ITO, WARD 21(3)(1), MUMBAI V. ALTAF A R KHWAJA, MUMBAI

ITA 4671/MUM/2011

• Counselvise Citation: 467119914 RSA 2011
• Duration Of Justice: 4 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JEEVAN LAL LAVIDIYA
• Assessee Lawyers: KESHAV B BHUJLE
• Keywords: Opportunity of being heard; Additional evidence
• Section: 69

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI I.P. BANSAL, (JM) AND B.R.BASKARAN (AM) . . , . . , ./ I.T. A. NO . 4671 /MUM/20 1 1 ( / ASSESSMENT YEAR : 200 7 - 08 ) INCOME TAX OFFICER - 2 1 ( 3 )( 1 ), ROOM NO.503, 5 TH FL. C - 11, PRATYAKSHAKAR BHAVAN, BANDRA - KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. / VS. SHRI ALTAF A R KHWAJA, A/9, SHANTI NIKETAN, S G BARVE MARG, KURLA WEST, MUMBAI - 400070 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAVPK8791M / : APPELLANT BY: SHRI J EEVANLAL LAVIDIYA / RE SPONDENT BY : SHRI KESHAV B BHUJLE / DATE OF HEARING : 17.6. 2015 / DATE OF PRONOUNCEMENT : 17. 6. 2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER : THE REVENUE HAS FILED THIS APPEAL CHALL ENGING THE ORDER DATED 10.3.2011 PASSED BY THE LD.CIT(A) - 32, MUMBAI AND IT RELATES TO ASSESSMENT YEAR 2007 - 08. 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD.CIT(A) IN GRANTING RELIEF IN RESPECT OF ADDITION OF RS.25 LAKHS MADE BY THE AO UNDER SECTIO N 69 OF T HE INCOME TAX ACT, 1961 (THE ACT). ITA NO. 4671 / M/ 11 2 3. WE HEARD PARTIES AND PERUSED THE RECORD. THE ASSESSEE HEREIN FILED HIS RETURN OF INCOME DECLARING HIS STATUS AS NON - RESIDENT. HOWEVER, SINCE THE ASSESSEE FAILED TO FURNISH REQUIRED DETAILS TO SUPPORT THE SA ID CLAIM, THE AO COMPLETED THE ASSESSMENT TREATING HIM AS RESIDENT. FURTHER, THE AO RECEIVED AIR INFORMATION TO THE EFFECT THAT THE ASSESSEE HAD PURCHASED A PROPERTY FOR AN AMOUNT OF RS.30 . 28 LAKHS . IT WAS NOTICED THAT THE ASSESSEE HAS PURCHASED A SHOP F OR A SUM OF RS.25 LAKHS ON 4.8.2006 AND MARKET VALUE OF THE SAID PROPERTY WAS SHOWN AT RS.30.28 LAKHS. WHEN ASKED FOR SOURCES FOR PURCHASING THE SHOP , THE ASSESSEE EXPLAINED THAT HE HAD TRANSFERRED THE MONEY FROM HIS FOREIGN BANK ACCOUNT AND UTILIZED THE S AME FOR ACQUIRING THE PROPERTY. HOWEVER, THE ASSESSEE DID NOT FURNISH THE SALARY CERTIFICATE, COPY OF BANK ACCOUNT ETC . H ENCE, THE AO ASSESSED THE ABOVE SAID AMOUNT OF RS.25 LAKHS AS INCOME O F THE ASSESSEE U/S 69 OF THE ACT. 4. BEFORE THE LD.CIT(A), THE A SSESSEE FURNISHED CERTAIN DETAILS AND HENCE, THE LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE AO. HOWEVER, THE AO REPORTED THAT THE ADDITIONAL EVIDENCE S SUBMITTED BY THE ASSESSEE SHOULD NOT BE ADMITTED. HAVING SAID SO, THE AO HAS ALSO PROCEEDED TO COM MENT UPON THE CERTAIN DISCREPANCIES FOUND IN THE SALARY CERTIFICATE AND OTHER ADDITIONAL EVIDENCE S FURNISHED BY THE ASSESSEE . H ENCE, THE LD. CIT( A) PROCEEDED TO EXAMINE THE ADDITIONAL EVIDENCE S FURNISHED BY THE ASSESSEE ON HIS OWN . HE NOTICED THAT THE A SSESSEE HAD A BANK BALANCE OF 3,29,093 DIRHAMS ON THE DAY WHEN HE REMITTED 1,98,000 DIRHAMS TO INDIA (EQUIVALENT TO RS.25 LAKHS) . THE LD. CIT(A) FURTHER NOTICED THAT THE BANK BALANCE OF 3,29,093 DIRHAMS INCLUDED MATURITY PROCEEDS OF A F IXED DEPOSITS AMO UNTING TO 3,06,143 DIRHAMS. FURTHER, THE LD .CIT(A) ALS O NOTICED THAT THE SALARY OF THE ASSESSEE HAS INCREASED FROM 2300 DIRHAMS IN THE YEAR 2006 TO 17150 DIRHAMS IN 2010. ACCORDINGLY, THE LD.CIT(A) TOOK THE VIEW THAT THE ASSESSEE HAS SUFFICIENTLY EXPLAI NED THE SOURCES FOR ITA NO. 4671 / M/ 11 3 TRANSFERRING THE AMOUNT OF RS.25 LAKHS , REFERRED ABOVE, AND ACCORDINGLY DELETED THE ADDITION. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 5. THE ASSESSEE HAS FILED A PAPER BOOK AND PA GE 36 OF THE PAPER BOOK CONTAINS THE B ANK STATEMENT. A PERUSAL OF THE BANK STATEMENT WOULD SHOW THAT THE MATURITY PROCEEDS OF FIXED DEPOSIT AMOUNTING TO 3 , 06 , 143 DIRHAMS WAS FOUND CREDITED IN THE BANK ACCOUNT ON 8.7.2006 AND HENCE THE BANK BALANCE ON THAT DAY WAS 3 , 28 , 389 DIRHAMS . ON THE NEX T DAY, I.E., ON 9.7.2006, THE ASSESSEE HAS TRANSFERRED 3 , 22 , 000 DIRHAMS TO MAKE FRESH FIXED DEPOSIT AND THE SAME GOT MATURED ON 1.8.2006 , WHICH WAS CREDITED IN THE BANK ACCOUNT . HENCE ON THAT DATE , THE BANK BALANCE WAS 3 , 29 , 093 DIRHAMS, OUT OF WHICH THE A SSESSEE HAS WITHDRAWN 1 , 98 , 000 DIRHAMS ON 2.8.2006. ACCORDING TO THE ASSESSEE, THE ABOVE SAID 1,98,000 DIRHAMS REPRESENTS THE AMOUNT OF RS.25 LAKHS , WHICH WAS USED FOR PURCHASE OF IMMOVABLE PROPERTY AS STATED ABOVE. 6. THUS, WE NOTICE THE FACT THAT THE SOURCE FOR THE AMOUNT OF 1 , 98 , 000 DIRHAMS , WHICH IS CLAIMED TO BE THE IMPUGNED AMOUNT OF RS.25.00 LAKHS, IS PRIMARILY THE MATURITY PROCEEDS OF FIXED DEPOSIT CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE ON 8.7.2006. HOWEVER, WE NOTICE THAT THE ASSESSE E HAS FURNISHED THE BANK STATEMENT FOR THE PERIOD FROM 26.6.2006 TO 4.12.2006 AND IT APPEARS FROM THE STATEMENT THAT THE RELEVANT FIXED DEPOSIT WAS MADE PRIOR TO THAT DATE. WE NOTICE THAT THE ASSESSEE HAS NOT FURNISHED THE DETAILS RELATING TO THE ORIGINAL DATE OF DEPOSIT AND THE SOURCES THERE OF. ACCORDINGLY, WE ARE OF THE VIEW THAT IT IS NECESSARY TO EXAMINE THE BANK STATEMENT OF THE ASSESSEE FROM 1.4.2006 ONWARDS AND FURTHER, IT IS ALSO NECESSARY TO EXAMINE THE DATE OF CREATION OF FIXED DEPOSIT WHICH GO T MATURED ON 8.7.2006 AND THE SOURCES THERE OF, IN ORDER TO ARRIVE AT A PROPER DECISION ON THIS ISSUE. ACCORDINGLY, WE ARE OF THE VIEW THAT ITA NO. 4671 / M/ 11 4 THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD.CIT(A) AND R ESTORE THIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THIS ISSUE AFRESH IN THE LIGHT OF DISCUSSIONS MADE SUPRA AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW , AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 7 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 17 TH JUNE , 2015 . 17 TH JUNE , 201 5 SD SD ( . . / I.P. BANSAL ) ( . . / B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 17 TH JUNE , 201 5 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASST T. REGISTRAR) , /ITAT, MUMBAI