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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR
PER SAKTIJIT DEY, J.M.
Aforesaid appeals are by the assessee are directed against the separate orders of the learned Commissioner (Appeals)–22, Mumbai, pertaining to assessment years 2004–05, 2005–06 and 2009–10.
The grounds raised by the assessee in the appeals are identical except variation in figures. Hence, for the sake of convenience, we extract the grounds raised by for the assessment year 2004–05 as under:–
1) The learned Commissioner of Income Tax (Appeals) [CIT(A)J erred in approving the reassessment proceedings under Section 148 read with Section 147 of the Income Tax, 1961, Act [Act] (2) The learned Commissioner of Income Tax (Appeals) ICIT(A)] erred in confirming the addition Rs.3,20,175/- under Section 69A of the Act. (3) The C!T(A) further erred in this connection in holding that:- a) the Appellant agreed that the amount Rs.3,20, 1 75/- pertains to Assessment year 2004-05; and b) the alternate ground of the Appellant that Rs.3,20,175/- should be reduced from the total declaration Rs.75 lacs cannot be adjudicated in the Assessment Year 2004-05; and c) the Appellant must take a separate ground In Assessment Year 2009-10. (4) The CIT(A) erred in sustaining the imposition of interest under Sections 234A, 234B and 234C. (5) The Appellant craves leave to add to and/or amend and/or delete and/or modify and/or alter the aforesaid grounds of appeal as and when the occasion demands.
3 M/s. Devsharda Developers Pvt. Ltd.
Grounds no.4 being general in nature, does not require any specific adjudication.
At the outset, learned Authorised Representative submitted on the instructions of his client, he does not want to press ground no.1. Consequently, ground no.1 is dismissed as “not pressed”.
In grounds no.2 and 3, assessee has challenged the addition under section 69A of the Act.
Brief facts are, the assessee a company filed its return of income for the assessment year 2004–05 on 1st November 2004, declaring total income of ` 11,56,790. On the basis of survey conducted on the assessee on 30th June 2008, wherein certain incriminating material was impounded revealing acceptance of on–money on sale of flat for the assessment year 2004–05 and 2005–06, the Assessing Officer re– opened the assessment under section 147 of the Act for both the assessment years by issuing notice under section 148 of the Act. In the course of assessment proceedings, the Assessing Officer as per the information available on record, found that the assessee during the relevant previous year had received an amount of ` 3,20,175 from the flat allottees which was not offered to tax. He, therefore, called upon the assessee to explain why it should not be treated as unexplained
4 M/s. Devsharda Developers Pvt. Ltd. money under section 69A of the Act. In response to the query raised, the assessee in its explanation submitted that the amount of ` 3,20,175, has already been offered to taxation by the assessee in the year of survey i.e., assessment year 2009–10 wherein the assessee has disclosed income of ` 75 lakh. It was, therefore, submitted, the same amount cannot be taxed again in the impugned assessment year. Similarly, in the assessment year 2005–06, the Assessing Officer on the basis of material on record, found that the assessee had received on–money of ` 5,54,000. In the assessment year 2005–06 also assessee offering similar explanation submitted that the said income has already been offered to tax in assessment year 2009–10. The Assessing Officer, however, did not accept the explanation of the assessee and treated the amounts of ` 3,20,175 and ` 5,54,000, as unexplained money under section 69A and added to the income of the assessee for the assessment years 2004–05 and 2005–06 respectively. Being aggrieved of such additions, assessee preferred appeals before the learned Commissioner (Appeals). In the course of hearing of appeal, the assessee apart from contesting the addition made under section 69A on merits also made an alternative argument that if the additions made under section 69A are upheld in the impugned assessment year then similar amount offered in assessment
5 M/s. Devsharda Developers Pvt. Ltd. year 2009–10, should be reduced from income declared by the assessee.
The learned Commissioner (Appeals), while upholding the addition under section 69A of the impugned assessment year, however, observed that as far as the alternative arguments of the assessee is concerned the assessee has to take a separate ground in assessment year 2009–10.
Learned Authorised Representative submitted before us that in the assessment year 2009–10 has offered the entire on–money received by the assessee from flat allottees in the additional income declared of ` 75 lakh which also included the amount of ` 3,20,175 for the assessment year 2004–05 and ` 5,54,000 for the assessment year 2005–06. He, therefore, submitted, if the additions under section 69A of the said amounts are upheld in the impugned assessment years, identical relief should be granted to the assessee in the assessment year 2009–10 by reducing the amounts from the income declared.
Learned Departmental Representative submitted, the Assessing Officer may be directed to verify the issue factually and if it is found that the additions made under section 69A in assessment year 2004– 05 and 2005–06 has already been included in the income offered by 6 M/s. Devsharda Developers Pvt. Ltd.
the assessee for the assessment year 2009–10, necessary relief can be granted in assessment year 2009–10.
We have considered the submissions of the parties and perused the material available on record. The limited grievance of the assessee is, the additions made under section 69A of ` 3,20,175 and ` 5,54,000 in the assessment year 2004–05 and 2005–06 respectively have already been included by the assessee in the income offered of ` 75 lakh in assessment year 2009–10. It is the contention of the assessee, if the additions are upheld in assessment year 2004–05 and 2005–06, consequential relief may be granted to the assessee by reducing these two amounts from the income offered for assessment year 2009–10. After considering the submissions of the assessee, we find merit in the same on the principle that the same income cannot be taxed twice. In the course of hearing, the assessee has brought to our notice certain documentary evidence to demonstrate that the amount considered for addition under section 69A for the assessment year 2004–05 and 2005–06, were already included by the assessee in the income offered of ` 75 lakh for the assessment year 2009–10. Considering such submissions of the assessee, while we uphold the additions made under section 69A for the assessment year 2004–05 and 2005–06, as far as the assessment year 2009–10 is concerned, we set aside the 7 M/s. Devsharda Developers Pvt. Ltd.
impugned order of the learned Commissioner (Appeals) and restore the matter back to the file of the Assessing Officer to verify the assessee’s claim that the amount of ` 3,20,175 and ` 5,54,000, added under section 69A for the assessment years 2004–05 and 2005–06 respectively were included by the assessee in the income offered of ` 75 lakh for the assessment year 2009–10. If on verification of the material brought on record, assessee’s claim is found to be correct then consequential relief is to be granted to the assessee by reducing the amount of ` 3,20,175 and 5,54,000 from the income offered for the assessment year 2009–10.
In view of our aforesaid decision, the appeal for assessment year 2009–10 being ITA no.7286/Mum./2012 also stands disposed off.
In the result, ITA no.7286/Mum./2012 is allowed for statistical purpose; ITA no.7284/Mum./2012 & 7285/Mum./2012 are dismissed. Order pronounced in the open Court on 13.05.2016