SWARANJIT KAUR KOHLI, MUMBAI V. ITO WD 20(3)(3), MUMBAI

ITA 3022/MUM/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9993 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Income from undisclosed sources; Share purchase agreement; Opportunity of being heard; Source of fund
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD , JUDICIAL MEMBER ITA NO. 3022/MUM/2014 : A.Y : 2009 - 10 MRS. SWARANJIT KAUR KOHLI 1501/2A, RAHEJA CLASSIQUE COMPLEX, NEW LINK ROAD, ANDHERI (W), MUMBAI 400 053. PAN : AHUPK2975P (APPELLANT) VS. ITO, WARD - 20(3)(3), MUMBAI (RESPONDENT) APPELLANT BY : SHRI BHUPENDRA SHAH RESPONDENT BY : SHRI V. JUSTIN DATE OF HEARING : 06 / 1 2/201 7 DATE OF PRONOUNCEMENT : 28 /02/2018 O R D E R PER G.S. PANNU, AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 31 , MUMBAI DATED 17.02.2014 , PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER, MUMBAI DATED 19.12.2011 UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE DISPUTE REVOLVES AROUND THE ADDITION OF RS.56,27,160/ - MADE TO THE RETURNED INCOME. THE APPELLANT BEFORE US IS AN INDIVI DUAL WHOSE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2009 - 10 2 ITA NO. 3022/MUM/2014 MRS. SWARANJIT KAUR KOHLI DECLARING AN INCOME OF RS.2,67,684/ - WAS SUBJECT TO A SCRUTINY ASSESSMENT. IN THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER NOTED ON THE BASIS OF AIR INFORMATION THAT ASSESSEE HAD PURCHAS ED AN IMMOVEABLE PROPERTY VALUED AT RS.56,27,160/ - . THE ASSESSING OFFICER HAS NOTED IN THE ASSESSMENT ORDER THAT IN THE ABSENCE OF ANY CO - OPERATION BY THE ASSESSEE INSPITE OF ISSUANCE OF NOTICES OF HEARINGS, THE ASSESSMENT WAS FINALISED EX PARTE U/S 144 O F THE ACT AND THE TRANSACTION OF PURCHASE OF IMMOVEABLE PROPERTY OF RS.56,27,160/ - WAS TAKEN AS INCOME FROM UNDISCLOSED SOURCES IN THE ABSENCE OF DETAILS, AND ADDED BACK TO ASSESSEES TOTAL INCOME. 3. BEFORE THE CIT(A), THE STAND OF THE ASSESSEE WAS TWO F OLD; FIRSTLY, ASSESSEE CANVASSED THAT THE PROPERTY WAS BENEFICIALLY PURCHASED BY ONKAR SINGH KOHLI ( HUF ), WHERE ASSESSEE WAS ALSO A MEMBER AND THAT THE SALE AGREEMENT WAS MERELY EXECUTED IN HER NAME ON 29.04.2008. SECONDLY, SO FAR AS THE SOURCE OF INVESTM ENT WAS CONCERNED, THE CLAIM OF THE ASSESSEE WAS THAT THE AMOUNT WAS PAID TO THE VENDORS FROM THE ACCOUNT OF THE HUF, ITS KARTA , SHRI ONKAR SINGH KOHLI , PROPRIETARY CONCERNS OF SHRI ONKAR SINGH KOHLI AS WELL AS FROM HER OWN BANK. BOTH THE AFORESAID POINTS HAVE NOT BEEN ACCEPTED BY THE CIT(A). THE CIT(A) NOTED THAT THE ORIGINAL AGREEMENT FOR SALE WAS ENTERED ON 19.07.2007 BETWEEN THE VENDOR , MRS. MADHURIKA RASHMIKANT SHAH AND ONKAR SINGH KOHLI ( HUF ) FOR THE PURCHASE OF THE PROPERTY IN QUESTION, WHEREAS THE SALE AGREEMENT DATED 29.04.2008 WAS EXECUTED BY THE VENDOR (THROUGH HER CONSTITUTED ATTORNEY, SHRI HARPREET SINGH KOHLI) AND THE ASSESSEE. ACCORDING TO THE CIT(A), THE AGREEMENT DOES NOT REFLECT IN ANY WAY THAT ASSESSEE HAD ENTERED INTO THE SALE AGREEMEN T DATED 29.04.2008 AS A REPRESENTATIVE OF ONKAR SINGH KOHLI ( HUF ) . INSOFAR AS THE SOURCE OF FUND S WAS CONCERNED, CIT(A) NOTES THAT THE BANK ACCOUNT FROM 3 ITA NO. 3022/MUM/2014 MRS. SWARANJIT KAUR KOHLI WHERE PAYMENTS WERE STATED TO HAVE BEEN MADE CONTAINED CASH DEPOSITS AND, THEREFORE, SHE WAS NOT SATIS FIED WITH THE SOURCE OF FUND S ALSO . THUS, SHE UPHELD THE ADDITION OF RS.5 6 , 2 7, 16 0/ - . IN THIS BACKGROUND, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE HAS MADE HIS ARGUMENTS. 4. AS PER THE LEARNED REPRESENTATIVE, THE ENTIRE TRANSACTION IS STILL INCOMPLETE INASMUCH AS THE PROPERTY HAS YET NOT BEEN TRANSFERRED IN THE NAME OF THE ASSESSEE. THE LEARNED REPRESENTATIVE POINTED OUT THAT THE VENDOR DID NOT DEPOSIT FOR CLEARANCE THE CHEQUES ISSUED FOR A SUBSTANTIAL AMOUNT OF RS.35,00,000/ - AND THERE IS A CIVIL DIS PUTE ON THIS ASPECT. THE LEARNED REPRESENTATIVE POINTED OUT THAT EVEN THE SHARE CERTIFICATE HAS NOT BEEN ISSUED BY THE HOUSING SOCIETY IN THE NAME OF THE ASSESSEE QUA THE PROPERTY IN QUESTION. IN ANY CASE, IT IS POINTED OUT THAT UNDER THESE CIRCUMSTANCES , IT WOULD BE IN THE FITNESS OF THINGS IF THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR AN ASSESSMENT AFRESH CONSIDERED IN THE LIGHT OF THE SUBSEQUENT DEVELOPMENTS. 5. ON THE OTHER HAND, THE LD. DR HAS SUPPORTED THE ORDERS OF THE AU THORITIES BELOW, BUT HAS NOT SERIOUSLY OPPOSED THE PLEA FOR REMAND OF THE MATTER BACK TO THE FILE OF AO FOR AN ASSESSMENT AFRESH. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE H AS REFERRED TO PAGES 87 TO 90 OF THE PAPER BOOK WHEREIN IS PLACED THE DETAILS AND PHOTOCOPIES OF THE CHEQUES AMOUNTING TO RS.35,00,000/ - DATED 16.07.2008 WHICH , ACCORDING TO HIM , HAVE NOT BEEN ENCASHED BY THE VENDOR. IT IS ALSO CANVASSED THAT THE PROPERTY HAS YET NOT BEEN TRANSFERRED IN THE NAME OF THE ASSESSEE SINCE THE 4 ITA NO. 3022/MUM/2014 MRS. SWARANJIT KAUR KOHLI VENDOR HAS RAISED A DISPUTE, WHICH IS IN LITIGATION. IT IS, THEREFORE, CANVASSED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR AN ASSESSMENT AFRESH. PERTINENT LY, THE ENTIRE GENESIS OF THE ADDITION ARISES FROM THE PROPERTY PURPORTEDLY ACQUIRED BY THE ASSESSEE BY WAY OF A SALE AGREEMENT DATED 29.04.2008. IF THE ACQUISITION OF THE PROPERTY IS NOT COMPLETE, AS HAS BEEN SOUGHT TO BE MADE OUT BY THE APPELLANT BEFORE US, IN OUR VIEW, IT WOULD BE IN THE FITNESS OF THINGS THAT THE ASSESSMENT RELATING TO THE SOURCE OF ACQUISITION BE REVIEWED CONSIDERING THE NEW DEVELOPMENT. THEREFORE, IN THIS VIEW OF THE MATTER, WE ARE INCLINED TO SET - ASIDE THE ORDER OF CIT(A) AND RESTO RE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHALL REASSESS THE IMPUGNED ISSUE AS PER LAW, OF COURSE, AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER. 7. IN THE RESULT, APPEAL OF THE APPELLANT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 T H FEBRUARY, 2018. SD/ - SD/ - ( C.N. PRASAD ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 2 8 T H FEBRUARY , 201 8 *SSL* 5 ITA NO. 3022/MUM/2014 MRS. SWARANJIT KAUR KOHLI COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, E BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI