MISHREELAL JINDAL HUF, NAVI MUMBAI V. ITO WD 28(1)(2), NAVI MUMBAI

ITA 3611/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3537 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SANDEEP GOEL
• Assessee Lawyers: NARENDRA MAN GAL
• Keywords: Unexplained investment; Tangible material
• Section: 143(3); 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBAI BENCH B, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.3611/MUM/2015 ASSESSMENT YEAR: 2008-09 MISHREELAL JINDAL HUF 125, ARENJA ARCADE, SECTOR-17, VASHI, NAVI MUMBAI-400703. PAN: AAHIM9618N VS. ITO- WARD 28(1)(2), VASHI RAILWAY STATION COMPLEX, NAVI MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NARENDRA MAN GAL (AR) DEPARTMENT BY : SHRI DR. SANDEEP GOEL (DR) DATE OF HEARING : 21.03.2016 DATE OF PRONOUNCEMENT : 25.05.2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A)-26, MUMBAI DATED 31.03.2015 IN RESPECT OF ASSESSMENT YEAR(AY)- 2008-09 ON THE FOLLOWING GROUNDS: 1. GROUND 1: THE LEARNED ASSESSING OFFICER HAS ISSUED NOTICE UND ER SECTION 148 ON THE BASIS OF WRONG FACTS AND WITHOUT ANY TANGIBLE MATERIAL. T HUS, THE ASSESSMENT UNDER SECTION 147 IS VOID-AB-INITIO 2. GROUND 2: THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW BY N OT SUPPLYING TO THE APPELLANT, COPY OF REASONS RECORDED UNDER SECTION 1 48(2). CONSEQUENTLY, THE ASSESSMENT ORDER MAY BE HELD AS VOID. 3. GROUND 3: THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW BY P ASSING ASSESSMENT ORDER WITHOUT FIRST PASSING A SPEAKING ORDER AGAINST THE OBJECTIONS MADE BY THE APPELLANT AGAINST THE VALIDITY OF THE NOTICE SERVED ON HIM UNDER SECTION 148. CONSEQUENTLY, THE ASSESSMENT ORDER MAY BE HELD AS V OID. 4. GROUND 4: THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW IN A DDING THE BALANCE OF JEWELLERY IN THE BALANCE SHEET OF THE APPELLANT TO THE TOTAL INCOME UNDER SECTION 69A. 5. GROUND 5: 2 ITA NO.3611/M/15 MISHREELAL JINDAL HUF THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW IN A DDING THE ENTIRE AMOUNT OF CONSIDERATION OF SALE OF JEWELLERY TO THE TOTAL INC OME TREATING IT AS UNEXPLAINED INCOME UNDER SECTION 69B. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME FOR AY 2008-09 ON 30.07.2008 DECLARING TOTAL INCOME OF RS. 4,11,130/- . THE RETURN FOR THIS YEAR WAS PROCESSED U/S. 143(1) AND NO ASSESSMENT ORDER WAS P ASSED U/S. 143(3) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDING FOR AY 2 009-10, THE AO OBSERVED THAT IN AY 2008-09 THE ASSESSEE HAS SHOWN JEWELLERY FOR THE FIRST TIME IN ITS BALANCE-SHEET AT RS. 6566/- AND GRANTED A LOAN OF RS. 74,23,973/- TO M/S JINDAL ENTERPRISES. DURING THE COURSE OF ASSESSMENT PROCEEDING, ASSESSEE HAS E XPLAINED THAT THE JEWELLERY IS RECEIVED FROM MEMBERS OF HUF AND SAME WAS SOLD BY H UF. THE SALE CONSIDERATION WAS ADVANCED TO JINDAL ENTERPRISES WHICH IS PROPRIE TARY BUSINESS FIRM OF HUF MEMBER. THEREAFTER, A NOTICE U/S 148 OF THE ACT WAS ISSUED AND THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS RE-OPENED. IN THE ASSESSMENT THE AO MADE AN ADDITION OF RS. 71,89,782/- AND ORDER U/S 143(3) R. W.S 147 OF THE ACT WAS PASSED. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE FILED AP PEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS, HENCE THE PRESENT APPEAL IS FI LED BEFORE US. 3. WE HAVE HEARD AR FOR ASSESSEE AND DR FOR REVENUE AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. AR FOR ASSESSEE ARGUED THAT NO FAIR AND PROPER OPPORTUNITY WAS GIVEN BY AO NOR THE DOCUMENT FURNISHED BY ASSESSEE WAS CONSIDERED WHILE FRAMING THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT. LD. AR OF THE ASSESSEE FURTHER ARGUED THAT FIRST APPELLATE AUTHORITY (FAA) HAS ALS O PASSED A NON-SPEAKING ORDER WITHOUT CONSIDERING THE EVIDENCE FURNISHED BY ASSES SEE. LD. DR FOR REVENUE ARGUED THAT NO BALANCE-SHEET IS AVAILABLE FOR AY 2007-08, NO SUCH DOCUMENT WAS FILED BEFORE THE AO. ASSESSEE HAS NOT DISCHARGED HIS ONUS BEFORE THE AO. THE ASSESSEE HAS NOT DISCLOSED FULLY AND TRULY ALL MATERIAL FACT S NECESSARY FOR HIS ASSESSMENT FOR THAT AY AND THE ASSESSEE CANNOT FIND FAULT IN THE R E-ASSESSMENT ORDER. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE NOTICED THAT ASSESSEE HAS FILED PAPER BOOK WHICH INCLUDES THE PROFIT & LOSS A/C, BALANCE-SHEET, COPY OF ACKNOWLEDGMENT OF RETURN FOR AY 2005-06, 2006-07, 2007-08 & 2008-09, COMPUTATION OF CAPITAL GAIN, PAN CARD ALONG WITH DECLARATION ABOUT THE SUBMISSION OF DOCU MENTS BEFORE THE AUTHORITIES BELOW, EXCEPT FAMILY ARRANGEMENT LETTER. WE HAVE NO TICED THAT AO IN ITS ORDER 3 ITA NO.3611/M/15 MISHREELAL JINDAL HUF RECORDED THAT NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE ATTEND ED AND SUBMITTED THE EVIDENCES TO PROVE THAT THE JEWELLERY HAS PURCHASED IN THE EARLIER YEAR.....ASSESSEE HAS NOT SUBMITTED ANY EVIDENCE THAT JEWELLERY PURCH ASED IN THE EARLIER YEAR OR ASSESSMENT YEAR UNDER CONSIDERATION, THEREFORE THE SAME IS TREATED AS JEWELLERY PURCHASED FROM UNDISCLOSED SOURCE AND SAME SHOULD B E ADDED TO THE INCOME BY APPLYING SECTION 69A OF THE ACT. 5. THE LD. CIT(A) HAS NOT GIVEN ANY REASON EXCEPT SUST AINING THE ORDER OF AO OBSERVING AS UNDER: 7.2 DURING THE COURSE OF THE ASSESSMENT PROCEEDING AO OBSERVED THAT APPELLANT HAD SHOWN FULL VALUE OF SALE CONSIDERATIO N OF RS.71,89,782/-. FROM THE SAID SALE CONSIDERATION, INDEXED COST OF ACQUIS ITION WAS CLAIMED AT RS. 77,52,491/-.AO FURTHER NOTED THAT NO PROOF OF ACQUI SITION OF JEWELLERY WAS SUBMITTED BY THE ASSESSEE. HE THEREFORE, ADDED THE SUM AS UNEXPLAINED INVESTMENT IN JEWELLERY. 7.3 IT WAS STATED BEFORE ME THAT SAID JEWELLERY WAS RECEIVED BY THE APPELLANT DURING THE MARRIAGE OF FEBRUARY 19, 1963. APART FRO M THIS GENERAL STATEMENT, NO OTHER EVIDENCE IS PRODUCED BEFORE ME IN SUPPORT OF ACQUISITION OF THE JEWELLERY. 7.4 IN THE ABSENCE OF ANY MATERIAL ON RECORD IN SUP PORT OF ACQUISITION OF SAID JEWELLERY, I HOLD THAT AO WAS JUSTIFIED IN ADDING T HE SUM OF RS.71,89,782/- TO THE TOTAL INCOME OF THE APPELLANT. THIS GROUND IS D ISMISSED . 6. THE PERUSAL OF ORDER OF AUTHORITIES BELOW REVEALS T HAT THE DOCUMENT FURNISHED BY ASSESSEE WAS NOT CONSIDERED AS THERE IS NO REFERENC E OF SUCH DOCUMENT. RATHER THE AUTHORITIES BELOW CONCLUDED THAT NO DOCUMENT (MATER IAL) IN SUPPORT OF ACQUISITION OF JEWELLERY IS ON RECORD. CONSIDERING THE ABOVE OBSER VATION AND THE DOCUMENTARY EVIDENCE FILED BEFORE US, WE DEEM IT APPROPRIATE TO RESTORE ALL THE ISSUES TO THE FILE OF AO TO DECIDE THE MATTER AFRESH. THE AO SHALL PROVID E ADEQUATE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FULLY CO -OPERATE WITH THE AO. WITH THESE OBSERVATIONS THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH MAY, 2016. SD/- SD/- ( R.C. SHARMA ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 25/05/2016 S.K.PS 4 ITA NO.3611/M/15 MISHREELAL JINDAL HUF / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/