SHAMSHERHUSSAIN W SHAIKH, MUMBAI V. ITO WD 21(3)(2), MUMBAI

ITA 4546/MUM/2014

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3472 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 02-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAILAJA RAI
• Assessee Lawyers: V K TULSIAN
• Section: 143(3); 142(1); 143(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 4546/MUM/2014 (A.Y: 2009-10) SHAMSHER HUSSAIN W SHAIKH, 7/442, GAJANAN COLONY, GOWANDI, MUMBAI 400043. VS. ITO 21(3)(2) BANDRA, MUMBAI. PAN/GIR NO. : AHZPS4905Q ( APPELLANT) .. ( RESPONDENT ) APPELLANT BY : SHRI V.K TULSIAN , A R RESPONDENT BY : SMT. SAILAJA RAI, SR. DR DATE OF HEARING 25/03 /20 2 1 DATE OF PRONOUNCEMENT 31 /03 /202 1 O R D E R PER PAVAN KUMAR GADALE, JM: THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 32, MUMBAI, PASSED U/S. 143 (3) AND 250 OF THE INCOME TAX ACT, 1961. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD. AO ERRED IN MAKING AN ADDITION OF RS. 27 ,13,005/- WITHOUT ANY EVIDENCE OF INVESTMENT OVER AND CIT(A) ERRED IN CONFIRMING THE SAME. ITA NO . 4546/MUM/2014 SHAMSHER HUSSAIN W SHAIKH, MUMBAI. - 2 - 2. THE LD. AO HAS ERRED IN MAKING AN ADDITION OF RS . 27,13,005/- AND THE LD. CIT(A)-32 ERRED IN CONFIRMING THE SAME INSPITE OF THE JUDGMENT OF SUPREME COURT IN THE CASE OF KP VARGHES E 131 ITR 597, WITHOUT APPRECIATING THE FACT THAT THE ABSENCE OF A NY EVIDENCE OF INVESTMENT MADE OVER AND ABOVE THE AGREEMENT VALUE NO ADDITION CAN BE MADE. 3. THE ASSESSEE CRAVES TO ADD, ALTER, AMEND OR DELE TE ANY OF THE ABOVE GROUND OF APPEAL. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS A DELAY IN FILING THE APPEAL BEFORE THE HONBLE TRIBUNAL AND FILED THE CONDONATION PETITION. CONTRA, LD. DR HAS NO SPECIFI C OBJECTIONS. WE FOUND THE FACTS MENTIONED ARE REASONABLE AND ACCORDINGLY CONDONE THE DELAY AND ADMIT THE APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE IS AN INDIVIDUAL AND FILED RETURN OF INCOME FOR THE A.Y 2 009-10 ON 31.03.2010 WITH TOTAL INCOME OF RS. 1,41,216/- AND THE RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE AC T. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AN D NOTICE U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED, BUT T HERE WAS NO PROPER RESPONSE TO THE NOTICES AND THE A.O HAS I NITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE A.O. THE A .O FOUND THAT AS PER THE AIR INFORMATION OF THE ASSESSEE, TH ERE EXISTS ITA NO . 4546/MUM/2014 SHAMSHER HUSSAIN W SHAIKH, MUMBAI. - 3 - A TRANSACTION OF IMMOVABLE PROPERTY VALUE OF RS. 44,45,750/- THE A.O. HAS CALLED FOR THE DETAILS OF IMMOVABLE PROPERTY AND DATE OF ACQUISITION AND OTHE R DETAILS, BUT THERE WAS NO RESPONSE FROM THE ASSESSE E. BUT AS PER THE ENQUIRES MADE BY THE A.O. IT WAS FOUND T HAT THE ASSESSEE HAS PURCHASED THE PROPERTY FOR A CONSIDERA TION OF RS. 24,75,225/- WHEREAS THE MARKET VALUE WAS RS. 44,46,750/-.SUBSEQUENTLY, THE LD.AR OF THE ASSESSEE ATTENDED ON 17.10.2011 AND SUBMITTED THE COPY OF TH E PURCHASE AGREEMENT OF THE PROPERTY ENTERED BY THE ASSESSEE. THE A.O. HAS CALLED FOR THE BANK STATEMEN TS AND DETAILS OF ALL THE IMMOVABLE PROPERTIES HELD BY THE ASSESSEE BUT THERE WAS NO COMPLIANCE. THE A.O HAS PROVIDED F INAL OPPORTUNITY TO THE ASSESSEE BY SHOW CAUSE LETTER IS SUED ON 27.10.2011 REFERRED AT PAGE -3 OF THE ORDER. BUT TH E ASSESSEE HAS NOT FILED ANY EXPLANATIONS OR FURNISHE D THE DETAILS. FINALLY THE A.O. HAS MADE AN ADDITION OF RS. 27,13,005/- BEING COST OF PROPERTY, STAMP DUTY AND REGISTRATION CHARGES AS UNDISCLOSED INVESTMENT IN THE PROPERTY AND ASSESSED THE TOTAL INCOME OF RS. 28,54 ,220/- AND PASSED ORDER U/S 143(3) OF THE ACT ON 03.12.201 1. ITA NO . 4546/MUM/2014 SHAMSHER HUSSAIN W SHAIKH, MUMBAI. - 4 - 3. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED A N APPEAL WITH THE CIT(A), THE CIT(A) CONSIDERED THE G ROUNDS OF APPEAL AND FINDINGS OF THE A.O AND DEALT ON THE DIS PUTED ISSUE. THE LD.AR OF THE ASSESSEE HAS FILED A LETTE R DATED 10.05.2012 ALONG WITH THE AFFIDAVIT, SUMMARY OF PAY MENTS MADE FOR THE FLAT, YEAR WISE PAYMENTS AND PHOTOCOPI ES OF THE RECEIPTS AND THE SAME WERE NOT PRODUCED BEFORE THE A.O. AFTER CONSIDERING THE SUBMISSION OF THE ASSES SEE, THE CIT(A) HAS APPLIED RULE 46A(3) OF IT RULES AND FOR WARDED THE DOCUMENTS TO AO FOR HIS REPORT AND LETTER WAS M ARKED TO THE ASSESSEE TO APPEAR BEFORE THE A.O. TO ENABLE TO MAKE NECESSARY INVESTIGATIONS. SUBSEQUENTLY, REMAND REPO RT WAS FORWARDED BY THE A.O BY LETTER DATED 18.10.2013 REF ERRED AT PARA 3.3 OF THE CIT(A) ORDER. WHEREAS THE CIT(A) H AS FORWARDED COPY OF REMAND REPORT TO THE ASSESSEE, I N COMPLIANCE TO THE REMAND REPORT THE ASSESSEE HAS FI LED A LETTER AND FILED COPY OF HDFC BANK STATEMENT WITH SUBMISSIONS REFERRED AT PARA 3.4 OF THE CIT(A) ORDE R. THE CIT(A) FOUND THAT THE ASSESSEE HAS ONLY SUBMITTED F ACTS BUT NEVER PROVIDED THE COMPLETE INFORMATION. FURTHER I N SPITE OF PROVIDING OPPORTUNITIES IN THE ASSESSMENT PROCEE DINGS AND REMAND PROCEEDINGS BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS NOT COMPLIED. EVEN BEFORE THE CIT(A), THE ITA NO . 4546/MUM/2014 SHAMSHER HUSSAIN W SHAIKH, MUMBAI. - 5 - ASSESSEE HAS NOT SUBMITTED THE DETAILS OR FURNISHED THE CLARIFICATIONS AS REFERRED AT PARA 3.5 OF THE CIT(A ) ORDER. UNDER THESE CIRCUMSTANCES, THE CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER AND DISMISSED THE ASSESSEE APPEAL. AGGRIEVED BY THE CIT(A)ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE HONBLE TRIBUNAL. 4. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESS EE SUBMITTED THAT THE ASSESSEE WAS NOT PROVIDED PROPER OPPORTUNITY AND THE CIT(A) HAS ERRED IN NOT CONSI DERING THE EVIDENCES IN RESPECT OF THE PROPERTY WHICH WAS PURCHASED BY THE ASSESSEE. CONTRA, THE LD. DR SUPPO RTED THE ORDER OF THE CIT(A). 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA-FACIE, THE ONLY CRUX OF THE ISSUE IS WITH REGARD TO ADDITION MADE BY THE A.O. BASED O N AIR INFORMATION THAT THE ASSESSEE HAS MADE INVESTMENT I N THE PROPERTY, WHEREAS THERE WAS A DIFFERENCE IN THE MAR KET VALUE AND THEREFORE MADE AN ADDITION OF RS. 27,13,0 05/- TOWARDS THE INVESTMENTS. BUT THE FACT REMAINS THAT THE ASSESSEE EITHER BEFORE THE AO OR THE CIT(A) HAS NOT COMPLIED WITH THE DIRECTIONS. EVEN THE LD.CIT(A) HA S MADE SPECIFIC OBSERVATIONS THAT THE ASSESSEE HAS NOT EXP LAINED ITA NO . 4546/MUM/2014 SHAMSHER HUSSAIN W SHAIKH, MUMBAI. - 6 - THE REASONS AND NOT FILED THE INFORMATION BEFORE TH E A.O. WE FOUND THAT THE ASSESSEE HAS FILED THE DETAILS BE FORE THE HONBLE TRIBUNAL MENTIONING THAT THE SAME WERE FILE D BEFORE THE A.O, BUT THE FACT REMAINS THAT THIS INFORMATION IS NOT ON RECORD WITH THE A.O. AND THERE ARE NO OBSERVATION O F THE A.O. ON THESE DOCUMENTS. CONSIDERING THE OVERALL F ACTS PROVISIONS OF LAW AND TO MEET THE ENDS OF JUSTICE. WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSE SSEE TO SUBSTANTIATE THE CASE WITH EVIDENCES. ACCORDINGLY, WE RESTORE THIS DISPUTED ISSUE TO THE FILE OF AO FOR L IMITED PURPOSE FOR VERIFICATION AND EXAMINATION AND THE AS SESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING. THE ASSESSEE SHOULD CO OPERATE IN FURNISHING THE INFORM ATION AND WE ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.03.2021. SD/- SD /- (SHAMIM YAHYA) (PAVAN KUMAR GAD ALE ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 31.03.2021 ITA NO . 4546/MUM/2014 SHAMSHER HUSSAIN W SHAIKH, MUMBAI. - 7 - KRK, PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) 4. CONCERNED CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER , // TRUE COPY// ( ASST. REGISTRAR) ITAT, MUMBAI