INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI
BEFORE S/SHRI B.R.BASKARAN (Accountant Member)

I.T.A. No.6344/Mum/2014
Assessment Year :2009-19
Vikram Manibhai Mehta (Appellant) vs Income Tax Officer (Respondent)
Date of Order: 10-08-2015

Order

PER BENCH:
The assessee has filed this appeal challenging the order dated 13-08-2014 passed by Ld CIT(A)-29, Mumbai and it relates to the assessment year 2009-10. The assessee is aggrieved by the decision of Ld CIT(A) in confirming the addition of Rs.1,56,742/- relating to interest difference.

2. The facts relating to the issue are that the AO noticed that there is a difference between the interest income declared by the assessee in the return of income and the interest income found in the TDS certificates as per Form No.26AS. The assessee had offered a sum of Rs.2,14,059/-, whereas the same was shown at Rs.3,70,801/- in Form No.26AS. Hence the AO assessed the difference between the two as income of the assessee. The Ld CIT(A) also confirmed the same and hence the assessee has filed this appeal.

3. The Ld A.R submitted that the assessee had deposited money with a company named M/s Mahendra Brothers Exports Pvt Ltd both in his HUF capacity. The above said company has uploaded the details relating to the TDS in the PAN number of Individual and hence the Form No.26AS of the individual status has shown interest income. The said interest income was Rs.1,27,708/-. The Ld A.R submitted that the assessee furnished before Ld CIT(A) a letter obtained in this regard from M/s Mahendra Brothers Exports Pvt Ltd and hence the Ld CIT(A) has called for a remand report from the AO. However, the assessing officer has reported in his report that the income pertaining to the TDS amount should be assessed in the reported PAN only as the TDS credit is given in the hands of the person, whose permanent account number is given in TDS return. Hence the Ld CIT(A) also agreed with the reasoning given by the AO.

4. The Ld A.R submitted that the TDS return has since been rectified by the above said company and the interest income of Rs.1,27,708/- now finds place in Form No.26AS pertaining to the HUF status of the assessee in PAN No. AADHM2823E. In this regard, the Ld A.R invited my attention to pages 11 and 12 of the paper book, wherein the Form No.26AS of the HUF status is placed. He then invited my attention to Form No.26AS pertaining to individual status, which is placed at page 9-10 of the paper book, and submitted that the said Form No.26AS does not disclose any interest income received from the above said company. The Ld A.R further submitted that the assessee has already filed return of income in HUF status duly disclosing the above said interest income and hence the assessment of very same interest income in the individual status would result in double assessment. He also invited my attention to the copies of return of income filed in the HUF status.

5. The Ld D.R did not object to these factual aspects, but simply placed reliance on the order passed by Ld CIT(A).

6. I heard the parties and perused the record. It is a well settled proposition that the income can be assessed in the hands of right person only. In the case of ITO vs. Ch. Atchaiah (1966) 218 ITR 239 (SC), the Hon’ble Supreme Court held that the AO can and he must, tax the right person and the right person alone. The 'right person' is meant to be the person who is liable to be taxed, according to law, with respect to a particular income. In the instant case, the tax authorities have mostly gone by the data wrongly uploaded by M/s Mahendra Brothers Exports Pvt Ltd. Now according to the assessee, the mistake has since been rectified. The Ld A.R has also furnished copies of returns of income filed by the HUF of the assessee, wherein the above said interest income of Rs.1,27,708/- has been disclosed. Hence, in my view, there is no merit in assessing the above said amount of Rs.1,27,708/- in the hands of the assessee for the reasons cited above. However, it is not clear as to whether the assessing officer has verified the rectified Form No.26AS and also the copies of income tax returns of income filed by the HUF of the assessee. Hence, for the limited purpose of verifying these documents, I restore this matter to the file of the assessing officer, who is directed to examine the relevant documents and delete the addition of Rs.1,27,708/-, if he is satisfied that it has been disclosed in the returns of income filed in the HUF status.

7. With regard to the remaining amount of addition, the Ld A.R conceded that the assessee could not reconcile the difference. Accordingly I confirm the addition of balance amount.

8. In the result, the appeal filed by the assessee is treated as partly allowed for statistical purposes.

Pronounced accordingly on 10th August 2015.

Sd/-
(B.R. BASKARAN)
ACCOUNTANT MEMBER