NASREEN AZAM KHAN, MUMBAI V. DCIT CEN CIR 38, MUMBAI

ITA 6168/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8627 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 12-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURINDER JIT SINGH
• Keywords: Unexplained investment; Unexplained expenditure; Depreciation
• Section: 69C; 69

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . . , . BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND , SHRI RAJENDRA, ACCOUNTANT MEMBER I.TA. NO. 6168/MUM/2010 ASSESSMENT YEAR 2004-05 I.TA. NO. 6170/MUM/2010 ASSESSMENT YEAR 2006-07 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 2947 P VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-38, MUMBAI. ( / APPELLANT ) ( !' / RESPONDENT ) # / APPELLANT BY : SHRI VIMAL PUNMIYA !' $ # / RESPONDENT BY : SHRI SURINDER JIT SINGH % $ &' / DATE OF HEARING : 28-09-2012 ()* $ &' / DATE OF PRONOUNCEMENT : 10-10-2012 + / O R D E R PER RAJENDRA, AM THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE CONSOLIDATED ORDER DT. 18-06-2010 OF THE CIT(A)-41, MUMBAI RELATING TO ASSESSMENT YEARS 2004-05 & 2006-07. FOR THE SAKE OF CONVENIE NCE, BOTH THE APPEALS ARE BEING ADJUDICATED UPON TOGETHER BY THIS COMMON ORDER. IN BOTH THESE APPEALS, ASSESSEE HAD TAKEN IDENTICAL GROUNDS CHALLENGING THE ORDER OF TH E FIRST APPELLATE AUTHORITY (FAA) IN NOT ADMITTING THE APPEAL FILED BY HER FOR NON-PA YMENT OF THE SELF-ASSESSMENT TAX. THERE ARE OTHER GROUNDS OF APPEAL ALSO FOR BOTH THE ASSESSMENT YEARS. GROUNDS OF APPEAL (A.Y. 2004-05) 1. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN NOT ADMITTING THE APPEAL FILED BY THE ASSESSEE AS ASSESSEE HAS NOT PAID SELF ASSESSMENT T AX. I.TA. NO. 6168/MUM/2010 I.TA. NO. 6170/MUM/2010 MRS. NASREEN AZAM KHAN, 2 2. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,00,000/- AND TREATED THE SAME AS UNEXPLAINED EXPENDITURE U/S . 69C OF THE INCOME TAX ACT, 1961. 3. THE ASSESSEE HAS MADE GENUINE PAYMENT OF RS. 1,0 0,000/- TOWARDS THE FLAT AT ROYAL GATE, VERSOVA VIDE CHEQUE DATED 23-07-2003 OF UCO BANK. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING AND TREATING THE AFORESAID PAYMENT OF RS. 1,00,000/- TOWARDS THE FLAT AT ROYAL GATE, VERSOVA AS UNEXPLAINED INVESTMENT U/ S. 69 OF THE INCOME TAX ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 4. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE PENALTY INITIATED U/S. 271(1)( C ) OF THE INCOME TAX ACT, 1961. 5. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING INTEREST U/S. 234A, 234B, 234C & 234D OF THE INCOME TAX ACT, 1961. 6. THE APPELLANT CRAVES LEAVE TO ADD FURTHER GROUND S OR TO AMEND OR ALTER THE EXISTING GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. GROUNDS OF APPEAL (A.Y. 2006-07) 1. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN NOT ADMITTING THE APPEAL FILED BY THE ASSESSEE AS ASSESSEE HAS NOT PAID SELF ASSESSMENT T AX. 2. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,00,000/- AND TREATED THE SAME AS UNEXPLAINED EXPENDITURE U/S . 69C OF THE INCOME TAX ACT, 1961. 3. THE ASSESSEE HAS CLAIMED THE FOLLOWING EXPENSES : - 1. TELEPHONE EXPENSES RS. 37,061/- 2. INSURANCE CHARGES- VEHICLE RS. 1,11,070/- 3. INTEREST ON CAR LOAN RS. 1,36,935/- 4. DEPRECIATION ON CAR RS. 4,58,4 71/- -------------------- RS. 7,43,537/- -------------------- THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CON FIRMING THE DISALLOWANCE @ 20% OF RS. 1,48,707/- AND ADDED THE SAME TO THE TOTAL INCOME O F THE ASSESSEE ALLEGING THE SAME FOR NON- BUSINESS PURPOSE. 4. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE PENALTY INITIATED U/S. 271(1)( C ) OF THE INCOME TAX ACT, 1961. 5. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING INTEREST U/S. 234A, 234B, 234C & 234D OF THE INCOME TAX ACT, 1961. 6. THE APPELLANT CRAVES LEAVE TO ADD FURTHER GROUND S OR TO AMEND OR ALTER THE EXISTING GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 2. ASSESSEE, AN INDIVIDUAL, FILED HER RETURN OF INCOME FOR BOTH THE ASSESSMENT YEARS (AYS) ON 29-08-2008 DECLARING TOTAL INCOME OF RS. 4 .09 LAKHS AND 15.41 LAKHS RESPECTIVELY. ASSESSMENT FOR BOTH THE AYS WAS COMP LETED ON 31-12-2009 DETERMINING TOTAL INCOME AT RS. 6,09,830/- & RS. 17 ,90,180/- RESPECTIVELY. TAX PAYABLE FOR THE AY 2004-05 WAS RS. 1.97 LAKHS, WHER EAS FOR THE AY 2006-07 IT WAS RS. 4.86 LAKHS, AS PER THE ASSESSEE. 2.1 ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY (FAA). AS THE I.TA. NO. 6168/MUM/2010 I.TA. NO. 6170/MUM/2010 MRS. NASREEN AZAM KHAN, 3 SELF-ASSESSMENT TAX WAS NOT PAID BY THE ASSESSEE, F AA DISMISSED THE APPEAL FILED BY HER INVOKING THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT. 3. BEFORE US, AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT TAXES WERE NOT PAID BEFORE FILING THE RETURN OR FILING OF THE APPEAL BE FORE THE FAA, THAT TAXES FOR BOTH THE YEARS WERE PAID ON 27-11-2010,THAT APPEALS FILED BY THE ASSESSEE FOR THE EARLIER AYS WERE ALLOWED BY THE TRIBUNAL, THAT MATTERS WERE RES TORED BACK TO THE FILE OF THE FAA , THAT IN THE CASE OF HUSBAND OF THE ASSESSEE ALSO, I N THE SIMILAR CIRCUMSTANCES, MATTER WAS RESTORED BACK TO FAA. DEPARTMENTAL REPRESENTATI VE (DR) RELIED UPON THE ORDERS OF THE FAA. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE AND HER HUSBAND SHRI AZAM KHAN. IT IS FOUND THAT TRIBUNAL VIDE ITS ORDER DT. 10-11-2010 FOR THE AYS 2002-03 & 2003-04 (ITA NO. 6166 & 67/M/2010) HAS SET ASIDE THE MATTER TO FAA. OBSE RVATIONS OF THE TRIBUNAL ARE AS UNDER: 5.I HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO GONE THROUGH THE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. ADMITTEDLY, DUE TO NON PAYMENT OF SELF ASSESSMENT T AX ON THE BASIS OF RETURNED INCOME AS PER SEC. 249(4)(A), OF THE ACT, THE CIT(A) DISMI SSED THE APPEAL IN LIMINE. HOWEVER, THE ASSESSEE IN THE MEANTIME HAS PAID THE ADMITTED TAX ON THE BASIS OF INCOME RETURNED BY HER, WHICH IS EVIDENT FROM THE C OPY OF THE CHALLANS PLACED IN THE PAPER BOOK. I, THEREFORE, DEEM IT PROPER TO RESTOR E THIS ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADMIT THE APPEAL AND DEC IDE THE ISSUE ON MERIT. NEEDLESS TO SAY, THE CIT(A) SHALL GIVE DUE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. I HOLD AND DIRECT ACC ORDINGLY. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. SIMILARLY, IN ASSESSEES OWN CASE FOR THE AY 2005-0 6 & 2007-08,TRIBUNAL VIDE ITS ORDER NO. 5821 & 22/M/2010 DT. 14-10-2011 HAD RESTO RED BACK THE ISSUE TO THE FILE OF THE FAA. RELEVANT PARAGRAPH OF THE SAID ORDER OF T HE TRIBUNAL READ AS UNDER: 3.DURING THE COURSE OF HEARING, LD. AR SUBMITTED T HAT IDENTICAL ISSUE IN ASSESSEES OWN CASE HAD BEEN CONSIDERED BY MUMBAI TRIBUNAL VID E 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 THIS ISSUE BACK TO THE FILE O F LD. CIT(A) WITH A DIRECTION TO ADMIT THE APPEAL AND DECIDE THE ISSUE ON MERIT AFTER GIVI NG DUE OPPORTUNITY OF HEARING. THE LD. AR FILED A COPY OF SAID ORDER OF TRIBUNAL TO SU BSTANTIATE HIS SUBMISSION. HE SUBMITTED THAT IN RESPECT OF BOTH ASSESSMENT YEARS UNDER CONSIDERATION, ASSESSEE HAS PAID SELF ASSESSMENT TAX ON THE BASIS OF INCOME RET URNED BY HER AND FILED COPIES OF CHALLAN TO SUBSTANTIATE HIS SUBMISSION. THE LD. DE PARTMENTAL REPRESENTATIVE SUBMITTED THAT THE HAS NO OBJECTION TO RESTORE THE ISSUES TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME ON MERIT SUBJECT TO THE CONDITION T HAT AO COULD BE GIVEN LIBERTY TO VERIFY AS TO WHETHER ASSESSEE HAS PAID SELF ASSESSM ENT TAX AS CONTENDED BY HIM. THE LD. AR HAS NO OBJECTION IN RESPECT OF ABOVE SUBMISS ION OF LD. DR. 4. CONSIDERING THE SUBMISSION OF LD. REPRESENTATIVE S OF THE PARTIES AND ORDER OF LD. CIT(A) FOR ASSESSMENT YEARS 2005-06 AND 2007-08 AND RESPECTFULLY FOLLOWING THE EARLIER ORDER OF TRIBUNAL DT. 10 TH NOVEMBER, 2010 (SUPRA) IN ASSESSEES OWN CASE, WE I.TA. NO. 6168/MUM/2010 I.TA. NO. 6170/MUM/2010 MRS. NASREEN AZAM KHAN, 4 SET ASIDE THE ORDER OF LD. CIT(A) DT. 14 TH MAY, 2010 AND DIRECT THE LD. CIT(A) TO DECIDE THE ISSUES IN RESPECT OF THE APPEALS OF ABOV E TWO ASSESSMENT YEARS ON MERIT AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE PART IES AND CONSIDERING SUCH MATERIAL 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 NECESSARY TO ADJUDIC ATE OTHER GROUNDS TAKEN BY ASSESSEE FOR THESE TWO ASSESSMENT YEARS ON MERIT. 6. AS THE FACTS OF THE CASE UNDER CONSIDERATION ARE SAME AS THE FACTS OF OTHER AYS, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL FO R THE EARLIER YEARS, WE ALLOW GROUND NO.1 OF BOTH THE APPEALS BY SETTLING ASIDE ORDERS P ASSED BY THE FAA. MATTER IS RESTORED TO THE FILE OF THE FAA WITH A DIRECTION TO DECIDE ALL THE ISSUES ON MERITS AND ACCORDING TO LAW, AFTER GIVING DUE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. HENCE, GROUND NOS. 2 TO 5 OF BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, ASSESSEES APPEALS STAND PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2012. SD/- SD/- ( . . / B.R. MITTAL ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI, ,% DATE: 10 TH OCTOBER, 2012 TNMM + + + + $ $$ $ !&- !&- !&- !&- .-*& .-*& .-*& .-*& / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR B BENCH, ITAT, MUMBAI 6. GUARD FILE '-& !& //TRUE COPY// +% +% +% +% / BY ORDER, / // / / 0 0 0 0 DY./ASSTT. REGISTRAR , / ITAT, MUMBAI