MEENUM CHANDRA MOHAN, MUMBAI V. ITO 19(3)(3), MUMBAI

ITA 229/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3664 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 09-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Assessee Lawyers: BHUMIKA VORA
• Keywords: Gift
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 229/MUM/2014 (ASSESSMENT YEAR:2003-04) MEENUM CHANDRA MOHAN, PLOT NO.96-A, TPS, 3 RD FLOOR, 15 TH ROAD, BANDRA (W), MUMBAI 400 050 APPELLANT VS. THE INCOME TAX OFFICER, 19(3)-3, MUMBAI - 400012 RESPONDENT PAN: AADPC1576C /BY APPELLANT : MS. BHUMIKA VORA, A.R. /BY RESPONDENT : SHRI G. N. MAKWANA, D.R. /DATE OF HEARING : 08.08.2016 /DATE OF PRONOUNCEMENT : 12.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-30, MUMBAI, DA TED 19.11.2013 FOR A.Y. 2003-04 ON FOLLOWING GROUND: ITA NO.229/MUM/14 A.Y. 03-04 [MEENUM CHANDRA MOHAN VS. ITO] PAGE 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (HEREINAFTER REFERRED TO AS 'COMMISSIONER') ERRED IN CONFIRMING LD. A.O'S ACTION OF REOPENING THE ASSESSMENT U/S 147 BY ISSUE OF NOTICE U/S 148 DATED 22.01.2007. 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE OF EXPENSES RS.7,11,593/- MADE BY THE LD. A.O AND TREATING THE SAME AS CAPITAL EXPENDITUR E. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 20,00,000/- MADE BY THE LD. A.O ON ACCOUNT OF GIFT RECEIVED BY THE APPELLANT FROM HER FATHER. 4. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS.70,000/- MADE BY THE LD. A.O ON ACCOUNT OF ALLEGED INCOME UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. 2. FIRST ISSUE IS WITH REGARD TO REOPENING THE ASSE SSMENT U/S.147 OF THE ACT. THE STAND OF ASSESSEE HAS BEEN THAT THE POINT WHICH IS BASIS OF REOPENING HAS NOT BEEN TAKE N IN TO ACCOUNT WHILE MAKING THE ADDITION, IT MEANS THAT AD DITION HAS NOT BEEN MADE IN THE GROUND, WHICH WAS BASIS FOR RE OPENING. WHILE IN RE-ASSESSMENT PROCEEDINGS, FURTHER ADDITIO N HAS BEEN MADE AS DETAILED IN GROUNDS OF APPEAL. IN THIS BAC KGROUND, LD. AUTHORIZED REPRESENTATIVE DREW OUR ATTENTION TO THE ORDER OF HONBLE BOMBAY HIGH COURT REPORTED IN CASE OF CIT V S. JET AIRWAYS (I) LTD. [2011] 331 ITR 0236 (BOM.), WHEREI N IT HAS BEEN HELD THAT BY VIRTUE OF AMENDMENT TO SECTION 14 7 OF THE ACT W.E.F. 01.04.1989, ASSESSING OFFICER CAN ALSO A SSESS OTHER ITA NO.229/MUM/14 A.Y. 03-04 [MEENUM CHANDRA MOHAN VS. ITO] PAGE 3 INCOME NOT REFERRED TO IN NOTICE OF REASSESSMENT. HONBLE BOMBAY HIGH COURT HELD THAT POWER TO ASSESSEE SUCH OTHER INCOME ONLY IF INCOME REFERRED TO IN NOTICE OF RE-A SSESSMENT HAS BEEN ASSESSED. SO, THE EXPLANATION IS NOT APPL ICABLE IN CASE OF ASSESSEE BECAUSE ASSESSING OFFICER HAS POWE R TO ASSESS SUCH OTHER INCOME ONLY IF INCOME REFERRED TO NOTICE HAS BEEN ASSESS IN THE RE-ASSESSMENT ORDER. IN VIEW OF THIS LEGAL SUBMISSION TAKEN BEFORE US, ORDER OF CIT(A) IS SET ASIDE. SINCE, WE HAVE SET ASIDE THE ORDER OF CIT(A) ON PRELIMINAR Y ISSUE AS DISCUSSED ABOVE, SO, ISSUE ON MERIT GOES ACADEMIC. SAME MAY BE ADJUDICATED AS AND WHEN REQUIRED TO DO SO. 3. IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS A LLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 12 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 12/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,