BABITA MALKANI,MUMBAI vs. DCIT CC 25, MUMBAI

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ITA 3351/MUM/2015Status: DisposedITAT Mumbai10 August 2016AY 2011-123 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal deleted the disallowance under Section 14A for both assessment years, stating it was not called for as no incriminating material was found and the exempt income arose from personal investments without claimed expenses. The issue of treating seized cash as advance tax was remanded to the CIT(A).

What were the facts?

The assessee's appeals for AY 2006-07 and 2011-12 challenged disallowances under Section 14A and confirmation of interest under Sections 234A, 234B, and 234C. The original assessment for AY 2006-07 had attained finality, and no incriminating material was found during the search.

What were the issues?

Whether disallowance under Section 14A is permissible when no incriminating material is found during search and the original assessment has attained finality. Whether seized cash can be treated as advance tax payment.

Which sections of the Income-tax Act were involved?

Section 14A,Section 234A,Section 234B,Section 234C,Section 132,Section 153C,Section 132B

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “J” BENCH, MUMBAI

Before: SHRI MAHAVIR SINGH, JM & SHRI MANOJ KUMAR AGGARWAL, &

For Respondent: Shri Alok Johari. CIT(DR)

Date of hearing 10-08-2016 Date of pronouncement 10-08-2016 O R D E R PER MANOJ KUMAR AGGARWAL (AM) : These are sets of two appeals filed by the assessee for A.Y. 2006-07 and 2011-12, assailing the support order of Commissioner of Income Tax (Appeals)-51, Mumbai [CIT(A)]. As the facts and issues are similar, we dispose-off the same by this combined order. First we take by ITA 3346/Mum/2015 for AY. 2006-07 wherein the following grounds of appeal has been raised:- 1. “On the facts and circumstances of the case and in law, the CIT(A) erred in confirming action of AO making disallowances u/s. 14A of Rs. 14,368/-.

2. On the facts and circumstances of the case and in law, the CIT(A) erred in confirming interest u/s. 234A, 234B and 234C by the AO.”

2.

Facts in brief are that the search operation u/s. 132 of the Income Tax Act 1961 was conducted on 16/12/2010 in the case of M/s. Patel Engineering Ltd. Group of cases. The assessee was, inter-alia, covered in the search operation. The original return of income for AY 2006-07 was filed by the assessee during October, 2006 declaring total income at Rs. 15,85,167/- and the same return of income was filed pursuant to notice u/s. 153C. The assessee is engaged in the business of readymade garments under its proprietary concern. The assessee earned exempt income of Rs. 2,87,363/- from investments made in certain bonds, mutual funds and shares. An ad-hoc addition of 5% of exempt income which amounted to Rs. Rs. 14,368/- was made under Section 14A and assessment u/s. 143(3) r.w.s. 153C was completed at Rs. 15,99,540/- vide Assessing Officer (AO) order dated 25/03/2013. The assessee preferred first appeal before CIT(A) but the same was dismissed vide order dated 24/03/2015. The assessee contended that routine disallowance u/s. 14A could not be made in assessment order passed u/s. 143(3) r.w.s. 153(3) and no incriminating material has been found during search. Moreover, time period for issue of notice u/s. 143(2) in respect of original return has already been expired and the assessment has attained finality. Further, exempt income was earned from personal investments made and no expenses in respect thereof has been claimed in the books of accounts and there is no borrowings. But the same could not find favour with the CIT(A) and appeal was dismissed.

3.

Aggrieved, the assessee is in appeal before us. None is present for assessee at the time of hearing. DR relies on the order of CIT(A).

4.

We have perused the material on record and found that no incriminating material has been found during the search and original assessment has already attained finality. The exempt income has been earned only out of personal investment, no expenses in respect thereof has been claimed in the books of accounts and therefore, addition u/s 14A in the circumstances is not called for. Therefore, the addition of Rs. 14,368/- made u/s. 14A is hereby deleted and the appeal of the assessee is allowed.

5.

Similar are the facts in ITA 3351/Mum/2015 filed by the assessee for AY 2011- 12. The return of income in this case was filed post search operations during September, 2011 declaring total income of Rs. 33,70,426/- which included Rs. 15 Lacs unexplained cash found during search and offered by the assessee in the return of income. The assessment was completed at Rs. 34,78,730/- vide Assessing Officer order dated 25/03/2013 after making similar addition of Rs. 1,08,308/- u/s 14A, Rule 8D(2)(ii). The same was contested unsuccessfully before CIT(A). The unexplained cash of Rs. 15 Lacs found during search was seized and the assessee filed rectification application u/s. 154 before Assessing Officer to treat the same as advance taxes payment but the same were rejected on the ground that there was no mistake apparent from the record. These contentions of the assessee was rejected by the CIT(A) also on the grounds that there was no express request by assessee to treat the same as advance tax and no such claim has been made by the assessee before any authority.

6.

Aggrieved, the assessee is in appeal before us. Regarding, addition u/s 14A, the same are hereby deleted reiterating our stand in the preceding paragraph number 4. Regarding assessee’s claim to treat the seized cash as payment of advance tax on behalf of the assessee, the same is restored back to the file of CIT(A) to verify the claim of the assessee in the light of Section 132B of the Income Tax Act and any other applicable provision. The appeal of the assessee is allowed with respect to Section 14A and allowed for statistical purposes with respect to claim in respect of seized cash. 5. In nutshell, both the appeals of the assessee are allowed. Order pronounced in the open court on 10th August, 2016.

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