Shri Mustafa Chhawaniwala, Indore V. Income Tax Officer -5 (4), Indore

ITA 427/Ind/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1071 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: R K VOHRA
• Keywords: Gift; Principle of natural justice
• Section: 143(3); 13; 69

Judgement Text

[ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.427/IND/2018 ASSESSMENT YEAR: 2014-15 SHRI MUSTAFA CHHAWANIWA LA C/O ASIAD MARKETING UG-1, MISHIKA TOWER OPP. SAPNA SANGEETA INDORE / VS. ITO - 5(4) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. AFWPC9588C APPELLANT BY SHRI R.K. VOHRA, A.R. RESPONDENT BY SHRI K.G. GOYAL, D.R. DATE OF HEARING: 25.11.2019 DATE OF PRONOUNCEMENT: 19.12.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE CIT(A)-II, INDORE DATED 11.12.2017 FOR THE A.Y. [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 2 2014-15. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F LEARNED ASSESSING OFFICER IN SUSTAINING THE ADDITION OF RS. 49,50,000/- UNDER SECTION 69 OF INCOME TAX ACT, WITHOUT CONSIDERING T HE FACTS AND CIRCUMSTANCES OF THE CASE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED BY NOT FOLLOWING THE PRINC IPLES OF NATURAL JUSTICE AS HE DID NOT PASS A SPEAKING APPELLATE ORD ER. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE THE SAID GROUND OF APPEAL. 2. THE ONLY EFFECTIVE GROUND IS AGAINST SUSTAINING TH E ADDITION OF RS.49,50,000/- U/S 69 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). THE FACTS GIVI NG RISE TO THE PRESENT APPEAL ARE THAT CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) OF THE ACT WAS FRAMED VIDE ORDER DATED 15.12.20 16. THE A.O. WHILE FRAMING THE ASSESSMENT OBSERVED THAT T HE ASSESSEE HAD PURCHASED TWO PROPERTIES VALUED AT RS.58,88,000/- & RS.48,21,000/- DURING THE YEAR UND ER CONSIDERATION. IN RESPECT OF SOURCE OF INVESTMENT I T WAS [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 3 STATED THAT HE HAD TAKEN LOAN OF RS.44 LAKHS FROM RELATIV ES AND RS.55,00,000/- WAS INVESTED OUT OF HIS OWN SOURCE S. THE A.O. DID NOT ACCEPT THIS CONTENTION AND MADE ADDITI ON OF RS.49,50,000/- IN THE INCOME OF THE ASSESSEE. TH E A.O. FURTHER MADE ADDITION OF RS.10,000/- ON ACCOUNT OF EXCESSIVE DEDUCTION CLAIMED BY THE ASSESSEE. HENCE, THE A.O. ASSESSED INCOME AT RS.52,84,650/- AGAINST THE DISCLOSED INCOME OF RS.3,24,650/-. 3. AGGRIEVED AGAINST THIS ORDER, THE ASSESSEE PREFERRE D AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS DISMISSED THE APPEAL. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADDITION AND SUSTAIN ING THE SAME. 4. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CI T(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION. LD. COU NSEL [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 4 SUBMITTED THAT EVEN THE ACTION OF THE A.O. IS NOT IN ACCORDANCE WITH LAW AS ADMITTEDLY PROPERTIES WERE IN T HE JOINT NAME. LD. COUNSEL FOR THE ASSESSEE REITERATED T HE SUBMISSIONS AS MADE IN THE REPLY TO REMAND REPORT SUBMITTED BEFORE THE LD. CIT(A). HE SUBMITTED THAT THE SOURCE OF ACQUISITION OF PROPERTY INITIALLY WAS STATED TO BE OUT OF THE LOAN/GIFTS RECEIVED FROM VARIOUS PERSONS. THE CONFIRMATIONS OF THE PERSONS WERE ALSO FURNISHED DURI NG THE ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSEE REALISED THAT THE SUBMISSIONS MADE BEFORE THE A.O. WER E NOT CORRECT AS THE AMOUNT WAS RECEIVED FROM CONTRIBUT ION BY THE BROTHER OF THE ASSESSEE. THE AMOUNT WAS REMITT ED BY THE BROTHER OF THE ASSESSEE. THE ASSESSEE IS NOT VERY EDUCATED PERSON. HE WAS NOT AWARE OF THE NITTY GRITTY OF THE LAW. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE EVIDENCE SUPPORTING THE CONTENTION THAT THE AMOUNT WAS REMITTED FROM ABROAD AND THERE WERE CASH [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 5 WITHDRAWALS AS WELL. HE DREW OUR ATTENTION TO BANK STATEMENT ENCLOSED WITH PAPER BOOK. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE JUDGEMENT OF THE HON'B LE HIGH COURT OF ALLAHABAD RELEVANT IN THE CASE OF CIT VS . DILBAGH RAI ARORA (2019) 104 TAXMANN.COM 371 TO BUTTRESS THE CONTENTION THAT THE AUTHORITIES BELOW OU GHT TO HAVE CONSIDERED THESE EVIDENCES. 5. ON THE CONTRARY, LD. D.R. VEHEMENTLY OPPOSED THES E SUBMISSIONS AND SUBMITTED THAT THE ASSESSEE HIMSELF T OOK A STAND THAT THE SOURCE OF MONEY WAS OUT OF THE LOAN/GIF TS RECEIVED FROM VARIOUS PERSONS. BEFORE ASSESSING AUTH ORITY, THE ASSESSEE HAS NOT STATED THE FACT WHICH HE MADE BEFO RE THE LD. CIT(A) I.E. THE MONEY WAS CONTRIBUTED BY THE BROTHER OF THE ASSESSEE THROUGH REMITTANCES FROM ABROA D. HE SUBMITTED THAT IT IS SETTLED LAW THAT WHEN THE ASSE SSEE DOES NOT APPROACH WITH CLEAN HANDS BEFORE THE AUTHORITIE S, HE WILL NOT DESERVE ANY LENIENCY. HE SUBMITTED THAT THE [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 6 ASSESSEE IS COOKING UP STORIES JUST TO AVOID TAX LIAB ILITY, WHICH IS NOT PERMISSIBLE UNDER THE LAW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. UNDISPUTED FACT REMAINS THAT BEFORE THE A.O. THE ASSESSEE HAS CATEGORICALLY STATED TH AT THE PROPERTY IN QUESTION WAS PURCHASED OUT OF HIS OWN RESOURCES, WHICH HE STATED TO BE OUT OF LOAN TAKEN FRO M THE BANK AND LOAN/GIFTS FROM VARIOUS PERSONS. IN SUPPORT O F LOAN/GIFTS, HE HAS ALSO FILED CONFIRMATIONS WHO HAD GIV EN LOAN TO THE ASSESSEE. HOWEVER, BEFORE LD. CIT(A), T HE ASSESSEE TOOK A U-TURN AND SUBMITTED THAT THE PROPERTIE S WERE ACQUIRED OUT OF THE CONTRIBUTION MADE BY THE BRO THER OF THE ASSESSEE. THE ONLY EXPLANATION BEFORE THIS TRI BUNAL FOR TAKING SUCH CONTRADICTORY STAND IS THAT IN SUPPOR T OF THE CONTENTION DOCUMENTS FURNISHED BEFORE THE AUTHOR ITIES BELOW ARE THIRD PARTY DOCUMENTS, WHICH CANNOT BE TERM ED AS SELF-CREATED AND SELF-SERVED DOCUMENTS. THE ASSESS EE HAS DEMONSTRATED WITH EVIDENCE THAT THE BROTHER OF THE ASSESSEE HAS BEEN REMITTING MONEY FROM KUWAIT AND THE CASH WAS BEING WITHDRAWN BY THE FATHER OF THE ASSESSEE . [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 7 WE FIND THAT LD. CIT(A) HAS DECIDED THE ISSUE BY OBSE RVING AS UNDER: [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 8 [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 9 [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 10 [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 11 [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 12 7. FROM THE ABOVE, IT IS CLEAR THAT THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE LD. CIT(A) ON THE GRO UND THAT THE ASSESSEE HAS BEEN CHANGING HIS STANCE. HOWEVER , THE ASSESSEE HAS ALSO FURNISHED CERTAIN DOCUMENTARY EVIDENCES DEMONSTRATING THAT THE JOINT OWNER OF THE PROPERTY BEING BROTHER OF THE ASSESSEE HAS ALSO CONTRI BUTED FOR THE ACQUISITION OF PROPERTY AS HE MADE REMITTANCES F ROM KUWAIT. IT IS A FACT THAT THE ASSESSEE HAS BEEN CHANGING HIS STAND BUT IT IS ALSO FACT THAT THE ASSESSEE HAS FILED CERTAIN EVIDENCES IN SUPPORT OF HIS CONTENTION THAT T HE BROTHER OF ASSESSEE REMITTED CERTAIN AMOUNTS FROM KUWAI T WHO HAPPENED TO BE CO-OWNER OF THE PROPERTIES IN QUE STION. [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 13 MOREOVER, THERE IS NO FINDING BY THE LOWER AUTHORIT IES AS TO WHAT HAPPENED TO MONEY WHICH THE ASSESSEE CLAIMED TO HAVE RECEIVED AS GIFT/LOAN. UNDER THESE FACTS, WE DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUE AFRESH AFTER EXAMINING THE ASPECT OF REMITTANCE BY THE CO-OWNER OF THE PROPERTY AND ALSO TH E LOAN/GIFT CLAIMED BY THE ASSESSEE. GROUND OF THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19 . 12.2019. SD/ - (MANISH BORAD) SD/ - (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 19/12/2019 VG/SPS [ITA NO.427/IND/2018] [SHRI MUSTAFA CHHAWANIWALA, INDORE] 14 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE