| COURT: | ITAT Mumbai |
| CORAM: | D. Karunakara Rao (AM), Sanjay Garg (JM) |
| SECTION(S): | 143(3) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | AIR information addition |
| COUNSEL: | Kirit N. Mehta |
| DATE: | December 5, 2014 (Date of pronouncement) |
| DATE: | January 9, 2015 (Date of publication) |
| AY: | 2008-09 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| Additions made solely on the basis of AIR information are not sustainable in law. The AO has to prove that assessee has received income from a particular source. The assessee cannot be expected to prove the negative | |
It has been held time and again by this Tribunal that the additions made solely on the basis of AIR information are not sustainable in the eyes of the law. If the assessee denies that he is in receipt of income from a particular source, it is for the AO to prove that the assessee has received income as the assessee cannot prove the negative. Reliance can be placed in this respect on the decision of the Tribunal in the case of “DCIT vs. Shree G. Selva Kumar” in ITA No.868/Bang/2009 decided on 22.10.10 and another case in the case of “Aarti Raman vs. DCIT” in ITA No.245/Bang/2012 decided on 05.10.12.
It is desirable to allow for 5% income variations at the time of 26AS matching as often there are spill overs for acccounting method or accounting treatments or for other reasons.
CBDT should make a note of this judgement as in this case the assessee reconciled major portion of the amount but could not reconcile the amount of Rs.4,49,440/- which is barely 3% of the total receipts which lead to the addition and now once again the case is restored to the AO by the ITAT for second round of verification. This could have been avoidable had there been an instruction from the board to allow for a certain percentage for mismatch with 26AS.
true, the judgements time and again said but why AOs do show that there is some other consideration,might be; if you harass the tax payer AO may get some benefit personally or in collusion with some bad mrality CAs who try to earn more income both for themselves as also to the AOs, not indeed any thing meaningful to the Revenue except cutting in Revenue collections by unnecessary legal fees as sometimes panel advocates either fail to say correct legal factum position or join hands with bad elements, that way common taxpayer is affected please!
Gopal Nathani need CBDT nod by its circular after all errors are universal, as nothing is indeed foolproof,so he is right!
Gopal Nathani need CBDT nod by its circular after all errors are universal, as nothing is indeed foolproof,so he is right!