NASREEN AZAM KHAN, MUMBAI V. DCIT CC 38, MUMBAI

ITA 5822/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55513 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 19-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVIN VARMA
• Assessee Lawyers: VIMAL PURMIYA
• Section: 69C; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI R.K. PANDA (ACCOUNTANT MEMBER) ITA NOS. 5821 & 5822/MUM/2010 ASSESSMENT YEARS- 2005-06 & 2007-08 A N D ITA NO. 3515/MUM/2011 ASSESSMENT YEAR 2008-09 MRS. NASREEN AZAM KHAN, FLAT NO. 171, WINDERMERE CO.OP.HSG. SOC. LTD., A-1, OFF, NEW LINK ROAD, NEAR OSHIWARA POLICE STATION, ANDHERI (W), MUMBAI-400 053 PAN-AAPPK 2947P VS. THE DCIT, C.C.-38, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VIMAL PURMIYA RESPONDENT BY: SHRI PRAVIN VARMA DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT: 14.10.2011 O R D E R PER B.R. MITTAL, JM : THE ASSESSEE HAS FILED THESE THREE APPEALS FOR ASS ESSMENT YEARS 2005- 06 & 2007-08 AGAINST COMMON ORDER OF LD. CIT(A) DT. 14 TH MAY, 2010 AND APPEAL FOR ASSESSMENT YEAR 2008-09 AGAINST ORDER OF LD. CIT(A) DT. 2.3.2011. MRS. NASREEN AZAM KHAN ITA NOS. 5521 & 22/M/10 & ITA NO. 3515/M/2011 2 2. IN RESPECT OF APPEALS FOR ASSESSMENT YEARS 2005-0 6 AND 2007-08, ONE OF THE GROUND TAKEN BY ASSESSEE IS THAT LD. CIT(A) ERRED IN NOT ADMITTING THE APPEAL FILED BY ASSESSEE AS ASSESSEE HAS NOT PAID S ELF ASSESSMENT TAX. 3. DURING THE COURSE OF HEARING, LD. AR SUBMITTED T HAT IDENTICAL ISSUE IN ASSESSEES OWN CASE HAD BEEN CONSIDERED BY MUMBAI T RIBUNAL VIDE ITS ORDER DT. 10 TH NOVEMBER, 2010 IN ITA NOS. 6166 & 6167/M/2010 FOR ASSESSMENT YEARS 2002-03 & 2003-04 AND THE TRIBUNAL RESTORED T HIS ISSUE BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO ADMIT THE APPEAL AND DECIDE THE ISSUE ON MERIT AFTER GIVING DUE OPPORTUNITY OF HEARING. THE LD. AR FILED A COPY OF SAID ORDER OF TRIBUNAL TO SUBSTANTIATE HIS SUBMISSION. HE SUBMITTED THAT IN RESPECT OF BOTH ASSESSMENT YEARS UNDER CONSIDERATION, ASSE SSEE HAS PAID SELF ASSESSMENT TAX ON THE BASIS OF INCOME RETURNED BY H ER AND FILED COPIES OF CHALLAN TO SUBSTANTIATE HIS SUBMISSION. THE LD. DE PARTMENTAL REPRESENTATIVE SUBMITTED THAT HE HAS NO OBJECTION TO RESTORE THE I SSUES TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME ON MERIT SUBJECT TO THE C ONDITION THAT AO COULD BE GIVEN LIBERTY TO VERIFY AS TO WHETHER ASSESSEE HAS PAID SELF ASSESSMENT TAX AS CONTENDED BY HIM. THE LD. AR HAS NO OBJECTION IN R ESPECT OF ABOVE SUBMISSION OF LD. DR. 4. CONSIDERING THE SUBMISSIONS OF LD. REPRESENTATIV ES OF THE PARTIES AND ORDER OF LD. CIT(A) FOR ASSESSMENT YEARS 2005-06 AN D 2007-08 AND RESPECTFULLY FOLLOWING THE EARLIER ORDER OF TRIBUNA L DT. 10 TH NOVEMBER, 2010 (SUPRA) IN ASSESSEES OWN CASE, WE SET ASIDE THE OR DER OF LD. CIT(A) DT. 14 TH MAY, 2010 AND DIRECT THE LD. CIT(A) TO DECIDE THE I SSUES IN RESPECT OF THE APPEALS OF ABOVE TWO ASSESSMENT YEARS ON MERIT AFTE R GIVING DUE OPPORTUNITY OF HEARING TO THE PARTIES AND CONSIDERING SUCH MATE RIAL MAY BE RELIED UPON. 5. SINCE WE HAVE SET ASIDE THE ORDERS OF LD. CIT(A) FOR ASSESSMENT YEARS 2005-06 AND 2007-08, WE DO NOT CONSIDER IT NECESSAR Y TO ADJUDICATE OTHER GROUNDS TAKEN BY ASSESSEE FOR THESE TWO ASSESSMENT YEARS ON MERIT. MRS. NASREEN AZAM KHAN ITA NOS. 5521 & 22/M/10 & ITA NO. 3515/M/2011 3 6. IN RESPECT OF APPEAL FOR ASSESSMENT YEAR 2008-09, LD. AR AT THE TIME OF HEARING MADE SAME SUBMISSION AS MADE FOR THE AB OVE TWO ASSESSMENT YEARS I.E. ASSESSMENT YEAR 2005-06 AND 2007-08. HE PRAYED THAT THE ISSUES IN RESPECT OF THIS APPEAL FOR ASSESSMENT YEAR 2008- 09 HAS ALSO BE RESTORED TO LD. CIT(A) FOLLOWING THE EARLIER ORDER OF TRIBUNAL DT. 10 TH NOVEMBER, 2010 (SUPRA) AS FACT AND ISSUE ARE IDENTICAL. 7. HOWEVER, ON PERUSAL OF GROUNDS OF APPEAL AND THE ORDER OF LD. CIT(A), WE DO NOT FIND THAT THE ABOVE CONTENTION OF ASSESSE E IS FACTUALLY CORRECT. THAT GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2008-09 ARE AS UNDER: 1. THE LD. CIT(A) ERRED IN CONFIRMING MAKING AN AD DITION OF RS. 70,07,795/- BEING JEWELLERY SEIZED AS UNEXPLAIN ED INVESTMENT OF THE ASSESSEE IN VIEW OF SECTION 69 OF THE INCOME TAX ACT, 1961 AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 2. THE LD. CIT(A) ERRED IN CONFIRMING AN ADHOC ADD ITIO9N OF RS. 1,00,000/- TOWARDS ALLEGED DRAWINGS FOR VARIOUS EXPENSES U/S. 69C OF THE I.T. ACT, 1961. 8. FURTHER WE OBSERVE THAT LD. CIT(A) VIDE ITS ORDE R DT. 2 ND MARCH, 2011 HAS NOT DISMISSED THE APPEAL OF THE ASSESSEE ON ACC OUNT OF NON-PAYMENT OF SELF ASSESSMENT TAX BUT HAS PASSED A REASONED ORDER IN CONFIRMING THE ADDITIONS MADE BY AO. SINCE LD. AR HAS NOT MADE AN Y SUBMISSION AT THE TIME OF HEARING OF APPEAL FOR ASSESSMENT YEAR 2008- 09 DISPUTING THE FINDING OF LD. CIT(A), VIDE WHICH HE HAS CONFIRMED THE ADDI TIONS MADE BY AO, WE DO NOT FIND ANY REASON TO INTERFERE WITH HIS ORDER. A CCORDINGLY WE UPHOLD THE ORDER OF LD. CIT(A) AND REJECT THE GROUNDS OF APPEA L TAKEN BY ASSESSEE FOR ASSESSMENT YEAR 2008-09. 9. IT IS RELEVANT TO STATE THAT IT IS A STAY GRANTED MATTER AND TRIBUNAL WHILE GRANTING STAY VIDE ITS ORDER DT. 15 TH JULY, 2011 FOR ALL THE THREE ASSESSMENT YEARS UNDER CONSIDERATION DIRECTED THE ASSESSEE TO MAKE PAYMENT OF RS. 30 LAKHS IN THREE EQUAL INSTALLMENTS OF RS.10,00,000/- EACH ON OR BEFORE 31 ST MRS. NASREEN AZAM KHAN ITA NOS. 5521 & 22/M/10 & ITA NO. 3515/M/2011 4 JULY, 2011, 31 ST AUGUST, 2011 AND 30 TH SEPTEMBER, 2011 RESPECTIVELY WITH THE DIRECTION TO THE REGISTRY TO FIX THESE APPEALS FOR HEARING ON 11 TH OCTOBER, 2011 ON RECEIPT OF EVIDENCE OF PAYMENT OF THE ABOVE REFERRED AMOUNT. 10. CONSIDERING THE ABOVE FACTS, APPEAL OF THE ASSE SSEE FOR ASSESSMENT YEAR 2008-09 IS DISMISSED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESS MENT YEARS 2005-06 AND 2007-08 ARE ALLOWED FOR STATISTICAL PURPOSES AND WH EREAS ASSESSMENT YEAR 2008-09 IS DISMISSED. ORDER PRONOUNCED ON THIS 14 TH DAY OF OCTOBER, 2011 SD/- SD/- ( R.K. PANDA) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 14 TH OCTOBER, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI MRS. NASREEN AZAM KHAN ITA NOS. 5521 & 22/M/10 & ITA NO. 3515/M/2011 5 DATE INITIALS 1. DRAFT DICTATED ON: 11.10.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 12.10.2011 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: