ITA No. 17/Nag/2016. IN 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. Appellant by : Dr. J.M. Ranade. Respondent by : Shri A.R. Ninawe. Date of Hearing : 04-10-2016 Date of Pronouncement : 5th Oct., 2016 ORDER. This appeal by assessee is directed against order of learned CIT(Appeals)-II, Nagpur dated 01-12-2015 and pertains to assessment year 2008-09. ground of appeal reads as under : On facts and in circumstances of case, learned CIT(A) erred in confirming addition of Rs.20 lacs ignoring fact that it amounts to double taxation of same amount. 2. Brief facts of case are as under : Return of income declaring total income of Rs.5,26,320/- was filed on 29- 07-2008. During course of assessment proceedings it was noted by AO that appellant has advanced amount of Rs. 25 lakhs in cash to one M/s Shri Appaswami Infrastructure Pvt. Ltd. (SAIPL). AO asked appellant to explain source of said cash investment of Rs. 25 lakhs and in response to same appellant submitted letter under his own signature wherein he 2 ITA No. 17/Nag/2016. stated that amount of Rs. 25 lakhs had been given to 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 said amount of Rs.25 lakhs is offered as income of appellant for assessment year 2008-09. appellant accordingly revised its statement of income by offering said amount of Rs. 25 lakhs and offered gross total income to tax at Rs.33,50,093/-. 3. appellant also furnished confirmation from SAIPL wherein said party confirmed fact that it has received said amount during previous year relevant to assessment year 2008-09. AO accepted contention of appellant and brought to tax said amount of Rs. 25 lakhs in assessment year 2008-09. 4. Before learned CIT(Appeals) assessee submitted that same amount of Rs. 20 lakhs has already been taxed for assessment year 2007-08 and same amount cannot be taxed again. However, learned CIT(Appeals) was not convinced. He upheld AO s action. 5. Against above order of learned CIT(Appeals) assessee is in appeal before ITAT. 6. Learned counsel of assessee submitted that originally amount of Rs.20 lakhs was added in assessment year 2007-08 on basis of agreement for sale which was subsequently cancelled. In said agreement in manner of payment Rs.20 lakhs was showed to have been paid by cash. However, no date was mentioned. It was assessee s plea that though this amount was mentioned in agreement for sale, same was actually not paid and cash was only paid on 05-04-2007. Hence assessee had offered same for 3 ITA No. 17/Nag/2016. taxation in assessment year 2008-09. However, in assessment proceedings AO had added sum of Rs.20 lakhs for assessment year 2007-08 on basis of said agreement for sale. This order of AO was upheld by ITAT. Learned counsel submitted that assessee has also pleaded before ITAT that this sum has already been offered in assessment year 2008-09. In this regard Tribunal had recorded following findings : above paragraph extracted from orders of CIT(A) and AO provide that it is assessee s own submission that sum of Rs. 20 lakhs was paid in cash and same in support of his claim of deduction u/s 54 of Act. Agreement to sale is valid document and assertions of parties relating to cash payment of Rs. 20 lakhs is true considering their signatures in presence of witness. We are in agreement with views of CIT(A)/AO and contents of 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 assessee. Will flat-seller sign on any agreement affirming receipt of cash of Rs.20 lakhs when they same is not actually received by him. In our opinion, answer is negative. Therefore, we are of opinion that order of CIT(A) on this needs no interference. Regarding argument that addition if any has to be considered only for AY 2008-09, same does not pertain to year under consideration and shall be examined as when ground is raised in appropriate AYs. In any case, it is settled principle that same amount of Rs. 20 lakhs cannot be added twice in two different AYs when flat in question is singular in number. Accordingly, ground no.2 raised by assessee is dismissed. 7. assessee has also filed miscellaneous application against order of ITAT. However, said miscellaneous application was dismissed in M.A. No. 12/Nag/2013 vide order dated 30th Oct., 2015. Learned counsel submitted that this plea of assessee that assessee is being subjected to double taxation of amount was noted by Tribunal in aforesaid order in miscellaneous application and Tribunal s observation are as under : 4 ITA No. 17/Nag/2016. reading of above makes it clear that Tribunal had considered facts that there was agreement in which Rs.20 lakhs was claimed to have been paid by assessee to Developer in cash. Subsequently it was pleaded that cash was actually not paid as per agreement but it was actually paid on 05-04-2007. Subsequently in next assessment year assessee has himself offered same amount of Rs.20 lakhs for taxation. After considering entire gamet of case Tribunal had concluded in assessee s case that addition of Rs.20 lakhs in case of assessee for assessment year 2007-08 was to be confirmed. When it was pointed out to learned counsel of assessee that in fact there is no mistake apparent from record in order of Tribunal and what he is seeking is review of order which is not permissible by Tribunal under law, learned counsel submitted that same amount of cash of Rs.20 lakhs has been taxed in hands of assessee for assessment year 2007-08 same amount of Rs.20 lakhs has also been added in next assessment year i.e. assessment year 2008-09 because assessee has offered same in that year. Hence learned counsel has pleaded that same amount has been added twice. We find that though learned counsel of assessee has point which requires consideration but same cannot be considered in miscellaneous application. We find that learned counsel s apprehension that same amount will be added twice has been taken care by Tribunal itself in assessee s own case. In last three lines of order, Tribunal had clearly stated that In any case, it is settled principle that same amount of Rs. 20 lakhs cannot be added twice in two different AYs when flat in question is singular in number. Thus we find hat apprehension of learned counsel of assessee is mistaken. Accordingly this miscellaneous petition filed by assessee is liable to be dismissed and dismissed accordingly. Before parting we may also add that assessee cannot be taxed in two assessment years for same amount. This is settled principle and there is no dispute as has already been found by Tribunal in its order. 8. Referring to above finding of Tribunal, learned counsel submitted that assessee has duly submitted that Rs.20 lakhs cash has already been offered for taxation in assessment year 2008-09 but Tribunal has upheld 5 ITA No. 17/Nag/2016. Revenue s action in taxing said sum in assessment year 2007-08. Learned counsel pleaded that when same amount was added in assessment year 2007-08 same cannot be added in assessment year 2008-09. 9. Per contra learned D.R. relied upon orders of authorities below. 10. I have carefully considered submissions and perused records. I find that sum of Rs.20 lakhs was added on basis of agreement for sale for assessment year 2007-08. Assessee s plea that same amount was actually paid in assessment year 2008-09 was not accepted. Now from above discussion and orders of Tribunal it is evident that this is not case of Revenue that Rs.20 lakhs was paid twice once in assessment year 2007-08 and once in assessment year 2008-09. It is only case that assessee s plea that sum of Rs.20 lakhs was actually offered and paid in assessment year 2008- 09 has not been accepted and same amount was taxed for assessment year 2007-08. Once said amount has already been taxed for assessment year 2007-08 same cannot be added again for assessment year 2008-09 even if assessee has himself offered same for assessment year 2008-09. This is because as observed by Tribunal in aforesaid order that said sum cannot be added twice and taxed twice. No case has been made by Revenue that this sum of Rs.20 lakhs was paid in both assessment years. Accordingly in my considered opinion facts of case and interest of justice demands that assessee be granted relief from taxation of sum of Rs.20 lakhs in this 6 ITA No. 17/Nag/2016. assessment year since same amount has already been taxed in assessment year 2007-08. 11. In result, this appeal filed by assessee stands allowed. Order pronounced in Open Court on this 5th day of Oct., 2016. Sd/- ( SHAMIM YAHYA) ACCOUNTANT MEMBER. Nagpur, Dated: 5th Oct. , 2016. Copy forwarded to : 1. Shri Kamlakar M. Moghe, 13, Kalpataru, 4th 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. Kamlakar M. Moghe v. Asstt. Commissioner of Income-tax, Circle-3, Nagpur