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TMI Blog2022 (9) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited in assessee s bank account has already been taxed in the hands of M/s. Kareem s Hospitality Pvt. Ltd (employer of assessee) or in the hands of the director of the assessee company Mr. Kareem Dhanani then no addition is warranted in the hands of the assessee who was performing the duty of manager in M/s. Kareem Restaurant. Appeal of the assessee is allowed for statistical purposes. Penalty levied u/s 271(1)(c) - We taking note of the fact that we have already remanded the assessment back to AO for denovo assessment for AY. 2010-11, the penalty levied also does not survive. Therefore, the impugned penalty needs to be cancelled; and later after the assessment is reframed by the AO, he is at liberty to take action in accordance to the law. - I.T.A. No.47/Mum/2022, 49/Mum/2022, 48/Mum/2022 & 51/Mum/2022 - - - Dated:- 26-7-2022 - SHRI ABY T. VARKEY, JM AND SHRI AMARJIT SINGH, AM Assessee by: Shri Hari Raheja Revenue by: Ms. Vranda U Matkari (Sr. AR) ORDER PER ABY T. VARKEY, JM: ITA. No. 47/Mum/2022 (for AY. 2010-11) This is an appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals) (NFAC), Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee (Vikas Sharma) and asked him to explain the source of cash deposits in his bank accounts and the evidence of the same. The AO notes that the assessee had attended the office and his statement was recorded u/s 131 of the Act on 30.03.2015 wherein he has admitted that the money in the three (3) bank accounts which were credited where that of the M/s. Kareem s Hospitality Pvt. Ltd. The AO took note of the following cash deposits which were found to have been made in the accounts of the assessee are as under: - Sr. No. Name of the Bank and A/c. No. Amount F.Y. 1 ICICI Bank Saving A/c. No. 101901501136 Rs.18,44,255/- 2009-10 2 The Saraswat Co-op Bank A/c No.197200100000301 Rs.7,65,900/- 2009-10 3 The Saraswat Co-op Bank A/c No.197200100000355 Rs.10,59,140/- 2009-10 Total Rs.36,69,295/- According to the AO, even though he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) notes that the assessee failed to provide any material in support of his contention which were stated in the statement of facts, which was reproduced by the Ld. CIT(A) at page no. 16 to 21 of the assessment order and thus according to the Ld. CIT(A), merely making any statement without substantiating the same by supporting material serves no purposes; and since the assessee failed to provide any material to support its contention raised in the statement of facts and having not produced the assessment order of M/s. Kareem s Hospitality Pvt. Ltd. for AY. 2010-11 and has not even cared to mention the PAN number of it in its submission, he was pleased to confirm the action of the AO. Aggrieved by the aforesaid action of the Ld. CIT(A), the assessee is before us. 6. We have heard both the parties and perused the records. We note from the perusal of the assessment order that the assessee Mr. Vikas Sharma was the manager of M/s. Kareem s Hospitality Pvt. Ltd (hereinafter in short M/s. Kareem s Ltd. ). The assessee had filed return of income declaring of Rs.2,85,630/- which was processed u/s 143(1) of the Act. However, the assessment of the assessee was reopened u/s 147 of the Act b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act because the assessee had in fact appeared before him (AO) and his statement was also recorded u/s 131 of the Act which is evident from the perusal of the assessment order wherein the AO has reproduced certain statements recorded by him, which negates the AO s assertion that assessee/shri Vikas Sharma did not appear or participate in the assessment proceedings. According to the Ld. AR, the information given by the DDIT(Inv.), Mumbai for reopening the assessment of the assessee for both years was that the assessee was a manager in M/s. Kareem s Hospitality Pvt. Ltd. and Mr. Kareem Dhanani was the Director of the same. Mr. Kareem Dhanani gave his brand Kareem on commission to different franchises and collected commission by way of cash and deposited the same into assessee, i.e. Mr Vikas Sharma s Bank Account. And it was pointed out by the Ld. AR that the AO was aware that the director of M/s. Kareem Ltd. Mr. Kareem Dhanani deposited Rs.18,44,255/- in ICICI Bank account of assessee. This fact is evident from the action of AO adding/assessing the very same amount of Rs.18,44,255/- [which was deposited in the assessee s (Mr. Vikas Sharma) bank account in ICICI] was added in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see which has been referred by AO to make addition in the hands of assessee of Rs.7,65,900/- for AY. 2010-11). This fact according to him needs to be verified at the end of AO; and while doing so, take into consideration the admission made by the director of M/s. Kareems Ltd. Shri Kareem Dhanani albeit by letter dated 05.07.2022 before us which is reproduced as under: - July 05, 2022 From, KARIM AHSANAL] DHANANI Lok Niman Heights, Wing A/4, Flat No. 601, 6 Floor, Dr. Ambedkar Road,Opposite Mama Hotel, Khar (W) Mumba400052 To, Income Tax Appellate Tribunal F- Bench, Mumbai. Dear Sir, Re : Confirmation in respect of Bank A/c s held in the name of Shri. Vikas Sharma I the undersigned Kareem Dhanani (PAN : AEBPD7970D) submits that following Bank accounts, which had been standing in the name of Shri. Vikas Sharma who was an employee of M/s Kareem s Hospitality Pvt. Ltd. (PAN : AACCK6297Q) during the F.Y. 2009-10 and 2010-11, were actually held for and on behalf of business carried on by me in the name in the name of M/s Kareem s Hospitality Pvt. Ltd. where I was a Director. I further confirm that the entire receipts and payments in these accounts pertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order of the M/s. Kareem s Hospitality Pvt. Ltd it can be noted that only two bank accounts details of Mr. Vikas Sharma (manager/assessee) has been mentioned at para no. 7 and that entire amount of Rs.21,72,005/- has been taxed u/s 68 of the Act which fact is discernable from perusal of para no. 7 and para no. 12 of the assessment order in the case of M/s. Kareems Ltd. Therefore, according to the Ld. AR, the AO may be directed to inquire by issuing summons/notices u/s 133(6) of the Act from the respective bank concerned and then only make any addition if required as per law. 13. Having heard both parties and after perusal of records, we note that the AO has made the addition u/s 68 of the Act on cash deposits in three (3) bank accounts as noted (supra). Further, we note that the assessee appeared before the AO pursuant to the summons and his statement was recorded u/s 131 of the Act which is evident from the fact that the AO has reproduced some statement recorded in his assessment order verbatim in the assessment order. So per-se AO passing the assessment order dated 07.12.2016 u/s 144 of the Act on the reason that assessee did not participate in the assessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vikas Sharma) of the assessee company (M/s. Kareem s Hospitality Pvt. Ltd) the addition of the same amount in the hands of the assessee was not warranted. However, the Ld. AR was fair enough to admit before us that Bank account ending with 1544 of Sarswat Co-operation bank was not that of assessee, so the AO, observation to that extent of addition of Rs.3,27,750/- does not pertains to that of assessee. 16. According to the Ld. AR, the assessee is not aware of the bank account no. ending with 355 with the Saraswat Co-op Bank wherein Rs. 10,59,140/- has been deposited. Before us a bank statement pertaining to said account has been filed. Even on a perusal of the bank-statement filed before us of this account number ending with SBPUB/355 it is noted that it is of Aamil Reza Hemani and there are transaction wherein assessee s name is found wherein he has been transferred Rs. 5000/- on 12.10.2000 and Rs. 1,00,000/- on 21.10.2009. From the facts narrated (supra), we are of the considered opinion, in the interest of justice for both side and taking into account the facts that the similar addition has been made in the hands of M/s. Kareem s Hospitality Pvt. Ltd and in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.11,71,400/- which included the amount of Rs.2,89,850/- which was in the name of the assessee (Mr. Vikas Sharma) opened in HDFC Bank account no. 04901930003090. Thus, it was demonstrated before us that the addition of Rs.2,89,850/- which was made in the assessee s hand, have been again taxed in the hands of M/s. Kareem s Hospitality Pvt. Ltd. In such a scenario, we are inclined to set aside the impugned order of the Ld. CIT(A) remand the same back to the file of the AO with a direction to verify the facts narrated (supra) and if the cash deposited in assessee s bank account in HDFC Bank to the tune of Rs.2,89,850/- has already been taxed in the hands of M/s. Kareem s Hospitality Pvt. Ltd as observed by us (supra) then there is no necessity of make an addition in the hands of the assessee who was only a manager of M/s. Kareem s Hospitality Pvt. Ltd. With this observation, this appeal of the assessee is also allowed for statistical purposes. ITA. No.51/Mum/2022 (For AY. 2011-12) 21. This is an appeal preferred by the assessee against the penalty levied u/s 271(1)(c) of the Act by the AO which has been confirmed by the Ld. CIT(A) for AY.2011-12. Since we have set aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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