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PER PAWAN SINGH, JUDICIAL MEMBER;
These two appeal by assessee under Section 253 of Income-tax Act (the Act) are directed against the separate orders of ld. CIT(A)-36, Mumbai dated 18.10.2011 for Assessment Year 2008-09 & 2009-10. In both the appeals, the assessee has raised common ground of appeal, facts of both & 3182 Mum 2012- Lalit Mohan Dhanda the years are similar, therefore; both the appeal were clubbed, heard and are decided by common order for the sake of gravity. With the consent of parties, the appeal for Assessment Year 2008-09 was treated as lead case.
In Appeal for A.Y. 2008-09, the assessee has raised the following grounds of appeal:
Ground No.1: On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred confirming the action of the Learned Assessing Officer of initiating proceedings u/s.153A of the Income Tax Act, 1961 ('the Act') even though no assessment or re-assessment proceedings in relation to this year were pending as on the date of the search u/ s.132 of the Act. The appellant prays that such action of the Learned Assessing Officer may please be treated as bad in law and the same may please be deleted.
Ground No.2: On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in confirming the addition (i.e. 30% of Rs. 1,50,000) made by the Learned Assessing Officer on account of alleged low household expenses. The appellant prays that the confirmation by Hon'ble CIT(A) of 30% of addition made by the Learned Assessing Officer on account of alleged low household expenses may please be deleted.
Ground No.3: On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in confirming the action of the Learned Assessing Officer in assessing Rs. 1,21,300 on account of alleged undisclosed income merely on the basis of notings made on Page No. 24 of Annexure A-1 without appreciating the fact that the appellant had fully and truly explained the contents of the seized papers. The appellant prays that the same may please be deleted.
Ground No.4: On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in confirming the action of the Learned Assessing Officer in assessing Rs. 1,70,000 on account of alleged undisclosed income merely on the basis of notings made on Page No. 15 & 16 of Annexure A-1 without appreciating the fact that the appellant had fully and truly explained the contents of the seized papers. The appellant prays that the same may please be deleted.
& 3182 Mum 2012- Lalit Mohan Dhanda
Ground No.5: On the facts and in the circumstances of the case and in law, the Hon'ble CIT (A) erred in confirming the action of the Learned Assessing Officer of charging interest u/ s 234B and 234C of the Act, having regard to the fact of the case. The appellant denies its liability for payment of interest u/ s. 234B and 234C of the Act.
Brief facts of the case are that the assessee filed his return of income for Assessment Year 2008-09 on 18.08.2018 declaring income at Rs. 7,54,580/-. A search and seizure action was carried out under section 132 on 05.03.2009 in Jai Corp Group, its employee and associates. The Jai Corp is a partner in major Special Economic Zones of India (SEZs) which were being developed in the vicinity of Mumbai, namely Navi Mumbai Special Economic Zone (NMSEZ). The assessee is also associated with Jai Corp Group. The residence of the assessee was also covered in the search action. In the search and seizure action certain incriminating material/documents were seized. Consequent upon search, a notice under section 153A dated 03.12.2010 was issued to the assessee requiring him to file return of income. The assessee on receipt of notice under section 153A dated 03.12.2010 filed its reply dated 13.12.2010 and contended that the return filed on 18.08.2008 be treated as return in response to the notice under section 153A. The Assessing Officer after issuing notice under section 142(1`) proceeded to pass assessment order. The assessing officer while passing the assessment order made addition of Rs. 1,21,300/- on account of commission received by assessee on the basis of document & 3182 Mum 2012- Lalit Mohan Dhanda seized during the search from the residence of assessee vide page no. 24 of Annexure A-1, addition of Rs. 1,70,000/- on account of unexplained expenditure on the basis of page no. 15 & 16 of Annexure-1 seized on 06.03.2009 and addition of Rs. 1,50,000/- on account of insufficient withdrawal of Household Expenses in Assessment order dated 29.12.2010 passed under section 143(3) r.w.s. 153A. On appeal before the ld. CIT(A), the addition account of low Household Expenses was restricted to 30% of Rs. 1,50,000/-, however, other remaining addition on account of commission and unexplained expenditure was sustained. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us.
At the outset of hearing, the ld. Authorized Representative (AR) of the assessee submits that he is not pressing Ground No.1. Considering the contention of ld. AR, Ground No.1 of the appeal is dismissed as not pressed. 4. Ground No.2 relates to confirming the addition to the extent of 30% of Rs. 1,50,000/- made by Assessing Officer. The ld. AR of the assessee submits that this ground of appeal
is covered by the decision of Tribunal in assessee’s own case for Assessment Year 2007-08 in ITA No. 3180/Mum/2012 dated 30.11.2015.
5. The ld. Departmental Representative (DR) for the Revenue after going through the contents of decision of Tribunal in ITA No. 3180/Mum/2012 4 ITA No. 3181 & 3182 Mum 2012- Lalit Mohan Dhanda conceded that the ground of appeal raised by assessee is covered in favour of assessee.
We have considered the rival submission of both the parties and have noted that the assessee has raised similar ground of appeal in appeal for Assessment Year 2007-08 and the co-ordinate bench of the Tribunal passed the following order:
“6. Ground No. 2: In respect of this ground, the learned A.R. for the assessee submitted that assessee and his family members had withdrawn sufficient money for household expenses during the year under consideration. It is submitted that AO did not consider the withdrawals made by assessee's family members while making the adhoc addition of Rs. 1,50,000/- on this count. It was further submitted that assessee and his family members had withdrawals amounting to Rs. 5,65,632/- which were sufficient in the assessment year under consideration; out of which assessee's withdrawals were approximately Rs. 4.33 lakhs. It is contended by the learned A.R. for the Shri Lalit Mohan Dhanda assessee that the addition made by AO was unwarranted and that even the learned CIT(A)'s order confirming the above adhoc addition to the extent of 30% of Rs.1,50,000/-, i.e. 45,000/-, is unsustainable in the facts of the case as the combined withdrawals of assessee and his family members at Rs. 5.65 lakhs is far in excess of the withdrawals for household expenses determined at Rs. 4.78 lakhs as per the impugned order of the learned CIT(A).
6.1 In these factual circumstances of the case as narrated above (supra), in our considered opinion, the learned CIT(A)'s order confirming the addition on account of low withdrawals for household expenses to the extent of 30% of Rs. 1,50,000/- (viz., Rs. 45,000/-) is factually unsustainable and is therefore to be deleted. We find that the authorities below have not brought on record any material evidence to establish that assessee has incurred insufficient withdrawals; especially by ignoring the size and status of assessee and his & 3182 Mum 2012- Lalit Mohan Dhanda family members and their respective withdrawals. Both the AO in making the adhoc addition of Rs. 1,50,000/- on account of low withdrawals and the learned CIT(A) in upholding the same to the extent of 30% thereof, in our opinion, have not given any convincing justification or reasons for their finding/action and have made the same purely on estimate and without any basis. In these circumstances, we are of the view that the addition made by the AO Shri Lalit Mohan Dhanda and partly upheld by the learned CIT(A) has no legs to stand and therefore direct the AO to delete the said addition on account of low withdrawals for household expenses. Consequently ground No. 2 of assessee's appeal is allowed.”
Considering the decision of Tribunal in assessee’s own case for Assessment Year 2007-08, when the facts are not at variance this ground of appeal is allowed.
8. Ground No.3 relates to addition of Rs. 1.21 lakhs on account of undisclosed income. The ld. AR of the assessee submits that the assessee has filed copy of page no.24 of Annexure-1 of seized document vide Punchnama dated 06.03.2009. The ld. AR of the assessee submits that on the basis of this document, one cannot infer that the amount of Rs. 1.21 lakhs was paid to the assessee. The perusal of the document clearly suggests that the amount mentioned in the document were received from one Rajubhai (Broker) and were given to Shri Sarafji and Shri Venu at their Nariman Point Office (NP) or Belapur Office. None of these persons are connected with the assessee commercially. The document has no evidentiary value for making addition at the hand of assessee as it does not connect the assessee to have received such amount. & 3182 Mum 2012- Lalit Mohan Dhanda
On the other hand, the ld. Departmental Representative (DR) for the Revenue supported the order of lower authorities. The ld. DR for the Revenue further submits that the assessee has not proved the fact beyond doubt that no such amount was received by assessee.
We have considered the rival submission of the parties and have gone through the orders of authorities below. We have also gone through the contents of the alleged seized material. For appreciation of fact, the entries mentioned on page no.24 of Annexure are referred below:
Rs. 100/=psm A/c” 12.01.2008 Pd to Veenu N P Office for giving Sarafji Rs. 33500/- 04.03.2008 Pd Sarafji N P Off Rs. 33,750/- 21.03.2008 Pd Sarafji Belapur Off Rs. 54,000/- 17.04.2008 Pd to Veenu N P Off for giving Sarafji Rs. 13,500/- Total Rs. 1,34,800/-
The careful perusal of above entry, nowhere suggest that assessee got commission @ Rs. 100/- per sq. mtr. The conclusion arrived by Assessing Officer seems to be based on mere assumption and presumption. The lower authority has not brought any corroborative evidence nor examined Shri Sarafji and Shri Venu that any such commission was paid to the assessee, therefore, in our considered view, the addition is based merely on assumption and presumption, which we delete. The Assessing Officer is directed accordingly. & 3182 Mum 2012- Lalit Mohan Dhanda
Ground No.4 relates to addition on account of undisclosed income of Rs. 1,70,000/-. The ld. AR of the assessee submits that the Assessing Officer made addition on the basis of page no. 15 & 16 of Annexure 1-A seized on 06.03.2009. The ld. AR of the assessee further submits that the assessee has borrowed Rs. 1,70,000/- in January 2006 and was being paid back (returned) monthly and finally returned all the amount in October 2007.
The ld. AR of the assessee further submits that the Assessing Officer made the addition on the basis of mere assumption and presumption. The seized documents nowhere suggest unexplained expenditure.
On the other hand, the ld. DR for the Revenue supported the order of lower authorities. The ld. DR for the Revenue further submits that page no. 15 & 16 of the document were written in the hands of assessee. The careful perusal of document shows that it pertains to some transaction and not related with the borrowed money. The ld. DR further submits that assessee failed to prove beyond the reasonable doubt that it was not related to unexplained expenditure.
We have considered the rival submission of the parties and have gone through the orders of authorities below. We have also carefully perused the page no. 15 & 16 of Annexure-1 i.e. seized document on 06.03.2009.
We have noted that the ld. CIT(A) extracted the noting of the page 15 & 16 of seized material in the following manner: Page 15 & 3182 Mum 2012- Lalit Mohan Dhanda
1.70 borrowed Returned Apl May June Half Returned Aug Sept ½ “Returned upto Mar 06 Returned on 6-1-07 Page 16 1.70 - 95 =75 25 settled on 3-4-07 against J F March 45-25 = 20 CMD 50 1 Still owe Boss 25 settled on 5?-’07 against July/A/Sep 07 25 still owe Boss as on 10-x-07 Quits on 15-x-07 by returned 18700 1,78010 say 1.78 6-2 closing 15. In our view, a careful perusal of document clearly shows that Rs. 1.70 (Rs. 1.70 Lakhs) was borrowed by assessee and that half of the amount was returned in August/September. This document also nowhere suggests that it relates to any expenditure as no head of expenditure is mentioned on it. Rather in our opinion, the assessee has explained it in a probable manner that the contents of the documents relate to borrowing of Rs.1.70 lakhs. The Income-tax proceeding is quasi civil proceeding and the principal of proving the facts beyond reasonable doubt are not applicable, the prepondness of probability is sufficient to discharge the onus. We are not in agreement with the contention of ld. DR that assessee has not explained the seized document. The Assessing Officer has not brought any corroborative evidence on record. Therefore, we do not find any reason to & 3182 Mum 2012- Lalit Mohan Dhanda justify the action of Assessing Officer in making the addition of unexplained expenditure. Hence, this ground of appeal is allowed.
16. In the result, Ground No.4 of the appeal is allowed.
17. Ground No.5 relates to the interest under section 234B & 234C, which is consequential in nature and needs no adjudication.
18. In the result, appeal of the assessee is allowed.
The assessee has raised the following grounds of appeal:
1. Ground No.1: relates to confirming the addition (30% of Rs. 1,50,000) on account of low household expenses.
2. Ground No.2 relates to undisclosed income of Rs. 13,500/-.
3. Ground No.3 relates to charging of interest under section 234B & 234C of the Act.
We have noted that ground no.1 of this appeal is identical to the ground no.2 of appeal for Assessment Year 2008-09, which we have already allowed by following the decision in assessee’s own case for Assessment Year 2007-08. Considering the decision of Tribunal in assessee’s own case for Assessment Year 2007-08, on the basis of which we have allowed the identical ground of appeal
for Assessment Year 2008-09. Therefore, this ground of appeal is also allowed with similar observation.
21. Ground No.2 relates to undisclosed income based on page no. 24 of Annexure A-1. We have noted that this ground of appeal is identical to the ground no.3 of appeal for Assessment Year 2008-09, which we have & 3182 Mum 2012- Lalit Mohan Dhanda already allowed in favour of assessee. Considering the fact that we have already allowed the ground of appeal for Assessment Year 2008-09.
Therefore, following the principle of consistency, this ground of appeal is also allowed.
In the result, both the appeals filed by assessee are allowed.
Order pronounced in the open court on 14/09/2018.