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Income Tax Appellate Tribunal, “D”, BENCH MUMBAI
Before: SHRI B.R.BASKARAN, AM & SHRI SANDEEP GOSAIN, JM
O R D E R PER SANDEEP GOSAIN,(JM) These are the cross appeals filed by the revenue and assessee against the order dated 3-8-2011, passed by the CIT(A)-2, Mumbai, for the assessment year 2008-2009.
2 & ITA No.4394/13 2. Albeit the grounds raised by revenue and assessee are different to each other, however the order impugned under challenge is common, therefore, for the sake of convenience, both the appeals are heard and disposed off by this consolidated order.
3. First, we shall take up the appeal filed by the revenue i.e. 1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing that ALV of house property at Parel Sewree be taken at Nil as against that estimated by Assessing Officer at Rs 6,15,958/- holding the same to be self occupied, even though the assessee already had another self occupied house at Mahalaxmi." 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs.2,29,569/- made by the AO on account of undisclosed professional receipts." 2.1 "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the professional fees of Rs.2,29,569/- from six hospitals formed part and parcel of gross receipts declared by the assessee, even though such finding is not borne out by the record.
3. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the Assessing Officer restored.”
4. Concise facts of the case are that the assessee is an individual. The assessee is a Cardiac Surgeon and is attached to various hospitals in and around Mumbai. The assessee filed its return of income with audit report, computation of income and all TDS forms before the AO. The assessee has also declared the house property located at 1108, Sky Flama, China Mill Compound, Takurji Marg, Parel-Sewree, Mumbai-15, as “Let out”. According to the AO the house property stated by the assessee 3 & ITA No.4394/13 as let out was wrong as the assessee claimed interest deduction u/s.24(b) by applying provision applicable to let out property only and computed the ALV at Rs.6,15,958/- by taking 8% of the total cost of the property. In appeal, the CIT(A) deleted most of the additions made by the AO, including estimation of ALV at Rs.6,15,958/- and addition of Rs.2,29,569/- on account of undisclosed professional receipts, against which the revenue is in appeal before us.
Ld. DR relied on the order of Assessing Officer, whereas the ld. AR relied on the order of CIT(A) to the extent of deletion of additions.
We have heard the parties at length and perused the record carefully. In regard to ground raised by the revenue that ALV of house property at Parel Sewree should not be taken at Nil, we found from the order of CIT(A) that the assessee is staying in the flat No.1108, Sky Flama Parel Sewree, Mumbai, which is a self occupied property. The CIT(A) confirmed the restriction of deduction for interest at Rs.1.5 lacs, however, directed the AO to delete the estimation of ALV at Rs.6,15,958/- since it is self occupied property. We, thus, are of the opinion that the CIT(A) has rightly deleted the same and our interference is not required in the findings of the CIT(A) in this regard. So far as the ground raised by the revenue with regard to deletion of addition of Rs.2,29,569/- is concerned, the CIT(A) held that the professional fees of Rs.2,29,659/- received by the assessee from the six hospitals forms the part and parcel of the gross receipts declared by the assessee. Therefore, we do not see any reason 4 & ITA No.4394/13 to interfere in the findings of the CIT(A) in this regard. Accordingly, we dismiss the appeal of the revenue. 7. Now, coming to the appeal of assessee i.e. ITA No.4394/Mum/2013, the assessee has raised the following grounds :- “
(1) In the- facts and circumstances of the case and in law, the CIT(A) erred in confirming addition made by the A. O. of Rs. 8,60,371/- as undisclosed credit in the Bank Account by applying the provisions of section 68 of the Income Tax Act 1961. (2) Reasons given by the CIT(A) for confirming addition made by the A. O. of Rs. 8,60,371/- as undisclosed credit in the Bank Account by applying the provisions of section 68 of the Income Tax Act 1961 are wrong insufficient and contrary to the facts and evidence on record (3) In the facts and circumstances of the case and in law, the CIT(A) erred in confirming addition made by the A. O. in respect of professional fees paid of Rs. 16,000/- by applying the provisions of section 40(a)(i)(a) of the Income Tax Act 1961 (4) Reasons given by the CIT(A) for confirming addition made by the A. O. in respect of professional fees paid of Rs. 16,000/- by applying the provisions of section 40(a)(i)(a) of the Income Tax Act 1961.
8. We have considered the rival contentions of both the parties and perused the record carefully. Ld. AR did not press grounds No.3 & 4, therefore, the same are dismissed as not pressed. However, the ground remains for adjudication before us is addition of Rs.8,60,371/- made u/s.68 of the Act on account of undisclosed credit in the bank account and confirmed by the CIT(A), is just and proper.
9. Ld. AR submitted that the fixed deposits amounting to Rs.8,60,371/- were matured on 11/1/2007 and the said maturity proceeds deposited in S.B. Account of the assessee with ICICI Bank. The said maturity proceeds 5 & ITA No.4394/13 were credited to the Saving Bank account, there is no appreciation or excess credit in the assessee's capital account. Therefore, the addition made by the Assessing Officer deserves to be deleted. Further, the source of said Rs.8,60,371/- is the maturity proceeds of the Fixed Deposits and the said Fixed Deposits pertain to earlier year, provisions of section 68 are not applicable to the said Rs. 8,60,371/-. It is further submitted that there is no increase in the capital or there is no excess credit of Rs. 8,60,371/- to the capital account. Therefore, on both the counts addition made of Rs. 8,60,371/- requires to be deleted.
Ld. DR relied on the orders of tax authorities.
We have gone through the material evidence available on record and perused them carefully. We found that the CIT(A) held that the assessee could not prove the source of deposits of Rs.8,60,371/- made in ICICI Bank on 1-11-2007. However, ld. AR before us submitted that fixed deposits amounting to Rs.8,60,371/- were matured on 11/1/2007 and the said maturity proceeds deposited in S.B. Account of the assessee with ICICI Bank. Be that as it may, in our considered opinion, the assessee is required to prove its genuineness of the same before the AO. Accordingly, we restore this issue to the file of AO and the AO after verification of the documents to be produced by the assessee shall pass order in accordance with law, after giving proper opportunity of being heard to the assessee. We order accordingly.
6 & ITA No.4394/13 12. In the result, appeal of revenue ( (ITA No.4394/Mum/2013) is allowed partly for statistical purposes. Order pronounced in the open court on this 04/03/2016. Sd/- Sd/- (B.R.BASKARAN) (SANDEEP GOSAIN) ऱेखा सदस्य / ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER भुंफई Mumbai; ददनांक Dated 04/03/2016 प्र.कु.मभ/pkm, नन.स/ PS आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. प्रत्मथी / The Respondent. 2. . आमकय आमुक्त(अऩीर) / The CIT(A), Mumbai. 3. आमकय आमुक्त / CIT 4. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 5. गार्ा पाईर / Guard file. 6. सत्मावऩत प्रनत //True Copy// आदेशाि सार/ BY ORDER,