BHARAT V RELAN, MUMBAI V. ITO 9(3)(2), MUMBAI

ITA 1686/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3338 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA MENONDR
• Assessee Lawyers: HARI KRISHAN
• Keywords: Opportunity of cross examination
• Section: 143(3); 133A; 148

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL, MUMBAI B BENCH . . , BEFORE S/SH. MAHAVIR SINGH,JM & B.R. BASKARAN,AM ./ ITA NO./1686/MUM/2013, / ASSESSMENT YEARS: 2008-09 BHARAT V. RELAN 401, BLOSSOM BUILDING, 4TH FLOOR, OPP. TBZ, NEAR ASHA PAREKH HOSPITAL,S.V. ROAD, SANTACRUZ (W) MUMBAI-400 054. PAN:AAAPR 5793 F VS. INCOME TAX OFFICER-9(3)-2 MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: MS. VINITA MENON-DR ASSESSEE BY: SHRI HARI KRISHAN / DATE OF HEARING: 30.08.2016 / DATE OF PRONOUNCEMENT:30.08.2016 ,1961 254(1) ORDER U/S 254(1) OF THE INCOME-TAX ACT, 1961(THE AC T) O R D E R PER MAHAVIR SINGH,JM : THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE O RDER OF CIT(A)-20, MUMBAI IN APPEAL NO.CIT(A)20/9(3)(2)/IT-377/2011-12, ORDER DA TED 14.12.2012. ASSESSMENT WAS FRAMED BY ITO WARD-9(3)-2, MUMBAI U/S. 143(3) R .W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) FOR THE ASSESSMENT YEA R 2008-09 VIDE HIS ORDER DATED 29.11.2011. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN M AKING ADDITION OF PAYMENT FOR PURCHASE OF PROPERTY, IN CASH IN EXCESS OF PAYMENT DISCLOSED IN THE SALE DEED, AT 1686/M/13 BHARAT RELAN 2 RS.10,63,598/- AND ALSO PAYMENT OF CAR PARKING CHAR GES AMOUNTING TO RS.5,71,428/-. FOR THIS THE ASSESSEE HAS RAISED THE FOLLOWING TWO GROUNDS:- 1.THE LD.CIT(A)-20, MUMBAI HAS ERRED IN CONFIRMING THE ACTION OF A.O. OF ADDING RS.10,63,598/- TOWARDS PAYMENT FOR PURCHASE OF PROPERTY IN CASH. 2. THE LD.CIT(A)-20, MUMBAI HAS ALSO ERRED IN CONFI RMING THE ACTION OF A.O. OF ADDING RS.5,71,428/- ON ACCOUNT OF PAYMENT FOR CAR PARKING CHARGES IN CASH. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH TH E FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT A SURVEY U/S.133 OF THE ACT WAS CARRIED OUT BY THE DEPARTMENT IN THE CASE OF M/S. SHIVAM CORPORAT ION, WHEREIN SHIVAM CORPORATION ADMITTED UNACCOUNTED CASH PAYMENT AND ADDITION MADE BY AO IN THEIR HANDS IS AS UNDER :- DETAILS OF ADDITIONAL INCOME A] PARKING CASH RS.40,00,000/- THE ASSESSEE AHS NOT MAINTAINED THE LIST REGARDING NAMES OF PERSONS FROM WHOM THE PARKING CHARGES HAVE BEEN RECEIVED IN CASH. B] STATEMENT SHOWING DIFFERENCE BETWEEN READY RECKO NER PRICE AND AGREEMENT PRICE ENCLOSED STATEMENT SHOWING DIFFERENCE BETWEEN READY RECKONER PRICE AND AGREEMENT PRICE. THE DIFFERENCE IS RS.1,13,54,845/- AS PER STATEMENT AT THE TIME OF SURVEY IN PAGE NO.8 THE ASSESSEE HAS WRITTEN SALE BY CASH RS.1,58,00,000/- THUS THE INCOME DECLARED UNDER SALE BY CASH IS AS U NDER:- DIFFERENCE BETWEEN READY RECKONER PRICE - RS.1, 13,54,845/- MISCELLANEOUS INCOME - RS. 14,45,155/- - RS.1.58,00,000/- WE ARE ALSO ENCLOSING HEREWITH FOLLOWING AGREEMENTS :- 1. RAMESH B. SHAH 2. KANTILAL MANILAL SHAH 1686/M/13 BHARAT RELAN 3 3. RAJNIKANT POPATLAL SHAH 4. SUSHILA GUNVANTLAL DALAL 5. BHARAT V.RELAN 6. MUKTIRAM AGRAWAL 7. HETAL B. GOGRI TOTAL ADDITIONAL INCOME :- PARKING CHARGES CASH RS. 40,00,000/- SALE BY CASH AS STATED ABOVE RS.1,58,00,000/- RS.1,98,00,000/- 4. FROM THE ABOVE IT CAN BE NOTICED THAT THE ASSESS EE HAS PURCHASED ONE FLAT NO.401 ADMEASURING 1218 SQ.FT. AND ALSO CAR PARKING SPACE. ACCORDING TO AO THE ASSESSEE HAS PAID A SUM OF RS.10.6 LAKHS AS OWN MON EY FOR PURCHASE OF FLAT AND RS.5,71,428/- FOR PARKING SPACE ALLOTMENT. THE ASSE SSEE REQUESTED THE AO THAT THIS ADDITION IS MADE ON THE BASIS OF STATEMENT OF PARTN ER OF SHIVAM CORPORATION-MR. DEEPAK B. SAHNI RECORDED ON 19.10.2011 I.E., DURING THE COURSE OF SURVEY U/S. 133A OF THE ACT. ACCORDING TO AO, OUT OF THE TOTAL DISCLOSU RE THESE TWO AMOUNTS WERE PAID BY THE ASSESSEE AS OWN MONEY. ACCORDINGLY, THE ASSESSM ENT WAS RE-OPENED BY ISSUING NOTICE U/S. 148 OF THE ACT AFTER RECORDING OF REASO NS. THE CIT(A) ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER MAKING ADDITION. AG GRIEVED, BY THE ORDERS OF LOWER AUTHORITIES, NOW ASSESSEE IS IN SECOND APPEAL BEFOR E THE TRIBUNAL. 5. BEFORE US LD. COUNSEL FOR THE ASSESSEE MADE ONLY ONE PLEA THAT NO OPPORTUNITY OF CROSS EXAMINATION OF SHRI DEEPAK B. SAHNI WAS AL LOWED BY THE REVENUE DESPITE A SPECIFIC PLEA TAKEN BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE CIT(A). ON QUERY FROM THE BENCH, LD. SR.DR FAIRLY CONCEDED THAT A FA IR OPPORTUNITY OF HEARING/CROSS EXAMINATION OF SHRI DEEPAK B. SAHANI BE ALLOWED TO THE ASSESSEE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW T HAT LET THIS ISSUE BE RESTORED BACK 1686/M/13 BHARAT RELAN 4 TO THE FILE OF AO TO ALLOW ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE SHRI DEEPAK B. SAHNI, PARTNER OF SHIVAM CORPORATION. ACCORDINGLY, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF ASSESSING OFFICER. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2016 30 TH , 2016 SD/- SD/- ( . . / B.R. BASKARAN) ( / MAHAVIR SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /MUMBAI, /DATE: 30.08.2016 . . . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ ! ' #$ , 4. THE CONCERNED CIT / ! ' #$ ; 5. DR A BENCH, ITAT, MUMBAI / % , B , . . . 6. GUARD FILE/ & //TRUE COPY// / BY ORDER, DY./ASST. REGISTRAR , /ITAT, MUMBAI.