KIRAN MAGANLAL SHAH, MUMBAI V. ITO WD 22(1)(3), NAVI MUMBAI

ITA 1163/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9773 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 12-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 11-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAVDR
• Keywords: Unexplained investment
• Section: 68; 69

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.1163 /MUM/2013 ASSESSMENT YEAR: 2006-07 KIRAN MAGANLAL SHAH, C/O- MR. H.S. NANDU, ADVOCATE, 228-A/3, LEELA BHAVAN, NEAR KOLWADA RAILWAY STATION, SION(EAST), MUMBAI-400022 / VS. INCOME TAX OFFICER-22(1)(3), 4 TH FLOOR, TOWER NO.6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI ( !' /ASSESSEE) ( # / REVENUE) PAN. NO. AAKPS6654G #% & ' / DATE OF HEARING : 19/09/2017 & ' / DATE OF ORDER: 25/09/2017 !' ! / ASSESSEE BY SHRI VIMAL PUNMIYA # ! / REVENUE BY SHRI RAJESH KUMAR YADAV-DR ITA NO.1163/MUM/2013 KIRAN MAGANLAL SHAH 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 19/11/2012 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ASSESSEE HAS FILED REVISED GROUNDS OF A PPEAL. THE FIRST AND SECOND GROUND PERTAINS TO TREATING TH E EVIDENCE SUBMITTED UNDER RULE-46A OF THE INCOME TAX RULES, 1962 AND CONSEQUENT ADDITION OF ` 2 LAKHS MADE U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI VIMAL PUNMIYA, INVITED OUR ATTENTION TO THE AG REEMENT, (PAGE-9 OF THE PAPER BOOK) BY CLAIMING THAT THE IMP UGNED AMOUNT WAS SHOWN IN EARLIER YEAR AND IT WAS REPAID, THEREFORE, THE ASSESSING OFFICER MAY BE DIRECTED TO EXAMINE THE GENUINENESS OF THE CLAIM OF THE ASSESSEE. ON TH E OTHER HAND, SHRI RAJESH KUMAR YADAV, LD. DR, THOUGH DEFEN DED THE ADDITION BUT DID NOT OPPOSE IF THE MATTER MAY B E EXAMINED AFRESH. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT AT ITA NO.1163/MUM/2013 KIRAN MAGANLAL SHAH 3 PAGES 9 TO 22 OF THE PAPER BOOK, THERE IS A DEED OF ASSIGNMENT MADE ON 05/08/2002 BETWEEN BHUPATRAI RANCHHODDAS GANDHI ALONG WITH HEIRS/EXECUTORS AND ADMINISTRATOR AND NARESH MAGANLAL SHAH/KIRAN MAGANL AL SHAH. THE LD. ASSESSING OFFICER MADE DISALLOWANCE O F ` 2,80,000/- BY TREATING THE SAME AS CASH CREDIT AND CONSEQUENT ADDITION U/S 68 OF THE ACT BY OPINING TH AT NO PAN WERE PROVIDED OF THE LOAN CREDITORS. THE ASSESS EE IS CLAIMING THAT SHE IS IN A POSITION TO SUBSTANTIATE ITS CLAIM. CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTA NCES NARRATED BEFORE US, THE ASSESSEE IS DIRECTED TO PRO DUCE THE NECESSARY EVIDENCE BEFORE THE LD. ASSESSING OFFICER , WHICH WILL BE EXAMINED BY HIM TO HIS SATISFACTION, THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 3. THE NEXT GROUND PERTAINS TO CONFIRMING THE ADDITION OF ` 4,65,000/- AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. IT WAS CLAIMED THAT THE AMOUNT WAS PAID TH ROUGH CHEQUE. THE ASSESSEE HAS ALSO CLAIMED VIOLATION OF RULE- 46A OF THE RULES. ITA NO.1163/MUM/2013 KIRAN MAGANLAL SHAH 4 3.1. WE HAVE CONSIDERED THE ARGUMENTS OF BOTH SIDE S AND FOUND THAT WHILE MAKING THE ADDITION, THE LD. A SSESSING OFFICER OBSERVED THAT, AS PER THE AGREEMENT DATED 05/08/2002, THE ASSESSEE ALONG WITH SHRI NARESH MAG ANLAL SHAH, ACQUIRED A SHOP AT DADAR FOR A CONSIDERATION OF ` 21 LAKH. THE ASSESSEE IS OWNER OF 1/2 PART OF THE SHOP , WHICH IS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE AS O N 31/03/2005 AND INVESTMENT OF THE ASSESSEE TO THE TU NE OF ` 11,55,000/-. AS PER THE REVENUE, THE ASSESSEE HAD S HOWN THE INVESTMENT OF ` 6,90,000/-, THEREFORE, THE DIFFERENCE WAS TO BE RECONCILED. CONSIDERING THE TOTALITY OF FACTS AND THE CLAIM OF THE ASSESSEE THAT THE AMOUNT WAS PAID THRO UGH BANKING CHANNEL, THE ASSESSEE IS DIRECTED TO PRODUC E THE NECESSARY EVIDENCE FOR SUCH CLAIM BEFORE THE LD. AS SESSING OFFICER. THE LD. ASSESSING OFFICER IS DIRECTED TO E XAMINE THE FACTUAL MATRIX AND DECIDE IN ACCORDANCE WITH LAW. T HUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 4. THE LAST GROUND PERTAINS TO AD-HOC ADDITION OF ` 25,000/-. THIS GROUND WAS NOT PRESSED BY THE LD. CO UNSEL, THEREFORE, IT IS DISMISSED AS NOT PRESSED. ITA NO.1163/MUM/2013 KIRAN MAGANLAL SHAH 5 FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 19/09/2017 SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 25/09/2017 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 2 ( +, ) / THE CIT, MUMBAI. 4. 1 1 2 / CIT(A)- , MUMBAI 5. 4#5 / , 1 +,' + 6 , % / DR, ITAT, MUMBAI 6. 7! 8% / GUARD FILE. ! / BY ORDER, 04, / //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI