MURTUZA ABBAS GHADIYALI, Nagpur V. I.T.O. WARD 4(1), Nagpur

ITA 39/NAG/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4513 (ITAT-NAGPUR)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 29-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Reasonable cause

Judgement Text

1 ITA NO. 39/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO.39/NAG/2016. ASSESSMENT YEAR : 2009 - 10. MURTUZA ABBAS GHADIYALI, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 4(1), NAGPUR. PAN AHWPG2520L. APPELLANT. RESPONDENT. APPELLANT BY : SHRI MURTUZA ABBAS GHADIYALI RESPONDENT B Y : S MT. AGNES P. THOMAS. DATE OF HEARING : 21 - 09 - 2016 DATE OF PRONOUNCEMENT : 22 ND SEPT., 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 26 - 12 - 201 3 AND PERTAINS TO ASSESSMENT YEAR 20 09 - 10 CONFIRMING THE ADDITION OF RS.24,30,000/ - MADE BY THE AO AS UNEXPLAINED INVESTMENT IN THE PROPERTY. 2. AT THE OUTSET IT IS NOTED THAT THERE IS A DELAY OF 760 DAYS IN FILING THE APPEAL. THE REASONABLE CAUSE ATTRIBUTED FOR THE DELAY HAS BEEN MENTIONED BY THE ASSESSEE AS UNDER : THE REASON FOR THE DELAY WERE MANY WHICH ARE AS FOLLOWS: 1. I WAS UNDERGOING A HUGE FINANCIAL CRISIS DURING THIS PERIOD BECAUSE OF THE FOLLOWING REASONS: A) SINCE THE TIME I PURCHASED THE PROPERTY DUE TO WHICH MY INCOME TAX GOT GENERATED AND WHICH WENT INTO DISPUTE BECAUSE I WAS UNABLE TO PAY THE WHOLE AMOUNT OF THE PROPERTY. THAT DISPUTE 2 ITA NO. 39/NAG/2016. COSTED ME A LOT SINCE THE VENDOR PUT A COURT CASE (CIVIL SUIT NO. 306/2012) AGAINST ME AND I HAD TO SP END A LOT OF MONEY TO ADVOCATES AND CAS TO GET THROUGH THAT COURT CASE AND LATER IN ALL THE LEGAL PROCEDURES OF MY TAXMAN AND CA APPEARING AND HANDLING IN THE ASSESSMENT AND APPEAL(1) PROCEEDINGS. B) MY FATHER IS SUFFERING FROM PARKINSONS DISEASE SINCE 10 YE ARS, WHICH REQUIRES MONTHLY MEDICINAL AND TREATMENT EXPENSES. SINCE I AM THE ONLY SON I HAVE TO TAKE CARE OF THIS TOO. AT ONE TIME, I WA HAVING NO MONEY TO EVEN GET MEDICINES FOR MY FATHER SO I HAD TO REGISTER HIM FOR THE RISKY CLINICAL TRIAL EXPERIMENTAL MEDICINES WHICH HE IS STILL CONTINUING ON. C) MY WIFE ALSO HAD SOME MEDICAL EMERGENCIES DURING THOSE TIMES. I AM THE LONE BREAD EARNER IN THE FAMILY. SHE IS A P;ATIENT OF PCOD (POLY - CYSTIC OVARIAN DISEASE). HER TREATMENT ALSO REQUIRED EXPENDITURE. SINCE I WA S FACING ALL THESE HARDSHIPS IN THE LAST FEW YEARS, ALL MY TRANSACTIONS, SOCIAL, AND FINANCIAL, EVERYTHING SUFFERED TERRIBLY AND I COULD NOT ATTEND TO THEM PROPERLY. D) MY BROTHER IN LAW HAD EXPIRED SOME TIME BACK TO THIS MATTER AND MY SISTERS AND HER CHILDRE NS WHOLE PERSONAL AND FINANCIAL STRESS HAD COME UPON ME TO TAKE CARE OF. 2. DESPITE THESE ADVERSE CIRCUMSTANCES, I STILL MANAGED O PAY 13 THOUSAND FEES TO MY LAWYER FOR THE SECOND APPEAL FOR WHICH I HAD TO SELL MY COMPUTER, BUT HE ADJUSTED THAT AMOUNT AGAINS T MY OLD COURT 3. C ASE MATTER ARREAR FEES AND INCOME TAX ATTENDANCE AND HANDLING FEES. I WAS IGNORANT OF SUCH A THING FROM HIM THAT MY APPEAL HAS NOT BEEN FILED. I DO NOT HAVE MORE MONEY TO GIVE TO LAWYERS AND CA AND HENCE NOW I AM ATTENDING MY CASE ON MY OWN AND PRESENTING MYSELF ONLY FOR THIS CASE. ADDITIONALLY, I WAS NOT KNOWING THE DETAILS AND PROCEDURE OF FILING OF APPEAL AND THAT IS WHY IT TOOK TIME FROM MY END TO GATHER THE INFORMATION AND KNOW THE PROCEDURE TO FILE MY APPEAL IN ITAT AND ATTEND MY CASE MYSELF. HENCE KINDLY CONSIDER MY PLEA AND CONDONE THE DELAY. 3. UPON CAREFULLY CONSIDERING THE ISSUE AND HEARING THE PARTIES I CONDONE THE DELAY I N THIS CASE AND THE APPEAL IS ADMITTED. 3 ITA NO. 39/NAG/2016. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN BUSINESS OF RE T AIL TRADING. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS PURCHASED A HOUSE PROPERTY FOR RS.60 LAKHS. FOR THE SAME HE HAS AVAILED RS.39 LAKHS LOAN FROM ICICI BANK AND FOR THE BALANCE PAYMENT HE HAS ISSUED POST DATED CHEQUES. DUE TO ABSENCE OF FINANCE THE SAID CHEQUES WERE NO T ENCASHED AND THE SAME WERE RETURNED TO THE ASSESSEE . THE ASSESSEE ALSO PRODUCED THOSE UNENCASHED CHEQUES BEFORE THE AO. SINCE THE ASSESSEE COULD NOT ARRANGE THE FUNDS TO CLEAR THOSE CHEQUES, THE SELLER FILED CIVIL SUIT NO. 306 OF 2012 AGAINST THE ASSESSE E AND THE COURT CANCELLED THE SALE DEED AND SELLER GOT THE POSSESSION BACK. THE ASSESSEE HAS ALSO PRODUCED THE COURT ORDER BY VIRTUE OF WHICH SUCH SALE DEED WAS CANCELLED. DESPITE NOTING THE ABOVE, THE AUTHORITIES BELOW HAVE DISREGARDED THE CONTENTION OF T HE ASSESSEE BY CLAIMING THAT THESE ARE SUBSEQUENT EVENTS AND THESE EVIDENCES AND DETAILS CANNOT BE ADMITTED. 5. UPON CAREFUL CONSIDERATION AND HEARING THE PARTIES I FIND THAT THE FACTS OF THE CASE CLEARLY INDICATE THAT THE CHEQUES GIVEN BY THE ASSESSEE TO THE VENDOR WERE NOT HONOURED. THE VENDOR ALSO FILED SUIT WHEREBY HONBLE DISTRICT COURT CANCELLED THE SAID SALE DEED AND SELLER GOT THE POSSESSION OF THE PROPERTY BACK. IN SUCH CIRCUMSTANCES HOW THE AUTHORITIES BELOW CAN IGNORE SUCH VITAL DETAILS AND FAS TEN E THE TAX LIABILITY UPON THE ASSESSEE IS BEYOND COMPREHENSION. IN MY CONSIDERED OPINION, FOR NON CONSIDERATION OF THE SUBMISSION OF THE ASSESSEE MAKES THE ORDERS OF THE AUTHORITIES BELOW TOTALLY PERVERSE AND NOT SUSTAINABLE. HENCE IN VIEW OF THE FACT TH AT THE POST DATED CHEQUES FILED BY THE ASSESSEE WERE NOT ENCASHED BY THE VENDOR AND THE SAME WERE ALSO PRODUCED BEFORE THE AO AND THAT SUBSEQUENTLY THE VENDOR GOT BACK THE POSSESSION OF THE PROPERTY ON ACCOUNT OF ASSESSEES FAILURE TO MAKE THE PAYMENTS, I FIND THAT THE ASSESSEE DESERVES TO SUCCEED. HENCE I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 4 ITA NO. 39/NAG/2016. 6. IN THE RESULT THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THI S 22 ND DAY OF SEPT., 2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 22 ND SEPT., 2016. COPY FORWARDED TO : 1. MURTUZA ABBAS GHADIYALI EZZY COMPLEX, SHANTINAGAR, NAGPUR - 440002. 2. I.T.O., WARD - 4(1), NAGPUR. 3. C.I.T. - II , NAGPUR. 4. CIT(APPEALS), - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.