29-11-2019, Shreeji Transport Services, Section 133A, 292C, Tribunal Mumbai

Section - 133A, 292C, 132

Order Date - 29-11-2019

Favouring - Assessee

Court - Tribunal Mumbai

Appellant - Shreeji Transport Services P. Ltd

Respondent - DCIT

Justice - MAHAVIR SINGH, JM & RAJESH KUMAR, AM

Citation - 1119Taxpundit301

Appeal No. - ITA No.1353/Mum/2014

Asstt. Year - 2006-07

PER : MAHAVIR SINGH, JM:

These two appeals of two different assessee are arising out of the, order of Commissioner of Income Tax (Appeals)- 10(2)/IT-287/2009-10 vide order dated 07.01.2014 in the case of Shreeji Transport Services Pvt. Ltd. and the order of CIT(A)- X/IT/4142008-09 & CIT(A) 21/IT/314/2009-10 vide order dated 03.01.2011 in the case of Amplas Polymers P. Ltd. The Assessment was framed by the Dy. Commissioner of Income Tax, Mumbai-10(2) (in short ‘DCIT/ AO’) for the A.Y. 2006-07 vide order dated 02.12.2008 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’). The Assessment were framed by the Dy. Commissioner of Income Tax, Mumbai-10(2) (in short ‘DCIT/ AO’) for the A.Y. 2006-07 vide order dated 30.12.2008 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).

2. The first issue in ITA No. 1353/Mum/2014 for AY 2006-07 is as regards to the order of CIT(A) confirming the addition made by AO of ₹90,000/ being alleged unaccounted loan taken on Hundi. For this assessee has raised the following ground No. 1: -

1. “Learned Commissioner of Income Tax (Appeals) erred in confirming the addition made by Learner Assessing Officer of Rs 90,000/- to the total Income of Appellant on the plea that the said amount represents alleged unaccounted loan taken on Hundi.

Appellant submits that in view of the facts and circumstances of the case as well as in law the said addition to the total income of the appellant is bad in law and deserves to be deleted."

3. Briefly stated facts are that during survey conducted on the business premises of the assessee on 24.02.2006 under section 133A of the Act, certain documents claimed to have found and impounded. This addition of ₹90,000/- relating to page 107 which contains discharge bill of exchange (Hundi) for a sum of ₹90,000/- drawn in the name of assessee dated 20- 11-2005. According to AO, since it was not recorded in the books of accounts, the AO treated this Rs. 90,000/- as undisclosed income of the assessee. Before CIT(A), the assessee contended that the bill of exchange is dated 20.01.2005 and claim by Revenue as 20.11.2005 is not correct. The CIT(A) has not accepted the contention of the assessee by observing that the assessee’s argument cannot be accepted as the date mentioned in the bill of exchange was 20.01.2005, whereas survey was conducted on 24.02.2006 and he observed that the intention of the assessee that Hundi was drawn in anticipation of loan to be taken is to be considered as true then, when loan is really not taken, the same cannot be kept in the custody of the assessee. Aggrieved, now assessee is in second appeal before Tribunal.

4. Before us, the learned Counsel for the assessee drew our attention to page No. 25 of the assessee’s paper book i.e. document impounded by the Revenue during the survey and the learned Counsel for the assessee particularly drew our attention to this document of 90,000/- i.e. bill of exchange which is dated 20.01.2005 and apart of this there is no other date mentioned on this bill of exchange. The learned Counsel for the assessee stated that this does not fall in AY 2006-07 rather it falls in AY 2005-06. Hence, no addition can be made in this year. When this was confronted to the learned Sr. Departmental Representative, she could not rebut the claim of the assessee.

5. After hearing both the sides and going through the facts of the case, we are of the view that this bill of exchange is dated 20.01.2005 and it relates to AY 2005-06 Hence, no addition can be made in AY 2006-07. Hence, we de ete the addition and allow this issue of assessee’s appeal.

6. The next common issue in these two appeals of different assessee is as regards to the addition made by AO and confirming by CIT(A) on account of alleged profit in share transactions amounting to ₹1,28,60,500/- in the case of Shreeji Transport P. Ltd. and amount of ₹97,01,050/- in the case of Amplas Polmers Pvt. Ltd. For this, assessee in ITA No. 1353/Mum/2014 in the case of Shreeji Transport P. Ltd has raised the following ground No. 2: -

“2. Learned Commissioner of Income Tax (Appeals) erred in confirming the additions made by Learned Assessing Officer of Rs. 12860500/- to the total income of the appellant being alleged profit in share transactions as income of the appellant.

Appellant submits that in view of the facts and circumstances of the case as well as in law the said addition to the total income of the appellant is bad in law and deserves to be deleted." Another, assessee in ITA No. 2195/Mum/2011 in the case of Amplas Polmers Pvt. Ltd. has raised following two grounds: -

“1. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has failed to appreciate the retraction of statement by director of Your Petitioner at the time of Survey action on account of additional income from share trading of Rs. 97,01,500/- and has erred in making additions of Rs. 97,01,500/-.

2. On the facts and in the circumstances of the case and in law, the Learned CIT (A) failed to appreciate the fact that additions on account of income from share trading as Your Petitioner is a Limited Company and have never indulged in any activity of share trading since its inception till date and as such the

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