SHRI KAMLAKAR M. MOGHE, Mumbai v. A.C.I.T. Cir. 3, Nagpur

ITA 17/NAG/2016 | 2008-2009
Pronouncement Date: 05-10-2016 | Result: Allowed

Appeal Details

RSA Number 1723914 RSA 2016
Assessee PAN ABWPM4380L
Bench Nagpur
Appeal Number ITA 17/NAG/2016
Duration Of Justice 7 month(s) 17 day(s)
Appellant SHRI KAMLAKAR M. MOGHE, Mumbai
Respondent A.C.I.T. Cir. 3, Nagpur
Appeal Type Income Tax Appeal
Pronouncement Date 05-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 05-10-2016
Assessment Year 2008-2009
Appeal Filed On 18-02-2016
Judgment Text
1 ITA NO. 17/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH NAGPUR BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO.17/NAG/2016 ASSESSMENT YEAR : 2008 - 09.. SHRI KAMLAKAR M. MOGHE ASSTT. COMMISSIONER OF INCOME - TAX MUMBAI . VS. CIRCLE - 3 NAGPUR. PAN ABWPM4380L. APPELLANT. RESPONDENT. APPELL ANT BY : DR. J.M. RANADE. RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 04 - 10 - 2016 DATE OF PRONOUNCEMENT : 5 TH OCT. 2016 O R D E R. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF LEARNED CIT(APPEALS) - II NAGPUR DATED 01 - 12 - 2015 AND PERTAINS TO ASSESSMENT YEAR 2008 - 09. THE GROUND OF APPEAL READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION OF RS.20 LACS IGNORING THE F A CT THAT IT AMOUNTS TO DOUBLE TAXATION OF SAME AMOUNT. 2. BRIEF FACTS OF THE CASE ARE AS UNDER : RETURN OF INCOME DECLARING TOTAL INCOME OF RS.5 26 320/ - WAS FILED ON 29 - 07 - 2008. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTED BY THE AO THAT THE APPELLANT HAS ADVANCED AN AMOUNT OF RS. 25 LAKHS IN CASH TO ONE M/S SHRI APPASWAMI INFRASTRUCTURE PVT. LTD. (SAIPL). THE AO ASKED THE APPELLANT TO EXPLAIN THE SOURCE OF SAID CASH INVESTMENT OF RS. 25 LAKHS AND IN RESPONSE TO THE SAME THE APPELLANT SUBMITTED LETTER UNDER HIS OWN SIGNATURE WHEREIN HE 2 ITA NO. 17/NAG/2016. STATED THAT AN AMOUNT OF RS. 25 LAKHS HAD BEEN GIVEN T O THE SAID SAIPL AS PER DETAILS GIVEN BELOW : 05 - 04 - 2007 BY CASH RS.20 00 000/ - 07 - 04 - 2007 BY CASH RS. 5 00 000/ - IT WAS FURTHER EXPLAINED THAT THE SAID AMOUNT OF RS.25 LAKHS IS OFFERED AS THE INCOME OF THE APPELLANT FOR ASSESSMENT YEAR 2008 - 09. THE APPELLANT ACCORDINGLY REVISED ITS STATEMENT OF INCOME BY OFFERING THE SAID AMOUNT OF RS. 25 LAKHS AND OFFERED GROSS TOTAL INCOME TO TAX AT RS.33 50 093/ - . 3. THE APPELLANT ALSO FURNISHED THE CONFIRMATION FROM SAIPL WHEREIN THE SAID PARTY CONFIRMED THE FAC T THAT IT HAS RECEIVED THE SAID AMOUNT DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2008 - 09. THE AO ACCEPTED THE CONTENTION OF THE APPELLANT AND BROUGHT TO TAX THE SAID AMOUNT OF RS. 25 LAKHS IN ASSESSMENT YEAR 2008 - 09. 4. BEFORE THE LEARNED CIT(AP PEALS) THE ASSESSEE SUBMITTED THAT THE SAME AMOUNT OF RS. 20 LAKHS HAS ALREADY BEEN TAXED FOR ASSESSMENT YEAR 2007 - 08 AND THE SAME AMOUNT CANNOT BE TAXED AGAIN. HOWEVER LEARNED CIT(APPEALS) WAS NOT CONVINCED. HE UPHELD THE AOS ACTION. 5. AGAINST THE ABOV E ORDER OF THE LEARNED CIT(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT ORIGINALLY THE AMOUNT OF RS.20 LAKHS WAS ADDED IN ASSESSMENT YEAR 2007 - 08 ON THE BASIS OF AN AGREEMENT FOR SALE WHICH WAS SUBSE QUENTLY CANCELLED. IN THE SAID AGREEMENT IN THE MANNER OF PAYMENT RS.20 LAKHS WAS SHOWED TO HAVE BEEN PAID BY CASH. HOWEVER NO DATE WAS MENTIONED. IT WAS ASSESSEES PLEA THAT THOUGH THIS AMOUNT WAS MENTIONED IN THE AGREEMENT FOR SALE THE SAME WAS ACTUALL Y NOT PAID AND THE CASH WAS ONLY PAID ON 05 - 04 - 2007. HENCE THE ASSESSEE HAD OFFERED THE SAME FOR 3 ITA NO. 17/NAG/2016. TAXATION IN ASSESSMENT YEAR 2008 - 09. HOWEVER IN THE ASSESSMENT PROCEEDINGS THE AO HAD ADDED THE SUM OF RS.20 LAKHS FOR ASSESSMENT YEAR 2007 - 08 ON THE BASIS O F THE SAID AGREEMENT FOR SALE. THIS ORDER OF THE AO WAS UPHELD BY THE ITAT. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE HAS ALSO PLEADED BEFORE THE ITAT THAT THIS SUM HAS ALREADY BEEN OFFERED IN ASSESSMENT YEAR 2008 - 09. IN THIS REGARD THE TRIBUNAL HAD RECO RDED THE FOLLOWING FINDINGS : THE ABOVE PARAGRAPH EXTRACTED FROM THE ORDERS OF THE CIT(A) AND AO PROVIDE THAT IT IS THE ASSESSEES OWN SUBMISSION THAT THE SUM OF RS. 20 LAKHS WAS PAID IN CASH AND THE SAME IN SUPPORT OF HIS CLAIM OF DEDUCTION U/S 54 OF T HE ACT. AGREEMENT TO SALE IS A VALID DOCUMENT AND THE ASSERTIONS OF THE PARTIES RELATING TO CASH PAYMENT OF RS. 20 LAKHS IS TRUE CONSIDERING THEIR SIGNATURES IN THE PRESENCE OF THE WITNESS. WE ARE IN AGREEMENT WITH THE VIEWS OF THE CIT(A)/AO AND THE CONTEN TS OF THE CLAUSE RELATING TO MANNER OF PAYMENT HAVE TO BE EITHER CORRECT OR INCORRECT AND THEY CANNOT BE PARTLY CORRECT (CONDITION (II); AND PARTLY INCORRECT (CONDITION(I) AS BEING ATTEMPTED BY THE ASSESSEE. WILL THE FLAT - SELLER SIGN ON ANY AGREEMENT AFFI RMING THE RECEIPT OF CASH OF RS.20 LAKHS WHEN THEY SAME IS NOT ACTUALLY RECEIVED BY HIM. IN OUR OPINION THE ANSWER IS NEGATIVE. THEREFORE WE ARE OF THE OPINION THAT THE ORDER OF THE CIT(A) ON THIS NEEDS NO INTERFERENCE. REGARDING THE ARGUMENT THAT THE AD DITION IF ANY HAS TO BE CONSIDERED ONLY FOR THE AY 2008 - 09 THE SAME DOES NOT PERTAIN TO THE YEAR UNDER CONSIDERATION AND THE SHALL BE EXAMINED AS WHEN THE GROUND IS RAISED IN APPROPRIATE AYS. IN ANY CASE IT IS A SETTLED PRINCIPLE THAT THE SAME AMOUNT OF RS. 20 LAKHS CANNOT BE ADDED TWICE IN TWO DIFFERENT AYS WHEN THE FLAT IN QUESTION IS SINGULAR IN NUMBER. ACCORDINGLY GROUND NO.2 RAISED BY THE ASSESSEE IS DISMISSED. 7. THE ASSESSEE HAS ALSO FILED A MISCELLANEOUS APPLICATION AGAINST THE ORDER OF THE ITAT . HOWEVER THE SAID MISCELLANEOUS APPLICATION WAS DISMISSED IN M.A. NO. 12/NAG/2013 VIDE ORDER DATED 30 TH OCT. 2015 . LEARNED COUNSEL SUBMITTED THAT THIS PLEA OF THE ASSESSEE THAT ASSESSEE IS BEING SUBJECTED TO DOUBLE TAXATION OF AMOUNT WAS NOTED BY THE TRIBUNAL IN THE AFORESAID ORDER IN MISCELLANEOUS APPLICATION AND THE TRIBUNALS OBSERVATION ARE AS UNDER : 4 ITA NO. 17/NAG/2016. A READING OF THE ABOVE MAKES IT CLEAR THAT THE TRIBUNAL HAD CONSIDERED THE FACTS THAT THERE WAS AN AGREEMENT IN WHICH RS.20 LAKHS WAS CLAIMED TO HA VE BEEN PAID BY THE ASSESSEE TO THE DEVELOPER IN CASH. SUBSEQUENTLY IT WAS PLEADED THAT C A SH WAS ACTUALLY NOT PAID AS PER THE AGREEMENT BUT IT WAS ACTUALLY PAID ON 05 - 04 - 2007. SUBSEQUENTLY IN THE NEXT ASSESSMENT YEAR THE ASSESSEE HAS HIMSELF OFFERED THE SA ME AMOUNT OF RS.20 LAKHS FOR TAXATION. AFTER CONSIDERING THE ENTIRE GAMET OF THE CASE THE TRIBUNAL HAD CONCLUDED IN THE ASSESSEES CASE THAT THE ADDITION OF RS.20 LAKHS IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 WAS TO BE CONFIRMED. WHEN IT WA S POINTED OUT TO THE LEARNED COUNSEL OF THE ASSESSEE THAT IN FACT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND WHAT HE IS SEEKING IS A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE BY THE TRIBUNAL UNDER LAW LEARNED COUNSEL SUBM ITTED THAT THE SAME AMOUNT OF CASH OF RS.20 LAKHS HAS BEEN TAXED IN THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 THE SAME AMOUNT OF RS.20 LAKHS HAS ALSO BEEN ADDED IN THE NEXT ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2008 - 09 BECAUSE THE ASSESSEE HAS O FFERED THE SAME IN THAT YEAR. HENCE THE LEARNED COUNSEL HAS PLEADED THAT THE SAME AMOUNT HAS BEEN ADDED TWICE. WE FIND THAT THOUGH THE LEARNED COUNSEL OF THE ASSESSEE HAS A POINT WHICH REQUIRES CONSIDERATION BUT THE SAME CANNOT BE CONSIDERED IN A MISCELLAN EOUS APPLICATION. WE FIND THAT THE LEARNED COUNSELS APPREHENSION THAT SAME AMOUNT WILL BE ADDED TWICE HAS BEEN TAKEN CARE BY THE TRIBUNAL ITSELF IN ASSESSEES OWN CASE. IN THE LAST THREE LINES OF THE ORDER THE TRIBUNAL HAD CLEARLY STATED THAT IN ANY CA SE IT IS A SETTLED PRINCIPLE THAT THE SAME AMOUNT OF RS. 20 LAKHS CANNOT BE ADDED TWICE IN TWO DIFFERENT AYS WHEN THE FLAT IN QUESTION IS SINGULAR IN NUMBER. THUS WE FIND HAT THE APPREHENSION OF THE LEARNED COUNSEL OF THE ASSESSEE IS MISTAKEN. ACCORDING LY THIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED AND DISMISSED ACCORDINGLY. BEFORE PARTING WE MAY ALSO ADD THAT THE ASSESSEE CANNOT BE TAXED IN TWO ASSESSMENT YEARS FOR THE SAME AMOUNT. THIS IS A SETTLED PRINCIPLE AND THERE IS NO DISPUTE AS HAS ALREADY BEEN FOUND BY THE TRIBUNAL IN ITS ORDER. 8. REFERRING TO THE ABOVE FINDING OF THE TRIBUNAL LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE HAS DULY SUBMITTED THAT RS.20 LAKHS CASH HAS ALREADY BEEN OFFERED FOR TAXATION IN ASSESSMEN T YEAR 2008 - 09 BUT THE TRIBUNAL HAS UPHELD THE 5 ITA NO. 17/NAG/2016. REVENUES ACTION IN TAXING THE SAID SUM IN ASSESSMENT YEAR 2007 - 08. LEARNED COUNSEL PLEADED THAT WHEN THE SAME AMOUNT WAS ADDED IN ASSESSMENT YEAR 2007 - 08 THE SAME CANNOT BE ADDED IN ASSESSMENT YEAR 2008 - 09. 9 . PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 10. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. I FIND THAT THE SUM OF RS.20 LAKHS WAS ADDED ON THE BASIS OF AN AGREEMENT FOR SALE FOR ASSESSMENT YEAR 2007 - 08. ASSESSEES PLEA THAT THE SAME AMOUNT WAS ACTUALLY PAID IN ASSESSMENT YEAR 2 008 - 09 WAS NOT ACCEPTED. NOW FROM THE ABOVE DISCUSSION AND THE ORDERS OF THE TRIBUNAL IT IS EVIDENT THAT THIS IS NOT THE CASE OF THE REVENUE THAT RS.20 LAKHS WAS PAID TWICE ONCE IN ASSESSMENT YEAR 2007 - 08 AND ONCE IN ASSESSMENT YEAR 2008 - 09. IT IS ONLY A C ASE T HAT THE ASSESSEES PLEA THAT SUM OF RS.20 LAKHS WAS ACTUALLY OFFERED AND PAID IN ASSESSMENT YEAR 2008 - 09 HAS NOT BEEN ACCEPTED AND THE SAME AMOUNT WAS TAXED FOR ASSESSMENT YEAR 2007 - 08. ONCE THE SAID AMOUNT HAS ALREADY BEEN TAXED FOR ASSESSMENT YEAR 2007 - 08 THE SAME CANNOT BE ADDED AGAIN FOR ASSESSMENT YEAR 2008 - 09 EVEN IF THE ASSESSEE HAS HIMSELF OFFERED THE SAME FOR ASSESSMENT YEAR 2008 - 09. THIS IS BECAUSE AS OBSERVED BY THE TRIBUNAL IN THE AFORESAID ORDER THAT THE SAID SUM CANNOT BE ADDED TWICE AND TAXED TWICE. NO CASE HAS BEEN MADE BY THE REVENUE THAT THIS SUM OF RS.20 LAKHS WAS PAID IN BOTH THE ASSESSMENT YEARS. ACCORDINGLY IN MY CONSIDERED OPINION THE F ACTS OF THE CASE AND INTEREST OF JUSTICE DEMANDS THAT THE ASSESSEE BE GRANTED RELIEF FROM TAXATION O F THE SUM OF RS.20 LAKHS IN THIS 6 ITA NO. 17/NAG/2016. ASSESSMENT YEAR SINCE THE SAME AMOUNT HAS ALREADY BEEN TAXED IN ASSESSMENT YEAR 200 7 - 08 . 11. IN THE RESULT THIS APPEAL FIL ED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF OCT. 2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR DATED: 5 TH OCT. 2016. COPY FORWARDED TO : 1. SHRI KAMLAKAR M. MOGHE 13 KALPATARU 4 TH FLOOR HATISKAR MARG ABOVE ADARSHS ENGLISH SCHOOL PRABHADEVI MUMBAI - 400 025. 2. A.C.I.T. CIRCLE - 3 NAGPUR. 3. C.I.T. - NAGPUR. 4. CIT(APPEALS) - II NAGPUR. 5. D.R. ITAT NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH NAGPUR. WAKODE.