ITO 18(3)(3), MUMBAI V. MOHD ASHFAQUE SAMSUDDIN ALAM, MUMBAI

ITA 2623/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93040 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGAR ZAINV P DR
• Keywords: Unexplained investment
• Section: 144; 69

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.2623/MUM/2013 ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER-18(3)(3), 211, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012 / VS. SHRI MOHD. ASHFAQUE SAMSUDDIN ALAM G.N.G.A. R NO.101, PRAJA SEVAK, HUTMENTS SOCIETY, MORI ROAD, MAHIM, MUMBAI-400016 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO. ADPPA6914M / REVENUE BY SHRI ASGAR ZAIN-V.P.-DR !'# $ / ASSESSEE BY NONE % & ' $ ( / DATE OF HEARING : 09/07/2015 ' $ ( / DATE OF ORDER: 06/08/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 24/01/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE FIRST GROUND RAISED BY THE REVENUE PERTAINS TO RESTRICTING THE DISALLOWANCE TO RS.2,43,141/- I.E. 10% OF THE T OTAL EXPENSES INSTEAD OF RS.4,86,282/- I.E. 20% OF THE T OTAL SHRI MOHD. ASHFAQUE SAMSUDDIN ALAM ITA NO.2623/MUM/2013 2 EXPENSES WITHOUT APPRECIATING THE FACT THAT THE ASS ESSEE DID NOT PRODUCE ANY DETAILS DURING ASSESSMENT PROCEEDIN GS. 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI ASGAR ZAIN, V.P., DEFENDED THE ADDITION MADE BY THE ASSESSING OFFICER ASSERTING THAT PART RELIEF WAS GR ANTED TO THE ASSESSEE IN SPITE OF THE FACTS THAT THE ASSESSEE FA ILED TO PRODUCE ANY DETAILS OF SUCH EXPENSES BEFORE THE ASS ESSING OFFICER. ON THE OTHER HAND, NONE REPRESENTED THE A SSESSEE, IN SPITE OF THE FACT THAT THE REGISTERED NOTICE SEN D TO THE ASSESSEE, WAS DULY RECEIVED BY THE ASSESSEE. 2.1. WE HAVE CONSIDERED THE SUBMISSION OF THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SINC E, THE ASSESSEE DID NOT APPEAR BEFORE THE TRIBUNAL IN SPIT E OF SERVICE THROUGH REGISTERED AD NOTICE (ACKNOWLEDGMENT AVAILA BLE ON RECORD DULY BEARING THE SEAL OF THE POSTAL DEPARTME NT), IT SEEMS THAT THE ASSESSEE IS EITHER NOT INTERESTED TO PURSUE THE APPEAL, FILED BY THE REVENUE, OR HAS NOTHING TO SAY . THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PART Y QUA THE ASSESSEE AND PROCEED TO DISPOSE OFF THE APPEAL ON T HE BASIS OF MATERIAL AVAILABLE ON RECORD. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT ASSESSMENT WAS FRAMED U/S 144 OF THE ACT AS THERE WAS NO RESPONSE FROM THE SHRI MOHD. ASHFAQUE SAMSUDDIN ALAM ITA NO.2623/MUM/2013 3 ASSESSEE TO THE NOTICES ISSUED U/S 143(2) AND 142(1 ) OF THE ACT. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE CL AIMED EXPENSES OF RS.41,42,696/- IN HIS PROFIT & LOSS ACC OUNT. AS PER THE REVENUE, THE ASSESSEE COULD NOT FURNISH ANY DETAILS/EVIDENCE FOR THE AMOUNT OF RS.24,31,412/-, THUS, THE ASSESSING OFFICER MADE DISALLOWANCE OF EXPENSES TO THE EXTENT OF 20% WHICH COMES TO RS.4,86,282/-. ON APP EAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , THE PLEA RAISED BY THE ASSESSEE WAS THAT THE BOOKS OF ACCOUN TS OF THE ASSESSEE ARE AUDITED. THE ASSESSING OFFICER EXAMINE D THE CLAIM OF THE ASSESSEE AND FOUND THAT THE DISALLOWA NCE WERE TOWARDS HIGHER SIDE, THUS, HE RESTRICTED THE DISALL OWANCE TO 10% OF THE EXPENSES WHICH COMES TO RS.2,43,141/- AN D CONFIRMED THE DISALLOWANCE OF THE IDENTICAL AMOUNT. ON PERUSAL OF RECORD AND THE REASONING CONTAINED IN TH E IMPUGNED ORDER, WE FIND NO INFIRMITY IN THE ORDER A S THE LD. ASSESSING OFFICER MADE THE DISALLOWANCE ON LUMP SUM BASIS AT 20%. NO REASONING HAVE BEEN ADDUCED FOR SUCH DISALLOWANCE BY THE ASSESSING OFFICER. THUS, THE S TAND OF THE ASSESSEE IS AFFIRMED. 3. THE NEXT GROUND PERTAINS TO DELETING THE ADDITI ON OF RS.12,09,610/- MADE U/S 69 OF THE ACT, BEING AN UNEXPLAINED INVESTMENT BY ADMITTING FRESH EVIDENCE. THE CRUX OF ARGUMENT ADVANCED BY LD. DR IS THAT FRESH A DDITIONAL EVIDENCE WAS ADMITTED BY THE LD. FIRST APPELLATE AU THORITY, DURING APPELLATE STAGE, THEREFORE, PROPER OPPORTUNI TY WAS NOT PROVIDED TO THE ASSESSING OFFICER TO EXAMINE THE EV IDENCE SHRI MOHD. ASHFAQUE SAMSUDDIN ALAM ITA NO.2623/MUM/2013 4 FILED BY THE ASSESSEE, THUS, THERE IS CONTRAVENTION OF RULE 46A OF THE I.T. RULES. BROADLY, WE ARE IN AGREEMENT WIT H THE LD. DR THAT THE ASSESSING OFFICER WAS NOT PROVIDED OPPO RTUNITY BUT WE FIND THAT THE ASSESSEE MADE INVESTMENT IN RE SIDENTIAL FLAT AMOUNTING TO RS.12,09,610/-. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FILE THE COPY OF PURCHASE AGREEMENT AND BANK STATEMENT SHOWING THE PAYMENT OF SAID CONSIDERATION, THEREFORE, ADDITION WAS MADE U/S 69 OF THE ACT. DURING APPELLATE STAGE, THE ASSESSEE EXPLAINE D THAT TOOK A HOUSING LOAN FROM ANDHRA BANK AND THE SAME WAS REFLECTED IN THE BALANCE SHEET. THERE IS UNCONTROV ERTED FINDING IN THE IMPUGNED ORDER THAT THERE WAS OUTSTA NDING LIABILITY OF RS.4,21,670/- UNDER THE HEAD ANDHRA HO USING LOAN IN THE BALANCE SHEET OF THE ASSESSEE AND IN TH E YEAR 2007, TO THE QUERY RAISED BY THE DEPARTMENT IN THE CASE OF BUILDER M/S SAI PUSHPA CONSTRUCTION, THERE WAS INFO RMATION WITH THE DEPARTMENT, FILED BY THE ASSESSEE VIDE LET TER DATED 08/10/2007, WITH RESPECT TO PAYMENT RECEIVED ALONG WITH MODE OF TRANSACTION WHICH ARE REPRODUCED AT PAGE-5 OF THE IMPUGNED ORDER. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) EXAMINED THE DETAILS AND FOUND THAT THE A SSESSEE TOOK LOAN OF RS.5 LAKH FROM ANDHRA BANK AND ALSO AV AILED CASH CREDIT LIMIT OF RS.5 LAKH FROM THE SAME BANK. SO FAR AS, THE SOURCE OF PAYMENT IS CONCERNED, IT WAS PAID OUT OF HOUSING LOAN AND RS.2,88,000/- WERE PAID FROM THE S AME BANK ACCOUNT OF THE ASSESSEE AND ALSO ALL THE PAYME NTS WERE MADE BY CHEQUE, THUS, WE FIND NO INFIRMITY IN THE C ONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL S). SHRI MOHD. ASHFAQUE SAMSUDDIN ALAM ITA NO.2623/MUM/2013 5 4. THE LAST GROUND RAISED BY THE REVENUE PERTAINS TO RESTRICTING THE DISALLOWANCE OF INTEREST ON BORROWE D CAPITAL AMOUNTING TO RS.17,253/- INSTEAD OF RS.49,334/- DIS ALLOWED BY THE ASSESSING OFFICER. THE CRUX OF ARGUMENT ADVA NCE BY LD. DR, IS THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) GRANTED RELIEF TO THE ASSESSEE BY ADMITTING FRESH E VIDENCE DURING APPELLATE STAGE WITHOUT GIVING OPPORTUNITY T O THE ASSESSING OFFICER. WE HAVE PERUSED THE RECORD AND FOUND THAT THERE IS FACTUAL FINDING IN THE IMPUGNED ORDER THAT THE ASSESSEE COULD EXPLAINED THE INTEREST EXPENDITURE O NLY TO THE EXTENT OF RS.32,081/- AND FOR THE REMAINING AMOUNT OF RS.17,253/- NO DETAILS WERE SUBMITTED, ACCORDINGLY H E RESTRICTED THE DISALLOWANCE TO THIS EXTENT AND GRAN TED RELIEF OF RS.32,081/- (RS.49,334/- -17253/-). KEEPING IN VIE W, THE TOTALITY OF THE CIRCUMSTANCE AND THE FACTS, WE AFFI RM THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 09/07/2015. SD/ - (B.R.BASKARAN) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; ) DATED : 06/08/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT SHRI MOHD. ASHFAQUE SAMSUDDIN ALAM ITA NO.2623/MUM/2013 6 2. ./,- / THE RESPONDENT. 3. % 0$ ( *+ ) / THE CIT, MUMBAI. 4. % 0$ / CIT(A)- , MUMBAI 5. 2 3 .$! , *+( *! 4 , % & / DR, ITAT, MUMBAI 6. 5' 6& / GUARD FILE. / BY ORDER, /2+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI