VINAY B. DESAI, MUMBAI V. ITO 8(1)(3), MUMBAI

ITA 2036/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4282 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 25-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Keywords: Unexplained investment; Gift; Additional evidence; Onus to prove
• Section: 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2036/MUM/2014 ASSESSMENT YEAR: 2006-07 SHRI VINAY B. DESAI, A-52, GIRIRAJ INDL. ESTATE, MAHAKALI CAVES ROAD, ANDHERI (E), MUMBAI-400093. PAN: AACPD0488K VS. ITO 8 (1)(3), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JAYESH DADIA REVENUE BY : SHRI VIVEK BATRA (DR) DATE OF HEARING : 10.12.2015 DATE OF PRONOUNCEMENT : 01.01.2016 O R D E R PER PAWAN SINGH, JM: 1. THIS IS SECOND ROUND OF APPEAL IN THE PRESENT MATTE R. THE ASSESSMENT ORDER WAS PASSED ON 19.12.2008 WHEREIN AN ADDITION OF UNEXPLA INED INVESTMENT IN INDUSTRIAL GALA (PLOT) AMOUNTING TO RS. 26,32,608/- WAS MADE. AGAINST THE ORDER OF ASSESSMENT AN APPEAL WAS FILED BEFORE CIT(A) AND THE SAME WAS DISMISSED BY THE CIT(A) VIDE ORDER DATED 09.04.2010, AGAINST WHICH AN APPEAL WAS FILED BEFORE THIS TRIBUNAL WHICH WAS REGISTERED AS ITA NO. 4126/MUM/2010. OUR LD. P REDECESSOR REMANDED THE CASE TO THE FILE OF CIT(A) VIDE ORDER DATED 20.03.2013 W ITH DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCE BY FAA. THE FAA/CIT(A) VIDE ITS ORDER DATED 29.01.2009 AGAIN DISMISSED THE APPEAL, HENCE THE PRESENT APPEAL IS A GAIN FILED BEFORE US ON THE FOLLOWING GROUNDS: (1) THE LEARNED CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN M AKING ADDITION OF RS.26,32,608 AS UNEXPLAINED INVESTMENT U/S 69B OF T HE INCOME TAX ACT IN THE HANDS OF YOUR PETITIONER. THE ACTION IS UNJUSTIFIED AND UNWARRANTED. 2 ITA NO. 2036/M/2014 SHRI VINAY B. DESAI (2) THE LEARNED CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT CONSIDERING THE EVIDENCES FILED DURING THE COURSE O F APPELLATE PROCEEDINGS WHICH WERE IN ACCORDANCE WITH THE DIRECTIONS OF HON 'BLE ITAT.. THE ACTION IS UNJUSTIFIED AND UNWARRANTED. (3) YOUR PETITION CRAVES LEAVE TO ADD, ALTER, MODIF Y OR WITHDRAW THE AFORESAID GROUNDS OF APPEAL. 2. THE BRIEF FACT OF THE CASE ARE THAT THE ASSESSEE FI LED HIS RETURN OF INCOME ON 07.12.2006 DECLARING TOTAL INCOME OF RS. 1,94,250/- . THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT AND AFTER SERVING STATUTORY NOTIC E, THE ASSESSING OFFICER (AO) PASSED THE ASSESSMENT ORDER AND MADE THE ADDITION O F RS. 26,32,608/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69(B) IN THE ASSESSMENT ORDER DATED 09.12.2008, ON OBSERVING THAT ASSESSEE ALONG WITH HIS BROTHER GIF TED PROPERTY AT INDUSTRIAL UNIT NO. 7, 8 & 9, MEASURING 2146 SQ.FT. IN SATAM INDUSTRIAL ES TATE, C-WING, CHAKLA, ANDHERI TO THEIR WIVES, THE MARKET VALUE OF WHICH PROPERTY WAS RS. 5265216/- AND THE SAME WAS TREATED AS UNEXPLAINED INVESTMENT U/S.69(B) OF THE ACT, AGAINST WHICH THE APPEAL WAS FILED BEFORE THE CIT(A) AS STATED IN PARA-1 ABOVE. 3. THE CIT(A) WHILE DISPOSING OF THE APPEAL AFTER REMA ND AGAIN CONFIRMED THE ADDITION AND DISMISSED THE APPEAL IN ITS ORDER DATED 13.12.2 013 AGAINST WHICH THE PRESENT APPEAL IS FILED BEFORE US. 4. WE HAVE HEARD THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND DEPARTMENTAL REPRESENTATIVE (DR) OF THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 5. THE AR OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE HAS FILED ALL THE RECORD BEFORE THE FAA WHICH INCLUDES THE COPY OF AGREEMENT DATED 30.0 9.1985 EXECUTED BETWEEN THE ANAND KRISHNAJI AND UDAY B. DESAI, VINAY B. DESAI, PANKAJ B. DESAI, JAYABEN B. DESAI FOR GALA NO. 8 & 9, COPY OF DECLARATION DATED 11.11.1985 FROM PANKAJ B. DESAI AND JAYABEN DESAI THEIR RIGHT IN FAVOUR OF VINAY B. DESAI AND UDAY B. DESAI AND COPY OF AGREEMENT DATED 08.04.1986 IN BETWEEN ANAND KRISHNAJI & MRS. JAYABEN B. DESAI (MOTHER OF THE ASSESSEE), COPY OF FAMILY ARRA NGEMENT DATED 05.05.2002 AND GIFT-DEED DATED 25.01.2006 IN FAVOUR OF THE ASSESSE E AND UDAY B. DESAI. 6. THE AR OF THE ASSESSEE FURTHER ARGUED THAT AGAINST THE ASSESSMENT ORDER DATED 19.12.2008, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AND THE SAME WAS DISMISSED VIDE ORDER DATED 09.04.2010 BY CIT(A) AGA INST WHICH THE ASSESSEE PREFERRED AN APPEAL BEFORE THE ITAT, MUMBAI AND THE SAME WAS REGISTERED AS ITA NO. 4126/MUM/2010 WHEREIN THE ADDITIONAL EVIDENCE O F THE ASSESSEE WAS ADMITTED 3 ITA NO. 2036/M/2014 SHRI VINAY B. DESAI AND THE MATTER WAS REMANDED TO THE FILE OF CIT(A) W ITH A DIRECTION FOR VERIFICATION OF THE DOCUMENTARY EVIDENCE PLACED BEFORE THE CIT(A). 7. THE AR OF THE ASSESSEE HAS FURTHER ARGUED THAT DESP ITE SHOWING ALL THE DOCUMENTS AND EXPLAINING THE TRANSACTION THE ADDITION WAS SUSTAIN ED AND THE CIT(A) HAS NOT CONSIDERED THE MATERIAL PLACED ON RECORD. 8. WE HAVE PERUSED THE ORDER OF CIT(A) AND THE DOCUMEN T FILED BEFORE US IN THE FORM OF PAPER BOOK. THE ASSESSEE HAS TAKEN THREE INCONSISTE NT STAND IN RESPECT OF ORIGINAL OF THE DOCUMENT DATED 30.09.1985 AND 01.04.1986. IN TH E GIFT-DEED DATED 25.01.2006 IN CLAUSE-L THE ASSESSEE HAS TAKEN A STAND THAT THE DO CUMENT HAD BEEN MISPLACED AND LOST AND COULD NOT TRACED AFTER DILIGENT SEARCH. FU RTHER DURING THE REMAND PROCEEDING THE ASSESSEES AR STATED THAT ORIGINAL AGREEMENTS A RE WITH M/S SATELLITE GAZEBO DEVELOPERS PVT. LTD. WITH WHOM, THE ASSESSEE MADE A COLLABORATION AGREEMENT AND AGAIN DURING THE REMAND PROCEEDING THE ASSESSEE SUB MITTED THAT THE AR OF THE ASSESSEE SUBMITTED LETTER DATED 25.11.2013 WHEREIN THE ASSESSEE HAS CONTENDED THAT LETTER TO THE BANK WAS WRITTEN BUT THE BANK ARE UNA BLE TO GIVE THE RECORDS WHICH ARE MORE THAN 20 YEARS OLD. 9. THE ONUS TO PROVE THE SOURCE TO ACQUIRE THE PROPERT Y WAS UPON THE ASSESSEE BUT THE ASSESSEE HAS NOT DISCHARGED HIS ONUS TO PROVE DESPI TE GIVING THE OPPORTUNITY IN THE REMAND PROCEEDING, RATHER TAKEN INCONSISTENT PLEAS INSTEAD OF PROVING THE SOURCE OF THE PROPERTY SO ACQUIRED. THE ASSESSEE HAS NOT FILE D COPY OF BALANCE-SHEET/PROFIT & LOSS A/C OF PREVIOUS FINANCIAL YEARS WHICH MAY SHOW OR PROVE THAT THE PLOT/INDUSTRIAL GALA WAS SHOWN IN THE ASSETS OF THE ASSESSEE IN EAR LIER YEARS. 10. EVEN BEFORE US, DURING THE COURSE OF ARGUMENT THE A R OF THE ASSESSEE FILED THE EXTRACT OF SECTION 63 OF EVIDENCE ACT. SECTION 63 OF EVIDEN CE ACT DEALS WITH THE PROVISIONS OF SECONDARY EVIDENCE. THE PROVISION OF SECONDARY E VIDENCE IS NOT HELPFUL TO THE ASSESSEE UNLESS THE ASSESSEE MAKES A PROPER APPLICA TION FOR CONSIDERATION OF SECONDARY EVIDENCE AND GIVEN PROPER ACCOUNTS/EXPLAN ATION ABOUT THE PRIMARY EVIDENCE. ADMITTEDLY NO SUCH APPLICATION IS FILED B Y ASSESSEE EITHER BEFORE FAA OR BEFORE US. THE ASSESSEE IS TAKEN INCONSISTENT PLEA. THE OTHER DOCUMENTS WHICH ARE ALSO PHOTO COPY AND FILED IN THE FORM OF PB DOES NO T CONFIRM THE TITLE OF THE PERSON WHO GIFTED THE PROPERTY IN FAVOUR OF ASSESSEE THOUG H THESE DOCUMENTS COULD BE USED FOR COLLATERAL PURPOSE FOR PROVING POSSESSION OVER THE PROPERTY WHICH IS SUBJECT MATTER OF GIFT. 4 ITA NO. 2036/M/2014 SHRI VINAY B. DESAI 11. IN THESE CIRCUMSTANCES, WE HOLD THAT THE ASSESSEE F AIL TO PROVE THE CONTENTS OF DOCUMENTS, HENCE THE APPEAL FILED BY ASSESSEE IS FA ILED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 ST DAY OF JANUARY 2016. SD -- SD- (N.K.BILLAIYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 01 /01/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/