RANJEET BEDI, MUMBAI V. ITO 11(1)(3), MUMBAI

ITA 5037/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3496 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 14-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIKANT NAMDEVDR
• Assessee Lawyers: SURESH MUKATAM
• Keywords: Unexplained investment
• Section: 69

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.5037/MUM/2015 ASSESSMENT YEAR: 2002-03 SHRI RAJNEET BEDI, JEEVA BUNGALOW, 14, SILVER BEACH ESTATE, A.B. NAIR ROAD, JUHU MUMBAI-400049 / VS. ITO, WARD-16(1)(3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( ! /ASSESSEE) ( ' / REVENUE) PAN. NO . AABPB5001D ! / ASSESSEE BY SHRI SURESH MUKATAM ' / REVENUE BY SHRI SHRIKANT NAMDEV-DR # '$ % ! & / DATE OF HEARING : 27/06/2016 % ! & / DATE OF ORDER: 28/06/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 28/07/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. ITA NO.5037/MUM/2015 SHRI RANJEET BEDI 2 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI SURESH MUKATAM CONTENDED THAT TH E QUANTUM ADDITION WAS DELETED BY THE TRIBUNAL VIDE ORDER DATED 07/03/2016 (ITA NO.5423/MUM/2011). THE LD. COUNSEL FOR THE ASSESSEE ALSO PRODUCED THE PHOTOCOP Y OF THE ORDER. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE LD. DR, SHRI SHRIKANT NAMDEV. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION FROM THE AFORESAID ORDER DATED 07/03/2016 FOR READY REFERENCE AND ANALYSIS:- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 25.5.2011 PASSED BY LEARNED CIT(A)-3, MUMBAI AND IT RELATES TO A.Y. 2002-03. 2. THE SOLITARY ISSUE URGED IN THIS APPEAL IS AS TO WHETHER LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDI TION OF RS. 48.17 LAKHS MADE BY THE ASSESSING OFFICER U/S. 69 O F THE ACT AS UNEXPLAINED INVESTMENTS. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . THE ASSESSEE HAD CARRIED OUT CONSTRUCTION/DEVELOPMENT W ORK IN RESPECT OF TWO ASSETS AGGREGATING TO RS.48.17 LAKHS AND IT WAS ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. DURING THE C OURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER CALLED FOR THE DETAILS RELATING TO CONSTRUCTION EXPENSES/D EVELOPMENT EXPENSES. SINCE THE ASSESSEE DID NOT FURNISH THE SA ME, THE ITA NO.5037/MUM/2015 SHRI RANJEET BEDI 3 ASSESSING OFFICER ASSESSED THE AGGREGATE AMOUNT OF RS. 48.17 LAKHS AS UNEXPLAINED INVESTMENTS U/S. 69 OF THE ACT . WHEN THE MATTER TRAVELLED TO THE ITAT, THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. IN THE SET AS IDE PROCEEDINGS ALSO THE ASSESSING OFFICER ASSESSED THE SAID AMOUNT AS UNEXPLAINED INVESTMENTS U/S. 69 OF THE ACT AND THE SAME WAS CONFIRMED BY LEARNED CIT(A). AGGRIEVED THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 4. THE IMPUGNED ADDITION HAS BEEN MADE U/S. 69 OF T HE ACT, WHICH READS AS UNDER:- WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING T HE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT REC ORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURC E OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVESTMENTS OR THE EXPLANATION OFFERED BY HIM IS NO T, IN THE OPINION OF THE [ASSESSING] OFFICER, SATISFACTORY, THE VALUE OF THE INVESTMENTS MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FIN ANCIAL YEAR. 5. A CAREFUL PERUSAL OF SECTION 69 WOULD SHOW THE S AID PROVISION SHALL BE ATTRACTED ONLY IF THE ASSESSEE H AS MADE INVESTMENT AND THE SAME WAS NOT RECORDED IN THE BOO KS OF ACCOUNT MAINTAINED BY HIM. IN THE INSTANT CASE, THE UNDISPUTED FACT IS THAT THE ASSESSEE HAS RECORDED THE IMPUGNED INVESTMENT AMOUNT OF RS. 48.17 LAKHS IN THE BOOKS OF ACCOUNT A ND HENCE QUESTION OF ASSESSING THE SAME U/S. 69 OF THE ACT D OES NOT ARISE. ACCORDINGLY WE ARE OF THE VIEW THAT THE ORDE R PASSED BY THE ASSESSING OFFICER WAS NOT IN ACCORDANCE WITH LA W. ACCORDINGLY WE SET ASIDE THE ORDER OF LEARNED CIT(A ) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE TH E IMPUGNED DISALLOWANCE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ITA NO.5037/MUM/2015 SHRI RANJEET BEDI 4 2.2. IN THE AFORESAID ORDER, ON QUANTUM ADDITION, THE TRIBUNAL VIDE AFORESAID ORDER DATED 07/03/2016 DELE TED THE DISALLOWANCE/ADDITION ON THE BASIS OF WHICH PENALT Y WAS INITIATED/CONFIRMED. IN VIEW OF THIS FACTUAL MATRIX , WE ARE OF THE VIEW THAT PENALTY IMPOSED U/S 271(1)(C) WILL NO T SURVIVE. OUR VIEW FIND SUPPORT FROM THE DECISION IN K.C. BUI LDERS VS ACIT (2004) 265 ITR 562 (SC) AND THE RATIO LAID DOW N IN CIT VS S.P. VIZ, 176 ITR 76 (PATNA). EVEN OTHERWISE, WH EN THE QUANTUM ADDITION IS DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT OR FURNISHING I NACCURATE PARTICULARS. THE PENALTY CANNOT STAND ON ITS LEGS W HEN ADDITION ON THE BASIS OF WHICH THE PENALTY WAS IMPO SED REMAINS NO MORE IN EXISTENCE, THUS, THE APPEAL OF T HE ASSESSEE IS ALLOWED AND THE LD. ASSESSING OFFICER I S DIRECTED TO DELETE THE PENALTY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 27/06/2016. SD/- SD/- ( ASHWANI TANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ( DATED : 28/06/2016 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 # 1! ( *+ ) / THE CIT, MUMBAI. ITA NO.5037/MUM/2015 SHRI RANJEET BEDI 5 4. 0 0 # 1! / CIT(A)- , MUMBAI 5. 3'4 .! , 0 *+& * 5 , # $ / DR, ITAT, MUMBAI 6. 6$ / GUARD FILE. / BY ORDER, /3+! .! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI