SHRI. OMPRAKASH RAMNJOR SHUKLA, Mumbai V. ITO WARD 16(3)(1), Mumbai

ITA 4496/MUM/2019

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 1196 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 02-07-2019
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: R A DHYANI
• Keywords: Unexplained investment; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C”, MUMBAI BEFORE SHRI ABY T VARKEY, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No. 4496/Mum/2019 (A.Y. 2012-13) Shri Omprakash Ramnjor Shukla, Building No.6, near HDFC Bank, 90 Feet Road, Kandivali (E), Mumbai-400101 PAN: AAIPS3152R ...... Appellant Vs. ITO, Ward-16(3)(1), Aayakar Bhavan, M.K. Road, Mumbai-400020. ..... Respondent Appellant by : Sh. Jayesh Dadia, C.A. Respondent by : Sh. R A Dhyani, Sr. DR Date of hearing : 11/05/2022 Date of pronouncement : 01/08/2022 ORDER PER GAGAN GOYAL, A.M: This appeal by the assessee is directed against the order of Ld. Commissioner of Income Tax (Appeals)-7, Mumbai [hereinafter referred to as ‘the CIT (A)’] dated 02.04.2019 for the Assessment Year (AY) 2012-13. The assessee has raised the following grounds of appeal: 2 ITA No. 4496/Mum/2019-Shri Omprakash Ramnjor Shukla “(1) The LD CIT (A) has erred in law and on the facts of case in confirming the action of the Assessing Officer in making the following additions: (a) Rs. 2, 79,552/- as income from house property (b) Rs.11, 00,000/- as unexplained loan. (c) Rs.1, 00,000/- out of deduction under chapter VI-A The action is unjustified and without prejudice the addition is excessive. (2) The LD CIT (A) has erred in law and on the facts of case in confirming the action of the Assessing Officer in making the following additions on account unexplained investment in land immovable property: a) Rs. 20,000/- as unexplained investment in plot at Viatarana b) Rs 1, 46,000/- as unexplained investment in agricultural land c) Rs. 13, 90,230/ -as unexplained investment in residential house at Kandivali d) Rs.10,12,500/- as income from sale consideration on sale of Panvel property. e) Rs. 34, 00,000/- as income from sale consideration on sale of Malad property. The action is unjustified and without prejudice the addition is excessive.” 2. Brief facts of the case are that the assessee is an individual engaged in profession of legal, derives income from profession/business & income from other sources, filed his e-return of income for AY 2012-13 on 30.09.2012 declaring total income of Rs. 12,55,900/-. Against this returned income, the Assessing Officer (AO) assessed the total income at Rs. 1, 89, 08,070/-. Against this assessment order, assessee preferred an appeal before the office of the CIT(A)-7, Mumbai. 3. Out of total addition of Rs. 1,76,52,170/-, the CIT (A) partly allowed the appeal of assessee and relief of amount of Rs. 1,00,53,882/- granted by the CIT (A). For the balance disallowances as mentioned (supra) assessee is before us. 3 ITA No. 4496/Mum/2019-Shri Omprakash Ramnjor Shukla 4. Ground No. 1(a), we have gone through the order of the AO, the CIT (A) and submissions made by the assessee. In addition to this during the appeal proceedings before the CIT (A), he asked for the remand report from AO on almost all the issues on which addition was made. On this issue of addition under the head “Income from House Property” amounting to Rs. 2,79,552/- as deemed rental value assessee is claiming that these two properties were being used in his profession and assessee is already declaring income under the head “Profession”. This claim of assessee cannot be ignored and it will be fair, if one more opportunity to the assessee can be given by the AO. In this regard, we direct the assessee to file appropriate evidences before the AO to substantiate his claim about the use of these two commercial properties in his profession. Assessee is further directed to co-operate and show punctuality in appearing before the AO without fail. We further, direct the AO to take cognizance of our direction and call for appropriate evidence/information from the assessee. In the result, this ground of appeal is allowed for statistical purposes. 5. Ground No. 1(b), during the year assessee has taken a loan of Rs. 15, 50,000/- (out of this Rs. 4, 50,000/- were returned back during the year) from his wife Smt. Kanchan Shukla. We have referred the order of the AO, the order of the CIT (A), remand report and submissions of the assessee before the CIT (A). In his submission, assessee is strongly emphasized and relied upon the documents filed before the AO and the CIT (A) like confirmation with PAN Number. He further submitted his own balance-sheet reflecting this amount of loan from his wife and claimed that all the transactions were made through proper banking channels. Out of three ingredients to apply section 68 of the Income Tax Act, 1961 (‘the Act’) namely identity, creditworthiness and genuineness, assessee is able to prove 4 ITA No. 4496/Mum/2019-Shri Omprakash Ramnjor Shukla identity and genuineness of the transaction. As far as the element of creditworthiness is concerned, AO is duly empowered and duty bound to ask for bank statement of Smt. Kanchan Shukla and corresponding bank statement of assessee with ITR of Smt. Kanchan Shukla. On this ground also to be fair and reasonable, we direct the AO to call for relevant evidences as mentioned (supra) after giving a reasonable opportunity to the assessee and decide the matter on merits as per law. Assessee is also directed to co-operate in the proceedings with punctuality without fail. In the result, this ground of appeal is allowed for statistical purposes. 6. Ground No. 1(c), this ground of appeal is not pressed by the assessee, hence dismissed. 7. Ground No. 2(a), (b) & (c), these grounds of appeal pertains to addition made by the AO amounting to Rs. 20,000/-, Rs. 1,46,000 and Rs. 13,90,230/- (plot at Vaitarana, agriculture land at Thane and Firozpur and residential house at Kandivali). We have gone through the relevant documents and submission of the assessee, in his submissions, assessee has filed personal balance-sheets of earlier year in which these properties he has disclosed along with his return of income. Considering this fact on record, we hereby direct the AO to verify this claim of assessee with reference to the balance-sheet of the year in which these properties were acquired and disclosed. As per assessee, these properties were acquired prior to the AY under consideration. Hence, no addition can be made as unexplained investment; this finding is subject to the outcome of verification to be done by AO. In the result, these grounds of appeal are allowed. 5 ITA No. 4496/Mum/2019-Shri Omprakash Ramnjor Shukla 8. Ground No. 2(d) & (e), as per order-sheet of assessment proceeding (as reproduced by the AO in his order), somewhere it looks that assessee was not attending/complying with statutory notices issued. However, as assessee is claiming that all the relevant information were submitted before the AO and even during the proceedings before the First Appellate Authority (FAA) in response to the remand report. Considering the facts, we are of the opinion that the submissions of the assessee vis a vis the allegation of the AO about not submitting relevant information to substantiate various claims, it is just and reasonable to re- examine the matter by the office of AO, keeping in view the additional evidence admitted by the FAA and clarifications, if any, to be given by assessee. We hereby direct the AO to do denovo examination of the issues involved in these two grounds and direct assessee also to be punctual and cooperative during this process of re-examination. In these terms, these two grounds of assessee are allowed for statistical purposes. 9. In the result, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 1 st day of August, 2022. Sd/- Sd/- (ABY T VARKEY) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, िदनांक/Dated: 01/08/2022 SK, Sr.PS Copy of the Order forwarded to: 1. अपीलाथŎ/The Appellant , 2. Ůितवादी/ The Respondent. 3. आयकर आयुƅ(अ)/ The CIT(A)- 4. आयकर आयुƅ CIT 5. िवभागीय Ůितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6 ITA No. 4496/Mum/2019-Shri Omprakash Ramnjor Shukla 6. गाडŊ फाइल/Guard file. BY ORDER, //True Copy// (Dy. /Asstt. Registrar) ITAT, Mumbai