Mohini Sudhir Subhedar, Pune V. Income-tax Officer, Ward - 3 (1), Pune

ITA 403/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7574 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-06-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 12-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRASHANT TANDALE
• Keywords: Unexplained investment; Gift; Additional evidence
• Section: 143(3)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . / ITA NO.403/PUN/2019 / ASSESSMENT YEAR : 2010-11 MOHINI SUDHIR SUBHEDAR, 202, SUWAS APARTMENTS, CTS NO.34/3, ERANDWANE, PUNE 4110004. PAN : BZZPS0506E. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 3(1), PUNE. . / RESPONDENT ASSESSEE BY : SHRI KISHORE PHADKE. REVENUE BY : SHRI PRASHANT TANDALE. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY ASSESSEE IS EMANATING OUT OF THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS) 3, PUNE DATED 20.1 2.2018 FOR A.Y. 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL. AO HAS NOTED FROM ITS DATA IT WAS NOTICED THAT ASSESSEE HAS PURCHASED AN IMMOVABLE PROPE RTY ON 06.08.2009 FOR RS.28,60,000/- AND IT WAS ALSO NOTICED THAT ASSESSEE IS A NON FILER OF RETURN FOR F.Y. 2009-10. ACCORDINGLY, A NOT ICE U/S / DATE OF HEARING : 19.09.2019 / DATE OF PRONOUNCEMENT: 24.10.2019 2 148 OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE. THEREAFTER, ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 147 OF THE ACT V IDE ORDER DATED 12.12.2017 AND THE TOTAL INCOME WAS DETERMINED A T RS.28,60,000/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DATED 20.12.2018 (I N APPEAL NO.PN/CIT(A)-3/WD.3(4)/210/2017-18) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LEARNED CIT(A)-3, PUNE ERRED IN LAW AND ON FACTS IN UPHOLDING ADDITIONS OF RS.28,60,000/- MADE BY LEARNED AO AS U NEXPLAINED CASH CREDIT OF THE ASSESSEE. 2. APPELLANT CONTENDS THAT THE IT AUTHORITIES OUGHT TO CONSIDER THE ISSUES ON A WHOLESALE BASIS, RATHER THAN ON PROCEDU RAL BASIS. 3. ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE COMMISSIONER ERRED IN NOT ACCEPTING SOURCE OF THE GI FT GIVEN BY PARENT OF THE ASSESSEE FROM THE SALE OF FAMILY OWNED AGRIC ULTURAL LAND. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS, IT WA S NOTED THAT ASSESSEE HAD PURCHASED A PROPERTY AT HOMES HE RITAGE YERWADA, PUNE FOR RS.28,60,000/- AND THE SOURCE OF INVESTM ENT WAS STATED TO BE LOAN FROM ASSESSEES MOTHER MRS. CHITRALEK HA SUBHEDAR AND THEIR FAMILY FRIEND MR. NAVNEET MORDE. AO NOTED THAT IN THE ACCOUNT OF ASSESSEES MOTHER, MRS. CHITRALEKHA SUBHEDAR , THERE WERE CASH DEPOSITS BEFORE THE ISSUE OF CHEQUE FOR PURCHA SE OF IMMOVABLE PROPERTY. WITH RESPECT TO LOAN FROM NAVNEET MO RDE, IT WAS NOTICED THAT NAVNEET MORDE HAD TAKEN LOAN FROM VAR IOUS BANKS AND PARTIES AND IN HIS BALANCE-SHEET THERE WAS NO MENTIO N OF GIVING LOAN OF RS20 LAKHS TO THE ASSESSEE. AO THEREFORE CONSIDE RED THE 3 CONSIDERATION OF RS.28,60,000/- FOR THE PURCHASE OF PROPER TY AS AN UN-EXPLAINED INVESTMENT AND MADE ITS ADDITION. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO UPHE LD THE ADDITION MADE BY AO. AGGRIEVED BY THE ORDER OF LD.C IT(A), ASSESSEE IS NOW IN APPEAL. 5. BEFORE ME, LD.A.R. SUBMITTED THAT THE ASSESSEE IS A STU DENT AND BELONGS TO A FAMILY WHO HOLDS LARGE PARCEL OF LAND RUN NING INTO MANY ACRES OF LAND SINCE LAST MANY YEARS. HE SUBMITTED THAT AGRICULTURAL OPERATIONS WERE CARRIED OUT ON THOSE PIECES OF LAND AND AGRICULTURAL INCOME IS EARNED FROM THOSE LAND. HE SUBMITT ED THAT BEFORE THE LOWER AUTHORITIES THERE WAS NO PROPER REPRES ENTATION MADE AND THEREFORE AO CONCLUDED IT TO BE A CASE OF NON-EXPLAN ATION OF SOURCE OF INVESTMENTS AND THEREFORE THE ADDITION WAS MAD E BY AUTHORITIES. HE PLACED ON RECORD ADDITIONAL EVIDENCE IN THE FORM OF AFFIDAVITS OF SHRI SUDHIR VASUDEV SUBHEDAR, FATHER OF ASSESS EE, AND OTHER FAMILY MEMBERS PRAYING THAT THE ADDITIONAL EVIDENCE BE ACCEPTED. THEREAFTER HE POINTED OUT TO THE LAND HOLDING S, THE MENTION OF THE SAME IN THE AFFIDAVIT, THE SUMMARY OF TAXABLE INCOME OF INDIVIDUALS. HE THEREFORE SUBMITTED THAT THE ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO PRESENT HER CASE BEFORE THE LO WER AUTHORITIES AND THE ASSESSEE WILL BE IN A POSITION TO EXPLAIN HER CAS E. HE THEREFORE SUBMITTED THAT IN THE INTEREST OF JUSTICE, ONE M ORE OPPORTUNITY BE GRANTED TO ASSESSEE TO EXPLAIN THE CAS E AND THE ASSESSEE SHALL FURNISH ALL THE RELEVANT MATERIAL REQUIRED BE FORE THE AUTHORITIES. LD. D.R. ON THE OTHER HAND OBJECTED TO THE P RAYER OF 2 ND INNINGS. HE SUBMITTED THAT ASSESSEE IS TAKING DIFFERENT ST AND BEFORE 4 THE DIFFERENT AUTHORITIES. IN SUCH A SITUATION, ADDITION MADE BY THE AO BE UPHELD. 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO THE ADDIT ION OF RS.28,60,000/- ON THE ACCOUNT OF UNEXPLAINED INVESTMENTS . AO MADE THE ADDITION AS HE WAS OF THE VIEW THAT THE SOURCE OF ACQUISITION OF ASSET WAS NOT EXPLAINED PROPERLY. BEFORE M E, ASSESSEE HAS FILED THE AFFIDAVITS OF THE FAMILY MEMBERS. THESE AFFIDAVITS WERE NOT FILED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES. T HE AFFIDAVITS REVEALS THAT THE ASSESSEES FAMILY HOLDS MORE THAN 300 ACRES OF LAND SINCE 1818 AND THE FAMILY HAS SUBSTANTIAL INCOME FROM AGRIC ULTURAL ACTIVITIES FROM LARGE LAND HOLDING AND THE INCOME IS SHARED B ETWEEN VARIOUS FAMILY MEMBERS. APART FROM THE COMMON AGRICULTURAL INCOME, THE INDIVIDUALS ARE ALSO HAVING INCOME FROM BUSINESS AND OTHER SOURCES. IT IS FURTHER THE SUBMISSION THAT THE PUR CHASE CONSIDERATION FOR THE PROPERTY WAS MADE OUT OF THE GIFTS RECEIVED BY THE ASSESSEE FROM THE FAMILY AND THE HUF. IT IS FURTHER S UBMITTED THAT ALL THESE FACTS REMAINED TO BE COMMUNICATED TO THE COUNSEL APPEARING DURING THE APPELLATE PROCEEDINGS AND DUE TO SO ME CONFUSION AND COMMUNICATION GAP, INCORRECT INFORMATION WAS PROVIDED BEFORE THE I.T AUTHORITIES AND SOME WRONG ASPE RSIONS WERE MADE REGARDING MR. NAVNEET MORDE UNDER SOME CONFUSION A ND WRONG ADVICE AND MISUNDERSTANDING. CONSIDERING THE FACT THAT AS SESSEE HAS FILED THE AFORESAID ADDITIONAL EVIDENCE IN THE FORM OF AFFIDAVIT, I AM OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE SAME NEEDS TO BE ADMITTED AND I THEREFORE ADMIT THE SAME. HOWEVER SINCE THIS MATE RIAL WAS NOT PLACED BEFORE THE LOWER AUTHORITIES AND IN THE INTEREST OF JUSTICE, I AM 5 OF THE VIEW THAT ASSESSEE DESERVES ONE MORE OPPORTUNIT Y TO PRESENT HER CASE. I THEREFORE RESTORE THE ISSUE TO THE FILE OF A O TO RE-DECIDE THE ISSUE AFTER CONSIDERING THE ADDITIONAL EVIDENCE, THE S UBMISSIONS OF THE ASSESSEE AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE AS SESSEE. ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL THE DET AILS CALLED FOR BY THE AUTHORITIES. IN VIEW OF MY DECISION TO RESTORE THE ISSUE TO THE FILE OF AO, I AM NOT ADJUDICATING ON MERITS THE GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED ON 24 TH DAY OF OCTOBER, 2019. SD/- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 24 TH OCTOBER, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-3, PUNE. PR. CIT-2, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.