BECHAR G. PATEL, MUMBAI V. DCIT CEN CIR 22, MUMBAI

ITA 4745/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3638 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 14-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Search and seizure; Opportunity of being heard
• Section: 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , ! '# $%, & , ' BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.4745/M/13 ( &( !) / ASSESSMENT YEAR: 2010-11) SHRI. BECHAR G. PATEL 10, MITHILA SHOPPING CENTRE, V.M.ROAD, JUHU SCHEME, VILE PARLE (W), MUMBAI - 400049 ( / VS. DY. COMMISSIONER OF INCOME TAX CENT. CIR. 22 ROOM, NO.465, AAYKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AAKPP6645A ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 14.03.2016 !' /DATE OF PRONOUNCEMENT: 13.05.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19.03.2013 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) 39, MUMBAI [HEREINAFTER REFERRED TO AS TH E LEARNED CIT(A)] RELEVANT TO THE A.Y.2010-11. ASSESSEE BY: SHRI AIRIJU JAIKARAN DEPARTMENT BY: SHRI K.B.DESAI ITA NO.4745/MUM/13 A.Y.2010-11 2 2. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECOR D CAREFULLY. THE ONLY POINT WHICH HAS BEEN CHALLENGED BY THE ASSESSE E IS IN CONNECTION TO THE ADDITION OF RS.2,72,000/- ON ACCOUNT OF FORE IGN TRAVELLING EXPENSES. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE A.Y.2010-11 DECLARING HIS INCOME OF RS.10,27,110/-. THEREAFTER SEARCH AND SEIZURE ACTION WERE TAKEN U/S. 132 THE I NCOME TAX ACT, 1961 ( IN SHORT THE ACT) ON 16.11.2009 IN CASE OF M. R. CONSTRUCTION AND M/S. OPTION DEVELOPERS AND BUILDER S. DURING THE SAID ACTION, THE COPY OF THE PASSPORT OF THE ASSESS EE WAS FOUND AND INVENTORISED. THE ASSESSEE VISITED AT UAE ON 19.06 .2009 AND LONDON ON 14.07.2009 AND AGAIN ON LONDON ON 23.07.2009. A T THE TIME OF ASSESSMENT PROCEEDINGS, ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE EXPENSES IN CONNECTION WITH HIS FOREIGN TRAVELLING. THE ASSESSEE REPLIED THAT HE WENT FOR EVENT AT UAE ON 1 9.06.2009 AND LONDON ON 14.07.2009 AND 23.09.2009. HOWEVER THE A SSESSEE EXPLAINED THAT HE VISITED THE SAID COUNTRIES FOR TH E PURPOSE OF HIS BUSINESS. HOWEVER, NO DOCUMENTS WERE FURNISHED BY THE ASSESSEE IN SUPPORT OF THE CLAIM OF EXPENDITURE. THE ASSESSIN G OFFICER ESTIMATED THE EXPENSES ON ADHOC BASIS TO THE TUNE OF RS.2,72, 000/- AS TRAVELLING BILLS, HOTEL BILLS ETC. WERE NOT PRODUCED. SUBSEQU ENTLY, ASSESSEE PREFERRED THE APPEAL BEFORE THE LEARNED CIT(A) AND LEARNED CIT(A) ALLOWED THE APPEAL TO THE EXTENT OF AMOUNT OF RS.97 ,345/- WHICH HAS ALREADY BEEN SHOWN BY THE ASSESSEE IN HIS RETURN OF INCOME AS ITA NO.4745/MUM/13 A.Y.2010-11 3 TRAVELLING EXPENDITURE. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE STAYED WITH HIS FAMILY FRI END RESIDING AT LONDON SHRI DILIP PATEL 2 JERSEY CLAUSE WELLING BRO UGH NORTHAMPTONSHIRE NN84UA UNITED KINGDOM AND IN THIS REGARD CERTIFICATE OF SHRI DILIP PATEL HAS ALSO BEEN PRODU CED BUT THE SAME WAS NOT CONSIDERED BY LEARNED CIT(A) WRONGLY AND ILLEGA LLY AND THE ASSESSMENT WAS CONFIRMED WHICH IS ON THE BASIS OF E STIMATION / ADHOC BASIS. IN SUPPORT OF THESE CONTENTIONS THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE UPON THE LAW SETTLED I N ACIT VS. NITIN MUKESH MATHUR (88 TTJ 220) (MUM), BAJRANG LAL BANSA L VS. DCIT (150 TAXMAN 29)(DEL.), & JAGDISH DUGGAL VS. AC IT (24 DTR 174)(CHD.)(TRIB). IT IS ALSO ARGUED THAT THE ASSESSMENT CANNOT BE MADE ON THE BASIS OF SURMISES AND CONJECTURES AN D ON ESTIMATED BASIS AND RELIANCE PLACED UPON LAW SETTLED IN DHIRAJLAL GIRDHARILAL VS. CIT (26 ITR 736)(SC). IT IS ALSO ARGUED THAT WITHOUT ANY INCREMENTING MATERIAL NO ADDITION OF ANY KIND CAN B E MADE IN VIEW OF THE LAW SETTLED IN CIT VS. TELETORNICS DEALING SYSTEM (P) LTD. (228 TAXMAN 194)(BOM). LEARNED REPRESENTATIVE OF DEPARTMENT HAS STRONGLY RELIED UPON THE FINDING OF THE LEARNED CIT (A). AFTER GOING THROUGH THE CAREFUL THOUGHTS THE ARGUMENT ADVANCED BY THE LEARNED REPRESENTATIVE OF THE PARTIES AND PERUSING THE RECO RD IT IS OBSERVED THAT WITH REGARD TO THE FOOD AND STAY DURING LONDON VISI T THE ASSESSEE FILED THE LETTER OF SHRI DILIP PATEL WHICH WAS NOT CONSID ERED BY THE ASSESSING OFFICER. NO ENQUIRY OF ANY KIND WAS DON E TO DISCREDIT THE ITA NO.4745/MUM/13 A.Y.2010-11 4 SAID PIECE OF EVIDENCE. WHEN SOME EVIDENCE HAS BEE N ADDUCED BY THE ASSESSEE BUT THE SAME WAS NOT CONSIDERED AND NOR PR OPER ENQUIRY WAS DONE TO DISCREDIT THE SAME THEN IN THE SAID CIRCUMS TANCES THE ADDITION MADE ON THE BASIS OF ESTIMATION DOES NOT SEEMS JUST IFIABLE ACCORDANCE WITH THE LAW. NO ESTIMATION CAN BE MADE ON THE BA SIS OF SURMISES AND CONJECTURES. WE ARE OF THE VIEW THAT THE MATTER IS REQUIRED TO BE RECONSIDERED AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. THEREFORE WE ORDER ACCORDINGL Y. 6. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE IS HEREBY PARTLY ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MAY , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 13 TH MAY, 2016 MP MP MP MP ITA NO.4745/MUM/13 A.Y.2010-11 5 + ,&#$- .-)# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ( / BY ORDER, - & //TRUE COPY// //% ' /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI