ASHOK M. NAKMAN, MUMBAI V. ITO-10(3)(1), MUMBAI

ITA 3478/MUM/2010

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9297 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-02-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 03-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: VISHWAS V MEHENDALE
• Keywords: Reassessment proceedings
• Section: 143(3); 2

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , ,, , , ! '# ! '# ! '# ! '#, ,, , $ $ $ $ BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 3478/MUM./2010 ( & ' (' / ASSESSMENT YEAR : 200102 ) SHRI ASHOK M. NAKMAN DINESH PAI & CO. 402, MARATHON CHAMBERS, P.K. ROAD, PAACH RASTAA, MULUND (W) MUMBAI 400 080 .. )* / APPELLANT & V/S INCOME TAX OFFICER, WARD 10 ( 3 ) (1) AAYAKAR BHAVAN MUMBAI .... +,)* / RESPONDENT ) . / PERMANENT ACCOUNT NUMBER AABPN1868Q & '.! / 0 / ASSESSEE BY : SHRI.VISHWAS V. MEHENDALE / 0 / REVENUE BY : SHRI ASGHAR ZAIN & / !1 / DATE OF HEARING 24.02.2015 ' 2( / !1 / DATE OF ORDER 11.03.2015 ' ' ' ' / ORDER ! '# ! '# ! '# ! '#, ,, , 3 3 3 3 / PER AMIT SHUKLA, J.M. THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 18 TH FEBRUARY 2010, PASSED BY THE LEARNED COMMISSIONER (APPEALS)XXII, MUMBAI, FOR THE QUANTUM OF ASSESSMEN T PASSED UNDER ASHOK M. NAKMAN 2 SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2001-02. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURBALE COMMISSIONER OF INCOME TAX-APPEALS -22, MUMBAI ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN RE- OPENING THE ASSESSMENT WITHOUT ASSIGNING ADEQUATE R EASONS. 2. ON THE FACTS AND CIRCUMSTANCE3S OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX-APPEALS -22, MUMBAI FAILED TO APPRECIATE THAT, THE APPELLANTS CO-PARCE NERS HAD PAID THE DONATIONS TO RAMRAO ADIK EDUCATION SOCIETY FROM THEIR OWN SOURCE OF INCOME OF INCOME AND THE THEREFORE THERE WAS NO QUESTION OF MAKING ADDITION FOR THE SAME IN APPELLA NTS HANDS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE HONOURABLE COMMISSIONER OF INCOME TAX-APPEALS-22, M UMBAI ERRED FAILED TO APPRECIATE THAT THE APPELLANT HAD N OT PAID ANY DONATION OF RS.3,00,000/- TO RAMRAO ADIK EDUCATION SOCIETY AND THEREFORE THE PROVISIONS OF S.69C COULD NOT BE INVO KED. 4. WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL , ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX-APPEALS-22, ERRED IN NOT MAKING CROSS VERIFICATION OF APPELLANTS CLAIM WITH RAMRAO ADIK EDUCATION INSTITUTE BEFORE INVOKING THE PROVISIONS OF S.69C AGAINST THE APPELLANT. 3. THE BRIEF FACTS OF THE CASE ARE THAT, AN INFORMATI ON WAS RECEIVED FROM THE OFFICE OF ADDL.DIT (INV.) THAT THE ASSESSEE H AS PAID SUM OF RS.3,00,000/- TOWARDS DONATION /CAPITATION FEES TO M /S. RAMRAO ADIK EDUCATION, DURING THE FINANCIAL YEAR 2000-01, RELEVA NT TO ASSESSMENT ASHOK M. NAKMAN 3 YEAR 2001-02. ACCORDINGLY, THE ASSESSEES CASE WAS REOPENED ASSESSMENT U/S.147 BY ISSUANCE OF NOTICE U/S.148 DA TED 24.03.2008. IN THE REASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT, ONLY FEES OF RS.2,00,000/- WAS PAID AND THAT TO FROM THE AC COUNT OF MRS. JYOTI A. NAKMAN AND MR. HARISH A. NAKMAN, WHO ARE SE PARATELY ASSESSED. THE COPY OF BANK THEIR PASS BOOK AND COPY OF THEIR RETURN OF INCOME WAS ALSO FURNISHED. IT WAS CLARIFIED THAT THE A SSESSEE HAS NOT PAID ANY AMOUNT TOWARDS THE COLLEGE FEES/ CAPITATION FEES TO D.Y.K. PATIL COLLEGE. IT WAS FURTHER SUBMITTED THAT THE ASSESSE ES CASE HAS ALREADY COMPLETED U/S.143(3) OF THE ACT, AND ALL THE DETAILS HAVE BEEN SUBMITTED. THE CONTENT OF ASSESSEES LETTER HAS BEE N REPRODUCED IN PARA 3.1 AND 3.1 OF THE ASSESSMENT ORDER. ON THE VER IFICATION OF THE DETAILS, THE AO FOUND THAT THE SAID AMOUNTS WE WITHDRAWN IN THE FOLLOWING MANNERS:- NAME OF THE BANK & ACCOUNT NO. DATE OF WITHDRAWAL NAME OF THE ACCOUNT HOLDER AMOUNT RS. CANARA BANK, MULUND (W)/41277 05/10 /2000 JYOTI A. NAKMAN & ASHOK M. NAKMAN 1,00,000 CANARA BAN, MULUND (W)/41872 05/10/2000 HARISH A. NAKMAN (MINOR) MRS. JYOTI A. NAKMAN 1,00,000 LD. AO FURTHER NOTED THAT DEMAND DRAFTS WERE PURCHAS ED FROM BOTH THESE ACCOUNT ON 28.08.2000 WHICH WAS CANCELLED ON 23.09.2000 ASHOK M. NAKMAN 4 AND CASH WERE WITHDRAWN ON 05/10/2000. THUS, HE HELD THAT, THERE IS A GAP OF ALMOST 5 TO 6 MONTHS FROM THE DATE OF THE WIT HDRAWAL AND THE PAYMENTS OF THE FEES WHICH WAS MADE ON 30.03.2001 AN D 30.04.2001. ACCORDINGLY, HE ADDED RS.2,00,000/- TO THE TOTAL INCO ME OF THE ASSESSEE U/S.69C. HE FURTHER HELD THAT AS PER THE INF ORMATION RECEIVED FROM THE ADDL. DIT(INV.) ASSESSEE HAS PAID OF RS.3, 00,000/- AND THEREFORE, ON THIS BASIS ALONE, HE FURTHER ADDED RS.1 ,00,000/- TO THE INCOME OF THE ASSESSEE. THE LD. CIT(A) TOO HAS CONFIR MED THE SAID FINDING OF THE AO. 4. BEFORE US, THE LEARNED COUNSEL SUBMITTED THAT THE AS SESSEE HAS APPLIED FOR THE INFORMATION AND MATERIAL WITH THE DEPA RTMENT UNDER THE RTI ACT, TO MAKE AVAILABLE THE PROOF IN THE FORM OF STATEMENT OR COPY OF RECEIPTS ETC., AS RELIED UPON BY THE AO FOR M AKING THE SAID ADDITION. HOWEVER IN RESPONSE, NOTHING WAS MADE AVA ILABLE EXCEPT FOR COPY OF FEES RECEIPTS WHICH ITSELF WAS FURNISHED BY THE ASSESSEE, DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. HE FURTHER S UBMITTED THAT THE DEPARTMENT HAS NO MATERIAL, WHATSOEVER TO SHOW THAT ASSESSEE HAS PAID RS.3,00,000/- IN CASH OUT OF HIS UNDISCLOS ED INCOME. BEFORE THE AO AS WELL AS BEFORE THE LD.CIT(A), IT WAS CLARIFI ED THAT PAYMENT OF FEES PAID ONLY FOR RS.2,00,000/- IN CASH AND THE RE LEVANT ENTRY FOR SOURCE HAS BEEN SHOWN FROM THE BANK ACCOUNTS OF THESE TWO PERSONS. ASHOK M. NAKMAN 5 APART FROM THIS INFORMATION FURNISHED BY THE ASSESSEE, THERE IS NO MATERIAL TO CONTRADICT OR RESULT THE ASSESSEES EVIDENCE . HE ALSO DREW OUR ATTENTION TO THE COPIES OF THEIR INCOME TAX RETUR N OF THESE TWO PERSONS ALONGWITH THEIR RESPECTIVE BANK PASS BOOK. THU S, HE SUBMITTED THAT THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD . CIT(A) IS PURELY BASED ON SURMISES. 5. ON THE OTHER HAND, LEARNED DR STRONGLY RELIED UPON THE ORDER OF THE CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSION AND ALSO PERU SED RELEVANT MATERIAL PLACED ON RECORD. THE ADDITION OF RS.3,00,00 0/- HAS BEEN MADE ON SOME INFORMATION RECEIVED FROM INVESTIGATION WING THAT DONATION OF RS.3,00,000/- HAVE BEEN MADE IN CASH TO M/S. RAMRAO ADIK EDUCATION SOCIETY WHICH RUNS D.Y. K. PATIL COLL EGE. ANY INFORMATION OR MATERIAL INDICATING SUCH ASSESSEE PA YMENT HAS NOT BEEN MADE AVAILABLE BY THE DEPARTMENT TO THE ASSESSEE , NOR HAS BEEN BROUGHT ON RECORD. BEFORE, THE AO AS WELL AS THE LD .CIT(A), ASSESSEE HAS AMPLY DEMONSTRATED BY EVIDENCE THAT, ONLY SUM OF R S.2,00,000/- WAS PAID AND THAT TO BE NOT BY THE ASSESSEE, BUT BY M RS. JYOTI A. NAKMAN WHO HAS PAID SUM OF RS.1,00,000/-. AND MR. H ARISH A. NAKMAN WHO HAS PAID RS.1,00,000/-. BOTH ARE INDEPEN DENT ASSESSEE, SEPARATELY ASSESSED TO TAX. IN SUPPORT OF THIS CONTENTI ON, THE COPIES OF ASHOK M. NAKMAN 6 THEIR BANK PASS BOOK HAVE ALSO BEEN FURNISHED. FROM THE PERUSAL OF THE ENTRIES APPEARING IN THE BANK PASS BOOK, IT IS SEE N THAT, EARLIER DEMAND DRAFT OF RS.1,00,000/- FROM THE RESPECTIVE BA NK ACCOUNTS WERE PREPARED, WHICH HAVE BEEN CANCELLED AND THEREAF TER, CASH HAS BEEN WITHDRAWN ON 05.10.2000 FOR THE PURPOSE OF PAY ING THE FEES. THE FEES RECEIPT PLACES ON RECORD ALSO GO TO SHOW THAT ON LY RS.2,00,000/- HAVE BEEN PAID. NOTHING HAS BEEN BROUGHT ON RECORD BY THE DEPARTMENT TO CONTROVERT THE FACT THAT, FIRSTLY, THE ASSES SEE HAS PAID THE DONATION/CAPITATION FEES IN CASH AND NOT THE OTHER TWO PERSON; AND SECONDLY, WHAT IS THE INFORMATION AND MATERIAL FOR TH E BASIS OF ADDITION OF RS.3,00,000/-. IN THE APPLICATION MADE BY THE ASS ESSEE UNDER RTI ACT ALSO, THE DEPARTMENT COULD NOT FURNISHED OR PROV IDE ANY INFORMATION OR MATERIAL TO REVOLT THAT THE ASSESSEE A LONE HAS PAID THE SUM OF RS.3,00,000/-. IN THE ORDER U/S.7(1) OF THE RI GHT TO INFORMATION ACT, 2005, IT HAS BEEN INFORMED BY THE D EPARTMENT THAT ADDITION HAS BEEN MADE ONLY ON THE BASIS OF COPY OF BANK PASS BOOK OF THE TWO PERSONS PRODUCED BEFORE THE AO BY THE ASSESSEE AND THE COPIES OF FEES RECEIPT WHICH TWO WAS FURNISHED BY THE ASSESSEE. THUS, THE DEPARTMENT HAS NO BASIS FOR MAKING THE IMPUGNED AD DITION OF RS.3,00,000/-. ON THESE FACTS, WE DO NOT FIND ANY REA SON TO UPHOLD THE ADDITION OF RS.3,00,000/- MADE IN THE HANDS OF THE A SSESSEE SANS ANY ASHOK M. NAKMAN 7 EVIDENCE AND ACCORDINGLY, THE SAME IS DELETED. ACCOR DINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7. SO FOR AS THE ISSUE RELATING TO VALIDITY OF REOPE NING U/S.147, THE SAME AS BECOME ACADEMIC IN VIEW OF OUR FINDING GIVE N ON MERITS. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DAY OF MARCH 2015. SD/- SD/- SD SANJAY ARORA ACCOUNTANT MEMBER SD/ ! ! ! ! '# '# '# '# AMIT SHUKLA JUDICIAL MEMBER MUMBAI, 4& 4& 4& 4& DATED: 11 .3.2015 PATEL ' / +!5 65(! / COPY OF THE ORDER FORWARDED TO : (1) & '.! / THE ASSESSEE; (2) / THE REVENUE; (3) 7() / THE CIT(A); (4) 7 / THE CIT, MUMBAI CITY CONCERNED; (5) 5 :; +!& , , / THE DR, ITAT, MUMBAI; (6) ;<' = / GUARD FILE. ,5! +! / TRUE COPY '& / BY ORDER > / ? / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI