SHRI ASHOK OMPRAKASH CHAUDHARI, MUMBAI V. INCOME TAX OFFICER 8(2)(3), MUMBAI

ITA 3935/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8259 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA LD
• Assessee Lawyers: JITENDRA JAIN LD
• Keywords: Unexplained investment; Principle of natural justice
• Section: 69B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 3935/MUM/2018 ASSESSMENT YEAR: 2007-08 SHRI ASHOK OMPRAKASH CHAUDHARI FLAT NO. 202, WHITE FIELD CHS, GLADY ALWARES ROAD, HIRANDANI MEADOWS, THANE (W), 400 601. PAN: ACBPC 4037G VS. I.T.O., 8(2)(3) , MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI JITENDRA JAIN, LD.AR RESPONDENT BY : SHRI CHAITNYA ANJARIA, LD.DR DATE OF HEARING : 1 7 .07.2019 DATE OF PRONOUNCEMENT : 1 7 - 07 - 2019 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER THE APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 13-03- 2018 PASSED BY LD CIT(A)-14, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2007-08. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.9.00 LAKHS MADE BY TH E ASSESSING OFFICER U/S. 69B OF THE INCOME TAX ACT, 1961. 2. I HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER RECEIVED AN INFORMATION THAT THE ASSESSEE HAS PAID ON MONEY OF RS. 9,00,000/- TO HIRANANDANI GROUP ON PURCHASE OF FLAT . IT CAME TO THE NOTICE OF THE REVENUE DURING THE SEARCH PROCEEDINGS CONDUC TED IN THE HANDS OF [2] ITA NO.3935/MUM/2018 ASHOK OMPRAKASH CHAUDHARI HIRANANDANI GROUP THAT THEY HAVE RECEIVED ON-MONEY FROM FLAT BUYERS. BEFORE THE ASSESSING OFFICER, THE ASSESSEE DENIED H AVING PAID THE SUM OF RS.9,00,000/- AS ON MONEY. THE ASSESSING OFFICER REJECTED THE SAID CONTENTION OF ASSESSEE BY OBSERVING THAT THE ASSESS EE HAS NOT FURNISHED ANY CONTRADICTORY STATEMENT FROM THE BUILDER OR ANY DOC UMENTARY EVIDENCE TO PROVE THAT THE PAYMENT WAS NOT ACTUALLY MADE. ACCOR DINGLY, HE ASSESSED THE ABOVE SAID AMOUNT OF RS.9,00,000/- AS INCOME OF THE ASSESSEE TOWARDS UNEXPLAINED INVESTMENT U/S. 69B OF THE INCOME TAX A CT, 1961. THE LD CIT(A) CONFIRMED THE SAME. 3. THE LD. AR SUBMITTED THAT THE ASSESSEE, DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, REQUESTED THE ASSESSING OFF ICER FOR COPIES OF EVIDENCES ON WHICH THE ASSESSING OFFICER HAD PLACED HIS RELIANCE AND ALSO REQUESTED THE ASSESSING OFFICER TO PROVIDE AN OPPOR TUNITY TO CROSS EXAMINE THE WITNESS, WHO HAS DEPOSED AGAINST THE ASSESSEE. 4. THE LD. AR SUBMITTED THAT THE ASSESSEE HAS M ADE SIMILAR REQUESTS BEFORE THE LD. CIT(A) AND ALSO FILED A LETTER BEFO RE THE AO ALSO DURING THE COURSE OF APPELLATE PROCEEDINGS ASKING FOR ABOVE SA ID DETAILS OF EVIDENCES. 5. THE LD. AR SUBMITTED THAT THE ASSESSEE HAS NOT B EEN PROVIDED THE COPIES OF SUCH EVIDENCES AND THE OPPORTUNITY TO CRO SS EXAMINE THE WITNESS WAS ALSO NOT PROVIDED. BY PLACING RELIANCE ON THE D ECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF KISHAN CHAND CHELLARAM VS. CIT, REPORTED IN(1980) IN 125 ITR 713(SC), THE LD.AR SUBMITTED THAT THE AS SESSING OFFICER COULD NOT HAVE PLACED RELIANCE ON ANY MATER IAL, WHICH WAS NOT CONFRONTED TO THE ASSESSEE. 6. THE LD.AR SUBMITTED THAT ON IDENTICAL ISSUE, I.E ., ADDITION ON ACCOUNT OF ALLEGED ON-MONEY PAYMENT TO HIRANANDINI GROUP, W AS CONSIDERED BY THE [3] ITA NO.3935/MUM/2018 ASHOK OMPRAKASH CHAUDHARI CO-ORDINATE BENCH OF ITAT, MUMBAI IN THE CASE OF SA CHIN KUMAR SURYA VS. ITO, (ITA NO. 6237/MUM/2016 DTD. 25/07/2017) AND TH E TRIBUNAL HAS DELETED THE ADDITION BY FOLLOWING THE DECISION REND ERED BY THE HONBLE SUPREME COURT IN THE CASE OF ANDAMAN TIMBER INDUSTR IES REPORTED IN 281 CTR 241 (S.C) ON ACCOUNT OF NON-PROVIDING OF OPPORT UNITY TO CROSS EXAMINE. ACCORDINGLY, THE LD.AR SUBMITTED THAT THE IMPUGNED ADDITION OF RS.9.00 LAKHS IS LIABLE TO BE DELETED. 7. I HEARD LD D.R AND PERUSED THE RECORD. I NOTI CED THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SEARCH IN THE CASE OF HIRANANDANI GRO UP AND ALSO DEPOSITION MADE DURING THE COURSE OF SEARCH. ADMITTEDLY, THE C OPIES OF EVIDENCES AND COPIES OF STATEMENT WERE NOT FURNISHED TO THE ASSES SEE DESPITE REQUESTS FROM THE ASSESSEE TO SUPPLY THEM. AN OPPORTUNITY TO CROS S EXAMINE OF THE WITNESS WAS ALSO ASKED/REQUESTED BY THE ASSESSEE AND THE SA ME WAS ALSO NOT PROVIDED. THE HONBLE SUPREME COURT IN THE CASE OF KISHAN CHAND CHELLARAM (SUPRA) HAS HELD THAT THE ASSESSING OFFICER COULD N OT PLACE RELIANCE ON ANY MATERIAL, WHICH WAS NOT CONFRONTED TO THE ASSESSEE AND THE HONBLE SUPREME COURT IN THE CASE OF ANDAMAN TIMBER INDUSTR IES HAS HELD THAT FOR NOT PROVIDING OF ANY OPPORTUNITY TO CROSS EXAMINE T HE WITNESS ON THE BASIS OF ADDITION WAS MADE WOULD VIOLATE THE PRINCIPLE OF NATURAL JUSTICE. I NOTICED THAT THE CO-ORDINATE BENCH (ITAT, MUMBAI) IN THE CA SE OF SACHIN KUMAR SURYA (SUPRA) HAS DELETED THE ADDITION MADE ON THE BASIS OF IDENTICAL SET OF FACTS. 8. IN THE INSTANT CASE, SINCE THE EVIDENCES WERE NOT FURNISHED TO THE ASSESSEE AND THE OPPORTUNITY TO CROSS EXAMINE WITNE SS WAS ALSO NOT PROVIDED, FOLLOWING THE CASE LAWS DISCUSSED (SUPRA ) I AM OF THE VIEW, IMPUGNED ADDITION OF RS.9,00,000/- IS NOT SUSTAINAB LE. ACCORDINGLY, I SET [4] ITA NO.3935/MUM/2018 ASHOK OMPRAKASH CHAUDHARI ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 9,00,000/- REFERRED ABOVE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 17-07-2019 SD/- ( B.R. BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 17 TH JULY,2019 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER (ASSISTANTREGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI DATE INITIAL WHETHER DICTATION PAD ENCLOSED WITH THE FILE : YES/ NO. 1. DRAFT DICTATED ON 17.07.2019 YES SR.PS 2. DRAFT PLACED BEFORE AUTHOR 17.07.2019 MATTER TYPED P.P SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 17.07.2019 P.P JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 17/7 18/7 PP SR.PS 6. DATE OF PRONOUNCEMENT 17/7 SR.PS 7. FILE SENT TO THE BENCH CLERK 18/7 PP SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER