AJAY SHIVRAM KALAN, BHIWANDI V. ITO -WARD- 1 (1), KALYAN

ITA 5965/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4040 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Assessee Lawyers: SUDHIR V HUNNARGIKAR
• Keywords: Unexplained investment; Gift; Source of fund; Reassessment proceedings
• Section: 143(3); 22; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI N.K.PRADHAN ACCOUNTANT MEMBER ITA NO.5965/MUM/2018(A.Y.2011-12) AJAY SHIVRAM KALAN, H.NO.213, BORPADA, WADA ROAD, SHELAR, BHIWANDI 421 302 PAN: AOCPK6010L ...... APPELLANT VS. INCOME TAX OFFICER , WARD 1(1), MOHAN PLAZA, NEAR PODAR SCHOOL, WAYALE NAGAR, KALYAN (WEST) 421 301 ..... RESPONDENT APPELLANT BY : SHRI SUDHIR V. HUNNARGIKAR, RESPONDENT BY : SHRI AKHTAR H. A NSARI DATE OF HEARING : 16/01/2020 DATE OF PRONOUNCEMENT : 18/02/2020 ORDER PER VIKAS AWASTHY, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-2,PUNE (IN SHOR T THE CIT(A) ) DATED 04/06/2018 FOR THE ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE IN APPEAL HAS ASSAILED THE ADDITION OF RS.14.00 LACS ON ACCOUNT OF UNEXPLAINED INVESTMENT. THE BRIEF FACTS OF THE CASE AS EMANATING 2 ITA NO.5965/MUM/2018(A.Y.2011-12) FROM RECORDS ARE: THE REASSESSMENT PROCEEDINGS WER E INITIATED AGAINST ASSESSEE BY THE ASSESSING OFFICER BASED ON INFOR MATION RECEIVED FROM ITO(INV), THANE THAT THE ASSESSEE ALONG WITH OTHER THREE PERSONS HAD PURCHASED LAND VIDE AGREEMENT DATED 12/01/2011 AT S HELAR THALUKA BHIWANDI FOR A TOTAL CONSIDERATION OF RS.34.32 LACS. NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 26/03/2015. IN REASS ESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTM ENT FOR PURCHASE OF LAND. THE ASSESSEE TRIED TO EXPLAIN THE SOURCE OF INVESTM ENT IN LAND. THE ASSESSING OFFICER DISBELIEVED THE SAME AND MADE ADDITION OF RS.10,50,000/-. FURTHER, THE ASSESSING OFFICER MADE ADDITION OF RS.3,50,000/ - IN RESPECT OF LOAN ADVANCED BY ASSESSEE TO HIS WIFE FROM UNDISCLOSED S OURCES. AGGRIEVED AGAINST THE ASSESSMENT ORDER DAED 09/03/2016 PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) TH E ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE ASSESSEE REITERATED HIS CONTENTION S BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT(A) DISMISSED THE CONTENTIONS OF THE ASSESSEE AND CONFIRMED THE ADDITIONS. HENCE, THE PRESENT APPEAL BY THE ASS ESSEE. 3. SHRI SUDHIR V. HUNNARGIKAR,APPEARING ON BEHALF O F THE ASSESSEE SUBMITTED THAT ASSESSEE HAD INVESTED IN LAND AND H AD ADVANCED LOAN TO HIS WIFE FROM THE SALE PROCEEDS RECEIVED FROM SALE OF T WO PARCELS OF AGRICULTURAL LAND. THE ASSESSEE HAD RECEIVED THE MONEY THROUGH BANKING CHANNEL DIRECTLY FROM THE PURCHASER OF LAND. ALL THE TRANSACTIONS A RE RECORDED IN THE BANK PASSBOOK. THE LD. AUTHORIZED REPRESENTATIVE FOR TH E ASSESSEE REFERRED TO THE PHOTOCOPY OF THE PASSBOOK OF SAVING BANK ACCOUNT NO .060510006040 WITH DENA BANK, NAVI CHAWL BAZAR PETH, MUMBAI. THE LD. A UTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT AMOUNT ON SALE OF LAND WAS RECEIVED BY WAY 3 ITA NO.5965/MUM/2018(A.Y.2011-12) OF CHEQUE AND THE SAME WERE DEPOSITS IN AFORESAID SAVING BANK ACCOUNT. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURT HER FURNISHED DETAILS OF THE CHEQUES THROUGH WHICH THE AMOUNTS WERE RECEIVED AND PAID. THE SAME ARE AT PAGES 22 AND 23 OF THE PAPER BOOK. THE LD. AUTHORI ZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE NOT EXAMINED THE DOCUMENTS FURNISHED BY THE ASSESSEE AND HAS MADE TH E ADDITION. 5. ON THE OTHER HAND, SHRI AKHTAR H. ANSARI, REP RESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. THE LD. DE PARTMENTAL REPRESENTATIVE SUBMITTED THAT THE AGRICULTURE LAND WHICH ASSESSEE IS REFERRING WAS SOLD WAY BACK IN THE YEAR 2008. THE LAND WAS SO LD BY ASSESSEES MOTHER. THE ASSESSEE HAS NOT PLACED ON RECORD ANY DOCUMENTA RY EVIDENCE TO SHOW THAT THE MOTHER OF THE ASSESSEE HAD GIFTED THE AMOUNT OR HAS ADVANCED THE AMOUNT AS LOAN TO THE ASSESSEE. THE LD. DEPARTMENTAL REPR ESENTATIVE PRAYED FOR CONFIRMING THE IMPUGNED ORDER AND DISMISSING THE AP PEAL OF THE ASSESSEE. 6. BOTH SIDES HEARD. ORDERS OF AUTHORITIES BELOW E XAMINED. THE SOLITARY ISSUE RAISED IN THE APPEAL IS REGARDING CONFIRMING THE ADDITION OF RS.14.00 LACS AS UNEXPLAINED INVESTMENT. THE ASSESSEE HAS PURCHA SED THE LAND AT BHIWANDI. THE ASSESSEE PURPORTEDLY SOURCE THE FUNDS FOR PURCH ASE OF LAND FROM THE SALE OF FAMILY PROPERTY IN THE NAME OF HIS MOTHER. THE CONTENTION OF THE ASSESSEE IS THAT THE SALE PROCEEDS OF THE SAID PROPERTY WERE DIRECTLY CREDITED TO THE BANK OF THE ASSESSEE IN THE SAVING BANK ACCOUNT NO.06051 0006040 WITH DENA BANK, NAVI CHAWL BAZAR PETH, MUMBAI. FURTHER, THE ASSESS EE HAS ADVANCED LOAN OF RS.3,50,000/- TO HIS WIFE. THE SOURCE OF SAID LOAN ADVANCED IS ALSO STATED TO BE THE PART OF SALE CONSIDERATION OF AGRICULTURE LAND IN THE NAME OF ASSESSEES MOTHER. APPARENTLY, THE AUTHORITIES BELOW HAS NOT EXAMINED THE BANK DETAILS 4 ITA NO.5965/MUM/2018(A.Y.2011-12) OF THE ASSESSEE BEFORE MAKING/ CONFIRMING THE ADDIT ION. THE ASSESSEE HAS FURNISHED DETAILS OF THE CHEQUES. THE SAME IS TAB ULATED BELOW:- DETAILS OF PAYMENT MADE: S.NO. DATE OF PAYMENT BANK NAME CHQ.NO. AMOUNT 1 2/12/2010 DENA BANK 849423 100000 2 01/01/2011 DENA BANK 849426 250000 3 10/01/2011 DENA BANK 849428 250000 4 11/01/2011 DENA BANK 849429 250000 5 15/01/2011 DENA BANK 849430 200000 6 31/12/2011 DENA BANK 849427 250000 7 04/02/2011 DENA BANK 849431 100000 TOTAL 140000 DETAILS OF RECEIPT AND CHEQUE DEPOSITED: S.NO. DATE NAME OF BANK CHQ.NO. AMOUNT 1 06/07/2010 DENA BANK 113750 100000 2 25/09/2010 DENA BANK 113904 100000 3 10/11/2010 DENA BANK 113992 200000 4 22/12/2010 DENA BANK 133043 250000 5 22/12/2010 DENA BANK 133044 250000 6 04/01/2011 DENA BANK 133063 300000 7 28/02/2011 DENA BANK 133275 100000 TOTAL 13,00,000 THE CONTENTION OF THE ASSESSEE IS THAT THE AFORES AID CHEQUES WERE SOURCE OF FUND FOR PURCHASE OF THE LAND. THE ASSESSEE HAS AL SO FILED COPY OF THE DENA BANK SAVING BANK ACCOUNT PASS BOOK AT PAGES 24 TO 30 0F THE PAPER BOOK. AFTER CONSIDERING THE FACTS OF THE CASE, WE DEEM IT APPROPRIATE TO RESTORE THIS 5 ITA NO.5965/MUM/2018(A.Y.2011-12) ISSUE BACK TO THE ASSESSING OFFICER FOR RE-EXAMINAT ION OF THE DOCUMENTS, PASS BOOK AND THE CHEQUES. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER AND ASSIST THE ASSESSING OFFICER IN RECONCILING THE PAYMENTS RECEIVED AND MADE THROUGH ABOVE CHEQUES FROM THE BANK ACCOUNT MENTIONED ABOVE. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE DENOVO AFTER CONSIDERING THE ABOVE EVIDENCES, IN ACCORDANCE WITH LAW. 7. THE IMPUGNED ORDER IS SET-ASIDE AND THE APPEAL O F ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE IN THE TERMS AFORESAID. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY, TH E 18 TH DAY OF FEBRUARY, 2020. SD/- SD/- (N.K.PRADHAN) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 18/02/2020 VM , SR. PS(O/S) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI