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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
This appeal by the assessee is arising out of the order of CIT(A)-41, Mumbai, in appeal No. CIT(A)-41/DCCC-36/IT-920/10-11 dated 21-12-2011. The Assessment was framed by DCIT Central Circle-36, Mumbai for the A.Y. 2009-10 vide order dated 27-12-2010 u/s 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
At the outset, the learned Counsel for the assessee stated that he is not interested in prosecuting the first ground raised qua jurisdictional defects. The following is the ground No. 1 : -
“1. On the fact and circumstances of the case, the assessment order passed Under section 143(3) suffers from following Jurisdictional defects and therefore is bad in law;
Mr. Fazal Abdul Wahab Sarang; A.Y:09-10 i) The learned assessing officer, DCIT- Central Circle - 36 Mumbai erred in assuming jurisdiction considering the assessee was searched U/s 132 of income tax Act. ii) The assessee’s case does not fall within the compulsory scrutiny guidelines and therefore issuance of manual Notice U/s. 143(2) dated 17.05.2010 is without authority and bad in law.”
Since, the learned Counsel for the assessee had made endorsement in the grounds of appeal raised before us that he is not pressing the grounds No. 1. Hence, the same is dismissed as not pressed.
3. The next issue in this appeal of assessee is as regards to the order of CIT(A) confirming the addition of unexplained expenditure under section 69C of the Act being loose papers found from the search conducted by the department at the premises of the assessee’s brother. For this assessee has raised following ground No.2: -
“2. On the fact and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.23,00,000/- u/s. 69C, without any corroborative evidences merely on the basis of a loose slips which in fact was dumb document.”
The learned Counsel for the assessee fairly conceded the position that the assessee before AO as well as CIT(A) could not explained the loose papers found in the course of survey operation seized papers annexure A-1 pages 1 to 169. The learned Counsel for the assessee accordingly made only request that all the explanation is with the assessee and he can prove that these alleged papers belonging to labour charges are paid for the interior construction work is nothing but estimates and accordingly, he requested for setting aside the issue to the file
Mr. Fazal Abdul Wahab Sarang; A.Y:09-10 of the AO. On query from the Bench the learned Sr. DR fairly conceded that the issues can be remitted back to the file of the AO.
We have gone through the documents attached along with the assessment order and the explanation filed by assessee and going through the facts and circumstances of the case, we restore this issue back to the file of the AO for fresh adjudication denovo. Needless to say the AO will allow reasonable opportunity of being heard to the assessee. This issue of the assessee’s appeal is allowed for statistical purposes.
The next issue in this appeal of assessee is against the order of CIT(A) confirming the addition of cash deposit of Rs. 5.93 lakhs under section 68 of the Act. For this assessee has raised following ground No. 3: -
On the fact and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming an addition of Rs.5,93,000I- u/s. 68, without appreciating that same was duly explained by the Cash Book filed during the assessment proceedings.”
We have heard the rival contentions and gone through the facts and circumstances of the case. The learned Counsel for the assessee now before us filed cash book for the period of 01-04-2008 to 31-03-2009 at page 73 of the assessee’s paper book. When a query was put to the learned Counsel for the assessee, where are the evidences regarding cash generation of earlier years, which was withdrawn and kept by assessee for re-depositing and how much is the gap between the withdrawals and the deposits. The learned Counsel for the assessee stated that all the ledger account of earlier years is available with the assessee and he can produce the same. On further query whether the issue can be remitted back to the file of the AO, so that he can verify the same, he fairly agreed. On query from the bench, the learned Sr. DR has not objected to remanding the matter back to the file of the AO. In view of these facts and circumstances, we remand this issue back to the file of the AO for fresh
Mr. Fazal Abdul Wahab Sarang; A.Y:09-10 adjudication. Accordingly, this issue of the assessee’s appeal is also remanded back to the file of the AO. 8. In the result, the appeal of assessee is partly allowed for statistical purpose. Order pronounced in the open court on 04-04-2017.