BINA SANGHAVI, MUMBAI V. DCIT CEN CIR 5(2), MUMBAI

ITA 412/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6909 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: JAYESH KALA
• Keywords: Reopening of assessment; Search and seizure
• Section: 143(3); 5(2); 153A; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 412/MUM/2017 (ASSESSMENT YEAR: 2010-11) SMT. B INA SANGHAVI 602, RAGHIKA DARSHAN MUKALANI, CROSS ROAD KANDIVALI (W), MUMBAI 400067 VS. DCIT, CENTRAL CIRCLE - 5(2) MUMBAI PAN AAPPS1954C APPELLANT RESPONDENT APPELLANT BY: SHRI JAYESH KALA RESPONDENT BY: MS. N. HEMALATHA DATE OF HEARING: 20.06.2018 DATE OF PRONOUNCEMENT: 20.06.2018 O R D E R PER B.R. BASKARAN, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-53, MUMBAI DATED 28.09.2016 FOR A.Y. 2010-11 . 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LE ARNED CIT(A) IN CONFIRMING THE ADDITION RELATING TO UNEXPLAINED CAS H AND JEWELLERY MADE BY THE AO. THE ASSESSEE HAS ALSO RAISED AN ADDITION AL GROUND CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT. 3. THE FACTS RELATING TO THE CASE ARE STATED IN BRIEF . THE ASSESSEE WAS SUBJECTED TO SEARCH AND SEIZURE OPERATION ON 23.12. 2010 ALONG WITH M/S. SATRA PROPERTIES (I) LTD. THE ASSESSEE FILED RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE INCOME TAX ACT (HE REINAFTER THE ACT) DECLARING TOTAL INCOME OF ` 3,86,590/-. THE AO ACCEPTED THE SAME AND PASSED ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. SUBSEQUENTLY THE AO NOTICED THAT THE SEARCH OPERATI ONS HAS REVEALED AVAILABILITY OF BANK LOCKER WHERE JEWELLERY WORTH ` 31.40 LAKHS WAS FOUND, OUT OF WHICH JEWELLERY WORTH ` 10.56 LAKHS WAS FOUND TO BE UNDISCLOSED. FURTHER, DURING THE COURSE OF SEARCH OPERATION CASH OF ` 2,33,430/- WAS ALSO ITA NO. 412/MUM/2017 SMT. BINA SANGHAVI 2 FOUND. BOTH THESE ITEMS WERE OMITTED TO BE ASSESSE D IN THE HANDS OF THE ASSESSEE. HENCE THE AO REOPENED THE ASSESSMENT OF AY 2010-11 BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT AND ASSESSED TH E UNEXPLAINED CASH OF RS.2.33 LAKHS AND JEWELLERY OF RS.10.56 LAKHS, BOTH AGGREGATING TO ` 12.89 LAKHS AS INCOME OF THE ASSESSEE IN A.Y. 2010-11. BE FORE THE CIT(A) THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BUT COULD NOT GET RELIEF. 4. BEFORE THE TRIBUNAL THE ASSESSEE CHALLENGED THE VA LIDITY OF REOPENING OF ASSESSMENT BY CONTENDING THAT THE REOPENING HAS BEEN DONE WITHOUT HAVING ANY MATERIAL EVIDENCE ON RECORD. 5. WE HAVE HEARD THE PARTIES ON THIS LEGAL ISSUE AND P ERUSED THE RECORD. WE NOTICED THAT THE SEARCH OPERATION HAS BEEN TAKEN PLACE IN THE HANDS OF THE ASSESSEE ON 23.10.2010 AND DURING THE COURSE OF SEARCH UNEXPLAINED CASH OF ` 2.3 LAKHS AND UNEXPLAINED JEWELLERY WORTH ` 10.56 LAKHS WERE FOUND. AS PER PROVISIONS OF SECTION 69 ADDITION, IF ANY, RELATING TO THE ABOVE SAID ASSETS CAN BE MADE BY THE AO IN THE YEAR IN WH ICH THESE ASSETS WERE FOUND. SINCE THE SEARCH HAS TAKEN PLACE ON 23.10.2 010, THESE ASSETS ARE ASSESSABLE AS INCOME OF THE ASSESSEE IN A.Y. 2011-1 2. HOWEVER, WE NOTICE THAT THE AO HAS ASSESSED THE ABOVE SAID ASSETS IN A .Y. 2010-11 TREATING THEM AS UNEXPLAINED. HENCE THERE IS MERIT IN THE CO NTENTIONS OF THE ASSESSEE THAT THE AO HAS REOPENED THE ASSESSMENT FO R A.Y. 2010-11 WITHOUT HAVING ANY MATERIAL EVIDENCE WITH HIM. HENCE WE ARE OF THE VIEW THAT REOPENING OF ASSESSMENT IS LIABLE TO BE QUASHED FOR THE REASONS STATED ABOVE. ACCORDINGLY WE QUASH THE ORDERS PASSED BY TH E TAX AUTHORITIES ON THE LEGAL GROUNDS DISCUSSED ABOVE. 6. SINCE WE HAVE QUASHED THE ASSESSMENT, THERE IS NO N ECESSITY TO ADJUDICATE THE GROUNDS URGED ON MERITS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE, 2018. SD/ - SD/ - (AMARJIT SINGH) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 20 TH JUNE, 2018 ITA NO. 412/MUM/2017 SMT. BINA SANGHAVI 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -53, MUMBAI 4. THE PR. CIT, CENTRAL-3, MUMBAI 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.