KEYUR MADHUSUDAN SHAH, MUMBAI V. ADDL CIT RG 14(1), MUMBAI

ITA 4565/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9198 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI R.C. SHARMA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 4565 / MUM/ 20 13 ( / ASSESSMENT YEAR: 20 07 - 0 8 ) KEYUR MADHUSUDAN SHAH 583, JAGANNATH SHANKARSHETH RD, MUMBAI 40000 2 / VS. ADDL CIT RG 14(1) MUMBAI PIN: ./ ./ PAN/GIR NO. : AAHPS 4084 K ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 10 .0 7 .2017 / DATE OF PRONOUNCEMENT : 04 . 10 . 2017 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 09 . 1 0.201 2 PASSED BY THE CO MMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2007 - 08 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE COMMISSIONER OF INCOME TAX(APPEALS) - 25, MUMBAI HAS IGNORED ALL THE DOCUMENTARY F ACTS & EVIDENCE SUBMITTED BY THE APPELLANT DURING THE APPEAL HEARINGS INCLUDING COPIES OF ALL THE BILLS/VOUCHERS OF EXPENSES AGGREGATING TO RS.9,59,925/ - WHICH WERE ALSO SUBMITTED TO HIM, AND INSTEAD ONLY RELIED UPON HIS OWN INTERPRETATION OF THE NARRATION IN ONE ENTRY IN THE LEDGER STATEMENT. ASSESSEE BY : SHRI KEYUR SHAH REVENUE BY: SHRI T. A. KHAN ( DR ) KEYUR MADHUSUDAN 2 2. THE CIT(A) - 25 MUMBAI HAS CONVENIENTLY INTERPRETED THE NARRATION IN ONE ENTRY IN THE LEDGER STATEMENT TO THE SOLE BENEFIT OF THE DEPARTMENT & REVENUE WITHOUT ANY CORROBORATION WITH ANY OTHER DOCUMENTS. 3. THE CIT (A) - 25 MUMBAI HAS ACTED IN A VERY BIASED MANNER BY THROWING AWAY THE APPELLANTS CONTENTION WHICH IS STRONGLY SUPPORTED WITH DOCUMENTARY FACTS & EVIDENCE. 4. THE CIT(A) - 25 MUMBAI HAS NOT BEEN FAIR IN ARRIVING AT HIS DECISION BECAUSE HE HAS JUST BLINDLY THR OWN AWAY THE APPELLANTS SUBMISSION WHILE CONJECTURING HIS OWN THEORY, BASING IT ONLY ON THE NARRATION IN ONE ENTRY IN THE LEDGER STATEMENT. 5. THE APPELLANT PRAYS THAT THE PENALTY U/S 271D BE SET ASIDE COMPLETELY. 6. THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND OR ALTER THE ABOVE GROUNDS OF APPEAL. 3. THE BRIEF FACTS O F THE CASE ARE THAT ON ACCOUNT VERIFICATION OF THE ACCOUNT OF THE ASSESS EE RELEVANT TO THE A.Y. 2007 - 08, I T W AS NOTICED THAT THE ASSESSEE HAD TAKEN LOAN TO THE TUNE OF RS. 9,59,925/ - IN CAS H FROM HIS WIFE SMT. KAVITA KEYUR SHAH. THEREFORE T HE NOTICE WAS ISSUED AND FINDING NO SATISFACTORY REPLY , THE PENALTY TO THE TUNE OF RS.9,59,925/ - WAS IMPOSED ON ACCOUNT OF CONTRAVENTION OF SECTION 269SS OF THE ACT U/S 271D OF THE ACT. FEELING AGGRIEVED , THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE PENALTY , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4 . WE HAVE HEARD TH E ARGUMENT ADVANCED BY THE LD. R EPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE ASSESS EE HAS FILED THE PRESENT APPEAL 142 DAYS DELAYED. T HE ASSESSEE FILED AN APPLICATION FOR CONDONATION OF DELAY AND THE REASONS MENTIONED THEREIN THAT THE HEALTH OF THE ASSESSEE WAS NOT PROPER. THEREFORE, THE PRESENT APPEAL HAS BEEN FILED DELAY ED. THE APPLIC ATION I S SUPPORTED BY KEYUR MADHUSUDAN 3 AFFIDAVIT AND MEDICAL CERTIFICATE OF DIFFERENT HOSPITAL ON RECORD WHICH SPEAKS ABOUT ADMISSION OF THE ASSESSEE FOR DIFFERENT PERIODS . THE SAID CERTIFICATE HAS BEEN ANNEXED AS ANNEXURE 5 ON THE RECORD. SINCE, WE FOUND PROPER EXPLANATIO N FOR THE CONDONATION OF DELAY , THEREFORE, WE CONDONE THE DELAY . THE PENALTY U/S 271D OF THE ACT HAS BEEN LEVI ED BY THE AO ON ACCOUNT OF TAKING THE LOAN BY THE ASSESSEE TO THE TUNE OF RS. 9,59,92 5/ - FROM HIS WIFE IN CASH. THE EXPLANATION OF THE ASSESSEE W AS THAT THE APPELLANT AND HIS WIFE HAVE BEEN JOINTLY CARRYING THE BUSINESS AND THEY WERE CONTRIBUTING TO THE EXPENSES OF RECONSTRUCTION AND REDEVELOPMENT. BASED UPON THEIR INDEPENDENT CASH FLOWS THEY WERE MAKING PAYMENT TO THE CONTRACTOR AND VENDORS DIREC TLY. AT THE END OF THE FINANCIAL YEAR ALL EXPENSES OF RECONSTRUCTION AND REDEVELOPMENT WERE CONSOLIDATED AND ACCOUNTANT IN THE APPELLANTS BOOKS OF ACCOUNT. HIS WIFE NEVER GAVE ANY LOAN TO APPELLANT NOR CHARGED ANY INTEREST. THE ENTRY WAS PASSED AT THE END OF THE YEAR. NOTHING WAS CONCEA LED. SHE WAS PAYING THE BILL IN CASH RECEIPT OR ALSO ISSUING THE CHEQUES FOR PAYMENTS. THE IMPORTANT THING IS THAT THE COPIES OF ALL THE BILLS AND VOUCHERS OF EXPENSES AGGREGATING TO RS.9,59,925/ - WERE ALSO SUBMITTED BEFORE T HEM. SINCE EVERYTHING WAS EXPLAINED. DOCUMENTARY EVIDENCE WAS PRODUCED. THERE IS NO IOTA OF EVIDENCE ON THE FILE WHICH MAY SPEAK ABOUT THE LOAN TRANSACTION BETWEEN HUSBAND AND WIFE. NO DOUBTS EVERYTHING HAS NOT BEEN EXPLAIN ED PROPERLY AT THE TIME OF ASSES SMENT. ANY HOW THE ASSESSEE KEYUR MADHUSUDAN 4 HAS SHOWN ABOUT THE PAYMENT MADE BY HIS WIFE IN THE BOOKS OF ACCOUNT SO IT CANNOT BE CONSIDERED AS LOAN PAID TO THE ASSESSEE . 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE A LLOWED . ORDER PRONOUNCED I N THE OPEN COURT ON 04.10 . 2017 . SD/ - SD/ - ( R.C. SHARMA ) ( AMARJIT SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBE R MUMBAI; DATED : 04 .10 . 2017 V.P. SINGH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI