M/S. SAJID USMAN DHUKA, MUMBAI V. THE ITO 24(1)(2), MUMBAI

ITA 2311/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1708 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-01-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 04-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: M P MAKHIJA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM ITA NO.2311/MUM/2008 : ASST.YEAR 2004-2005 SHRI SAJID USMAN DHUKA FLAT NO.9, MOHAMMEDI APARTMENTS BEHRAM BAUG, JOGESHWARI (WEST) MUMBAI 400 102. PA NO.ADCPO8598B. VS. THE INCOME TAX OFFICER WARD 24(1)(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.P.MAKHIJA RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 29.1.2008 I N RELATION TO THE ASSESSMENT YEAR 2004-2005. 2. THE FIRST GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF RS.15,000 ON ACCOUNT OF AGRICULTURAL INCOME. THIS AMOUNT WAS SHO WN BY THE ASSESSEE AS AGRICULTURAL INCOME. HOWEVER IN THE ABSENCE OF ANY BILL OF SALES OF AGRICULTURAL PRODUCTS ETC. PRODUCED BY THE ASSESSEE, THE ASSESSI NG OFFICER MADE THIS ADDITION WHICH CAME TO BE UPHELD IN THE FIRST APPEAL. THE SE COND GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF GIFTS RECEIVED BY THE A SSESSEE AMOUNTING TO RS.7,00,000 FROM THREE DONORS. THE ASSESSEE SHOWED TO HAVE RECE IVED GIFTS FROM SHRI A.G.KARADIA FOR RS.4,00,000, SMT.NAFISA A.MAKNOJIYA FOR RS.2,50,000 AND SHRI SALIM M.A.KHAN FOR RS.50,000 TOTALLING RS.7,00,000. THE A.O. ISSUED SUMMONS TO THE FIRST TWO DONORS WHICH WERE RETURNED UNSERVED B Y THE POSTAL AUTHORITIES. THE ASSESSEE WAS ASKED TO FURNISH COPY OF GIFT CHEQUES, PAN AND PASSPORT OF THE DONORS, WHICH THE ASSESSEE DID NOT FURNISH. AS A RE SULT OF THAT THE ASSESSING OFFICER ITA NO.2311/MUM/2008 SHRI SAJID USMAN DHUKA. 2 MADE ADDITION OF RS.7 LAKHS U/S.68 OF THE ACT. THE LEARNED CIT(A) UPHELD THE ADDITION. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT ADEQUATE OPPORTUNITY WAS NOT ALLOWED TO THE ASSESSEE IN RESPECT OF BOTH THE GROUNDS. IT WAS STATED THAT ONE OF THE DONORS WAS HOSPITALIZED AT THE MATERIAL TIME. IT WAS ALSO ARGUED ON BEHALF OF THE ASSESSEE THAT THE ASSESSING OFFICER D ID NOT ALLOW SUFFICIENT OPPORTUNITY TO PROVE THE GENUINENESS OF THE DONORS. THE LD. AR, CLAIMED THAT THE ENTIRE EVIDENCE IN SUPPORT OF THE GENUINENESS OF TH E AGRICULTURAL INCOME AND GIFTS WORTH RS.7 LAKHS WAS NOW IN THE POSSESSION OF THE A SSESSEE. IT WAS PRAYED THAT ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESSEE TO PUT FO RTH HIS CASE BEFORE THE A.O. NO SERIOUS OBJECTION WAS TAKEN BY THE LEARNED DEPARTME NTAL REPRESENTATIVE. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDE R AND RESTORE THE MATTER TO THE FILE OF A.O. FOR DECIDING BOTH THE ISSUES, VIZ., G ENUINENESS OR OTHERWISE OF THE AGRICULTURAL INCOME AND GIFTS WORTH RS.7 LAKHS FROM THREE DONORS AFRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. NEEDLESS TO SAY THE ASSESSEE WILL BE AT LIBERTY TO LEAD FRESH E VIDENCE BEFORE THE A.O. IN THE FRESH PROCEEDINGS. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 11 TH DAY OF JUNE, 2010 . SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 11 TH JUNE, 2010 . DEVDAS* ITA NO.2311/MUM/2008 SHRI SAJID USMAN DHUKA. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-XXIV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.