MR ANIL G. DANI, MUMBAI V. INCOME TAX OFFICER WARD 13(3)(3), MUMBAI

ITA 1310/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8498 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM ITA NO. 1310 /MUM/ 2018 (ASSESSMENT YEAR: 2009 - 10 ) MR. ANIL G. DANI 75, KRISHNA BHAVAN, 3 RD FLOOR, KAZI SAYYED STREET, KHAN BAZAR, MUMBAI - 400 003 VS. INCOME TAX OFFICER WARD 13(3)(3), MUMBAI PAN/GIR NO. AGXPD 0797 N ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI S. K. BEPARI DATE OF HEARING : 16.10.2018 DATE OF PRONOUNCEMENT : 01.01 .201 9 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 28, MUMBAI (LD.CIT(A) FOR SHORT) DATED 20.11.2017 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. THE HON. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE ADDITIONAL EVIDENCES PLACED BEFORE HIM WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE HON. CIT(A) AND THE LD. A O OUGHT TO HAVE ALLOWED THE FULL COST OF IMPROVEMENT AS CLAIMED IN THE RET URN. 3. IN THIS CASE, THE LD. CIT(A) OBSERVED AS UNDER: THE GROUNDS OF APPEAL PREFERRED ARE AS UNDER: - 1 . L D A.O. ERRED IN CONSIDERING THE AMOUNT OF RS.3,34,405/ - (REPAIR CHARGES) AS DISALLOWANCE OUT OF THE TOTAL AMOUNT OF RS.4,48,073/ - (WITHOUT INDEXAT ION). 2. LD A.O. DISALLOWED RS.3,34,4 0 5/ - AS AGAINST RS.2,89,405/ - MENTIONED IN PT 4 . 1 ON PAGE 3 OF 4 OF THE INTIMATION ORDER. 3. EXPENSES ON ADDITION OF FLAT TO BE ALLOWED. 4. I RESERVE A RIGHT TO SUBMIT ADDITIONAL DOCUMENTS. 2 ITA NO. 1310/MUM/2018 2. ITNS - 51 DATED 30.01,20 14 HAS NOT BEEN RESPONDED TO BY A.O. CERTIFICATIONS THEREIN ARE PRESUMED IN ORDER. DESIRE OF PRESENCE AT HEARING VIDE COL.7 IS TAKEN IN NEGATIVE. 2.1 THERE IS JUST ONE ISSUE IN THE APPEAL. THE A.O, NOTED YEAR - WISE EXPENSES INCURRED BY APPELLANT FOR RENOVA TION / REPAIR (PARA 4). THEREAFTER HE NOTED AS UNDER: 'IT IS SEEN FROM THE DETAILS THAT OIL THE ABOVE EXPENSES ARE INCURRED BY CASH FOR REPAIR OF THE FLAT EXCEPT ONE PAYMENT OF RS . 25, 000 / - MADE BY CHEQUE INMOV.2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH SUPPORTING DOCUMENT IN RESPECT OF THE EXPENSES INCURRED FOR REPAIR OF THE SAID FLAT. HOWEVER, THE ASSESSEE HAS FAILED TO SUBMIT THE SUPPORTING DOCUMENTS SUCH AS COPY OF BILLS & VOUCHERS, LEDGER COPY OF EXPENSES , BANK STATEMENT SHOWING WITHDRAWAL OF CASH AND PAYMENT TOWARDS HOUSE REPAIR EXPENSES. HENCE, THE EXPENSES INCURRED BY CASH ABOVE RS.20,000/ - FOR REPAIR OF THE FLAT IS NOT ALLOWED FOR WANT OF SUPPORTING DOCUMENTS. THE CASH PAYMENT ABOVE RS.2 0 , 000 / - WORKS O UT TO RS,2,89,405/ - WHICH IS NOT ALLOWED AS COST OF IMPROVEMENT AND ACCORDINGLY, THE CAPITA L GAIN IS WORKED OUT AS UNDER. 3. THE ADDITIONAL EVIDENCE DOCUMENTATION HAS BEEN DISALLOWED BY ME FOR ADMISSION. THE BILLS ARE AFTER THOUGHTS AND WHY THEY COULD NO T BE PRODUCED BEFOR E A.O. IS NOT EXPLAINED AT ALL. 4. THEREAFTER, THE LD. CIT(A) QUOTED CERTAIN CASE LAWS AND CONCLUDED AS UNDER: THE CONCLUSION WHICH EMERGES I S THAT UNLESS BES T EVIDENCE IS TED BEFORE THE ITO T HE ASSESSEE IS LIKELY TO BE VISITED WITH A DVERSE CONSEQUENCES DUE TO CIRCUMSTANCES PRIMARILY OF HIS OWN MA K IN G . 4. ISSUE IS NOT MERELY GENUINENESS OF PAYMENTS BUT THEIR RELEVANCE AND VERIFIABILITY. TH E APPELLANT FAILS THIS TEST. 4.1 THE DISALLOWANCE IS FOUND IN ORDER. IN THE RESULT, TH E APPEAL IS DISMISSED. 5. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. I HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE. THE NOTICE SENT HAS RETURNED ANS WERED. HENCE, I PROCEEDED TO ADJUDICATE THE ISSUE BY HEARING THE LD. DR AND PERUSING THE RECORDS. 7. UPON CAREFUL CONSIDERATION, I F IND THAT THE LD. C IT(A) HAS REFUSED TO ADMIT THE ADDITIONAL EVIDENCE WITHOUT COGENT REASON. HE IS CONCLUDING THAT UNLESS BE ST E VIDENCE IS LED BEFORE THE ITO, THE ASSESSEE IS LIKELY TO BE V ISI TED WITH A DVERSE CONSEQUENCE. STILL STRANGELY HE IS REFUSING TO ADMIT THE ADDITIONAL EVIDENCE. 3 ITA NO. 1310/MUM/2018 8. IN M Y CONSIDERED OPINION , ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ISSUE NEEDS TO BE REMITTED TO THE A.O. TO CONSIDER THE ISSUE AFRESH IN LIGHT OF THE EVIDENCE NO W BEING PROVIDED. 9. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 0 1 . 0 1 . 2 0 1 9 S D / - (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI ; DATED : 0 1 . 0 1 . 2 0 1 9 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI