DR BADAR TAYEBBHAI MASKATI, MUMBAI V. ITO 11(2)(2), MUMBAI

ITA 5662/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2073 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Additional evidence
• Section: 147

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SANJAY ARORA , A M ./ I.T.A. NO. 5662/MUM/2014 ( / ASSESS MENT YEAR: 2005 - 06 ) DR. BADAR TAYEBBHAI MASKATI 1 ST FLOOR, HARISHANKAR LODGE, 23 KARVE MARG, CHARNI ROAD, MUMBAI - 400 004 / VS. ITO - 11(2)(2), MUMBAI ./ ./ PAN/GIR NO. AAHPM 6009 L ( / APPELLANT ) : ( / R ESPONDENT ) / APPELLANT BY : SHRI DEEPAK TRALSHAWALA / RESPONDENT BY : SHRI B. S. BIST / DATE OF HEARING : 17.11.2015 / DATE OF PRONOUNCEMENT : 11 .1 2 .2015 / O R D E R PER SA NJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 , MUMBAI (CIT(A) FOR SHORT) DATED 23.06.2014 , PARTLY ALLOWING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2005 - 06 VIDE ORDER DATED 08.2.2013 . 2 ITA NO. 5662/MUM/2014 (A.Y. 2005 - 06) DR. BADAR TAYEBBHAI MASKATI VS. ITO 2. THE FACTS IN BRIEF IN RELATION TO THE FIRST AND THE PRINCIPAL GROUND OF THE APPEAL ARE THAT THE ASSESSMENT IN THE INSTANT CASE WAS REOPENED U/S. 147 OF THE ACT ON THE BASIS OF DEPOSITS MADE DURING THE RELEVANT PREVIOUS YEAR ( F . Y . 2004 - 05) IN THE ASSESSEES BANK ACCOUNT WITH BANK OF BARODA, ALTAMOUNT ROAD, MUMBAI FOR RS.6,35,088/ - , BESIDES INTEREST CREDITED TO THE ACCOUNT (RS. 26,427), WHICH B ANK ACCOUNT AND, ACCORDINGLY , RECEIPTS WERE NOT DISCLOSED IN THE ASSESSEES RETURN FOR THE YEAR, FILED ON 25.10.2005 (AT AN INCOME OF RS. 3,81,610 / - ) , OR IN THE BALANCE SHEET ACCOMPANYING THE SAME. THE ASSESSEE EXPLAINED THE SAID DEPOSITS AS BEING BY WAY O F RENT RECEIPT IN RESPECT OF A PROPERTY MASKATI HOUSE, SITUATE AT THE CORNER OF ALTAMOUNT ROAD AND KEMP CORNER, MUMBAI, 400 006, JOINTLY OWNED BY HIM AND HIS SON, DR. QURESH BADAR MASKATI. THE SAME WAS NOT ACCEPTED IN THE ABSENCE OF SUBSTANTIATION OF HIS CLAIMS, AND WAS ACCORDINGLY BROUGHT TO TAX AS INCOME BY WAY OF UNEXPLAINED DEPOSITS U/S . 69A. IN APPEAL, THE ASSESSEE, WHO DID NOT CONTEST THE ASSESSMENT OF INTEREST INCOME OF RS. 26,427, DID NOT FIND FAVOUR WITH THE LD. CIT(A) FOR THE SAME REASON; THE AS SESSEE HAVING IN FACT RETURNED INCOME FROM MASKATI HOUSE AT RS. 5,170/ - . THE ADDITION U/S. 69A WAS CONFIRMED IN PRINCIPLE. HOWEVER, AS THE BANK AC COUNT UNDER REFERENCE WAS A JOINT BANK ACCOUNT, I.E., ALONG WITH ASSESSEES SON AND WIFE, 50% OF THE DEPOSITS ONLY COULD BE ASSESSED AS HIS INCOME, AND WAS ACCORDINGLY ALLOWED PART RELIEF. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 3. THE PARTIES WERE HEARD, AND THE MATERIAL ON RECORD PERUSED. I AM UNABLE TO APPRECIATE THE REVENUES STAND. IT NOTES THAT INCOME FROM MASKATI HOUSE HAS ALREADY BEEN DECLARED BY THE ASSESSEE AT RS. 5,170/ - (REFER PARA 1.4 OF THE IMPUGNED ORDER). THE SAME STANDS ACCEPTED AS SUCH . THE ASSESSEES PLEA OF THE BANK DEPOSITS FOR RS. 6.35 LAKHS (INCLUDING CASH DEPOSIT/S FOR RS. 13,300/ - ) AS BEING RENTAL INCOME FROM THE SAID PROPERTY, COULD NOT THEREFORE BE ACCEPTED. AT THE SAME TIME, THE ASSESSEES CONTENTION OF HAVING PAID MUNCIPAL TAXES IN RESPECT OF THE 3 ITA NO. 5662/MUM/2014 (A.Y. 2005 - 06) DR. BADAR TAYEBBHAI MASKATI VS. ITO SAID PROPERTY IS REJECTED ON THE BASIS THAT THE SAME IS NOT IN THE ASSESSEES NAME ( REFER PARA 1.6 OF THE IMPUGNED ORDER). THIS IS CERTAINLY DICHOTOMOUS . ALSO, HOW COULD MUNICIPAL TAXES BE AT RS. 3.74 LAKHS IN RESPECT OF A PROPERTY WITH A RATEABLE VALUE OF RS. 5,170/ - , STATED TO BE RETURNED BY THE ASSESSEE , AND ASSESSED AS SUCH ? FURTHER, THE LD. AR, DURING HEARING, ON BEING QUESTIONED AS TO WHY THE ASSESSEE DID NOT ADDUCE ANY MATERIAL TOWARD HI S TITLE TO THE SUBJECT PROPERTY, WHICH HE CLAIMS OWNING JOINTLY WITH HIS SON, WOULD ADVERT TO PAGES 37 52 AND PAGES 112 113 OF THE ASSESSEES PA PER - B OOK (CONTAINING 121 PAGES). THE FIRST SET OF DOCUMENTS IS T HE PURCHASE AGREEMENT DATED 29. 3.1978, DULY STAMPED, MENTIONING THE NAMES OF THE ASSESSEE AND HIS SON AS PURCHASERS. THE LATTER SET, PRODUCED BEFORE THE LD. CIT(A) FOR THE FIRST TIME, IS AN AP PLICATION TO BMC FOR THE TRANSFER OF PROPERTY IN THE NAME OF THE PURCHASERS, THE ASSESEE AND HIS SON. THOUGH THE SAME IS NOT SIGNED BY THE VENDORS, AS REQUIRED, PAGE 121 OF THE PAPER - BOOK IS A COPY OF THE LETTER DATED 25.11.2013 BY B RIHANMUMBAI MAHANAGAR P ALIKA , ACKNOWLEDGING THE RECEIPT OF AN APPLICATION DATED 24.09.2013 BY THE ASSESSEE AND HIS SON, I.E., THE PURCHASERS, FOR TRANSFER OF THE SUBJECT PROPERTY, WHICH IS STATED TO BE UNDER PROCESS. THE RENT RECEIPTS ARE ONLY IN THE NAMES OF THE CO - OWNERS , THE ASSESSEE AND HIS SON (PB PGS .55 - 80), WITH THE ADVICES OF RENT RECEIPT THROUGH THE RENT FORMING CONTRACTOR BEING ALSO IN THEIR NAMES AS OWNERS (PB PGS. 7 - 28). THE MUNICIPAL TAX BILLS (PB PGS.82 - 85) ARE AGAIN EXPLAINED TO BE IN THE NAME OF THE PREVIOUS O WNER S , I.E., FROM WHOM THE V ENDORS (AS PER PURCHASE AGREEMENT DATED 29.03.1978) ACQUIRED THE PROPERTY, AND WHOSE NAMES ARE ALSO STATED IN THE MUNCIPAL TAX BILL FOR F.Y . 2008 - 09 (PB PG. 85), WHICH IS THOUGH IN THE NAME OF THE ASSESSEES WIFE AN ASPECT WHICH H AS NOT BEEN EXPLAINED BY THE ASSESSEE. THE OTHER CO - OWNER, I.E., THE ASSESSEES SON, HAS ALSO ADMITTED HIS SHARE IN THE INCOME FROM THE SAID PROPERTY FOR A.Y. 2005 - 06 (PB PGS. 115 - 117). THE LD. CIT(A) HAS MADE NO REFERENCE TO THESE EVIDENCES, INCLUDING THOSE ADDUCE D BEFORE HIM FOR THE FIRST TIME (PB PAGE 88 ONWARDS), ONLY RELYING ON THE DECISION BY HIS PREDECESSOR FOR A.Y. 2009 - 10. THE TRIBUNAL, PER ITS DIVISION BENCH 4 ITA NO. 5662/MUM/2014 (A.Y. 2005 - 06) DR. BADAR TAYEBBHAI MASKATI VS. ITO ORDER FOR THAT YEAR (ITA NO. 1 464/MUM/2013 DATED 25.11.2014/ COPY ON RECORD) HAS, UNDER SIMILAR CIRCUMSTANCES (NOTED AT PARA 6 OF ITS ORDER), DIRECTED ADMISSION OF ADDITIONAL EVIDENCES, RESTORING THE MATTER BACK TO THE FILE OF THE AO. TO ENABLE CONSISTENCY, AS ALSO RESPECTFULLY FOLLOWING THE DECISION BY THE DIVISION BENCH, THE MATTER IS REST ORED BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW PER A SPEAKING ORDER, ISSUING DEFINITE FINDINGS OF FACT. I DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEM BER 11 , 201 5 (S ANJAY ARORA) / A CCOUNTANT MEMBER MUMBAI ; DATED : 11 . 12 .201 5 LUBANA & ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI