NAVNEET JHANWAR PROP M/S. SUPPER DRILLERS, MUMBAI V. ITO WD 20(2)(3), MUMBAI

ITA 3551/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8665 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 11-02-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 06-05-2013
• Court: TRIBUNAL
• Assessee Lawyers: R S SAMRIA
• Keywords: Gift; Principle of natural justice; Accommodation entries; Retraction
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.3551/MUM/2013 ASSESSMENT YEAR: 2003-04 NAVNEET R. JHANWAR, PROP. M/S SUPER DRILLERS, C/O- SAMARIA & CO. CHARTERED ACCOUNTANTS, 2E, COURT, CHAMBERS, 35, NEW MARINE LINES, MUMBAI-400020 / VS. INCOME TAX OFFICER, WARD-20(2)(3), ROOM NO. 411, 4 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400012 ( !'# $ /ASSESSEE) ( / REVENUE) PAN. NO . AACPJ0754E % & $ ' / DATE OF HEARING : 24/01/2017 & $ ' / DATE OF ORDER: 27/01/2017 !'# $ ! / ASSESSEE BY SHRI R.S. SAMRIA ! / REVENUE BY MISS ANUPAMA SINGLA-DR ITA NO.3551/MUM/2013 NAVNEET R. JHANWAR (PROP. M/S SUPPER DRILLERS) 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 28/03/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ON THE GROUNDS STATED IN THE GROUNDS OF APPEAL. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI R. S. SAMARIA, HAS CHALLENGED THE ADDITIONS AS CONTENDED IN THE GROUNDS BUT BEFORE US BROADLY IT W AS EXPLAINED THAT REASONABLE AND ADEQUATE OPPORTUNITY OF HEARING WAS NOT PROVIDED TO THE ASSESSEE. IT WAS BR OUGHT TO OUR NOTICE THAT THE ASSESSMENT ORDER DATED 22/12/20 10, PASSED BY THE LD. ASSESSING OFFICER U/S 143(3) R.W. S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS CONTRARY TO THE SUBMISSIONS MADE BY THE ASSESSEE AND THAT TO O WITHOUT PROVIDING ADEQUATE OPPORTUNITY TO THE ASSES SEE. THE AMOUNT OF GIFTS WERE CLAIMED TO BE RECEIVED FROM SE VEN DONORS AND THE ADDITION WAS MADE MERELY ON THE BASI S OF RETRACTIONS MADE BY ONE OF THE DONOR AND THE ASSESS EE WAS NOT PROVIDED OPPORTUNITY TO CROSS EXAMINE HIM. ON T HE OTHER HAND, THE LD. DR, MISS. ANUPAMA SINGLA, DEFEN DED THE ADDITION BY SUPPORTING THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT DURING ASSESSMENT PROCEEDINGS, IT WAS NOTE D BY THE LD. ASSESSING OFFICER THAT THE ASSESSEE CLAIMED TO HAVE ITA NO.3551/MUM/2013 NAVNEET R. JHANWAR (PROP. M/S SUPPER DRILLERS) 3 RECEIVED GIFT OF RS.7 LAKH FROM VARIOUS PARTIES MEN TIONED IN THE ORDER AND ALSO IN THE IMPUGNED ORDER. THE STATE MENT OF SHRI GIRIRAJ VIJAYVARGIYA, ONE OF THE DONOR WAS REC ORDED, WHEREIN, IT WAS STATED THAT HE WAS ENGAGED IN PROVI DING ACCOMMODATION ENTRIES IN THE FORM OF GIFTS/LOANS/SH ARES CAPITAL ETC AGAINST RECEIPT OF COMMISSION. IT WAS ALSO NOTED THAT THE SAID DONOR HAD NO BLOOD RELATION WITH THE ASSESSEE AND THERE WAS NO OCCASION TO JUSTIFY THE RECEIPT OF SUCH GIFTS. IT WAS FURTHER NOTED THAT THE GIFTS WERE RECEIVED B ETWEEN 27/02/2003 AND 17/03/2003 AT THE FAG END OF THE FIN ANCIAL YEAR, THEREFORE, THE GIFTS WERE TREATED AS NON-GENU INE, CONSEQUENTLY, ON THE BASIS OF STATEMENTS RECORDED F ROM THE ALLEGED DONORS, THE ADDITION WAS MADE. ON APPEAL BE FORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE ADDITI ON WAS SUSTAINED. THE ASSESSEE IS IN APPEAL BEFORE THIS TR IBUNAL. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, THERE IS NO DISPUTE TO THE FACT THAT DUE TO NON-AVAILABILITY OF SUFFICIENT TIME, TH E ADDITION WAS MADE. WE ARE NOT GOING INTO THE GENUINENESS/NON - GENUINENESS OF THE GIFTS BUT CERTAINLY ARE OF THE V IEW, AS MANDATED IN ARTICLE-265 OF THE CONSTITUTION OF INDI A THAT DUE TAXES HAS TO BE LEVIED/COLLECTED AND SINCE, THE RE IS VIOLATION OF BASIC PRINCIPLE OF NATURAL JUSTICE FOR NON- ITA NO.3551/MUM/2013 NAVNEET R. JHANWAR (PROP. M/S SUPPER DRILLERS) 4 PROVIDING OPPORTUNITY TO THE ASSESSEE OF BEING HEAR D/NOT PROVIDING OPPORTUNITY TO CROSS EXAMINE THE ALLEGED DONOR, THE ADDITION CANNOT BE SUSTAINED. HOWEVER, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, SO THAT NO PREJUD ICE IS CAUSED TO EITHER SIDE, WE REMAND THIS APPEAL TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE GENUINENES S OF THE CLAIM. THE ASSESSEE BE PROVIDED OPPORTUNITY OF BEIN G HEARD WITH FURTHER LIBERTY TO CROSS EXAMINE THE ALLEGED D ONOR. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE DONORS BEFORE THE LD. ASSESSING OFFICER ON THE APPOINTED DATE. THE AS SESSEE IS DIRECTED TO SUBSTANTIATE ITS CLAIM. THE ASSESSEE IS FURTHER DIRECTED TO APPROACH THE OFFICE OF THE LD. ASSESSIN G OFFICER WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. TH E LD. ASSESSING OFFICER IS FREE TO DECIDE THE APPEAL ON A MUTUALLY PRE-DECIDED DATE, THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24/01/2017. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 27/01/2017 F{X~{T? P.S/. . . ITA NO.3551/MUM/2013 NAVNEET R. JHANWAR (PROP. M/S SUPPER DRILLERS) 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( + ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI, 5. 34 .$! , 0 +' ! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. ! / BY ORDER, /3+$ .$ //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI