DCIT CEN CIR-1, MUMBAI V. HEMRAJ K JETHANI, MUMBAI

ITA 4642/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48522 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 12-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 10-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAVA
• Assessee Lawyers: M SUBRAMANIAM
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NO.4642/MUM/2008 : ASST.YEAR 2004-2005 THE DY.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 1 THANE. VS. SHRI HEMRAJ K.JETHANI 103, SIDDHARTHA TOWERS, KOPRI COLONY THANE (EAST) PAN : ABDPJ4124G. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S.SRIVASTAVA RESPONDENT BY : SHRI M.SUBRAMANIAM O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 10.04.2008 IN RELATION TO ASSESSMENT YEAR 2004-2005 . 2. THE ONLY GROUND IS AGAINST THE DELETION OF ADDIT ION OF RS.9,57,000 MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FLAT AND GARRA GE. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS ENGAGED IN THE B USINESS AS CIVIL CONTRACTOR. ON THE GROSS CONTRACT RECEIPT OF RS.10,11,115 THE ASSE SSEE HAD SHOWN NET PROFIT OF RS.80,889 AT THE RATE OF 8% OF THE GROSS CONTRACT R ECEIPTS BY CLAIMING THE APPLICABILITY OF SECTION 44AD. A SEARCH ACTION WAS TAKEN UPON THE ASSESSEE ON 09.09.2004, DURING THE COURSE OF WHICH CERTAIN INCR IMINATING DOCUMENTS WERE FOUND WHICH INCLUDED PAGE 22 OF BUNDLE NO.8 READING AS UNDER:- ITA NO.4642/MUM/2008 SHRI HEMRAJ K.JETHANI. 2 PAGES 22 : - THE CONTENTS OF THIS PAGE ARE EXTRACTE D BELOW:- DETAILS OF FLAT 28.51 TOTAL AMOUNT 18.51 - BY CHEQUE 18.51 ------- - 2 10.00 - CASH ------- 9.57 - CASH GIVEN 16.51 ------- 00.43 - BALANCE DETAILS OF GARRAGE 1.50 1.00 CASH ------ 0.50 BY CHEQUE 1.43 CASH BALANCE 10.03.2004. 3. THE ASSESSING OFFICER OPINED THAT THIS PA GE RELATED TO CASH PAYMENT OF 9.57 LAKHS IN RESPECT OF FLAT AND GARAGE ON 10.03.2004. ON BEING CALLED UPON TO SUBMIT EXPLANATION, THE ASSESSEE STATED THAT THIS PAPER DI D NOT RELATE TO ASSESSEE OR HIS FAMILY MEMBERS AND IT LOOKED LIKE SOME PROPOSAL FRO M BROKER FOR ANY PARTICULAR PROPERTY, THE WHEREABOUTS OF WHICH WERE NOT KNOWN. NOT CONVINCED WITH THE ASSESSEES EXPLANATION, THE A.O. MADE ADDITION OF R S.9.57 LAKHS BY TREATING IT AS UNEXPLAINED INVESTMENT. THE LEARNED CIT(A) GOT CONV INCED WITH THE ASSESSEES SUBMISSIONS AND DELETED THE ADDITION. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS NOTED THAT THE PAGE 22, WHICH HAS BEE N MADE THE BASIS FOR ADDITION, IN THE FIRST PLACE, DOES NOT INDICATE DETAILS OF ANY F LAT OR GARAGE, BEING ITS NUMBER, LOCALITY ETC. FURTHER AS PER THIS PAGE TOTAL AMOUNT IS RS.28.51 LAKHS OUT OF WHICH AMOUNT BY CHEQUE RS.18.51 ON THE RIGHT HAND SIDE FI GURE OF 2 HAS BEEN REDUCED FROM 18.51 LAKHS FOR COMING TO THE NET FIGURE OF RS .16.51 LAKHS. SIMILARLY ABOUT THE DETAIL OF GARAGE, THERE IS MENTION OF PAYMENT BY C HEQUE OF 0.50 AND CASH BALANCE ITA NO.4642/MUM/2008 SHRI HEMRAJ K.JETHANI. 3 OF 1.43. AT THE FIRST PLACE IT IS NOTICED THAT THE RE IS NO DETAIL OF ANY FLAT OR GARRAGE WHICH BECAME THE SUBJECT MATTER OF PURCHASE BY THE ASSESSEE AS ALLEGED BY THE REVENUE ON THE BASIS OF THIS PAGE. EVEN IF IT IS P RESUMED THAT THIS PAGE DID CONTAIN CERTAIN DETAILS IN RESPECT OF TRANSACTION DONE BY T HE ASSESSEE, THEN THERE SHOULD HAVE BEEN SOME ENTRIES RECORDED BY THE ASSESSEE TOW ARDS PURCHASE BY CHEQUE AT LEAST, TOWARDS EITHER THE COST OF FLAT AT RS.18.51 LAKHS OR RS.2 LAKHS OR TOWARDS DETAIL OF GARAGE AT RS.0.50 LAKH. IT IS NOT THE CA SE OF THE ASSESSING OFFICER THAT THE ASSESSEE DID PURCHASE ANY FLAT IN THE INSTANT YEAR OR MADE ANY PAYMENT TOWARDS CHEQUE WHICH HAVE BEEN TAKEN NOTE OF IN THIS PAGE. RATHER IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE DID PURCHASE ANY FLAT OR GARAGE IN THIS YEAR, WHICH COULD BE CORRELATED TO THE NOTINGS ON SAID PAGE FOR VERIF ICATION OF THE AUTHENTICITY OF THE CONTENTS OF THIS PAGE. IT WAS INCUMBENT UPON THE A SSESSING OFFICER TO REACH A LOGICAL CONCLUSION ON THE BASIS OF THIS PAGE BY MAK ING FURTHER INQUIRIES ABOUT THE PERSON SELLING THE FLAT OR BY MAKING OF ENTRIES BY THE ASSESSEE IN BOOKS OF ACCOUNT TOWARDS PAYMENTS BY CHEQUE ETC. AND FURTHER THE DET AILS OF ANY FLAT AND GARAGE WITH THEIR LOCATION AND ADDRESS. NOTHING OF THIS SORT HA S BEEN DONE. IN OUR CONSIDERED OPINION THE LEARNED CIT(A) WAS JUSTIFIED IN DELETIN G THIS ADDITION. WE UPHOLD THE SAME. 5. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 20 TH DAY OF APRIL, 2011 . SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 20 TH APRIL, 2011. DEVDAS* ITA NO.4642/MUM/2008 SHRI HEMRAJ K.JETHANI. 4 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - I, THANE. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.