M/S. RAMESH SHIVDASANI, MUMBAI V. THE ITO WD 16(2)(1),

ITA 174/MUM/2008

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8250 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2004-2005
• Appeal Filed On: 07-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI; NATASHA MANGAT
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R S SYAL, AM & SHRI VIJAY PAL RAO, JM ITA NO. 174/MUM/2008 (ASST YEAR 2004-05 ) SHRI RAMESH SHIVADASANI C/O DINESH PAI & CO CAS 402 MARATHON CHAMBERS P K ROAD, PANCH RASTA, MULUND (W) MUMBAI 80 VS THE INCOME TAX OFFICER WARD 16(2)(1), MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AGTPS 1750P ASSESSEE BY SHRI S C TIWARI/MS NATASHA MANGAT REVENUE BY SH RAKESH RANJAN DT.OF HEARING 14 TH NOV 2012 DT OF PRONOUNCEMENT 16 TH NOV 2012 PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 15 TH NOV 2007 OF THE CIT(A) FOR THE AY 2004-05. 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX-APPEALS-XVI, M UMBAI ERRED IN CONFIRMING THE ADDITION OF ` . 24,26,584/- MADE BY THE ID. AC IN RESPECT OF THE GIFTS RECEIVED BY THE APPELLANT BY TREATING THE SAME AS THE FEES FOR PROFESSIONAL FEES.. WITHOUT PREJUDICE TO THE AFORESAID GROUND OF APPEAL N O. 1, 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX-APPEALS-XVI, M UMBAI ERRED IN NOT ADMITTING THE FRESH EVIDENCE IN THE FORM OF AFFIRMED AFFIDAVITS OF THE 19 DONORS. 3 THE ASSESSEE IS STATED TO BE A QUALIFIED BIO-ENER GETIC PRACTITIONER AND ALSO QUALIFIED HOMEOPATH. IT IS ALSO STATED THAT THE AS SESSEES EXPERTISE IN MEDICAL FIELD IS ITA NO. 174/M/2008 SHRI RAMESH SHIVADASANI . 2 RESTRICTED TO ELECTRO DEMAL SCREENING (EDS), ELECTR O ACUPUNCTURE (EVA) AND BIOFEEDBACK THERAPY. APART FROM THE RECEIPTS ON AC COUNT OF CONSULTATION, RENTAL INCOME AND INTEREST INCOME, THE ASSESSEE HAS ALSO S HOWN RECEIPT OF GIFT OF ` 24,26,584/- DURING THE YEAR FROM TEN DIFFERENT PER SONS, THE DETAILS OF WHICH ARE GIVEN BY THE ASSESSING OFFICER IN PARA 4 OF THE ASS ESSMENT ORDER. THE ASSESSING OFFICER TREATED THE GIFT AMOUNT OF ` 24,26,584/- AS PROFESSIONAL INCOME OF THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 3.1 BEFORE THE CIT(A) THE ASSESSEE FILED THE COPIES OF THE AFFIDAVITS FROM THE DONORS MADE ON DIFFERENT DATES; BUT THE CIT(A) DECL INED TO ADMIT THE ADDITIONAL EVIDENCE AND UPHELD THE ADDITION MADE BY THE ASSESS ING OFFICER ON THIS ACCOUNT. 4 BEFORE US, THE ASSESSEE HAS RAISED THE ISSUE OF N ON ADMITTING OF THE ADDITIONAL AFFIDAVITS BY THE CIT(A) IN GROUND NO.2. ACCORDINGL Y, WE FIRST TAKE UP GROUND NO.2. 5 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE CIT(A) HAS REJECTED THE ADDITIONAL EVIDENCE ON THE GROUND THAT THE ASSESSEE HAS NOT FOLLOWED THE PROCEDURE AS LAID DOWN IN RULE 46A WITHOUT GIVING T HE ASSESSEE AN OPPORTUNITY TO SATISFY THE CIT(A) OR TO FOLLOW THE PROPER PROCEDUR E AS PROVIDED UNDER RULE 46A OF THE I T RULES. THE LD AR HAS FURTHER SUBMITTED TH AT IT IS NOT THE CASE OF THE CIT(A) THAT THE ASSESSEE HAS NOT COMPLIED WITH THE CONDITIONS AS LAID DOWN UNDER RULE 46A; BUT THE REJECTION OF THE ADDITIONAL EVIDENCE IS BASED O NLY ON THE GROUND THAT THE ASSESSEE HAS NOT FOLLOWED THE PROCEDURE. THUS, THE LD AR HAS SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCE FILED BEFORE THE CIT(A) MAY BE ADMITTED AND THE MATTER MAY BE REMANDED TO THE RECORD OF THE AUTHORITIES BELOW FOR CONSIDERING OF THE ADDITIONAL EVIDENCE. ITA NO. 174/M/2008 SHRI RAMESH SHIVADASANI . 3 5.1 ON THE OTHER HAND, THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT WHEN THE NATURE OF RECEIPT HAS BEEN DECIDED BY THE ASSESSING OFFICER AS OCCUPATIONAL/PROFESSIONAL INCO ME, THEN THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WILL NOT HELP THE CA SE OF THE CASE. 6 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER TREATED THE GIFT AMO UNT OF ` . 24,26,584/- RECEIVED BY THE ASSESSEE FROM VARIOUS PERSONS AS ASSESSEES OCC UPATION/PROFESSIONAL INCOME. IN SUPPORT OF HIS CLAIM, THE ASSESSEE HAS FILED AFFIDA VITS FROM 19 DONORS BEFORE THE CIT(A), BEING ADDITIONAL EVIDENCE. THE CIT(A) DID NOT ADMIT THE ADDITIONAL EVIDENCE FOR WANT OF PROCEDURE LAID DOWN IN RULE 46 A. THE RELEVANT PART OF THE ORDER OF THE CIT(A) IN REJECTING THE ADDITIONAL EV IDENCE IN PARA 2.6 ARE AS UNDER: 2.6 DURING THE APPEAL PROCEEDING, THE APPELLANT SUB MITTED COPIES OF AFFIDAVITS FROM 19 DONORS, MADE ON DIFFERENT DATES BE TWEEN 2 ND TO 12 TH MARCH, 2007 WITHOUT FOLLOWING THE PROCEDURE LAID DOWN IN RU LE 46A OF THE I T RULES. HENCE, THESE DOCUMENTS WERE NOT ADMITTED AS ADDITION AL EVIDENCE. 3 IT IS MANIFEST FROM THE IMPUGNED ORDER OF THE CIT (A) THAT THE ADDITIONAL EVIDENCE WAS REJECTED ON THE GROUND THAT THE ASSESS EE HAS NOT FOLLOWED THE PROCEDURE LAID DOWN IN RULE 46A, WHICH IS PURELY A TECHNICAL REASON FOR REJECTING THE EVIDENCE. 4 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF T HE CASE AS WELL AS IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE HAS TO BE CONSIDERED AND EXAMINED B Y THE ASSESSING OFFICER. ACCORDINGLY, WE REMIT THE ISSUE TO THE RECORD OF TH E ASSESSING OFFICER FOR CONSIDERATION AND EXAMINATION OF THE ADDITIONAL EVI DENCE, FILED BY THE ASSESSEE AND THEN DECIDE THE ISSUE AFRESH AS PER LAW. ITA NO. 174/M/2008 SHRI RAMESH SHIVADASANI . 4 4.1 SINCE THE ADDITIONAL EVIDENCE IS CLAIMED TO HAV E BEEN FILED IN SUPPORT OF THE CLAIM OF THE ASSESSEE REGARDING THE GIFTS RECEIVED; THEREFORE, WE DO NOT EXPRESS ANY OPINION ON THE MERIT OF THE ISSUE. 5 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH ,DAY OF NOV 2012. SD/- SD/ - ( R SYAL ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 16 TH , NOV 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI