CHANDRANAND MISHRA, MUMBAI V. DCIT CEN CIR 3, MUMBAI

ITA 4523/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0733 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-09-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 03-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Loose papers; Principle of natural justice
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, A M AND SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO. 4523/MUM/2015 ( / ASSESSMENT YEAR: 2008 - 09 ) SHRI CHANDRAN AND MISHRA H - 2/10, JAL PADMA CHS LTD., BANGUR NAGAR, GOREGAON (W), MUMBAI - 400 090 / VS. DY. CIT, CENTRAL CIRCLE - (3), MUMBAI ./ ./ PAN/GIR NO. ACXPC 1741 R ( APPELLANT ) : ( RESPONDENT ) / APPELLANT BY : SHRI RAHUL RAMAN / RESPONDENT BY : SHRI NARESH KUMAR & SHRI YOGESH JOIJODE / DATE OF HEARING : 02.11.2017 / DATE OF PRONOUNCEMENT : 16.01 .2018 / O R D E R PER SHAMIM YAHYA , A. M.: THIS A PP EAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 11.05. 2015 AND PERTAINS TO THE A SSESSMENT YEAR 200 8 - 0 9 . 2. T HE GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN CONFIRMING THE ADDITION MADE BY LD. AO OF RS.1,00,000/ - BEING ALLEGED UNDISCLOSED RECEIPT OF 2 ITA NO. 4523/MUM/2015 (A.Y. 2008 - 09) SHRI CHANDRANAND MISHRA VS. DY. CIT COMMISSION IN RELATION TO ALLEGED STAGE PERFORMING AT RAMEE ROYAL, DUBAI, UAE BY MS. PRIYANKA CHO PRA ON PROTECTIVE BASIS. AN AMOUNT OF RS.16,00,000/ - INCLUDING SUM OF RS.1,00,000/ - IS ALSO ADDED IN THE HANDS OF MS. PRIYANKA CHOPRA FOR A.Y. 2008 - 2009. IT IS SUBMITTED THAT SUCH ADDITION HAS BEEN MADE ON THE BASIS OF LOOSE PAPER SEIZED AT PAGE NO.118 OF ANNEXURE A - 7 AT THE PREMISES OF APPELLANT. IT IS HOWEVER SUBMITTED THAT DURING ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED THAT MS. PRIYANKA CHOPRA HAS REACHED TO THE SAID EVENT HOWEVER, ON ACCOUNT OF INSUFFICIENT SECURITY REASON; NO PERFORMANCE HAS BEEN CA RRIED OUT. IT IS FURTHER SUBMITTED THAT NO EVIDENCES WHATSOEVER HAVE BEEN FOUND BY THE INCOME TAX SEARCH TEAM WHICH INDICATES PERFORMANCE AT SUCH ALLEGED FUNCTION NOR ANY LOOSE PAPERS HAVE BEEN FOUND DURING SEARCH PROCEEDINGS WHICH INDICATES ANY SUCH RECEI PT OF INCOME IN CASH AND THEREFORE, ESTIMATION AND RECEIPT OF ALLEGED UNDISCLOSED INCOME OF RS.15,00,000/ - BY MS. PRIYANKA CHOPRA AND RS.1,00,000/ - BY APPELLANT OUT OF BOOKS IS UNREASONABLE AND UNLAWFUL. IN VIEW OF THE ABOVE, WE WOULD PRAY YOUR HONOUR TO D ELETE SUCH ARBITRARY ADDITION MADE BY THE LD. AO WHICH IS CONFIRMED BY THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL). IT IS SUBMITTED THAT NO EVIDENCE REGARDING RECEIPT OF CASH HAS BEEN FOUND BY SEARCH PARTY AS WELL AS LD. AO HENCE, INCOME ADDED ON ASSU MPTIONS AND PRESUMPTIONS IS AGAINST BASIC OF PRINCIPLES OF LAW AND AGAINST NATURAL JUSTICE. IN VIEW OF THE ABOVE FACTS, SUCH ADDITION SHOULD BE DELETED. 3. T HE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS : ADDITIONAL GROUND: THE ASSESSMENT ORDER PASSED U/S . 143(3) R.W. SEC 153A FOR THE ASSESSMENT YEAR 2008 - 09 IN THE CASE OF THE APPELLANT IS BAD - IN - LAW BECAUSE NO DOCUMENT OR VALUABLE ASSET BELONGING TO THE APPELLANT WAS SEIZED. THE DOCUMENTS RELIED UPON IN THE ASSESSMENT ORDER WERE IMPOUNDED DURING THE SURVE Y ACTION U/S. 133A. 4. W E FIND THAT IN THIS CASE THE ASSESSEE HAS F ILED RETURN OF INCOME ON 01.09.2008. S UBSEQUENTLY , THIS ASSESSMENT WAS FRAMED U /S. 153A PURSUANT TO SEARCH ON 24.01.2011 IN THE CASE OF MS. PRIYANKA CHOPRA. W E FIND THAT THE HON'BLE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) 3 ITA NO. 4523/MUM/2015 (A.Y. 2008 - 09) SHRI CHANDRANAND MISHRA VS. DY. CIT LTD. [2015] 58 TAXMANN.COM 78 (BOM), ORDER DATED 21.04.2015 HAS EXPOUNDED THAT IN CASE OF ASSESSMENT U /S. 153A, NO ADDITION IS SUSTAINABLE D E HORS ANY INCRIMINATI NG MATERIAL FOUND IN SEARCH IN CASE OF A ABATED ASSESSMENT. SINCE THE ISSUE RAISED IN THE ADDITIONAL GROUND GOES TO THE ROOT OF THE MATTER , WE ADMIT THIS GROUND RAISED ON THE ANVIL OF HONOURABLE APEX COURT DECISION IN THE CASE OF N.T.P.C. LTD. W E FIND THA T A SIMILAR ISSUE WAS RAISED IN THE CASE OF MS. PRIYANKA CHOPRA (IN ITA NO. 2770/MUM/2015 FOR ASSESSMENT YEAR 2009 - 10), RELATED WITH THE SAME ADDITION. IN THAT CASE ALSO WE HAD REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE IN ACCORDANCE WITH THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. ( SUPRA ) . SINCE THE PRESENT ISSUE IS ALSO IDENTICAL , WE REMIT THIS ISSUE ALSO TO THE FILE OF ASSESSING OFFICER . H E IS DIRECTED TO CONSIDER THE ISSUE AFRESH IN ACCORDANCE WITH THE DECISION OF HONOUR ABLE JURISDICTIONAL HIGH COURT (SUPRA) AFTER REFERRING TO THE REQUISITE FACTUAL DETAILS NECESSAR Y. 5. IN THE RESULT , THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATI STICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 16.01.2018 SD/ - SD/ - ( SANDEEP GOSAIN ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 16.01.2018 . . ./ ROSHANI , SR. PS 4 ITA NO. 4523/MUM/2015 (A.Y. 2008 - 09) SHRI CHANDRANAND MISHRA VS. DY. CIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPO NDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDE R, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI