VINEET SHARMA,MUMBAI vs. ITO WD NO. 24(1)(2), MUMBAI

आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

(A.Y. 2009-10) Shri. Vineet Sharma Vs. ITO 1. “On the facts and circumstances of the case and in law, Hon’ble CIT(A)-34, has erred in confirming the addition of Rs.11,35,000/- being peak amount, as undisclosed investment u/s 69A by overlooking the fact that, the source of funds was properly explained during the course of appellate proceedings before Hon. CIT-A.”

(A.Y. 2009-10) Shri. Vineet Sharma Vs. ITO 4. Aggrieved by the order of CIT(A), the assessee filed the present appeal before us on the grounds mentioned herein above.

5. The only ground raised before us by the assessee is that he CIT(A) has erred in confirming the addition of Rs.11,35,000/- being peak amount as undisclosed investment u/s 69A by overlooking the fact that, the source of the funds was properly explained during the course of appellate proceedings before the CIT(A).

“3. During the course of appellate proceedings the appellant has made the following submissions. The nature of business of the assessee is of real estate agency, wherein he has received his share of commission into his bank directly in form of cash & cheque, from another local broker Ms. Renu Agarwal directly, who was also part of the same deal of property situated outside Mumbai. Her PAN number was already submitted to the assessing officer. These deposits are already part of the gross receipts credited to the Income & Expenditure Account totaling to Rs. 21,57,960/-. Thus adding them again to the income u/s. 69A of the IT Act, 1961, as undisclosed income will lead to double taxation in the hands of the assessee, causing undue hardships to the assessee, which we request your goodself not to add to the taxable income of the assessee. To prove commission of Rs. 35,000/- is already included in the income- The assessee has received Rs. 31,395/- into his bank by cheque from M/s. Infra Dredge on 13/01/2009. This amount is commission of Rs. 350001- after TDS @ 10.3%. The same is visible in the appellant form 26AS. The same is already included in the gross receipts credited to his income & expenditure account & adding the same again u/s. 69A as undisclosed investment, will lead to double

(A.Y. 2009-10) Shri. Vineet Sharma Vs. ITO taxation in the hands of the assessee, thereby causing undue hardships to him, which we request your goodself not to add to the taxable income of the assessee. We continue with our stand that the learned assessing officer has added again the same income which was already disclosed in his return of income treating it as undisclosed income and investment, basis which we request your goodself not to add the bank deposits into income of the assessee.” 6.1 Ld. CIT(A) has decided this issue in para no.4&5 of its order. The operative para is reproduced herein below for the sake of reference:

“4. I have carefully considered the submissions made by the appellant and the impugned assessment order. The appellant has submitted before the AO that due to the nature of business he had to accept cash deposits and it is not possible to provide any 3rd party confirmations for such ·cash deposits. He further submitted that he was a part of transaction which was not situated in Mumbai, hence his commission was received by his counterpart in that city and deposited into his ICICI Bank account.

6.2 From the co-joint reading of the impugned order as well as arguments raised by assessee we observe that the CIT(A) has rejected the claim of the assessee citing the absence of documentary evidence as well as in the absence of satisfactory explanation. The ld. AR, however, drawn our attention to the paper book filed which contains copy of pass book, bank statement and ledger account etc. Ld. AR has also relied upon the copy of Gross Receipt Summary Partywise submitted by assessee which is at page no. 32 of paper book which were filed before the authorities below.

(A.Y. 2009-10) Shri. Vineet Sharma Vs. ITO 7. After considering the arguments of both the parties and the submissions documents and evidences filed by the assessee before the authorities below as mentioned in para 6.2 of this order, we observe that the CIT(A)/AO have not examined or considered the documents filed by assessee. We, therefore, considering the interest of justice, equity and fair play, are of the considered view that the orders of the ld. CIT(A) are to be set aside and the matter be restored back to the file of AO to examine and verify the documents filed by assessee and to adjudicate thereon after providing reasonable opportunity to the assessee. Needless to mention here, the views expressed by us could not be taken as an expression on merits of the present case.