ISMAIL SAHABJAN SHAIKH, MUMBAI V. ITO 19(3)(2), KALYAN

ITA 218/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6975 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 14-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence; Capital receipt
• Section: 131; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 218/MUM/2016 ASSESSMENT YEAR: 2009 - 10 ISMAIL SAHABJAN SHAIKH ROOM NO. 3, MAHARASHTRA NAGAR NO.1 SLOUGHTER HOUSE COMPOUND, BANDRA (E), MUMBAI - 400050. VS. INCOME TAX OFFICER - 19(3)(2), MUMBAI NOW ASSESSED WITH ITO - 23(1)(2). PAN NO. CCMPS1035D APPELLANT RESPONDENT ASSESSEE BY : MR. K. GOPAL , AR REVENUE BY : MR. SAURABH KUMAR RAI , DR DATE OF HEARING : 15/05 /2018 DATE OF PRONOUNCEMENT : 23/05/2018 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2009 - 10 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 32 , MUMBAI [ IN SHORT CIT(A)] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 144 R .W.S. 147 OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE /APPELLANT READ AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACTS AND EVIDENCE ON RECORD AND RAISE SEVERAL QUESTIONS FIRST TIME IN ASSESSMENT WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD . T HESE QUESTION S WERE ABOUT IGNORANCE OF ISMAIL SAHABJAN SHAIKH ITA NO. 218/MUM/2016 2 EXISTING LAWS AND COUR T ORDER HENCE ARE MISTAKE APPARENT HENCE PLEA OF THE ASSESSEE TO BE CONSIDERED IN RIGHT SPIRIT AND AFTER CONSIDERING FULL FACTS. 2. THE LD. CIT(A) HAS ERRED IN CONSIDERING CAPITAL RECEIPT AS INCOME FROM OTHER SOURCE. 3. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERIN G THE PLEA OF ASSESSEE THAT THIS RECEIPT OF RS.99,00,000/ - IS HARDSHIP ALLOWANCE AND BEING A CAPITAL RECEIPT CANNOT BE ADDED U/S 68. 3. THE APPELLANT HAS MOVED AN APPLICATION DATED 01.05.2018 BEFORE THE TRIBUNAL UNDER RULE 29 OF THE ITAT RULES, 1963 TO ADMIT ADDITIONAL EVIDENCE. THE LD. COUNSEL OF THE APPELLANT FILES A PAPER BOOK (P/B) CONTAINING (I) PETITION TO ADMIT ADDITIONAL EVIDENCES UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963, (II) COPY OF THE LETTER DATED 22.01.1975 ISSUED BY MA HARASHTRA HOUSING BOARD TO ISMAIL SHAIKH PERTAINING TO THE ALLOTMENT OF PLOT AT BANDRA KURLA COMPLEX (BANDRA), (III) COPY OF UNDERTAKING GIVEN BY THE ISMAIL SHAIKH, (IV) COPY OF LETTER ISSUED BY THE MAHARASHTRA HOUSING BOARD TO ISMAIL SHAIKH FOR CALLING CO UNTERFOILS PERTAINING TO THE TENEMENTS AT TRANSIT CAMP, (V) COPY OF LETTER DATED 15.02.1975 ADDRESSED TO THE HOUSING COMMISSIONER, MAHARASHTRA HOUSING BOARD, (VI) COPY OF THE LETTER DATED 11.07.1978 ISSUED BY ESTATE MANAGER (MAHARASHTRA HOUSING BOARD) WITH RESPECT TO THE RENT RECOVERY DUE FROM ISMAIL SHAIKH ALONG WITH CHARGE SHEET, (VII) COPY OF THE LETTER ISSUED BY BOMBAY HOUSING DEVELOPMENT BOARD ALONG WITH ANNEXURE S , (VIII) COPY OF THE SUBMISSION DATED 21.04.2015 FILED BEFORE THE LD. CIT(A) AND (IX) COPY OF THE LETTER DATED 13.12.2016 ADDRESS ED TO HDIL FOR ASKING DOCUMENTS AGAINST SURRENDERING TENANCY RIGHT AT PLOT NO. 6 AT BANDRA KURLA COMPLEX. ISMAIL SAHABJAN SHAIKH ITA NO. 218/MUM/2016 3 THE LD. COUNSEL SUBMITS THAT THE DOCUMENTS COMPILED AT SERIAL NO. 2 AND 8 WERE AVAILABLE BEFORE THE LD. CIT(A) WHEREAS DOCUMENTS COMPILED AT SERIAL NO. 3 TO 7 AND 9 ARE BEING PRODUCED FOR THE FIRST TIME BEFORE THE TRIBUNAL. IT IS STATED THAT THE APPELLANT IS ILLITERATE AND HE CANNOT EVEN SIGN AS ALL ALONG IN THE DOCUMENTS HE IS PUTTING HIS THUMP IMPRESSION FOR SIGNATURE. IT IS SUBMITTED THAT THE ADDITIONAL EVIDENCE PRODUCED BY IT AT SERIAL NO. 3 TO 7 AND 9 HAVE GOT DIRECT BEARING ON THE PRESENT APPEAL. RELI ANCE IS PLACED BY HIM ON THE DECISION IN PRABHAVATI SHAH V. C IT 231 ITR 1 (BOM) AND ABHAY KUMAR 63 ITD 144 (PAT) (TM) FOR ADMISSION OF THE ABOVE ADDITIONAL EVIDENCE. 4. PER CONTRA , THE LD. DR SUBMITS THAT NOTHING PREVENTED THE APPELLANT IN PRODUCING THE A BOVE DOCUMENTS EITHER BEFORE THE AO OR THE LD. CIT(A). IT IS STATED BY HIM THAT THE ASSESSEE HAD NOT FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR. AFTER RECEIPT OF CERTAIN INFORMATION, THE CASE WAS RE - OPENED BY THE AO BY ISSUING NOTICE U/S 1 48 ON 20.03.2013. AS THERE WAS NO COMPLIANCE IN THE ASSESSMENT PROCEEDINGS, THE AO COMPLETED THE ASSESSMENT U/S 144 R.W.S. 147 ON 10.03.2014. IT IS ALSO STATED THAT THE APPELLANT COULD HAVE PRODUCED THE SAID DOCUMENTS BEFORE THE LD. CIT(A). HOWEVER, HE FA ILED TO DO SO. THE LD. DR FURTHER STATES THAT THE DOCUMENTS PERTAIN TO THE YEAR 1975 AND 1978 AND COULD HAVE BEEN PRODUCED BEFORE THE AO OR THE LD. CIT(A), WHEREAS THE APPELLANT FAILED TO DO SO. IT IS FURTHER SUBMITTED BY HIM THAT THE NATURE OF PAYMENT A S PER THE SAID DOCUMENTS IS NOT CLEAR. ISMAIL SAHABJAN SHAIKH ITA NO. 218/MUM/2016 4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN A NUTSHELL THE FACTS ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF SHRI KEWAL ANAN PATIL, STATEMENT OF MR. ISMAL SHAIK H WAS RECORDED U/S 131 OF THE ACT. THE AO FOUND THAT THE ASSESSEE HAD ADVANCED A LOAN OF RS.11,00,000/ - TO SHRI PATIL. IN HIS STATEMENT, THE ASSESSEE HAD STATED THAT DURING THE FINANCIAL YEAR 2008 - 09 RELEVANT TO THE ASSESSMENT YEAR 2009 - 10, HE HAD RECEIVED RS.99,00,000/ - FROM M/S DEWAN HOUSING FOR SURRENDERING ROOM NO. 602, PLOT NO. 6, BHARAT NAGAR, BANDRA (EAST), MUMBAI 400051. THE AO MADE AN ADDITION OF THE ABOVE SUM OF RS.99,00,000/ - AS UNEXPLAINED INCOME. IN APPEAL, THE LD. CIT(A) CONFIRMED THE ACTION O F THE AO. WE FIND THAT BEING ILLITERATE, THE APPELLANT WAS NOT IN A POSITION TO APPRECIATE THE ISSUE AND TAKE REMEDIAL MEASURES. WE ARE OF THE CONSIDERED VIEW THAT DOCUMENTS FILED BY THE APPELLANT IN THE P/B AT SERIAL NO. 3 TO 7 AND 9 HAVE GOT DIRECT BEARI NG ON THE ADDITION OF RS.99,00,000/ - MADE BY THE AO AS UNEXPLAINED INCOME. IN TEK RAM (DEAD) THROUGH LRS V. CI T (2013) 357 ITR 133 (SC), THE ADDITIONAL EVIDENCES WERE FIRST TIME PRODUCED BEFORE THE HONBLE SUPREME COURT, WHICH WERE ADMITTED BY THE SUPREME COURT STATING THAT THE ADDITIONAL DOCUMENTS ARE OF SOME RELEVANCE ON THE ISSUE. THE MATTER WAS SET ASIDE TO THE HIGH COURT TO DECIDE AFRESH. IF EVIDENCE PRODUCED BY THE ASSESSEE IS GENUINE, THEN ASSESSEE S HOULD NOT BE DENIED OPPORTUNITY OF IT BEING PRODUCED FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY IN VIEW OF THE ABOVE FACTS AND POSITION OF LAW, WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT. HOWEVER, WE ALSO KEEP IN MIND THAT WHERE AN ADD ITIONAL EVIDENCE HAS BEEN ALLOWED TO BE ISMAIL SAHABJAN SHAIKH ITA NO. 218/MUM/2016 5 ADDUCED, THE INTEREST OF JUSTICE DEMANDS THAT THE OTHER SIDE MUST BE GIVEN AN OPPORTUNITY TO EXPLAIN OR REBUT SUCH ADDITIONAL EVIDENCE AS HELD IN SMT. URMILA RATILAL V. CIT (1982) 136 ITR 797, 799 (GUJ); HIRALAL DEVD UTT JAGADHARI V. ADDL. CIT, (1980) 18 CTR (PUNJ) 96, 98; UTTAM CONSTRUCTION CO. V. CIT (1985) 156 ITR 459, 462 (MP). IN VIEW OF THE ABOVE REASONS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE A DE NOVO ORD ER AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23/05/2018. S D / - SD/ - ( SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 23/05/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI