disallowance u/s. 40(a) was made at Rs.7,63,033/- and reduced the remuneration paid to partners. Thus, the gross total income has been computed at Rs.89,50,558/-. From the perusal of the computation chart, it is clear that there is no mistake in computing the income and moreover, the assessee has failed to point out any mistake in the computation chart. Therefore, it is held that the AO has rightly adopted the total income at Rs.89,50,558/- in place of Rs.54,73,530/- declared in the return of income. Thus, the ground of appeal is dismissed.”
Against the above order assessee is in appeal before us. We have heard learned Departmental Representative. None appeared on behalf of the assessee despite several notices.
Upon careful consideration, we note that this addition was duly and properly made on the basis of material discovered during the search. In our considered opinion learned CIT(A) has taken a correct view of the matter and has addressed all the issues. Accordingly, we uphold the order of learned CIT(A).
Apropos ground No. 2
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Brief facts the AO has noticed that as per the assessment orders for the AYs. 2005-06 to 2007-08, the assessee was not allowed for capitalization of certain expenses in these years on account of non-deduction of tax (TDS), the detail of which is given at page 18 of the assessment order amounting to Rs.13,85,565/-. During the year under consideration, the assessee has booked sale in respect of 'Morya Apartment' project and computed the profit accordingly. The amount of Rs.13,85,565/- which was disallowed to be capitalized during the AYs. 2005-06 to 2007-08 on account of non-deduction of TDS was disallowed in the computation of total income and added back to the taxable income. During the assessment proceedings, the AO has called for the details of TDS. In response to this show cause notice, the AR of the appellant has submitted the details from the perusal of which the AO has noticed that expenses of Rs.9,12,107/- on account of construction expenses and Rs.4,34,100/- on account of labour charges were claimed but no TDS was deducted on these expenses. Accordingly, the AO has given a show cause notice to the assessee to explain the same. In response to the show cause notice, the assessee has not submitted any detail. Thus, the AO has presumed that the AO has not deducted tax nor deposited in the government account. Therefore, the AO has made a disallowance of Rs.13,46,207/- u/s. 40(a)(ia) of the IT. Act. Since the assessee has already disallowed Rs.7,63,033/- u/s. 40(a) in the computation of income, therefore, the balance of Rs.5,83,174/-was disallowed. The AO has further noticed that in respect of 'Mayuresh Apartment' project, the assessee has claimed capitalization of Rs.3,51,848/-on account of construction expenses but no TDS detail was submitted as the assessee was specifically asked to submit the details. Therefore, the AO has made disallowance of Rs.3,51,848/- u/s.40(a)(ia) of the IT. Act.
Upon assessee’s appeal learned CIT(A) held as under :- “I have considered the submissions of the appellant, order of the AO and facts of the case carefully. It is noticed that the assessee has made payment of Rs.13,85,565/- on account of construction expenses for 'Morya Apartment'
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and Rs.3,51,848/- construction expenses for 'Mayuresh Apartment'. The AO has specifically asked the assessee to submit the details of TDS on these expenses. But the assessee has failed to submit any details, therefore, the AO has added back this amount u/s. 40(a)(ia) of the I.T. Act. On the other hand, the AR of the appellant has submitted that the case of the assessee is covered by the amendment brought out by the Finance Act, 2010 to section 40(a)(ia) w.e.f. 01.04.2010.
During the appellate proceedings, the AR of the appellant was asked to ubmit whether its case is covered with the decision of Hon'ble Mumbai ribunal Special Bench in case of Bharati Shipyard Ltd. vs. DCIT (132 ITD 110) ITA No. 2404/MUM/2009 - AY 2005-06 dated 09.09.2011. In response to this, the AR of the appellant has submitted its reply which is reproduced as above. The AR of the appellant has admitted that the Hon'ble Tribunal Special Bench has decided that this amendment is not with retrospective effect and the case of the appellant is not covered by this amendment. However, the AR of the appellant has raised another argument that provisions of section 40(a)(ia) is applicable only when there is an amount outstanding and payable. This argument of the appellant is answered by the Hon'ble Calcutta Tribunal in case of DCIT vs. Ashika Stock Broking Ltd. (44 SOT 556) where it is held that whether even the sum is payable or paid to contractor or sub- contractor on which tax is deductible at source as per the provisions of the I.T. Act, section 40(a)(ia) would be attracted. Keeping in view the totality of facts and circumstances, it is held that the case of the appellant is covered by the decision of Hon'ble Mumbai Tribunal in case of Bharati Shipyard and the Hon'ble Calcutta Tribunal in case of DCIT vs. Ashika Stock Broking Ltd. Therefore, it is held that the case of the assessee is covered u/s. 40(a)(ia) and the addition made by the AO on this account is upheld and the ground of appeal is dismissed.”
Upon hearing learned Departmental Representative and perusing the records, we find that learned CIT(A) has taken correct view of the matter and it does not need any interference in our part. Accordingly, we uphold the same.
Apropos ground No. 3
Brief facts are that assessee has received cash of Rs.1,15,000/- during the year under consideration. Accordingly, a show cause notice was issued to the assessee to explain the same but no information was submitted before the AO, therefore, he has treated this amount as unexplained cash credit u/s. 68 of the I.T. Act. Before learned CIT(A) the AR of the assessee submitted that it was booking amount received from Shri Sahul Hameed and photocopy of confirmation and PAN was submitted. But, learned CIT(A)
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rejected the same as no reason was given for not submitting the details before the AO when it was specifically called for. Hence, learned CIT(A) rejected the additional evidence and dismissed the assessee’s claim.
Upon hearing learned Departmental Representative and perusing the records, we find that the assessee has duly submitted additional evidences before learned CIT(A). It was duly submitted that the amount received was booking advance and name of the party, his confirmation and photocopy of the PAN was also submitted. However, learned CIT(A) simply rejected the additional evidence on the ground that it was not submitted earlier. In our considered opinion interest of justice demands this issue may be remitted to the Assessing Officer. The Assessing Officer is directed to consider this issue afresh by taking into account additional evidence filed by the assessee. Needless to add the assessee should be granted adequate opportunity of being heard.
In the result, this appeal by the assessee is allowed for statistical purposes.
ITA No. 5264/Mum/2013
Grounds of appeal read as under :- [1] On the facts and in law as well as in the circumstances of the Appellant's case the CIT (A) has erred in sustenance of impugned additions of Rs.l 1,83,174/- made by the AO vide his rectification order u/s. 154 dated 12.10.2012. [2] On the facts and in law, impugned rectification impugned proceedings initiated by the said AO without valid and legal jurisdiction and without complying with terms of section 154 of the Act. [3] On the facts and in law, learned AO has erred in assuming that there was apparent mistake in the assessment order passed by his predecessor. Impugned assessment order was assailed before the CIT (A) under section 246A and order passed by the said CIT (A) u/s.250 is further assailed before the Hon'ble Tribunal u/s. 253 vide ITA No.1995/Mum/2012 dated 26.03.2012. Original assessment order was "merged with the appeal order u/s. 250" there was no assessment order existing which is rectifiable u/s. 154 by the said AO.
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[4] On the facts and in law, as the matter is pending before the higher authority [Hon'ble I.T.A.T.], the said AO has no legal and valid authority to amend impugned assessment order u/s. 154. [5] You are kindly requested to cancel impugned rectification order as per the provisions of the Act and oblige.
The facts of the case are that in this case, order u/s. 143(3) r.w.s. 153C of the I.T. Act, 1961 was passed on 29.12,2010 determining the total income at Rs.1,08,02,973/-. On perusal of the record, it was found by the Assessing Officer that -
(i) addition of Rs.6,00,000/- had been made in para 10.3 of the order but the same remained to be added in the computation of total income.
(ii) addition of Rs.5,83,174/- had been made as per para 10.7 of the order but the same remained to be added in the computation of total income.
With a view to rectify the mistake in calculation of the total income, the assessee was issued notice u/s. 154 dated 29.09.2012 wherein the mistake was pointed out to it and its reply was called for by 05.10.2012. But the assessee did not submit any reply. Therefore, the Assessing Officer presumed that the assessee had nothing to say in the matter. The mistake being apparent from the record, the same was rectified as per the provisions of section 154 and the amounts of Rs.6,00,000/- and Rs.5,83,174/- were added to the total income of the assessee.
Against this action of the Assessing Officer assessee appealed before learned CIT(A).
Learned CIT(A) noted that in the appellate proceedings, the assessee has submitted that the original assessment order had merged with the appeal order dated 07.02.2012 of the CIT(A) and was further sub-judice as the appeal before the Tribunal against the impugned appeal order was pending for adjudication. That on the facts and in law, therefore, the Id. AO
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had no legal and valid jurisdiction to initiate the impugned rectification proceedings. That the original assessment order was merged with the appeal order u/s. 250 and there was no assessment order existing which was rectifiable u/s. 154 by the AO. That an I.T. Authority cannot amend an order passed by another and different I.T. Authority.
Learned CIT(A) was not convinced. He held as under :-
“I have considered the above submissions of the assessee. However, I do not find the same tenable in view of the fact that the addition of Rs.6,00,000/- and Rs.5,83,174/- were not the subject matters of adjudication before the Id. CIT(A) and the same is also not the subject matter of adjudication before the Hon'ble ITAT. When the additions as above have not been considered and decided by the Id. CIT(A) at all, the question of these issues in tne assessment order merging with the order of the Id. CIT(A) does not arise. Further, the action of the AO is also as per law in view of the provisions of section 154(1A) of the I.T. Act, 1961 since the rectification relates to matters other than the matters which have been considered and decided in the appellate proceedings. Regarding the other contention of the assessee, the order which has been amended u/s. 154 of the I.T. Act, 1961 has been passed by an Assessing Officer (DCIT) and the same has been rectified again by the same Income-tax Authority. It is not as if the order of the Id. CIT(A) is sought to be rectified by the DCIT. Hence, the contention of the assessee that the order has been rectified by a different. I.T. Authority cannot be accepted. The arguments of the assessee are, therefore, rejected.
4.1 The assessee, without prejudice to the above legal contentions, has further submitted that on merits also, there was no mistake as assumed by the AO and has advanced various arguments on merits. In my opinion, the arguments of the assessee on merits to contend that the additions of Rs.6,00,000/- and Rs.5,83,174/- was not correct cannot be taken cognizance of in an appellate proceeding against an order passed u/s. 154 of the IT. Act, 1961. What is required to be seen by the Appellate Authority is not the merits of the addition but whether there is a mistake apparent from the records which is rectifiable u/s. 154(1) of the IT. Act, 1961.
4.2 Perusal of the order u/s. 143(3) rw.s. 153C dated 29.12.2010 shows that in para 10.3 of the assessment order, the Assessing Officer has clearly given a finding in which an amount of Rs.6,00,000/- has been held as undisclosed and has also observed that the same is added to the total income. Similarly, in para 10.7, the Assessing Officer has given a clear finding that the amount of Rs.5,83,174/- is disallowed and added back to the total income of the assessee. However, the Assessing Officer has omitted to add the above amounts while computing the total income of the assessee in the assessment order. This would clearly amount to a mistake apparent from the records within the provisions of section 154(1) of the IT. Act, 1961. Hence, the action of the Assessing Officer is as per law. The same is, therefore, upheld.
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The assessee has submitted that the Assessing Officer ought to have rectified his mistake of what has been added wrongly. It has been claimed that the Assessing Officer had wrongly disallowed expenses of Rs.3,51,848/-. 5.1 I have considered the above submissions of the assessee. However, the issue whether the above noted expenses have been wrongly disallowed or not is outside the purview of the present proceedings. In any case, this issue has already been adjudicated upon by the Id.CIT(A) in his order dated 07.02.2012. In view of the aforesaid reasons, the action of the Assessing Officer of passing the order under section 154 is upheld and the grounds of appeal filed by the assessee are dismissed.”
Upon hearing learned Departmental Representative and perusing the record, we find ourselves duly in agreement with the order of learned CIT(A). The Assessing Officer having made addition by discussing in the assessment order and making the addition in the body thereof and has mistakenly omitted it from the computational part. Hence, in our considered opinion there is no infirmity in the order under section 154 correcting the same. As rightly pointed out by learned CIT(A) the merits in this regard could not have been gone into by the Assessing Officer in the proceedings under section 154 of the Act. Hence, we uphold the order of learned CIT(A).
In the result, this appeal by the assessee stands dismissed.
ITA No. 1466/Mum/2014
Grounds of appeal read as under : 1. On the facts and in the circumstances and in law, the proceedings initiated u/s 147 of the I. T. Act is invalid and bad in law.
On the facts and in the circumstances and in law, the assessment order passed u/s 143(3) r.w.s. 147 of the I.T. Act is invalid and bad in law. 3. On the facts and in the circumstances of the case and in law, the learned C.I.T. (A) erred in dismissing the appeal and that too without even giving full and proper opportunity of being heard in the matter.
On the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in dismissing the appeal and that too without even appreciating fully and properly the facts of the case.
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On the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of Rs.51,99,883/-. 6. Without prejudice to ground no.5, and on the facts and in the circumstances of the case and in law/the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of Rs.48,77,140/-. 7. Without prejudice to ground no. 5 and on the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of Rs.6,734/-. 8. Without prejudice to ground no. 5 and on the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of Rs.3,16,009/-.
Brief facts are that the it is observed from the record that in the course of assessment proceedings verification letters u/s.133(6) of the Act were issued to 17 parties in order to verify the genuineness of flat purchase advances given by the parties and the sundry creditors' balances claimed as outstanding as on 31.03.2010. In this connection, replies were received from only 3 parties confirming the transactions with the appellant. 10 out of 17 letters were returned undelivered by Postal Authorities with the remarks left/intimation/ insufficient address". A party named Krishna Electric Hardware vide letter dated 14.12.2012 denied the transactions with the appellant. In 2 cases, there was no intimation from the Postal Authorities whether the letters were served on the parties. Nor were these letters returned unserved by the Postal Authorities. Therefore, vide order sheet proceedings dated 08.01.2013, the representative of the appellant was asked to give explanation in respect of the above parties where the verification letters were returned unserved by the post office and also to produce confirmations from the parties. The representative of the appellant was also allowed inspection of the letter dated 14.12.2012 received from Krishna Electric Hardware which had denied any transaction with the appellant. On 18.01.2013, the representative of the appellant gave new and latest addresses of 5 parties where letters u/s.!33(6) were issued by the A.O. However, no confirmations or ledger account copies were filed by the appellant as required by the A.O.
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Therefore, the appellant was asked to explain why it had given incorrect addresses in the initial submissions filed during the course of assessment proceedings. In its letter dated 18.01.2013, the appellant stated that it had purchased hardware material from Krishna Electric Hardware which was only one time purchase and that it was not necessary that the party should know appellant. However, the A.O. did not find the reply of the appellant to be acceptable and the amount of Rs.6,734/- shown as due to the party was treated as unexplained credit and added back to the total income of the appellant. In respect of the 10 parties on whom verification letters could not be served, the AR of the appellant failed to produce the confirmation letters from these parties or produce the above parties for examination or produce ledger copies of these parties as appearing in its books of account. The appellant also failed to satisfactorily explain as to what prevented it from giving the correct addresses of the sundry creditors etc. in the first place in its submissions filed during the course of assessment proceedings. In view of the above, as necessary evidence in support of the advances claimed to have received from these parties was not filed by the appellant, the same were treated as unexplained credits u/s.68 and assessed as income of the appellant. Similarly, in respect of sundry creditors also, upon its failure to file the confirmation letters from concerned parties, the same were treated as unexplained credits u/s.68 and thus, an addition of Rs.51,93,149 (Rs.48,77,140 + Rs.3,16,009) was made to the loss returned by the appellant.
Upon assessee’s appeal learned CIT(A) held as under :-
“I have considered the "Statement of Facts" and perused the impugned order. It is observed that the A.O. made addition of Rs.51,99,883/- u/s. 68 on account of unexplained cash credits as the appellant failed to furnish necessary confirmations in respect of its sundry creditors as well as other parties from whom advances were shown to have been received towards allotment/sale of flats. It is now well-settled that the onus lies on the appellant to establish the identity of the creditors, the financial capacity of the creditors to advance the money and the genuineness of the transactions. In the instant case, it is observed from the record that the appellant failed to discharge such onus at the time of assessment. Even in the course of
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appellate proceedings, the appellant has neither made any submissions nor furnished any materials such as confirmations from concerned parties so as to prove the identity and financial capability of the said parties and establish the genuineness of its transactions with such parties. As regards advances claimed to have been received against booking of flats, no agreements with the parties have been placed on record. Nor is there any evidence to show that the appellant has undertaken any construction of flats. I also do not find merit in the plea of the appellant that the additions made by the A.O. are based on assumptions, surmises or conjectures. The A.O. is found to have made due enquiries, confronted the appellant with the outcome of such enquiries and drawn appropriate inferences based on the facts of the case. In view of the above discussion, it is crystal clear that the appellant has not been able to adduce any concrete evidence or materials in the course of appellate proceedings so as to demonstrate that the addition made by the A.O. was in any way erroneous or incorrect. Therefore, I do not find any justification to interfere with the findings of the A.O. which are hereby confirmed. His action in making addition of Rs.51,99,883/- is accordingly upheld. Hence, Grounds bearing Nos. l and 2 of the present appeal are dismissed.”
Upon hearing learned Departmental Representative and perusing the record it is noted that the issue in this case is addition of sundry creditors and advances for booking because the parties have not responded to the notice under section 133(6) of the Act and addition has been done under section 68 of the I.T. Act. Here we note that in the order of the Assessing Officer, only balances as at the closing of the year has been mentioned. It is not mentioned whether they arose during the year or they are coming from earlier year. In case they are coming from earlier year, addition under section 68 of the Act is not at all permissible. Hence, in our considered opinion this issue needs to be remitted to the file of the Assessing Officer. The Assessing Officer shall examine the issue afresh in the light of our observation as above and thereafter he will pass an order in accordance with law.
In the result, this appeal is allowed for statistical purposes.
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In the result, ITA No. 1995/Mum/2012 is partly allowed for statistical purposes, ITA No. 1466/Mum/2014 stands allowed for statistical purposes & ITA No. 5264/Mum/2013 is dismissed.
Pronounced in the open court on 13.8.2021.
Sd/- Sd/- (PAVANKUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai; Dated : 13/08/2021 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai