ITO 8(3)(4), MUMBAI V. DR. MRS . MEENA GANDHI, MUMBAI

ITA 3182/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49629 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 20-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 23-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V P KAPARIA
• Keywords: Unexplained investment; Earning of tax free income; Additional evidence; Corroborative evidences
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI T.R. SOOD (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NO. 3182/MUM/2010 ASSESSMENT YEAR 2006-07 THE ITO 8(3)(4), AAYAKAR BHAVAN, MUMBAI-400 020 VS. DR. MRS. MEERA GANDHI, 5-6, SHREYAS, 2 ND HASANABAD LANE, SANTACRUZ(W), MUMBAI-400 054 PAN-AAAPG 9730B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SANJEEV JAIN RESPONDENT BY: SHRI V.P. KAPARIA DATE OF HEARING : 26.7.2011 DATE OF PRONOUNCEMENT: 29 TH JULY, 2011 O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 22.01.2010 PASSED BY THE LD. CIT(A)-18 FOR TH E ASSESSMENT YEAR 2006- 07 2. THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME UNDE R THE HEADS SALARIES, LOSS FROM HOUSE PROPERTY AND INCOME FROM OTHER SOUR CES. THE ASSESSEE HAS CLAIMED LOSS AMOUNTING TO RS. 1,50,000/- UNDER THE HEAD HOUSE PROPERTY ON ACCOUNT OF INTEREST PAID ON HOUSING LOAN TAKEN FROM STANDARD CHARTERED BANK. 3. THE ASSESSING OFFICER RECEIVED INFORMATION FROM AIR DATA THAT THE ASSESSEE HAD INVESTED RS. 20 LAKHS IN FIDELITY MUTU AL FUND ON 16.5.2005. AS ITA NO. 3182/M/2010 2 NO DETAILS WERE SUBMITTED BY THE ASSESSEE AS TO SOU RCE OF INVESTMENT, DESPITE REPEATED NOTICES ISSUED BY THE AO, AN AMOUNT OF RS. 20 LAKHS WAS BROUGHT TO TAX U/S. 69 AS UNEXPLAINED INVESTMENTS. 4. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE HAD EXPLAINED THAT AN AMOUNT OF RS. 20 LAKHS WAS PAID B Y HER HUSBAND SHRI SACHIN C. GANDHI BY ISSUING CHEQUE FROM HIS BANK AC COUNT WITH STANDARD CHARTERED BANK. SINCE THESE DETAILS WERE NOT SUBMI TTED DURING THE ASSESSMENT PROCEEDINGS, REMAND REPORT WAS CALLED FO R FROM THE AO VIDE LETTER DT. 11.9.2009. THE AO IN HIS REMAND REPORT DT. 6.1 1.2009 HAD OBJECTED TO ADMISSION OF ADDITIONAL EVIDENCE U/R 46A ON THE GRO UND THAT NONE OF THE FOUR EXCEPTIONS MENTIONED IN THE RULE ARE APPLICABLE TO THE ASSESSEE AND ALSO ON THE GROUND THAT REPEATED OPPORTUNITIES WERE GIVEN D URING ASSESSMENT PROCEEDINGS TO FURNISH THE DETAILS. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE T HE LD. CIT(A). 6. THE LD. CIT(A) ADMITTED ADDITIONAL EVIDENCE SUBM ITTED BY THE ASSESSEE. AFTER GOING THROUGH THE AFFIDAVIT DT. 7. 9.2009 WHEREIN THE ASSESSEE EXPLAINED THE REASON AS TO WHY THE NOTICES ISSUED B Y THE AO COULD NOT BE COMPLIED WITH. THE LD. CIT(A) HAS DECIDED THE ISSUE ON MERITS. 7. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. ADMI TTEDLY, THE AO HAD GIVEN REPEATED OPPORTUNITIES. HOWEVER, THE SAME WE RE NOT AVAILED BY THE ASSESSEE. HOWEVER, THE AO HAS MENTIONED IN HIS ORDE R AS FOLLOWS: IN YOUR CASE YOU WERE GIVEN VARIOUS OPPORTUNITIES T O FURNISH THE DETAILS CALLED FOR VIDE NOTICE U/S.142( 1) DATED 07.07.2008. HOWEVER, IT IS SEEN THAT YOU HAVE NOT F ILED ANY OF THE DETAILS CALLED FOR TILL DATE FOR REASONS BEST KNOWN TO YOU. IN VIEW OF THE ABOVE YOU ARE GIVEN THIS FINAL OPPOR TUNITY TO SUBMIT THE DETAILS CALLED FOR VIDE QUESTIONNAIRE DA TED 07.07.2008 ISSUED ALONGWITH NOTICE U/S.142(1) OF EVEN DATE. FR ESH NOTICE U/S. 142(1) IS ENCLOSED FOR YOUR COMPLIANCE ON 11.1 1.2008, FAILING WHICH THE ASSESSMENT WILL BE FINALIZED BY TAKING RE COURSE TO THE PROVISIONS OF SECTION 144 OF THE I.T. ACT, 1961 BY MAKING THE FOLLOWING DISALLOWANCES / ADDITIONS. ITA NO. 3182/M/2010 3 1) LOSS OF RS.1,50,000/- CLAIMED UNDER THE HEAD INCOME FROM HOUSE PROPERTY WILL BE DISALLOWED. 2) AS PER INFORMATION AVAILABLE, YOU HAVE MADE INVESTM ENT OF RS.20 LACS IN FIDELITY MUTUAL FUND ON 16.05.2005. A S NO DETAILS IN RESPECT OF SOURCE OF INVESTMENT HAVE BEE N FILED TILL DATE THE SAME WILL BE ADDED TO YOUR INCOME AS UNEXP LAINED INVESTMENT U/S.69 OF THE I.T. ACT, 1961. 3) YOU HAVE CLAIMED EXEMPT INCOME IN THE NATURE OF DIV IDEND AMOUNTING TO RS.3,22,285/- AND PPF INTEREST OF RS.1 ,47,352/-. IN THE ABSENCE OF DETAILS AND SUPPORTING EVIDENCE T HESE AMOUNTS WILL BE TREATED AS TAXABLE IN YOUR HANDS FO R THE A.Y> 2006-07. 4) IT IS ONCE AGAIN REITERATED THAT IN CASE OF NON COM PLIANCE ON 11.11.2008 THE ASSESSMENT IN YOUR CASE WILL BE FINA LIZED U/S.144 OF THE I.T. ACT, 1961 AFTER MAKING THE ABOV E ADDITIONS/DISALLOWANCES WITHOUT REVERTING BACK TO Y OU ON THE SUBJECT. THE ABOVE NOTICE U/S.142(1) ALONGWITH LETTER DTD. 0 5.11.08 WERE SERVED UPON THE ASSESSEE ON 06.11.08 AND THE D ATE OF COMPLIANCE WAS 11.11.08. THE ASSESSEE DID NOT FILE ANY DETAILS ON 11.11.08 NOR ANY ADJOURNMENT WAS SOUGHT. IN VIEW OF THE ABOVE I AM LEFT WITH NO OTHER ALTERN ATIVE BUT TO COMPLETE THE ASSESSMENT U/S.144 OF THE INCOME-TA X ACT, 1961 AND THE SAME IS FINALIZED: 8. THE LD. DEPARTMENTAL REPRESENTATIVE SHRI SANJEEV JAIN POINTED OUT THAT CERTAIN DOCUMENTS HAVE BEEN PRODUCED BY THE AS SESSEE BEFORE THE LD. CIT(A) AFTER THE REMAND REPORT HAS BEEN RECEIVED FR OM THE AO. WE OBSERVE THE SAME FROM THE PAPER BOOK FILED BEFORE US. IN TH ESE CIRCUMSTANCES, CONSIDERING THE CONDUCT OF THE ASSESSEE IN NOT COM PLYING TO THE NOTICES ISSUED BY THE AO SHOWING UTTER DISREGARD FOR APPEA RANCE AND SUBMISSION OF DETAILS, THE ADDITIONAL GROUNDS ADMITTED BY THE LD. CIT(A) CANNOT BE JUSTIFIED. IT APPEARS THAT NONE OF THE DETAILS EVEN THE DETAILS FOR PAYMENT OF PF HAS BEEN GIVEN TO THE AO. WE THEREFORE REMIT THE MATTE R TO THE FILE OF THE AO AND THE ASSESSEE MAY PRODUCE ALL THE MATERIALS IN S UPPORT OF ITS CLAIM PRODUCED BEFORE THE LD. CIT(A) AND THE AO SHALL DEC IDE THE SAME IN ACCORDANCE WITH LAW. ITA NO. 3182/M/2010 4 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 29 TH DAY OF JULY, 2011 SD/- SD/- (T.R. SOOD) ( ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 29 TH JULY, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR F BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 3182/M/2010 5 DATE INITIALS 1. DRAFT DICTATED ON: 26.7.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 26.07.2011 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: