SHABNAM S. GULATI, MUMBAI V. JCIT CEN CIR 39, MUMBAI

ITA 2852/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93330 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2014
• Court: TRIBUNAL
• Department Lawyers: DARS E SAMUEL
• Assessee Lawyers: HITESH M SHAH
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.2852/M/2014 (AY:2005 - 2006 ) SHABNAM S. GULATI, 603, ELCO RESIDENCY, ALMEDA PARK, BEHIND ELCO MARKET, BANDRA (W), MUMBAI 400050. / VS. JCIT, CENTRAL CIRCLE - 39, GROUND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI - 400020. ./ PAN : AFRPG0718F ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI HITESH M. SHAH / RESPONDENT BY : SHRI DARS E. SAMUEL / DATE OF HEARING : 09.07.2015 / DATE OF PRONOUNCEMENT :29 .07.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 25.4.2014 IS AGAINST THE ORDER OF THE CIT (A) - 39, MUMBAI DATED 13.2.2014 FOR THE ASSESSMENT YEAR 2005 - 2006. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUND WHICH READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD CIT (A) HAS ERRED IN CONFIRMING THE ADDITION MADE IN RESPECT OF UNEXPLAINED INVESTMENT ON ACCOUNT OF PURCHASE OF TWO SHOP PREMISES TO THE EXTENT OF RS. 5,74,200/ - IN SPITE OF FURNISHING THE BANK ACCOUNT AND OTHER RELEVANT RECORDS. 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETRESS OF A BEAUTY PARLOUR. THERE WAS A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON SHRI SUNIL GULATI, HUSBAND OF THE ASSESSEE, AND HERSELF. PROCEEDINGS WERE I NITIATED U/S 153A OF THE ACT AND THE ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 3,18,460/ - . AO COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT AND THE ASSESSED INCOME WAS DETERMINED AT RS. 14,28,977/ - WHICH INCLUDE CE RTAIN ADDITIONS NAMELY; (I) ADDITION ON ACCOUNT OF UNEXPLAINED LIABILITY / DEPOSIT OF RS. 2,98,132/ - U/S 68; (II) ADDITION ON ACCOUNT OF INTEREST INCOME OF RS. 2,38,185/ - AND (III) THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS. 5,74,200/ - U/S 69 OF THE ACT. AGGRIEVED WITH THE ABOVE ADDITIONS 2 MADE BY THE AO, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, C IT (A) PARTLY ALLOWED THE APPEAL. AGGRIEVED AND DISSATISFIED WITH THE DECISION OF THE CIT (A), ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 4. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE BROUG HT OUR ATTENTION TO THE SALE AGREEMENT AND DEMONSTRATED THAT THE STAMP DUTY WAS PAID IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2007 - 08 I.E., 9.5.2006 AND 2.5.2006 I.E., ALL THE CONSIDERATION WAS ALSO PAID IN THE AY 2007 - 08. REFERRING TO THE FIR ST LINES APPEARING ON THE FIRST PAGE OF THE AGREEMENT FOR SALE I.E., THE ARTICLES OF AGREEMENT MADE AND ENTERED AT MUMBAI THIS 8 TH DAY OF MAY IN THE CHRISTIAN YEAR TWO THOUSAND FOUR / FIVE................. , B EFORE US, LD COUNSEL FOR THE ASSESSEE DEMONSTR ATED THAT THE ASSESSEE HAS NOT STRUCK OFF ANY ONE OF THE YEAR S IE TWO THOUSAND FOUR / FIVE . THEREFORE, THE ASSESSMENT CANNOT BE MADE GIVING SANCTITY TO THE FIGURES MENTIONED IN THE SAID EXPRESSION. WHAT IS RELEVANT IS THE DATE OF PAYMENT OF STAMP DUTY AND THE PAYMENT OF CONSIDERATION FOR PURCHASE OF THE SHOPS. CONSIDERING THE SAME, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 5. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 6. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE THE TRIBUNAL, I FIND MERIT IN THE ARGUMENT OF THE LD COUNSEL. CONSIDERING THE SAME , I REMAND THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER TAKING INTO CONSIDERATION THE DATE OF PAYMENT OF STAMP DUTY AND THE PAYMENT OF CONSIDERATION FOR PURCHASE OF THE SHOPS AS RELEVANT DATE FOR TAXATION OF RS. 5,74,200/ - . AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE REMAND PROCEEDINGS AS PER THE PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 7. IN THE RESULT, APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2015. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 29 .7 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI