ITO 22(1)-3, NAVI MUMBAI V. SHRI. KETAN G LODAYA, MUMBAI

ITA 1126/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55975 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-11-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 18-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: SHAILESH DOSHI
• Keywords: Unexplained investment
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, A ND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 1126/MUM./2009 (ASSESSMENT YEAR : 2000-01 ) INCOME TAX OFFICER WARD-22(1)-3, TOWER NO.6 VASHI RAILWAY STATION COMPLEX VASHI, NAVI MUMBAI 400 705 .. APPELLANT V/S MR. KETAN G. LODAYA 1106, SAHYDARI NEELKANT RAJAWADI, GHATKOPAR (E) MUMBAI 400 077 PAN AAAPL1731H .... RESPONDENT REVENUE BY : MR. P.K.B. MENON ASSESSEE BY : MR. SHAILESH DOSHI DATE OF HEARING 15.11.2011 DATE OF ORDER 25.11.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE REVENUE, IS DIRECTED AGAI NST THE IMPUGNED ORDER DATED 14 TH OCTOBER 2008, PASSED BY THE COMMISSIONER (APPEALS) -XXII, MUMBAI, FOR ASSESSMENT YEAR 2000-01. GROUNDS RAISED BY THE REVENUE, READ AS FOLLOWS:- MR. KETAN G. LODAYA ITA NO. 1126/MUM./2009 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.20,4 8,0891- MADE BY THE A.O. BEING LONG TERM CAPITAL GAIN ARRIVED AT BY TREATING RS.33,1O,500 AS UNDISCLOSED RECEIPTS ON SALE OF 2 F LATS, ONE BELONGING TO THE ASSESSEE AND THE OTHER TO HIS WIFE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW WHETHER THE LD.CIT(A) WAS JUSTIFIED IN LAW IN REJECTING THE EVIDENTIARY VALUE OF THE DOCUMENTS FOUND AT THE TIME OF SURVEY AT THE PR EMISES OF THE PURCHASER AND PURCHASERS ADMISSION OF HAVING MADE UNACCOUNTED PAYMENT IN CASH? 2. AFTER HEARING RIVAL SUBMISSIONS, WE FIND THAT MUMBA I A BENCH OF THE TRIBUNAL IN ITA NO.5300/MUM./2007 AND 5301/MUM./200 7, VIDE ORDER DATED 25 TH FEBRUARY 2010, ITO V/S KALPANA SHIPPING AGENCY, CO NSIDERED THE EVIDENCE FOUND DURING THE COURSE OF SURVEY CONDUCTE D ON 21 ST FEBRUARY 2005, UNDER SECTION 133A OF THE INCOME TAX ACT, 196 1 (FOR SHORT THE ACT ) AND HELD THAT THE MATERIAL FOUND DURING THE COURSE OF SURVEY, DOES NOT WARRANT ADDITION ON THE GROUND THAT THE ASSESSEE HA S MADE UNEXPLAINED INVESTMENT IN FLATS. THE ALLEGATION WAS THAT THE AS SESSEE HAS PURCHASED TWO FLATS IN THE NAME OF MR. GIRDHAR BHANUSHALI AND MRS . HEMLATA BHANUSHALI, FROM MR. KETAN G. LODAYA AND HIS WIFE AND A SMALL N OTEBOOK WAS FOUND WAS FOUND AND IMPOUNDED DURING THE COURSE OF SURVEY AND UNACCOUNTED INVESTMENTS WERE RECORDED IN THIS NOTEBOOK IN CODED FIGURES. WHEN THE ISSUE CAME UP BEFORE THE TRIBUNAL IN THE CASE OF PURCHASE R OF THE FLATS, THE TRIBUNAL HAS UPHELD THE ORDER OF THE COMMISSIONER ( APPEALS), WHEREIN THE COMMISSIONER HAS HELD THAT THE ASSESSING OFFICER HA S DRAWN CONCLUSIONS BY TAKING FIGURES WHICH ARE CONVENIENT TO HIM AND THAT A CONCLUSION DRAWN BY THE ADI AND LATER ADOPTED BY THE ASSESSING OFFICER ARE MRELY BASED ON ASSUMPTION AND NOT BASED ON FACTS. THE FIRST APPELL ATE AUTHORITY, IN THIS CASE ALSO, ANALYZED THE SEIZED MATERIAL AND THE CONCLUSI ONS APPROVED BY THE TRIBUNAL ON THE VERY SAME MATERIAL, CONCERNING THE VERY SAME TRANSACTIONS IN THE CASE OF KALPANA SHIPPING AGENCY. THUS, WE RE SPECTFULLY FOLLOW THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL RENDE RED IN KALPANA SHIPPING AGENCY (SUPRA) AND UPHOLD THE ORDER PASSED BY THE C OMMISSIONER (APPEALS). CONSEQUENTLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. MR. KETAN G. LODAYA ITA NO. 1126/MUM./2009 3 3. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH NOVEMBER 2011. SD/- V. DURGA RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 25 TH NOVEMBER 2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, A BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI