SHAUKATBANU SHAMSUDDIN SUNESARA, MUMBAI V. ITO 25(1)*(2), MUMBAI

ITA 315/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2830 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 143(3); 147

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.315/MUM/2015 ASSESSMENT YEAR: 2009-10 SHAUKATBANU SHAMSUDDIN SUNESARA, 23/A, BLDG. NO.4, MEHER APTS. SHANTINAGAR, S.V. ROAD, DAHISAR(EAST), MUMBAI-400068 / VS. ITO-32(3)(4), C-12, PRATYAKSH KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA, MUMBAI-400050 / ASSESSEE / REVENUE P.A. NO . AMQPS9328F $ % & / ASSESSEE BY SHRI RAJESH S SHAH $ % & / REVENUE BY SHRI OM PRAKASH MEENA-DR / DATE OF HEARING 22/06/2016 & / DATE OF ORDER: 22/06/2016 ITA NO.315/MUM/2015 SHAUKATBANU SHAMSUDDIN SUNESARA 2 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 17/10/2014 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, ON THE GROUNDS AS STATED IN THE GROUNDS OF APPEAL, WHICH IS BROADLY WITH RESPECT TO CONFIRMING CASH DEPOSITS OF RS.23,16,940/- IN THE DEVELOPMENT CREDI T BANK ASSESSED AS UNDISCLOSED INCOME. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI RAJESH SHAH, INVITED MY ATTE NTION TO PAGE-14 OF THE PAPER BOOK, FILED BEFORE THIS TRIBUN AL, CONTAINING A LETTER DATED 22/03/2013, ADDRESSED TO THE ASSESSING OFFICER, CLAIMED TO BE DULY RECEIVED BY H IM ON 22/03/2013 ITSELF. IT WAS ALSO PLEADED THAT THOUGH THIS LETTER WAS HANDED OVER TO THE LD. ASSESSING OFFICER ON 22/03/2013 BUT THE ASSESSMENT ORDER WAS PASSED ON 15/03/2013 IN WHICH THE AFOREMENTIONED LETTER WAS N EVER CONSIDERED. IT WAS PLEADED THAT THIS LETTER GOES T O THE ROOT OF THE MATTER, THEREFORE, THE APPEAL MAY BE SENT TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. O N THE OTHER HAND, THE LD. DR, SHRI OM PRAKASH MEENA, THOU GH DEFENDED THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) BUT HAD NO OBJECTION IF THE LETTER OF THE ASSESSEE MAY BE CONSIDERED AGAIN. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN ITA NO.315/MUM/2015 SHAUKATBANU SHAMSUDDIN SUNESARA 3 BRIEF, ARE THAT THERE WAS AN AIR INFORMATION THAT T HE ASSESSEE DEPOSITED CASH OF RS.23,16,940/- IN THE SA VING BANK ACCOUNT (JOINT BANK ACCOUNT) MAINTAINED WITH DEVELOPMENT CREDIT BANK. THE ASSESSMENT IN THE CA SE OF THE HUSBAND OF THE ASSESSEE SHRI SAMSUDDIN JIVAN SUNESARA WAS COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) ON 28/12/2011 ON PROTECTIVE BASIS. THE IMPUGNED AMOUNT WAS BROUGHT TO TAX IN THE HANDS OF THE HUSBAND OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES ON PROTECTIVE BASIS AND TH E CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE ACT. PURSUANT TO NOTICES, SERVED UPON THE ASSESSEE, ON V ARIOUS OCCASIONS, THE PROCEEDINGS WERE ATTENDED AND THE REQUISITE DETAILS WERE FURNISHED. AS PER THE REVENU E, NECESSARY DETAILS WERE NOT FILED. HOWEVER, IN PARA 3 OF THE ASSESSMENT ORDER, IT HAS BEEN MENTIONED THAT REQUIS ITE DETAILS WERE FILED BY THE ASSESSEE, THUS, THE FINDI NG CONTAINED IN THE ASSESSMENT ORDER IS ITSELF CONTRAD ICTORY. IT IS ALSO NOTED THAT THE LETTER DATED 22/03/2013 ( CLAIMED TO BE RECEIVED BY THE LD. ASSESSING OFFICER) AVAILA BLE AT PAGE-14 OF THE PAPER BOOK WAS NEVER CONSIDERED BY T HE ASSESSING OFFICER AS THE ASSESSMENT ORDER WAS PASSE D ON 15/03/2013 ITSELF. THE AFFIDAVIT FILED BY THE ASSES SEE WAS ALSO NOT CONSIDERED. AS PER THE MANDATE OF ARTICLE 265 OF THE CONSTITUTION OF INDIA ONLY DUE TAXES HAS TO BE LEVIED/COLLECTED, THEREFORE, WITHOUT GOING INTO THE MERITS OF THE APPEAL, I AM OF THE VIEW THAT THE ISSUE/ISSUES REQUIRES FRESH CONSIDERATION, CONSEQUENTLY, THE LD. ASSESSIN G ITA NO.315/MUM/2015 SHAUKATBANU SHAMSUDDIN SUNESARA 4 OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASS ESSEE AFRESH AND DECIDE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHER LIBERTY TO FU RNISH EVIDENCE, IF ANY, IN HER SUPPORT. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 22/06/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 22/06/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI