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Prakash K. Kankariya Versus Joint Commissioner of Income Tax, Circle-2(2)

2015 (4) TMI 877 - BOMBAY HIGH COURT

Unaccounted cash - suppression of professional receipts - assessee took a plea that on the date of payment of the said amount to Shri Renavikar viz. 30th June, 2001, there was a cash balance in the books and to the extent of ₹ 10,22,850/-. Hence this amount was utilized for making payment to Shri Renavikar. The assessee declared the balance amount of ₹ 29,75,150/- towards unaccounted investment - Set off claim - Held that:- The Assessing Officer rejected this stand on clear and sound .....

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accept the statement that the assessee had with him the sum and which was required to be paid to Shri Renavikar.

The Tribunal noted that the assessee also took the stand that there was one transaction with Shri Doke. That was a sum given to Shri Doke, but that transaction did not materialise. Shri Doke returned the entire sum. The assessee, therefore, pleaded that ₹ 25,00,000/- returned by Shri Doke and cash available with assessee was utilised for making payment to Shri Renav .....

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The alternate contention and from the transaction of Shri Doke would denote that there is no evidence except the statement of Shri Doke that the amounts were returned. Presuming that the transaction did not materialise and the amount was returned by Shri Doke, there has to be a supporting evidence to show that Doke returned the amount on or before the date of the transaction with Shri Renavikar. Therefore, both contentions have been rightly rejected.

With regard to the suppressed pro .....

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gh there is no direct evidence, but the circumstances indicating to the contrary and against the assessee, the addition to the extent of 10% has alone been sustained. No substantial question of law - Appeal dismissed - Decided against assessee. - Income Tax Appeal No. 498 of 2013, Income Tax Appeal No. 551 of 2013, Income Tax Appeal No. 813 of 2013, Income Tax Appeal No. 305 of 2013 - Dated:- 16-3-2015 - S. C. Dharmadhikari And A. K. Menon,JJ. For the Appellant : Mr Mihir Naniwadekar For the Res .....

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h and seizure action conducted on his premises on 1st September, 2004, the assessee filed his return in response to the notice under section 153A of the Income Tax Act, 1961, showing a total income of ₹ 76,53,769/-. In the course of search, an agreement was found under which an amount of ₹ 40,00,000/- was paid to one Shri Renavikar. The payment was on 30th June, 2001, which was admittedly not accounted in the regular books of accounts. The cash balance in the assessee's book was .....

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addition on account of estimation of undisclosed income over and above the figure disclosed by the assessee. The Commissioner of Appeals also maintained this order of the Assessing Officer. That is how the assessee approached the Tribunal. The argument of Mr. Naniwadekar and based on a Division Bench judgment of this Court in the case of Commissioner of Income Tax, Poona vs. Jawanmal Gemaji Gandhi, (1985) 15 ITR 353 is that there was no material whatsoever to justify any addition on account of .....

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is Income Tax Appeal No.90/PN/2011. There the argument was that the additions made in those years failed to note that there was income available with the assessee for making payment of ₹ 40,00,000/- to Shri Chandusheth Renavikar and, accordingly, no addition was required to be made of ₹ 40,00,000/- while determining the income of the assessee for this year. In dealing with this argument, the Tribunal noted that the amount paid to Shri Renavikar was not accounted in the regular books .....

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ssee indulged in suppression of professional receipts. There was documentary evidence in the form of diaries from 16th August, 2001 to 29th March, 2002. That was for 166 working days which is referred to at page 33 of the assessment order. The assessee voluntarily offered ₹ 24,45,520/- towards suppression of professional receipts. These are operational receipts. On the basis of the incriminating evidence the Tribunal found that it is difficult to accept the statement that the assessee had .....

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cer who confirmed that he returned the amount to the assessee as the transaction did not materialise. The assessee, therefore, pleaded that ₹ 25,00,000/- returned by Shri Doke and cash available with assessee was utilised for making payment to Shri Renavikar and to that extent the set off of the amount may be given. Thus, the Tribunal found that such a stand and which is raised during the course of assessment proceedings cannot discharge the burden and which is on the assessee. The desired .....

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eturned by Shri Doke, there has to be a supporting evidence to show that Doke returned the amount on or before the date of the transaction with Shri Renavikar. Therefore, both contentions have been rightly rejected in our view in paragraphs 36 and 37 of the order under challenge. 5. As far as Jawanmal's case is concerned, there the assessee was a dealer in gold and silver ornaments. The excise authorities seized and confiscated certain quantity of gold from him. Before the ITO, the assessee .....

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he order. Before the Tribunal, the assessee contended that as there had been intangible additions for the same assessment year, there was no reason to make a separate addition for the value of gold. On facts, the Tribunal held that there was no ground for making a separate addition for value of the gold and deleted the same. 6. It is maintaining such order of the Tribunal and with the above conclusion that this Court turned down the argument of the Revenue and their reliance placed on the judgme .....

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t must not, therefore, be seen de hors the factual position and that was a case of an addition twice over. The source of gold could easily be assumed to have come out of the intangible addition on account of the increased turnover. Therefore, the Tribunal held in favour of the assessee. That was because the assessee acquired the gold during the later half of the assessment year. It could then very well be that undisclosed income earned that very year constituted the fund from which this asset wa .....

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the appeal raises substantial question of law. 8. The concurrent findings are consistent with the materials placed on record. 9. With regard to the suppressed professional receipt of ₹ 14,30,225/- once again the Tribunal found and in paragraph 40 that for a substantial period the assessee was maintaining parallel record suppressing professional receipts. It is true that there is no specific evidence for the period 1st April, 2001 to 30th June, 2001. However, the assessee himself admitted .....

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ase of Commissioner of Income Tax vs. HM Eusafali HM Abdulala (1973) 90 ITR 271 (SC). 11. However, how this reliance is misplaced could be explained by relying on the later judgment of this Court in Commissioner of Income Tax vs. Dr. M.K.E. Memon 248 ITR 310 (Bom.). There also a professional has been dealt with and the Supreme Court's judgment in Abdulala (supra) was followed. However, this Court cautioned as to how for a period of one year the estimation could not be made and it could be, t .....

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he addition on account of suppressed profession receipts of ₹ 14,30,225/- the Tribunal relied on the admissions and which can be gathered from the maintenance of a parallel record. The modus operandi was admitted. Therefore, the Assessing Officer's order was partially maintained. The addition as made by the Assessing Officer were not confirmed in the absence of direct evidence. In the circumstances, when the Tribunal relied on the decision of the Supreme Court to not uphold the entire .....

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