SAJID ALI KHAN, MUMBAI V. ITO 11(3)(3), MUMBAI

ITA 1520/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8298 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 10-12-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 25-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Assessee Lawyers: SANJAY B VORAAR
• Keywords: Reopening of assessment; Opportunity of being heard
• Section: 234B; 68; 148

Judgement Text

, , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI , .. , ! ' # BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NOS.1520/MUM/2013 $ $ $ $ / ASSESSMENT YEAR: 2003-04 DR. SAJIDALI S. KHAN HOUSE NO.C-39, KALINA VILLAGE, KALINA SANTACRUZ (E) MUMBAI-400029. VS. INCOME TAX OFFICER WARD 11(3)(3) AAYAKAR BHAVAN, 4 TH FLOOR MUMBAI-400 020. ( %& / ASSESSEE) ( ' / REVENUE) P.A. NUMBER : AAPPK 0029 A %& ( (( ( ) ) ) ) / ASSESSEE BY SHRI SANJAY B. VORA-AR ' ( (( ( ) ) ) ) /REVENUE BY : SHRI NEIL PHILIP-DR ( &*! / DATE OF HEARING : 10/12/2014 +,$ ( &*! / DATE OF PRONOUNCEMENT : 10/12/2014 ' - ' - ' - ' - / O R D E R PER JOGINDER SINGH (JM) : THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 07/11/2012 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2003-04, ON THE FOLLOWING GROUNDS. 2 DR. SAJID ALI KHAN 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT (A ) ERRED IN CONFIRMING THAT THE VALID NOTICE WAS ISSUED BY THE INCOME TAX OFFICER U/S. 148 OF THE INCOME TA X ACT. THE ASSESSEE PRAYS THAT SUCH NOTICE BE TREATED AS I NVALID. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT (A ) ERRED IN CONFIRMING THE ADDITIONS OF RS. 14,61,349/- MADE BY THE INCOME TAX OFFICER UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT. 2. AT THE TIME OF HEARING, LD COUNSEL FOR THE ASSE SSEE, SHRI SANJAY B. VORA ADVANCED HIS ARGUMENTS IDENTICA L TO THE GROUND RAISED BY CONTENDING THAT THE ASSESSEE B ORROWED LOANS AND THUS NOTHING NEW SURFACED FOR MAKING REASSESSMENT, BY FURTHER SUBMITTING THAT THE IMPUGN ED LOANS WERE ALREADY APPEARING IN THE BALANCE SHEET O F THE ASSESSEE, FILED WITH THE RETURN. ON THE OTHER HAND , THE LD. DR, SHRI NEIL PHILIP CONTENDED THAT THERE WAS NEW M ATERIAL AVAILABLE WITH THE ASSESSING OFFICER WHICH WAS MADE AVAILABLE VIDE LETTER DATED 21/11/2007 BY THE ITO-1 1(3)(2) AS PER WHICH THE ASSESSEE AVAILED CASH LOANS FROM T HE FAMILY MEMBERS, WHOSE CAPACITY WAS HIGHLY QUESTIONA BLE. 2.1. KEEPING IN VIEW, THE TOTALITY OF FACTS, SO FAR AS, REOPENING OF ASSESSMENT IS CONCERNED, WE ARE OF THE VIEW THAT IN VIEW OF THE LETTER DATED 21/11/2007 OF ITO WARD 11(3)(2) AND THE MATERIAL AVAILABLE ON RECORD, WE A RE SATISFIED THAT THERE WAS NEW MATERIAL WITH THE ASSE SSING OFFICER, THUS REOPENING OF ASSESSMENT U/S 147/148 O F THE 3 DR. SAJID ALI KHAN ACT IS JUSTIFIED, BECAUSE THE PROVISIONS OF SECTION 147, AS AMENDED WITH EFFECT FROM 01/04/1989 ARE CONTEXTUALL Y DIFFERENT AND THE CUMULATIVE CONDITIONS SPELT OUT I N CLAUSES (A) AND (B) OF SECTION 147, PRIOR TO ITS AMENDMENT, ARE NOT PRESENT IN THE AMENDED PROVISIONS. THE ONLY CONDIT ION FOR ACTION IS THAT THE ASSESSING OFFICER SHOULD HAVE RE ASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, MEANING THEREBY, AFTER THE AMENDMENT POWER TO REOPEN THE ASSESSMENT IS MUCH WIDER. 2.2. SO FAR AS, THE CAPACITY AND GENUINENESS OF LOAN/CREDITORS IS CONCERNED, ON PERUSAL OF RECORD A ND AFTER HEARING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW T HAT IT NEEDS REEXAMINATION AS THERE WAS A GROSS VARIATIONS BETWEEN THE BALANCE SHEET FILED ON 12/02/2004 AND 21/07/2008. THE ASSESSING OFFICER IS TO EXAMINE AN D GENUINENESS OF THE TRANSACTION AND THE CAPACITY OF THE CREDITORS. THEREFORE, ON THIS ISSUE, WE DIRECT THE ASSESSING OFFICER TO EXAMINE THIS ISSUE AFRESH WITH RESPECT T O CONDITIONS LAID DOWN U/S 68 OF THE ACT. THE ASSESS EE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBER TY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM, THEREFORE, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 2.3. SO FAR AS, LEVYING OF INTEREST U/S 234A, 234B AND 234C OF THE ACT IS CONCERNED, IT IS CONSEQUENTIAL IN NAT URE. 4 DR. SAJID ALI KHAN APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATIS TICAL PURPOSES. FINALLY, APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 10/12/2014. SD/- SD/- ( B.R. BASKARAN) ( JOGINDE R SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 10/12/2014 JV, SR. PS / SHEKHAR, P.S/. . . ' - ' - ' - ' - ( (( ( .&/ .&/ .&/ .&/ 0 /$& 0 /$& 0 /$& 0 /$& / COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. .312 / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- 4. 4 / CIT 5. /5 .& , , / DR, ITAT, MUMBAI 6. 56 7 / GUARD FILE. ' - ' - ' - ' - / BY ORDER, 3/& .& //TRUE COPY// 8 88 8 / 9 9 9 9 ' ' ' ' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI