Mr. Harishkumar Chimandas Manchudia, Bhusawal V. ITO, Wd 2(1), Jalgaon, Jalgaon

ITA 105/PUN/2012

• Counselvise Citation: 10524514 RSA 2012
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y K BHASKAR
• Assessee Lawyers: VINAY V K AWADIA
• Section: 147; 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 105 / P N/ 20 12 ASSESSMENT YEAR : 2007 - 08 HARISHKUMAR CHIMANDAS MANCHUDIA, PRO P. SHANKAR BOTTLES, VARANGAON ROAD, BHUSAWAL VS. ITO, WARD 2(1), JALGAON (APPELLANT) (RESPONDENT) PAN NO. ABDPM7351A APPELLANT BY: MR. VINAY V. KAWADIA RESPONDENT BY: SHRI Y.K. BHASKAR DATE OF HEARING : 19 - 08 - 2013 DATE OF PRONOUNCEMENT : 26 - 0 8 - 2013 ORDER P ER R.S. PADVEKAR , JM : - IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT(A) - II, NASHIK DATED 13 - 10 - 2011 FOR THE A.Y. 2007 - 08. THE ASSESSEE HAS TAKEN THE THREE EFFECTIVE GROUNDS: 1. CHALLENGING THE LEGALITY AN D VALIDITY OF THE NOTICE U/S. 148 OF THE INCOME - TAX ACT. 2. THE ADDITION OF RS.2,50,000/ - TOWARDS THE ALLEGED INVESTMENT IN THE WEIGH BRIDGE. 3. THE ADDITION OF RS.10,000/ - . 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS AN INDIVID UAL WHO FILED HIS RETURN OF INCOME FOR THE A.Y. 2007 - 08 DECLARING TOTAL INCOME OF RS.1,08,845/ - . THERE WAS NO REGULAR ASSESSMENT U/S. 143( 3 ) OF THE ACT. IT APPEARS THAT THE RETURN FILED BY THE ASSESSEE WAS PROCESSED U/S. 143(1) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 ON 25 - 05 - 2009 O N THE REASON THAT THE ASSESSEE IS RUNNING THE BUSINESS OF TOLKATA I.E. WEIGH BRIDGE I N THE NAME OF HIS MOTHER AND NO RETURN HAS BEEN FILED FOR THE SAID ACTIVITY. 2 ITA NO. 105/PN/2012, HARISHKUMAR CHIMANDAS MANCHUDIYA, BHUSAWAL THE ASSESSING OFFICER HAS NOTED THAT EVEN THOUGH THE WEIGH BRIDGE WAS IN THE NAME OF HIS MOTHER SMT. NIRMALA CHIMANDAS MANCHUDIYA AND SHE HA D NOT FILED ANY RETURN OF INCOME AS SHE HA D NO SOURCE OF INCOME. THE ASSESSING OFFICER ALSO NOTED THAT THE FULLY ELECTRONIC LORRY WEIGH BRIDGE MACH INE IS PURCHASED ON 22 - 02 - 2007 FOR AN AMOUNT OF RS.2,50,000/ - . AS NOTED BY THE ASSESSING OFFICER THE ASSESSEE COULD NOT SUBSTANTIATE THE CLAIM OF THE INVESTMENT IN THE NAME OF HIS MOTHER. HE, THEREFORE, MADE THE ADDITION OF RS.2,50,000/ - TOWARDS INVESTME NT AS WELL AS ESTIMATE D THE INCOME FROM THE SAID WEIGH BRIDGE AT RS.10,000/ - FOR THE PERIOD OF 22 - 02 - 2007 TO 31 - 03 - 2007. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT THE ASSESSEE COULD NOT GET RELIEF ON THE ADDITION OF RS.2,60,000/ - I.E. THE ADDITION OF RS.2,50,000/ - TOWARDS INVESTMENT IN THE WEIGH BRIDGE AND RS.10,000/ - TOWARDS ESTIMATE D INCOME. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LEARNED COUNSEL VEHEMENTLY ARGUES THAT THERE IS NO BASIS FOR ISSUANCE OF NOTICE U/S. 148 OF THE ACT TO THE ASSESSEE. THE LEARNED COUNSEL TOOK US THROUGH THE PAPER BOOK AND SUBMITS THAT THE WEIGH BRIDGE IS I N THE NAME OF HIS MOTHER. HE SUBMITS THAT THE GRAM PANCHYAT GRAMIN ZILA JALGAON HAS GIVEN NOC DATED 07 - 03 - 2007 WHICH IS ISSUED TO ASSESSEES MOTHER . H E REFERS TO PAGE NO. 17 OF THE PAPER BOOK AND SUBMITS THAT UNDER THE WEIGHT AND MEASUREMENT ACT T HE INSPECTION CERTIFICATE IS ISSUED BY THE INSPECTOR OF WEIGHT AND MEASUREMENT DATED 12 - 03 - 2007 AND COP Y PLACED AT PAGE NO. 17 WHICH IS ALSO ON THE NAME OF THE ASSESSEES MOTHER . HE SUBMITS THAT HIS MOTHER SMT. NIRMALA CHIMANDAS MANCHUDIYA HAS FILED THE RETURN ON 05 - 03 - 2009 DECLARING THE INVESTMENT AS WELL AS INCOME FROM THE WEIGH BRIDGE. HE SUBMITS THAT ON 30 - 01 - 2009 HE HAS GIVEN STATEMENT TO THE ASSESSIN G OFFICER IN WHICH HE HAS STATED THAT THE WEIGHMENT BRIDGE IS IN THE NAME OF HIS MOTHER AND HE HAS NOT FILED ANY RETURN OF INCOME. HE SUBMITS THAT THERE 3 ITA NO. 105/PN/2012, HARISHKUMAR CHIMANDAS MANCHUDIYA, BHUSAWAL IS NO BASIS FOR ISSUING THE NOTICE U/S. 148 A S NOWHERE IT IS ADMITTED BY THE ASSESSEE THAT THE WEIGH B RIDGE IS THE BENAMI INVESTMENT OF THE ASSESSEE. HE SUBMITS THAT IN ALL THE DOCUMENTARY EVIDENCES THE WEIGH BRIDGE IS IN THE NAME OF HIS MOTHER THEN HOW THE ASSESSING OFFICER CAN PRESUME THAT THERE IS AN ESCAPEMENT OF THE INCOME WITHOUT ADMISSION OF THE SA ID INVESTMENT BY THE ASSESSEE. A GENERAL STATEMENT CANNOT BE THE BASIS FOR ISSUING THE NOTICE U/S. 148. HE PLEADED FOR CANCELLING THE NOTICE ISSUED U/S. 148. WE HAVE ALSO HEARD THE LD. DR. WHO SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW . 4 . WE HA VE HEARD THE RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE HAS QUESTIONED THE LEGALITY AND VALIDITY OF THE NOTICE ISSUED U/S. 148. THE ASSESSING OFFICER S CASE IS BASED ON ALLEGED BENAMI INVESTMENT I.E. IN RESPECT OF WEIGH BRIDGE W HICH IS IN THE NAME OF THE ASSESSEES MOTHER. THE ASSESSEE FILED THE REGULAR RETURN OF INCOME BUT IT APPEARS THAT THERE WAS REGULAR ASSESSMENT U/S. 143(3). THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 . T HE ASSESSEE REQUESTED FOR FURNISHING THE REASON VI DE LETTER DATED 04 - 06 - 2009. THE ASSESSING OFFICER SENT HIS REPLY DATED 01 - 09 - 2010 IN WHICH THE ASSESSING OFFICER STATED THAT THE REASON FOR ISSUE OF NOTICE IS THAT THE ASSESSEE HAS STARTED WEIGH BRIDGE IN FEBRUARY, 2007 AND NOT DISCLOSED TRUE AND F ULL ALL INCOME AND THERE IS ESCAPEMENT OF THE INCOME WITHIN THE MEANING OF SEC. 147 OF THE INCOME - TAX ACT. AS PER THE DOCUMENTS FILED BEFORE US WE FIND THAT THE ONLY BASIS FOR ISSUANCE OF NOTICE U/S. 148 IS THE ASSESSEE S STATEMENT DATED 30 - 01 - 2009. IT APPEARS THAT INCOME TAX INSPECTOR HAS VISITED THE ASSESSEE AND AS PER THE QUESTIONS PUT TO THE ASSESSEE , THE ASSESSEE HAS GIVEN THE INFORMATION . T HE ONLY REFERENCE OF THE WEIGH BRIDGE IS IN QUES TION NO. 7 AND QUESTION NO. 8 . T HE SAID STATEMENT IS IN HINDI AND CO PIES PLACED AT PAGE NOS. 9 TO 12 OF THE COMPILATION. IN QUESTION NO. 7 HE HAS STATED THAT SMT. NIRMALA CHIMANDAS MANCHUDIYA 4 ITA NO. 105/PN/2012, HARISHKUMAR CHIMANDAS MANCHUDIYA, BHUSAWAL (MOTHER) AGED ABOUT 58 YEARS IS HAVING TOLKATA WHICH IS THEREFOR 1 YEARS. THE SAID STATEMENT IS NOT ON OATH NOR IT IS RECORDED U /S. 13 1 OF THE INCOME - TAX ACT. 5 . IT IS SEEN THAT THE GRAM PANCHYAT HAS ISSUED NO OBJECTION CERTIFICATE TO SMT. NIRMALA CHIMANDAS MANCHUDIYA , MOTHER OF THE ASSESSEE ON 07 - 03 - 2007 , THE COPY WHICH IS PLACED AT PAGE NO. 17 OF THE COMPILATION WHICH IS IN MA RATHI. IT IS ALSO SEEN THAT INSPECTOR OF THE WEIGHT AND MEASUREMENT, GOVT. OF MAHARASHTRA HAS GIVEN THE INSPECTION CERTIFICATE NO. MH - 314 DATED 12 - 03 - 2007 WHICH IS ALSO IN THE NAME OF SMT. NIRMALA CHIMANDAS MANCHUDIYA. THE ELECTRONIC WEIGH BRIDGE IS PURC HASE D FROM SHIVAM ENGINEERING CO., HIMMAT NAGAR, GUJRAT. AS PER THE VAT I NVOICES THERE IS A NAME OF SMT. NIRMALA CHIMANDAS MANCHUDIYA (COPY AT PAGE NO. 18 OF THE COMPILATION) . A PART FROM THE GENERAL STATEMENT OF THE ASSESSEE T HE DOCUMENTARY EVIDENCE IS I N THE NAME OF HIS MOTHER I.E. SMT. NIRMALA CHIMANDAS MANCHUDIYA. IN FACT, IT IS A CHARGE OF BENAMI TRANSACTION. THE LAW IS WELL SETTLED SO FAR AS PROCEEDING U/S. 147 IS CONCERNED THAT EVEN THE PRIMA - FACIE EVIDENCE IS SUFFICIENT TO INITIATE THE PROCEEDING S EVEN THOUGH ULTIMATELY NO INCOME IS BROUGHT TO TAX BUT THAT DOES NOT MEAN THAT WHEN ALL THE DOCUMENTARY EVIDENCE DOES NOT SUPPORT THE SAID PRESUMPTION OF THE BENAMI TRANSACTION ME RELY PICKING OF THE SENTENCE FROM THE GENERAL STATEMENT OF THE ASSESSEE CAN NOT BE THE BASIS FOR ISSUING THE NOTICE U/S. 148. THE ASSESSING OFFICER COULD HAVE TAKEN A PAIN TO EXAMINE OR AT LEAST RECORDED THE STATEMENT OF SMT. NIRMALA CHIMANDAS MANCHUDIYA TO MAKE OUT THE CASE AGAINST THE ASSESSEE BEFORE ISSUING NOTICE U/S. 148. T HERE IS NO SPECIFIC ADMISSION BY THE ASSESSEE THAT THE INVESTMENT FOR THE WEIGH BRIDGE IS MADE BY HIM T HOUGH THERE IS A GENERAL STATEMENT THAT WEIGH BRIDGE IS IN THE NAME OF HIS MOTHER . IN OUR OPINION TO MAKE OUT A BENAMI INVESTMENT CASE T HERE IS A BURDEN OF THE ASSESSING OFFICER AT 5 ITA NO. 105/PN/2012, HARISHKUMAR CHIMANDAS MANCHUDIYA, BHUSAWAL LEAST PRIMA - FACIE ESTABLISH T HAT IN FACT EVEN IF THE INVESTMENT IS THE NAME OF ONE PERSON IT BELONGS TO ANOTHER PERSON. IN OUR OPINION, THERE IS NO BASIS FOR ISSUING NOTICE TO THE ASSESSEE U/S. 148 . W E , ACCORDINGLY , CANCEL TH E NOTICE AND DELETE THE ADDITION MADE BY THE ASSESSING OFFICER. IN THE RESULT, GROUNDS TAKEN BY THE ASSESSEE ARE ALLOWED ON THE ISSUE OF THE VALIDITY OF THE NOTICE U/S. 148 . AS THE ASSESSE HAS SUCCEEDED O N LEGAL ISSUE W E DO NOT CONSIDER IT NECESSARY TO A DJUDICATE THE ADDITIONS MADE BY THE ASSESSING OFFICER ON MERIT. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 26 - 08 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 26 TH AUGUST, 2 0 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II , NASHIK 4 THE CIT (A) , NASHIK 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE S ECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE