SHRI RITESH RAMESH JAIN SANGHVI, MUMBAI V. ITO 26(2)(5), MUMBAI

ITA 4160/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8135 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA LD
• Assessee Lawyers: DEVENDRA JAIN LD
• Keywords: Documents seized; Set aside
• Section: 133(6); 69B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 4160/MUM/2018 ASSESSMENT YEAR: 2009-10 SHRI RITESH RAMESH JAIN SANGHVI, HUB TOWN HEAVAN, 1202/B- WING, OPP: SBI BANK, B.I.T COTTAGE, BHAUDAJI ROAD, MATUNGA (EAST), MUMBAI-400 019. PAN: AXFPS4590M VS. I.T.O., 26 (2)( 5 ) , MUMBAI C-12 R.NO. 605, PRATYAKSHAKAR BHAVAN, BKC, BANDRA EAST, MUMBAI-400 051. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI DEVENDRA JAIN, LD.AR RESPONDENT BY : SHRI CHAITNYA ANJARIA, LD.DR DATE OF HEARING : 1 8 .07.2019 DATE OF PRONOUNCEMENT : 1 8 - 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 09-02- 2018 PASSED BY LD CIT(A)-38, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2009-10. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.10.00 LAKHS MADE BY T HE ASSESSING OFFICER U/S. 69B OF THE INCOME TAX ACT, 1961. 2. I HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER RECEIVED INFORMATION THAT THE REVENUE HAS CARRIED O UT A SURVEY ACTION IN THE HANDS OF A BUILDER NAMED M/S. PRIME DEVELOPERS ON 2 2-02-2015. IT WAS NOTICED FROM THE DOCUMENTS SEIZED FROM THE SAID BUI LDER, THAT ONE OF THE FLAT PURCHASERS NAMED SHRI RITESH RAMESH JAIN HAS PAID A SUM OF RS.10.00 [2] ITA NO.4160/MUM/2018 RITESH RAMESH JAIN SANGHVI LAKHS IN AGGREGATE IN CASH TO THE BUILDER. ON THE B ASIS OF ABOVE SAID INFORMATION, THE ASSESSING OFFICER RE-OPENED THE AS SESSMENT OF THE A.Y UNDER CONSIDERATION. THE ASSESSEE SUBMITTED THAT HE HAS NOT PURCHASED ANY FLAT FROM THE ABOVE SAID BUILDER AND HENCE THE QUES TION OF PAYING ANY ON- MONEY DOES NOT ARISE. HENCE, THE ASSESSING OFFICER ISSUED NOTICE U/S. 133(6) OF THE ACT TO THE BUILDER, WHO ALSO SUBMITTE D THAT HE DID NOT ENTER INTO ANY TRANSACTION WITH THE ASSESSEE. HOWEVER, TH E ASSESSING OFFICER PROCEEDED TO MAKE THAT THE ADDITION OF RS. 10,00,00 0/- IN THE HANDS OF THE ASSESSEE BY OBSERVING THAT PAYMENT OF ON-MONEY IS Q UITE COMMON IN PROPERTY TRANSACTIONS. THE LD CIT(A) ALSO CONFIRMED THE SAME AND THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 3. THE LD. AR SUBMITTED THAT THE QUESTION OF MA KING OF ANY ON-MONEY PAYMENT COULD ARISE ONLY IF THE ASSESSEE HAS PURCHA SED ANY FLAT FROM THE SAID BUILDER. 4. THE LD. AR SUBMITTED THAT THE ASSESSEE HAS F URNISHED HIS FINANCIAL STATEMENT TO PROVE THAT HE HAS NOT PURCHASED ANY FL AT. THE ASSESSEE HAS ALSO ASKED THE ASSESSING OFFICER TO FURNISH AGREEME NT ON SALE, IF ANY, TO PROVE THE FACTUM OF PURCHASE OF FLAT BY HIM. 5. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAS NOT FURNISHED ANY INFORMATION AND ASKED THE ASSESSEE TO PROVE THE NEGATIVE, WHICH IS NOT POSSIBLE. ACCORDINGLY, HE SUBMITTED THAT THE IMPUGN ED ADDITION IS LIABLE TO BE DELETED. 6. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE (LD. DR FOR SHORT) SUPPORTED THE ORDER PASSED BY THE LD. CIT(A) . [3] ITA NO.4160/MUM/2018 RITESH RAMESH JAIN SANGHVI 7. HAVING HEARD THE RIVAL SUBMISSIONS, I AM OF TH E VIEW THERE IS MERIT IN THE CONTENTIONS OF THE ASSESSEE. I NOTICED THAT THE ASSESSING OFFICER HAS RELIED ON CERTAIN INFORMATION RECEIVED FROM THE INV ESTIGATIONS WING OF THE DEPARTMENT. HOWEVER, SAID INFORMATION WAS NOT PROVI DED TO THE ASSESSEE. IT IS ALSO NOTICED THAT THE ASSESSEE HAS CLAIMED THAT HE HAS NOT PURCHASED ANY FLAT FROM THE BUILDER AND THE SAID FACT WAS ALSO CO NFIRMED BY THE SAID BUILDER. SINCE BOTH ALLEGED SELLER AND THE ALLEGED BUYER (ASSESSEE HEREIN) HAVE DENIED TRANSACTIONS, IT IS THE DUTY OF THE AO TO SUBSTANTIATE THE INFORMATION SO RECEIVED BY HIM. I NOTICE THAT THE AO AND CIT(A) HAS THROWN THE BURDEN ON THE ASSESSEE TO PROVE A NEGATIVE FACT . 8. ACCORDINGLY, UNDER THESE SET OF FACTS, I AM O F THE VIEW THAT NO CASE ARISES FOR MAKING THE IMPUGNED ADDITION OF RS. 10 L AKHS IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, I SET ASIDE THE ORDER PASSE D BY THE LD. CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE TH E IMPUGNED ADDITION OF RS.10,00,000/- REFERRED ABOVE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED ON 18-07-2019 SD/- ( B.R. BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 18 TH JULY,2019 [4] ITA NO.4160/MUM/2018 RITESH RAMESH JAIN SANGHVI **PP/SPS 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 1. DRAFT DICTATED ON 18.07.2019 YES SR.PS 2. DRAFT PLACED BEFORE AUTHOR 18.07.2019 MATTER TYPED P.P SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 18.07.2019 P.P JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 19/7 PP SR.PS 6. DATE OF PRONOUNCEMENT 18/7 SR.PS 7. FILE SENT TO THE BENCH CLERK 19/7 PP SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER