HEMANT UMAJI DOKE, MUMBAI V. ADDL CIT 17(2), MUMBAI

ITA 1477/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4283 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 09-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E SRIDHAR
• Keywords: Additional evidence; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.1477/M/2013 ASSESSMENT YEAR: 2008-09 M/S. HEMANT UMAJI DOKE, 43/7, SAHAKAR NAGAR, NAIGAON CROSS ROAD, 26, WADALA, MUMBAI 400 031 PAN: ANUPD 9027F VS. ADDL CIT 17(2), PIRAMAL CHAMBERS, MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI ASHOK SHARMA, A.R. REVENUE BY : SHRI E. SRIDHAR, D.R. DATE OF HEARING : 05.04.2016 DATE OF PRONOUNCEMENT : 05.04.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 25.01.2011 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2008-09. 2. THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 46 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY WHICH IS SUPPORTED WITH AN AFFIDAVIT STATING THAT THE ASSESSEE WAS NOT WELL AS HE WAS SUFFERING FROM HEPATITIS. IT HAS ALSO BEEN SUBMITTED THAT EVEN HI S COUNSEL WAS ALSO NOT KEEPING GOOD HEALTH. THE LD. A.R. HAS ALSO PRODUCED THE CO PIES OF THE MEDICAL CERTIFICATE IN THIS RESPECT. CONSIDERING THE ABOVE APPLICATION WHICH IS SUPPORTED WITH EVIDENCES, THE DELAY IN FILING THE P RESENT APPEAL IS HEREBY CONDONED. NOW COMING TO THE MERITS OF THE APPEAL. 3. THE SOLE GROUND TAKEN BY THE ASSESSEE IN THIS AP PEAL READ AS UNDER: 1) ON THE BASIS OF FACTS OF THE CASE THE LEARNED ASSESSING OFFICER ERRED IN MAKING ADDITION OF AND LEARNED CIT(A) ERRED IN CONF IRMING THE SAID ADDITION OF ITA NO.1477/M/2013 M/S. HEMANT UMAJI DOKE 2 RS.45,00,000/- PAID AS COMPENSATION TO VARIOUS UNIT DWELLERS WHO HAS GIVEN CONSENT FOR REDEVELOPMENT OF THEIR STAFF QUARTERS. 4. THE ASSESSEE IN THIS CASE IS AN INDIVIDUAL ENGAG ED IN THE BUSINESS OF CARRYING OUT LIAISON WORK WITH BUILDERS AND DEVELOP ERS. THE ASSESSEE ALSO PROVIDES VARIOUS SERVICES FOR SLUM AND REDEVELOPMEN T PROJECTS INCLUDING CONVINCING UNIT DWELLERS OF SUCH PROJECTS FOR DEVEL OPMENT. DURING THE YEAR, THE ASSESSEE OBTAINED LICENSING AND CONSULTING WORK FOR M/S. BIG SEARCH PROPERTIES PVT. LTD. AND RECEIVED FEE OF RS.5,02,84 ,799/-. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) FOUND T HAT THE ASSESSEE HAD MADE PAYMENT OF RS.3 LAKH EACH TO 15 TENANTS AMOUNTING T O RS.45 LAKHS AS COMPENSATION MADE IN CASH. WHEN ASKED TO EXPLAIN I N THIS RESPECT, THE ASSESSEE EXPLAINED THAT THE AMOUNT WAS PAID IN CASH TO THE OCCUPANTS WHO AFTER RECEIVING THE MONEY HAD AGREED FOR REDEVELOPMENT. THE ASSESSEE PRODUCED EVIDENCE SUCH AS COPY OF CONSENT LETTER, COPY OF AG REEMENT WITH THE DEVELOPER IN THE NAME OF THE PERSONS TO WHOM THE PAYMENT WAS MADE AND IT WAS ALSO EXPLAINED THAT SINCE THE UNIT DWELLERS WERE POOR AN D NOT VERY EDUCATED PERSONS, HENCE THEY DEMANDED MONEY IN CASH BEFORE SINGING TH E CONSENT TERMS. HOWEVER, THE AO WAS NOT CONVINCED WITH THE REPLY GI VEN BY THE ASSESSEE AND HE ACCORDINGLY DISALLOWED THE CLAIM OF EXPENDITURE. 5. THE LD. CIT(A) ALSO CONFIRMED THE ABOVE DISALLOW ANCE. THE ASSESSEE HAS, THUS, COME IN APPEAL BEFORE US. 6. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN THE SU BSEQUENT ASSESSMENT YEAR 2009-10 AND THAT THE TRIBUNAL, AFTER CONSIDERING TH E SUBMISSIONS AND EVIDENCES RELIED UPON BY THE ASSESSEE VIDE ORDER DATED 17.01. 16, HAS RESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER VERIFYING THE FACTS AND CONSIDERING THE EVIDENCES RELIED UPON BY THE ASSESS EE. THE RELEVANT FINDINGS OF THE TRIBUNAL FOR THE SAKE OF CONVENIENCE ARE REPROD UCED AS UNDER: 4. DURING THE COURSE OF HEARING BEFORE US, THE DEP ARTMENTAL REPRESENTATIVE(DR) ARGUED THAT ORIGINAL VOUCHERS WE RE NOT PRODUCED IN ITA NO.1477/M/2013 M/S. HEMANT UMAJI DOKE 3 SUPPORT OF THE CLAIM MADE BY THE ASSESSEE, THAT BAN K DETAILS DID NOT SHOW PAYMENT OF RS.73 LAKHS, THAT THERE WAS LONG TIME GA P(6 MONTHS TO 30 MONTHS) BETWEEN THE LIABILITY AND PAYMENT, THAT REL EVANT AGREEMENT WAS NOT FURNISHED FOR VERIFICATION. THE AUTHORISED REPR ESENTATIVE(AR) CONTENDED THAT THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM O F ACCOUTING, THAT THE LIABILITY HAD ACCRUED DURING THE YEAR UNDER APPEAL, THAT PAYM ENTS WERE MADE IN SUBSEQUENT YEARS, THAT ALL THE NECESSARY DETAILS WE RE MADE AVAILABLE TO THE AO. HE REFERRED TO THE STATEMENT OF FACTS FILED BEFORE THE FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE AO HAD DISALLOWED THE COMMISSION E XPENDITURE AS CERTAIN DETAILS WERE NOT FILED, THAT IN THE STATEMENT OF FACTS THE ASSESSEE HAD MENTIONED THAT HE HAD FURNISHED PAYMENT VOUCHERS, THAT THE FAA HAD AD MITTED THE AFFIDAVITS FILED BY THE ASSESSEE ON BEHALF OF THE RECIPIENTS OF THE COM MISSION, THAT HE HAD NOT FORWARDED THOSE DOCUMENTS TO THE AO FOR VERIFICATIO N, THAT HE HAD NOT INVOKED PROVISIONS OF RULE 41 OF THE INCOME TAX RULES,1961( RULES)WHILE RELYING UPON THE AFFIDAVITS. IN THESE PECULIAR CIRCUMSTANCES WE ARE OF THE OPINION THAT THE MATTER NEEDS FURTHER VERIFICATION. SO, IN THE INTE REST OF THE JUSTICE, WE ARE RESTORING BACK THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. HE IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY OF HEAR ING TO THE ASSESSEE. THE ASSESSEE WOULD FILE ALL THE RELEVANT DETAILS AND DO CUMENTS BEFORE THE AO. EFFECTIVE GROUND OF APPEAL FILED BY THE AO IS ALLOW ED IN HIS FAVOUR, IN PART. 7. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION T O THE APPLICATION DATED 01.04.16 MOVED FOR FURNISHING OF ADDITIONAL EVIDENC ES SUCH AS CONSENT LETTERS OF TENANTS, COPY OF CONSULTANCY AGREEMENT AND RECTI FICATION DEED AND OTHER RELEVANT DOCUMENTS. THE LD. A.R. HAS THEREFORE SUB MITTED THAT THE APPLICATION OF THE ASSESSEE FOR ADDITIONAL EVIDENCES BE ALLOWED AND MATTER BE RESTORED TO THE FILE OF THE AO FOR THE ASSESSMENT YEAR UNDER CO NSIDERATION ALSO SO AS TO AVOID CONFLICT OF DECISIONS FOR DIFFERENT ASSESSMEN T YEARS. CONSIDERING THE ABOVE SUBMISSIONS OF THE LD. A.R., THE ISSUE FOR TH E YEAR UNDER CONSIDERATION IS RESTORED TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER GIVING ASSESSEE A REASONABLE OPPORTUNITY TO PRODUCE THE EVIDENCES RELIED UPON BY HIM AND THEN TO CONSIDER THE SAME AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. ORDER PRONOUNCED IN THE OPEN COURT ON 05.04.2016. SD/- SD/- (RAJESH KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 07.04.2016. * KISHORE, SR. P.S. ITA NO.1477/M/2013 M/S. HEMANT UMAJI DOKE 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.