MANJULADEVI J BHANSALI, MUMBAI V. ITO 15(2)(1), MUMBAI

ITA 3070/MUM/2012

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7813 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: V C SHAH
• Keywords: Opportunity of cross examination; Third party statement; Valuation report
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3070/M/2012 ASSESSMENT YEAR: 2008-09 MRS. MANJULADEVI J. BHANSALI, 904/B, 9 TH FLOOR, PRATIKSHA TOWER, R.S. NIMKAR MARG, MUMBAI-400 008 PAN: AABPJ8244J VS. ITO 15(2)(1), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI V.C. SHAH, A.R. REVENUE BY : SHRI T.A. KHAN, D.R. DATE OF HEARING : 06.12.2017 DATE OF PRONOUNCEMENT : 22.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 27.03.2012 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS FILED THE REVISED GROUNDS OF AP PEAL WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE ASSESSING OFFICER ERRED IN ASSESSING CAPITAL GAINS ON THE BAS IS OF THIRD PARTY STATEMENT, PERSONAL PRESUMPTIONS AND SURMISES AND IGNORING STA TUTORY VALUATION REPORTS. ITA NO.3070/M/2012 MRS. MANJULADEVI J. BHANSALI 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ASSESSING OFFICER ERRED IN NOT GIVING OPPORTUNITY TO CROSS-CH ECK THIRD PARTY AND IN CONDUCTING PROCEEDINGS AGAINST THE SPIRIT OF LAW. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, VARY AND/OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 3. THE SHORT FACTS OF THE CASE ARE THAT ASSESSEE HA S SHOWN LONG TERM CAPITAL GAIN OF RS.46,62,230/- FROM SALE OF HE R PROPERTY AT GOREGAON, MUMBAI. ON PERUSAL OF COMPUTATION, IT WA S SEEN THAT ASSESSEE HAS DECLARED COST OF PROPERTY AT RS.11 LAK HS AND CLAIMED INDEXATION. ON GOING THROUGH THE BALANCE SHEET IT WAS NOTICED THAT PROPERTY WAS SHOWN AT RS.9,10,250/-. HENCE, ASSESS EE WAS ASKED TO EXPLAIN THE SAME. IN RESPONSE, THE ASSESSEE HAS ST ATED THAT ASSESSEE HAS CLAIMED THAT RS.1,15,000/- WAS PAID ON ACCOUNT OF BROKERAGE TO ONE MR. BHARAT VYAS AND MR. BHARAT VYAS HAS SUBMITT ED THAT THE BROKERAGE WAS RECEIVED ON THE SALE VALUE OF THE PRO PERTY I.E. RS.2.30 CRORES AND COPY OF THE BANK STATEMENT HIGHLIGHTING THE BROKERAGE AMOUNT RECEIVED. THEREFORE, THE ASSESSEE WAS GIVEN SHOW CAUSE NOTICE AND AO HAS TAKEN THE VALUE OF THE PROPERTY A T RS.2.30 CRORES FROM THE SALE OF THE PROPERTY AND MADE THE ADDITION . 4. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS DISMISSED THE SAME. 5. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMI TTED THAT THE AO AND THE LD. CIT(A) HAVE RELIED UPON THE STATEMEN T OF ONE MR. BHARAT VYAS AND NO CROSS EXAMINATION OF MR. BHARAT VYAS WAS ALLOWED BY AO AND THE LD. CIT(A) AND THIS GOES TO T HE ROUTE OF THE ITA NO.3070/M/2012 MRS. MANJULADEVI J. BHANSALI 3 CASE. THEREFORE, THIS MATTER MAY BE RESTORED TO AO AND ASSESSEE MUST BE GIVEN OPPORTUNITY TO CROSS EXAMINE THE SAME . 6. THE LD. D.R. OBJECTED TO IT. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT MR. BHARAT VYAS WAS GIVEN SUMMONS UNDER SECTION 133(6) OF THE ACT AND HE HAS INFORMED TO THE AO THAT THE VALUE OF THE PRO PERTY IS RS.2.30 CRORES. THEREFORE, THE AO HAS TAKEN THE VALUE. TH EREFORE, IN THE INTEREST OF JUSTICE AND IN OUR OPINION CROSS EXAMIN ATION OF MR. BHARAT VYAS IS NECESSARY. THEREFORE, WE REVERSE THE FINDI NG OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO A ND AO IS DIRECTED TO GIVE OPPORTUNITY TO CROSS EXAMINE OF MR. BHARAT VYAS AND DECIDE THE MATTER AFRESH. 8. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.12.2017. SD/- SD/- (RAJESH KUMAR) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH ITA NO.3070/M/2012 MRS. MANJULADEVI J. BHANSALI 4 //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.