Dhirajlal N. Vakeria, Navi Mumbai vs Assessee

᮰ी िवजय पाल राव, ᭠याियक सद᭭य, एवं ᮰ी एन. के . िबलै᭦या, लेखा सद᭭य. के समᭃ । BEFORE SHRI VIJAY PAL RAO , JM AND SHRI N.K. BILLAIYA, AM

आयकर अपील सं./I.T.A. No. 747/Mum/2013 ( िनधाᭅरण वषᭅ / Assessment Year : 2009-10 )

Dhirajlal N. Vakeria बनाम/ बनाम ACIT - 22(3) th rd 901, 9 Floor, Vs. Tower No.6, 3 Floor Prabhat Center Annexe Vashi Railway Station Plot No.7, Sector 1A, Complex, Vashi CBD Belapur Navi Mumbai- 400 703. Navi Mumbai-400 614. ᭭थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAUPV 6272 B (अपीलाथᱮ /Appellant) ... (ᮧ᭜यथᱮ / Respondent)

अपीलाथᱮ ओर से / None Appellant by : ᮧ᭜यथᱮ कᳱ ओर से/ Shri Luv Kumar (DR) Respondent by :

सुनवाई कᳱ तारीख / Date of 01/12/14 Hearing : घोषणा कᳱ तारीख /Date of 14/01/2015 Pronouncement :

आदेश / O R D E R

PER VIJAY PAL RAO, JM:

This appeal by the assessee is directed against the order dated 11/12/2012 of CIT(A) for the assessment year 2009-10. The assessee has raised the following grounds:-

"Being aggrieved by the order of learned CIT (Appeals)-33, Mumbai, the appellant submits herewith the following grounds of appeal (which are taken up without prejudice to each other):

1. On the facts and circumstances of the case and in law, the learned 2 ITA No747/13 Dhirajlal N. Vakeria

CIT (A) has erred in confirming addition of Rs.52,73,373/- (a) without : properly considering the submissions made during the course of appellate proceedings and (b) without appreciating that the said addition was carried out by the AO by completely misguiding and unduly influencing the Appellant.

2. On the facts and circumstances of the case and in law, the learned CIT (A) has erred in observing that the Appellant has failed to deduct TDS u/s 194C from impugned amounts of addition by conveniently overlooking the fact that the said sums did not represent expenses incurred during the year under appeal.

3. On the facts and circumstances of the case and in law, the learned CIT (A) has erred in sustaining the addition by wrongly holding that (a) the said amounts were bogus expenses of the year and (b) the addition was not made u/s 41(1) of the Income Tax Act, 1961.

4. The Appellant craves leave to amend, add, alter or delete any of the above grounds of appeal."

2. None has appeared on behalf of the assessee when this appeal was called for hearing. It transpires from the record that on 17/04/2014, when the appeal of the assessee was listed for hearing, the assessee sought adjournment and accordingly the hearing was adjourned to 05/08/2014. On 05/08/2014 none appeared on behalf of the assessee, consequently the hearing was adjourned to 01/12/2014 with the directions to issue a notice through RPAD to the assessee. Despite the service of the notice none has appeared on behalf of the assessee on 01/12/2014. Accordingly, we propose to hear the ld. DR and dispose of the assessee's appeal exparte.

3. We have heard the ld. DR, considered the relevant material on record. The only issue arising for our consideration and adjudication is addition of Rs.52,73,373/- in respect of the various amounts appearing in the name of the creditors. The AO asked the assessee to give details of the creditors and to file their confirmations. From the details filed by the assessee, the AO noted that neither the parties were traceable nor PAN was found valid. The assessee filed an affidavit before the AO . The relevant part of the affidavit has been reproduced by AO at page-2 as under :-

3 ITA No747/13 Dhirajlal N. Vakeria

"In respect of the above parties the authorized representative filed an affidavit given by the assessee stating as under :-

"4. that the above contractors are labour contractor and do not have any permanent addresses in Mumbai and were residing at the sites where they were working. At present I am not able to contact them to produce them before the Income tax authority.

5. that I voluntarily declare that I have no objection to the above mentioned amount of Rs.52,72,373/- being added to the total income for the assessment year 2009-10.

6. that I am making this voluntary declaration to buy peace with the Income tax department subject to, that no penalty will be levied on tax liability arising as a result o this addition."

4. On the basis of voluntary declaration and such surrendering of the amount as income, the AO made the addition of the said outstanding amount of Rs.52,73,373/- appearing in the name of various creditors. On appeal, the assessee challenged the action of the AO, however, the CIT(A) after considering the fact and undertaking made by the assessee in the affidavit confirmed the addition. The assessee has not disputed the contents of the affidavit filed before the AO, wherein the assessee voluntarily declared and offered the amount in question as income to tax. Accordingly in the facts and circumstances of the case we do not find any error in the orders of the authorities below qua this issue.

5. In the result, appeal of the assessee is dismissed.

Order pronounced in the open court on 14th January, 2015. . आदेश कᳱ घोषणा खुले ᭠यायालय मᱶ ᳰदनांकः 14/01/2015 को कᳱ गई ।

Sd/- Sd/- (N.K. Billaiya) (Vijay Pal Rao ) लेखा सद᭭य / ACCOUNTANT MEMBER ᭠याियक सद᭭य / JUDICIAL MEMBER मुंबई Mumbai; ᳰदनांक Dated 14/01/2015.

व.िन.स./ Jv, Sr. PS 4 ITA No747/13 Dhirajlal N. Vakeria

आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy षत of the Order forwarded to : 1. अपीलाथᱮ / The Appellant 2. ᮧ᭜यथᱮ / The Respondent. 3. आयकर आयुᲦ(अपील) / The CIT(A)- 4. आयकर आयुᲦ / CIT

5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाडᭅ फाईल / Guard file.

आदेशानुसार/ ार BY ORDER, स᭜यािपत ᮧित //True Copy// उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar)

आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai