NAJMUDDIN TURAB SHAIWALA, MUMBAI V. ITO 20(2)(3), MUMBAI

ITA 2736/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8709 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 11-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN
• Keywords: Unexplained expenditure
• Section: 69C; 40A(3); 143(3); 133(6); 28

Judgement Text

ITA.NO.2736/MUM/2014 NAJMUDDIN TURAB SHAIWALA ASSESSMENT YEAR-2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.2736/MUM/2014 ( / ASSESSMENT YEAR: 2009-10) NAJMUDDIN TURAB SHAIWALA 21,SAFAVI CHURCH ROAD MAROL,ANDHERI(EAST) MUMBAI-400 059 / VS. INCOME TAX OFFICER WARD 20(2)(3) ROOM NO.411, 4 TH FLOOR, PIRAMAL CHAMBERS LALBAUGH, PAREL MUMBAI - 400 012 ! ./ ./PAN/GIR NO. AABPS-3935-R ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : V.JENARDHANAN, SR. DR / DATE OF HEARING : 23/10/2017 / DATE OF PRONOUNCEMENT : 25/10/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 ASSAILS THE ORDER OF THE LD. COMMISSIONER O F INCOME-TAX ITA.NO.2736/MUM/2014 NAJMUDDIN TURAB SHAIWALA ASSESSMENT YEAR-2009-10 2 (APPEALS)-31 [CIT(A)], MUMBAI, APPEAL NO. CIT(A)-31/IT-396/ITO- 20(2)(3)/11-12 DATED 31/01/2012. THE ASSESSMENT WAS FRAMED BY LD. INCOME TAX OFFICER, WARD 20(2)(3), MUMBAI [AO] U/S 143(3) OF THE INCOME TAX ACT,1961 ON 30/12/2011. NONE HAS APPEARED FOR ASSESSEE DESPITE NOTICE AND THEREFORE LEFT WITH NO OPTION, W E PROCEED TO DECIDE THE APPEAL ON THE BASIS OF DOCUMENTS AVAILABLE ON RECOR D AND AFTER HEARING LD. DEPARTMENTAL REPRESENTATIVE [DR]. 2. THE MAIN GROUNDS FILED WITH ORIGINAL FORM 36 AS WELL AS ADDITIONAL GROUNDS OF APPEAL FILED ON 04/07/2017 READS AS UNDE R:- 1. THE LEARNED CIT APPEALS-31 HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE ORDER OF ASSESSING OFFICER WITHOUT A PPLYING THE PROVISIONS OF SECTION 44AF OF THE INCOME TAX ACT, 1961. 2. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND O N THE FACTS OF THE CASE IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER DISAL LOWING RS.10,32,400/- U/S.40A(3) OF THE INCOME TAX ACT. 3. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER MAKIN G AN ADDITION OF RS.2,45,207/- U/S.69-C ON ACCOUNT OF PURCHASE OF CAR. 4. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER MAKIN G AN ADDITION OF RS.11,26,893/- AS UNEXPLAINED EXPENDITURES ON ACCOU NT OF PURCHASE. 3. FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL ENGAGED AS SCRAP MERCHANT UNDER PROPRIETORSHIP CONCERN NAMELY S.M.SCRAP MERCHANTS WAS ASSESSED FOR IMPUGNED AY U/S 143(3) ON 30/12/2011 AT RS.25,48,930/- AFTER CERTAIN ADDIT IONS / DISALLOWANCES AS AGAINST RETURNED INCOME OF RS.1,44,430/- FILED B Y THE ASSESSEE ON 31/03/2010. THE ASSESSEE HAS SUFFERED FOLLOWING QUA NTUM ADDITIONS, WHICH ARE THE SUBJECT MATTER OF THIS APPEAL:- SL.NO. ITEMS AMOUNT (R S.) 1. UNEXPLAINED EXPENDITURE ON PURCHASE OF CAR 2,45, 207/- 2. DISALLOWANCE U/S 40A(3) 10,32,400/- 3. UNEXPLAINED EXPENDITURE U/S 69C 5,08,002/- 4. ON ACCOUNT OF DISCREPANCY IN PURCHASES U/S 69C 2 ,01,892/- ITA.NO.2736/MUM/2014 NAJMUDDIN TURAB SHAIWALA ASSESSMENT YEAR-2009-10 3 THE LD. DR HAS PLACED RELIANCE ON THE FINDINGS OF L OWER AUTHORITIES. 4. HEARD AND PERUSED RELEVANT MATERIAL ON RECORD. U PON PERUSAL OF THE QUANTUM ASSESSMENT ORDER AND THE ORDER OF LD. F IRST APPELLATE AUTHORITY, WE FIND THAT THE ASSESSEE, PRIMA FACIE, HAS SUFFERED ADDITIONS MAINLY DUE TO PURCHASES MADE IN CASH IN VIOLATION O F SECTION 40A(3), DISCREPANCIES IN THE CUSTOMERS LEDGER ACCOUNTS OBT AINED BY LD. AO PURSUANT TO NOTICES U/S 133(6) VIS--VIS LEDGER ACC OUNTS SUBMITTED BY THE ASSESSEE, DISCREPANCIES IN FIGURES REFLECTED IN FORM 26AS AND FINALLY DUE TO NON SUBMISSION OF DOCUMENTARY EVIDENCES QUA CAR LOAN TAKEN BY THE ASSESSEE DURING IMPUGNED AY. 5. WE ALSO NOTICE THAT THE ASSESSEE, IN GROUND NO. 1 HAS RAISED A PLEA THAT THE PROVISIONS OF SECTION 44AF HAVE NOT B EEN APPLIED TO THE ASSESSEE. IT APPEARS THAT THIS IS ALTOGETHER A NEW CLAIM BEFORE US WHICH WAS NEVER RAISED BEFORE THE LOWER AUTHORITIES. WE A LSO NOTICE THAT THE SECTION-44AF STARTS WITH NON-OBSTANTE CLAUSE WHICH OVERRIDES THE PROVISIONS OF SECTION 28 TO 43C. THEREFORE, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT TO RESTOR E THE MATTER BACK TO THE FILE OF LD. AO FOR FRESH ADJUDICATION IN TERMS OF NEW PLEA RAISED BY THE ASSESSEE. THE ASSESSEE, IN TURN, IS DIRECTED TO SUB STANTIATE HIS CLAIM IN THIS REGARD FORTHWITH FAILING WHICH LD. AO SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD . RESULTANTLY, GROUND NO. 1 OF ASSESSEES APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES WHICH MAKE OTHER GROUNDS INFRUCTUOUS . 5. ON ACCOUNT OF DISCREPANCY IN FORM 26AS 4,16,999/ - TOTAL 24,04,500/ - ITA.NO.2736/MUM/2014 NAJMUDDIN TURAB SHAIWALA ASSESSMENT YEAR-2009-10 4 6. FINALLY, THE ASSESSEES APPEAL STANDS PARTLY ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARW AL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25.10. 2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. $'- , - , / DR, ITAT, MUMBAI 6. . / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI