KIRAN JAYESH JAIN, MUMBAI V. ITO WD 23(1)(3), MUMBAI

ITA 4384/MUM/2014

• Counselvise Citation: 438419914 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition
• Section: 144

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (ACCOUNTANT MEMBER ) . . , ./ I.T.A. NO . 4384 / MUM/20 14 ( / ASSESSMENT YEAR : 20 09 - 10 ) M RS.KIRAN JAYESH JAIN, FLAT NO.304, 3 RD FLOOR, DREAMS - II BLDG., C - WING, LBS MARG, BHANDUP (W), MUMBAI - 4000 7 8 / VS. INCOME TAX OFFICER, 23 ( 1 )( 3 ), ROOM NO.104, 1 ST FLOOR, C - 10, PRATYAKSHAKAR BHAVAN, BANDRA KURLA CO MPLEX, BANDRA (E), MUMBAI - 400051 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : ADRDN2435L ./ I.T.A. NO .4385/ MUM/20 14 ( / ASSESSMENT YEAR : 2009 - 10 ) KAMLA SHANTILAL JAIN, FLA T NO.304, 3 RD FLOOR, DREAMS - II BLDG.,C - WING, LBS MARG, BHANDUP (W), MUMBAI - 400078 / VS. INCOME TAX OFFICER, 23(1)(3), ROOM NO.104, 1 ST FLOOR,C - 10, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. :AJOPJ2769G / APPELLANT BY SHRI MILAN DEDHIA / RSPONDENT BY SHRI K P R R MURTY / DATE OF HEARING : 6 .8 . 201 5 / DATE OF PRONOUNCEMENT : 6 . 8. 201 5 ITA NO. 4384/MUM/2014 AND 4385/MUM/2014 2 / O R D E R PER B ENCH: BOTH THE ASSESSEES HAVE FILED THESE APPEALS CHALLENGING THE ORDER PASSED BY LD. CIT(A) - 33, MUMBAI IN THEIR RESPECTIVE HANDS FOR ASSESSMENT YEAR 2009 - 10. 2. SINCE THE ISSUE URGED IN THESE APPEALS IS IDENTICAL IN NATURE, BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 3. I HEARD THE PARTIES AND PERUSED THE RECORD. DURING THE COURSE OF AS SESSMENT PROCEE DINGS, THE AO NOTICED THAT A FLAT WAS JOINTLY PURCHASED BY F OUR FAMILY MEMBERS , WHICH INCLUDED BOTH THE ASSESSEES HEREIN. THE TOTAL PURCHASE COST OF FLAT WAS RS.32,01,650/ - INCLUDING REGISTRATION EXPENSES . SINCE BOTH THE ASSESSEE S DID NOT RESPOND TO THE NOTICE AND LETTERS ISSUED BY TH E AO, HE ASSESSED THE TH VALUE OF THE FLAT AS UNDISCLOSED INCOME OF EACH OF THE ASSESSEES HEREIN. 4. IN THE APPELLATE PROCEEDINGS, THE LD.CIT(A) GRANTED PARTIAL RELIEF IN THE CASE OF MRS.KIRAN JAIN AND CONFI RMED THE ADDITION IN THE HANDS OF OT HER ASSESSEE. AGGRIEVED BY THE ORDER S OF LD. CIT(A), THE SE ASSESSEES HAVE FILED THE APPEAL BEFORE THE TRIBUNAL. 5. THE LD. C OUNSEL APPEARING FOR THE ASSESSEES SUBMITTED THAT THE PROPERTY WAS PURCHASED BY FOUR FAMILY M EMBERS. HE SUBMITTED THAT THE ADDITION HAS BEEN MADE IN THE HANDS OF THE TWO FAMILY MEMBERS ONLY AND THE RETURNS OF INCOME PERTAINING TO TWO REMAINING MEMBERS HAVE BEEN ACCEPTED WITHOUT MAKING ANY SUCH ADDITION. HE SUBMITTED THAT THE ASSESSEES COULD NOT A PPEAR BEFORE THE AO FOR SOME UNAVOIDABLE REASONS ITA NO. 4384/MUM/2014 AND 4385/MUM/2014 3 AND HENCE THE ASSESSMENT S HAVE BEEN COMPLETED UNDER SECTION 144 OF THE ACT . 6. THE LD. COUNSEL FURTHER SUBMITTED THAT THESE ASSESSEE S HA VE TAKEN LOAN IN THE IMMEDIATELY PRECEDING YEAR AND THE PROCEEDS OF THOSE LOANS ALONG WITH THE PAST SAVINGS WERE USED FOR PURCHASING THE FLAT. HE SUBMITTED THAT THE SAID LOANS OBTAINED IN THE EARLIER YEARS CANNOT BE ASSESSED IN L AW DURING THE YEAR UNDER CONSIDERATION. HE SUBMITTED THAT THE LD. CIT(A), WITHOUT CONSIDER ING THE DATE S OF RECEIPT OF LOAN , HAVE PASSED THE ORDERS. THE LD A.R SUBMITTED THAT BOTH THE ASSESSES WOULD BE IN A POSITION TO EXPLAIN THE SOURCES FOR PURCHASING THE FLAT, IF ONE MORE OPPORTUNITY IS GIVEN. ACCORDINGLY HE PRAYED THAT THE MATTER MAY BE R ESTORED TO THE FILE OF THE AO FOR FRESH EXAMINATION. 7 . THE LD. DR DID NOT SERIOUSLY OBJECT TO THE REQUEST MADE BY THE LD.AR. 8 . HAVING HEARD THE RIVAL SUBMISSIONS, IN THE INTEREST OF NATURAL JUSTICE, I AM OF THE VIEW THAT BOTH THE ASSESSEES SHOULD BE P ROVIDED ONE MORE OPPORTUNITY TO EXPLAIN THE SOURCE S OF FUNDS AVAILABLE WITH THEM TO EXPLAIN THE IR RESPECTIVE SHARE OF INVESTMENT MADE IN THE FLAT . SINCE THE AO HAS PASSED THE ORDER TO THE BEST OF HIS JUDGMENT U NDER SECTION 144 OF THE ACT AND SINCE THE ASS ESSEE IS NOW READY TO FURNISH RELEVANT DETAILS, I SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUE TO THE FILE OF T HE AO WITH A DIRECTION TO EXAMINE THE SAME AFRESH AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEES A ND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. ITA NO. 4384/MUM/2014 AND 4385/MUM/2014 4 9 . IN THE RESULT, BOTH THE APPEAL S ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 6 TH AUGUST 2015. 6 TH AUGUST, 2015 SD ( . . / B.R. BASKARAN) / ACCOUNTANT MEMBER MUMBAI: 6 TH AUG , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESP ONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, T RUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI