MAYURESH DEVELOPERS & CONSTRUCTION P. LTD, MUMBAI V. ITO WD 4(2)(4), MUMBAI

ITA 2766/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3558 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.2766/MUM/2013 ASSESSMENT YEAR:2009-10 MAYURESH DEVELOPERS & CONSTRUCTON PVT. LTD. ABHAY HOUSE, 2 ND FLOOR, 428, KALBADEVI ROAD, MUMBAI-400002 VS ITO, WARD-4(2)(4), MUMBAI ( ! ' /ASSESSEE) ( # / REVENUE) PAN. NO. AAACM7341R % #& ' ' ( / DATE OF HEARING : 02/03/2016 ' ' ( / DATE OF ORDER: 02/03/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 08/02/2013, OF THE LD. FIRST APPELLATE AUTHORITY, M UMBAI, ! ' / ASSESSEE BY SHRI NITESH JOSHI # / REVENUE BY SHRI D. PRABHAKAR REDDY-DR ITA NO.2766/MUM/2013 MAYURESH DEVELOPERS & CONSTRUCTION 2 CONFIRMING ADDITION OF RS.14,40,000/- AS INCOME FRO M UNDISCLOSED SOURCES, BEING THE AMOUNT, DEEMED TO HA VE BEEN RECEIVED, ON ALLOTMENT OF SIX CAR PARKING SPACE WIT HOUT PROVIDING OPPORTUNITY TO CROSS VERIFY SUCH PERSONS, WHOSE STATEMENTS WERE RECORDED BEHIND THE BACK OF THE AS SESSEE AND ON THE BASIS OF SUCH STATEMENT, THE INCOME WAS ESTIMATED. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI NITESH JOSHI, ADVANCED ARGUMENTS, WHICH ARE ID ENTICAL TO THE GROUND RAISED BY FURTHER EXPLAINING THAT THE PR ESUMPTIVE ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE B ASIS OF THE REPORT OF THE INSPECTOR AND NO CROSS EXAMINATION WA S ALLOWED TO THE ASSESSEE OF THE PERSONS FROM WHOM STATEMENTS WERE RECORDED. OUR ATTENTION WAS INVITED TO THE GROUND R AISED, AS WELL AS THE STATEMENT OF FACTS, BEFORE THE LD. COMM ISSIONER OF INCOME TAX (APPEALS). ON THE OTHER HAND, THE LD. DR , SHRI D. PRABHAKAR REDDY, CONTENDED THAT IT IS A USUAL PRACT ICE OF CHARGING THE CAR SPACE IN MUMBAI, THUS, THE ADDITIO N WAS RIGHTLY MADE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BUILDER AND DEVELOPERS, DEVELOPED A COMMERCIAL PROJECT MAYURES H COSMOS IN CBD BELAPUR, MUMBAI AND DECLARED LOSS OF RS.3,49,311/- IN ITS RETURN E-FILED ON 27/08/2009. THE OPEN CAR PARKING SPACE/STILT CAR PARKING SPACE WAS CLAIM ED TO BE ITA NO.2766/MUM/2013 MAYURESH DEVELOPERS & CONSTRUCTION 3 PART OF COMMON AREA AND NO TITLE OR OWNERSHIP RIGHT S OF THE CAR PARKING SPACE, AS PER THE ASSESSEE, ARE PROVIDE D. TO COVER UP THE ADMINISTRATIVE COST, THE ASSESSEE RECEIVED R S.10,000/- PER CAR PARKING SPACE AND THUS THE AMOUNT OF RS.60, 000/- WAS CREDITED TO THE PROFIT & LOSS ACCOUNT. HOWEVER, THE LD. ASSESSING OFFICER ON THE BASIS OF REPORT OF THE INS PECTOR HELD THAT THE ASSESSEE COLLECTED RS.2,50,000/- , PER CAR PARKING SPACE, THUS, THE ASSESSEE PRESUMED TO HAVE COLLECTE D RS.15,00,000/-, THUS, THE LD. ASSESSING OFFICER ADD ED TO RS.14,40,000/-(RS.15,00,000 60,000/-) TO THE INCO ME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. 2.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), THE STAND TAKEN IN THE ASSESSMENT OR DER WAS AFFIRMED, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 2.3. IF THE OBSERVATIONS MADE IN THE ASSESSMENT OR DER, 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 THE BASIS OF ADDITION BY THE LD. ASSESSING OFFICER WAS THE REPORT OF THE INSPECTOR AND THE STATEMENTS RECORDED BY HIM FROM SOME PERSONS. T HE FACTUM OF NOT PROVIDING COPY OF REPORT, BASED ON WH ICH THE INSPECTOR ARRIVED TO A PARTICULAR AMOUNT, THE PERSO NS, WHO WERE CONTACTED BY THE INSPECTOR, COPIES OF STATEMEN T RECORDED FROM SUCH PERSONS AND OPPORTUNITY TO CROSS EXAMINAT ION AND ITA NO.2766/MUM/2013 MAYURESH DEVELOPERS & CONSTRUCTION 4 TO VERIFY THE SAID STATEMENTS IS EVIDENT FROM PARA 8 OF THE STATEMENT OF FACTS, FILED BEFORE THE LD. COMMISSION ER OF INCOME TAX (APPEALS). THUS, WITHOUT COMMENTING UPON THE ME RITS OF THE ADDITION AND CONSIDERING THE TOTALITY OF FACTS AND THE MATERIAL AVAILABLE ON RECORD, WE REMAND THIS FILE B ACK TO THE FILE OF LD. ASSESSING OFFICER TO PROVIDE THE NECESS ARY DOCUMENTS AS COPY OF STATEMENTS RECORDED FROM CERTAIN PERSONS , AND IF SO DESIRED BY THE ASSESSEE, TO CROSS EXAMINE SUCH PERS ONS. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THUS, THE APPEAL OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 02/03/2016. SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) ! ' / ACCOUNTANT MEMBER # ' /JUDICIAL MEMBER % & MUMBAI; ) DATED : 02/03/2016 F{X~{T? P.S/. . $#%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 % 1' ( + ) / THE CIT, MUMBAI. 4. 0 0 % 1' / CIT(A)- , MUMBAI ITA NO.2766/MUM/2013 MAYURESH DEVELOPERS & CONSTRUCTION 5 5. 3#4 .' , 0 +( 5 , % & / DR, ITAT, MUMBAI 6. 7& / GUARD FILE. / BY ORDER, /3+' .' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI