SAILESH MAHIMTURA, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX-12(2) (NOW ASSESSED WITH ASSISTANT COMMISSIONER OF INCOME TAX-17(3), MUMBAI

ITA 6340/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0423 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 24-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Keywords: FORM 26AS
• Section: 143(1)

Judgement Text

P A G E | 1 ITA NO. 6340/MUM/2017 A.Y. 2010 - 11 SHRI SAILESH MAHIMTURA VS. DCIT - 12(2) IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO . 6340/MUM/2017 (ASSESSMENT YEAR : 2010 - 11 ) SHRI SAILESH MAHIMTURA UNIQUE HOUSE, 25, S.A. BRELVI ROAD, FORT, MUMBAI - 400001 VS. DCIT - 12(2) (NOW ASSESSED WITH ACIT - 17(3) MUMBAI PAN AABPM4017A (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI AMIT PRATAP SINGH , D.R DATE OF HEARING: 16.12 .2019 DATE OF PRONOUNCEMENT: 1 8 .12.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 28, MUMBAI, DATED 13.06.2017, WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC.143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT ), DATED 28.03.2013. THE ASSESSEE HAS ASSAILED THE IMPUGNED ORDER ON THE FOLLOWING GROUNDS OF APPEAL BEFORE US: 1. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFF ICER ERRED IN ADDING SUM OF RS. 1,68,000/ - AS INCOME FROM HOUSE PROPERTY ON A NOTIONAL BASIS AND SUM OF RS. 1,16,500/ - ADDING TO INCOME FROM OTHER SOURCES. 2. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE ABOVE ADDITION. 2. BRIEFLY STATED, THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR A.Y. 2010 - 11 ON 26.11.2019, DECLARING HIS TOTA L INCOME AT RS.50,70,211/ - . THE RETURN OF INCOME FILED BY THE P A G E | 2 ITA NO. 6340/MUM/2017 A.Y. 2010 - 11 SHRI SAILESH MAHIMTURA VS. DCIT - 12(2) ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER SEC.143(2) OF THE ACT. 3. THE A.O WHILE FRAMING TH E ASSESSMENT INTER ALIA MADE THE FOLLOWING ADDITIONS IN THE HANDS OF THE ASSESSEE: - SR. NO. PARTICULARS AMOUNT 1. ADDITION OF NOTIONAL LETTABLE VALUE OF PROPERTY AT ROYAL PALMS (@ RS.20,000/ - PER MONTH) RS.1,68,000/ - (NET ALV) 2. ADDITION OF AMOUNTS RECEIVED BY THE ASSESSEE FROM S HRI PRADIP PARIKH (AS PER FORM 26AS) RS.12,000/ - 3. ADDITION OF AMOUNT RECEIVED BY THE ASSESSEE FROM MUNICIPAL CORPORATION (AS PER FORM 26AS) RS.1,04,500/ - AFTER INTER ALIA MAKING THE AFORESAID ADDITIONS , THE A.O ASSESSED THE INCOME OF THE ASSESSEE AT RS.55,50,400/ - . 4. ON APPEAL, CIT(A) NOT FINDING FAVOUR WITH THE CONTENTIONS ADVANCED BY THE ASSESSEE INSOFAR THE AFORESAID ADDITIONS WERE CONCERNED, THEREIN SUSTAINED THE SAME AND DISMISSED THE AP PEAL. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER PASSED BY THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT DESPITE HAVING BEEN INTIMATED ABOUT THE DATE OF HEARING OF THE APPEAL THE ASSESSEE HAD CHOSEN NOT TO PUT UP AN APPEARANCE BE FORE US. AS SUCH, WE ARE CONSTRAI NED TO PROCEED WITH AND DISPOSE OFF THE APPEAL AS PER RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963, AFTER HEARING THE RESPONDENT REVENUE AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES. 6. AS IS DISCERNIB LE FROM THE RECORDS, THE APPEAL FILED BY THE ASSESSEE INVOLVES A DELAY OF 21 DAYS. IT IS THE CLAIM OF THE ASSESSEE THAT THE DELAY IN FILING OF THE APPEAL HAD OCCASIONED, FOR THE REASON, THAT THE COUNSEL WHO WAS ENGAGED BY HIM WAS DURING THE RELEVANT POINT OF TIME ENGR OSSED WITH CERTAIN TIME BOUND COMPLIANCES UNDER THE GST ACT, AS WELL AS COMPILING OF THE TAX AUDIT REPORTS. IN SUPPORT OF HIS AFORESAID CLAIM, THE ASSESSEE HAD FILED AN AFFIDAVIT DATED 03.11.2017. ACCORDINGLY, THE ASSESSEE HAD REQUESTED THAT AS THE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL WAS ON ACCOUNT OF REASONS BEYOND HIS CONTROL, THEREFORE, THE SAME MAY BE CONDONE D . P A G E | 3 ITA NO. 6340/MUM/2017 A.Y. 2010 - 11 SHRI SAILESH MAHIMTURA VS. DCIT - 12(2) 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION AND FINDING NO REASON TO DOUBT THE CLAIM OF THE ASSESSEE THAT THE DELAY IN FILING OF T HE PRESENT APPEAL HAD OCCASIONED ON ACCOUNT OF LAPSE ON THE P ART OF HIS COUNSEL, AS HAD BEEN DEPOSED BY HIM IN HIS AFFIDAVIT, DATED 03.11.2017, THEREFORE, IN ALL FAIRNESS CONDONE THE SAME. 8. WE SHALL NOW ADVERT TO THE MERITS OF THE CASE. AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, W E FIND , THAT THE A.O IN THE COURSE OF THE ASSESSMENT PROCEEDINGS HAD OBSERVED THAT THE ASSESSEE HAD NOT ACCOUNTED FOR AN Y RENTAL INCOME IN RESPECT OF HI S PROPER TY AT R OYAL PALMS, GOREGOAN. ON BEING CON FRONTED , THE ASSESSEE HAD VIDE HIS REPLY DATED 14.03.2013 SUBMITTED BEFORE THE A.O THAT HE HAD NO OBJECTION IN CASE THE NOTIONAL LETTABLE VALUE OF THE PROPERTY WAS DETERMINED. ACCORDINGLY, THE A.O CONSIDERING THE LOCALITY OF THE PROPERTY, HAD THEREIN WORKE D OUT ITS NOTIONAL LETTABLE VALUE @ RS.20,000/ - PER MONTH. AFTER ALLOWING DEDUCTION UNDER SEC.24 OF THE A CT, THE A.O WORKED OUT THE NET ANNUAL LETTABLE V ALUE OF THE AFORESAID PROPERTY AT RS.1,68,000/ - . ON APPEAL, THE CIT(A) OBSERVED THAT THE ASSESSEE HAD A GREED TO THE WORKING OF THE NOTIONAL LETTABLE VALUE OF THE AFORESAID PROPERTY. AS REGARDS THE OTHER CONTENTIONS WHICH WERE ADVANCED BY THE ASSESSEE BEFORE THE CIT(A), THE SAME WERE REJECTED BY HIM , FOR THE REASON , THAT NO FACTUAL BASIS FOR ASSAILING THE IM PUGNED ADDITION IN SUPPORT THEREOF WERE FURNISHED BY THE ASSESSEE BEFORE HIM. 9. AS REGARDS, THE ADDITION OF RS.1,16,000/ - VIZ. (I) AMOUNT RECEIVED BY THE ASSESSEE FROM SHRI PRADIP PARIKH: RS.12,000/ - ; AND (II) AMOUNT RECEIVED BY THE ASSESSEE FROM MUNICIPAL CORPORATION: RS.1,04,500/ - , WE FIND , THAT THE SAME ARE BACKED BY THE IN FORMATION THAT WAS GATHERED BY THE A.O FROM A PERUSAL OF FORM 26AS . IN SUM AND SUBSTANCE, THE AFORESAID AMOUNTS WERE REFLECTED IN FORM 26AS AS HAVING BEEN RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE, THE A.O HAD ADDED THE AGGRE GATE OF THE AFORESAID AMOUNT OF RS.1,16,500/ - TO THE RETURNED INCOME OF THE ASSESSEE. ON APPEAL, THE CIT(A) IN THE ABSENCE OF ANY EVIDENCE PROVING TO THE CONTRARY, THEREIN CONFIRMED THE ADDITION MADE BY THE A.O. 10. THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS SUBMITTED BY THE LD. D.R THAT AS THE ASSESSEE HAD FAILED TO PLACE ON RECORD ANY DOCUMENTARY EVIDENCE WHICH COULD PROVE THAT THE AFORESAID ADDITIONS WERE NOT CALLED FOR IN P A G E | 4 ITA NO. 6340/MUM/2017 A.Y. 2010 - 11 SHRI SAILESH MAHIMTURA VS. DCIT - 12(2) HI S CASE, THEREFORE, THE CIT(A) HAD RIGHTLY CONFIRMED THE ADDITIONS. IT WAS AV ERRED BY THE LD. D.R THAT THE APPEAL OF THE ASSESSEE BEING DEVOID AND BEREFT OF ANY MERIT WAS LIABLE TO BE DISMISSED. 11. WE HAVE HEARD THE LD. D.R, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. AS IS DISCERNIBLE FROM THE ASSESSMENT ORDER , THE A SSESSEE ON BEING CALLED UPON BY THE A.O TO EXPLAIN AS TO WHY THE ANNUAL LETTABLE VALUE OF ITS PROPERTY MAY NOT BE DETERMINED AS PER SEC.23(1) OF THE ACT, HAD NOT OBJECTED TO THE SAME. ACCORDINGLY , THE A.O AFTER CONSIDERING THE LOCALITY OF THE PREMISES HAD WORKED OUT THE NOTIONAL LETTABLE VALUE OF THE PROPERTY @ RS.20,000/ - PER MONTH. AFTER ALLOWING THE STATUTORY DEDUCTION UNDER SEC. 24, THE BALANCE NET ALV OF THE PROPERTY WAS DETERMINED BY THE A.O AT RS.1,68,000/ - . WE FIND THAT NEITHER THE ASSESSEE HAD BEFORE THE LOWER AUTHORITIES, NOR BEFORE US HAD PLACED ON RECORD ANY EVIDENCE WHICH COULD PERSUADE US TO CONCLUDE THAT THE AFORESAID WORKING OF THE ALV OF THE PROPERTY UNDER SEC. 23(1) BY THE A.O WAS EITHER NOT CALLED FOR , OR WAS FOUND TO BE EXORBITANT. ACCORDINGLY, FINDING NO INFIRMITY IN THE VIEW TAKEN BY THE CIT(A), WHO HAD UPHELD THE ADDITION OF RS.1,68,000/ - MADE BY THE A.O UNDER SEC.23(1) OF THE ACT, WE UPHOLD HIS ORDER TO THE SAID EXTENT. 12. AS REGARDS, THE BALANCE ADD ITION OF RS.1,16,500/ - , WE FIND, THAT THE GENESIS OF THE SAME LIES IN THE INFORMATION WHICH WAS GATHERED BY THE A.O ON A PERUSAL OF FORM 26AS . AS PER THE FORM 26AS , THE ASSESSEE HAD RECEIVED AN AMOUNT AGGREGAT ING TO RS.1,16,500/ - VIZ. (I) AMOUNT RECEIV ED FROM SHRI PRADIP PARIKH: RS.12,000/ - ; AND (II ) AMOUNT RECEIVED FROM MUNICIPAL CORPORATION : RS.1,04,500/ - . AS THE ASSESSEE HAD FAILED TO EXPLAIN AS TO WHY THE AFORESAID AMOUNT SO RECEIVED BY HIM W AS NOT LIABLE TO BE ASSESSED AS HIS INCOME, THEREFORE, TH E LOWER AUTHORITIES HAD ADDED THE SAME TO HIS RETURNED INCOME. BEFORE US, THE FACTUAL POSITION REMAINS THE SAME , AND NEITHER ANY EXPLANATION NOR ANY MATERIAL HAS BEEN FILED WHICH WOULD EVIDENCE THAT THE AFOR ESAID AMOUNT OR ANY PART THEREOF WAS NOT LIABLE T O BE ASSESSED AS THE INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. IN THE BACKDROP OF THE AFORESAID FACTS , WE ARE CONSTRAINED TO SUSTAIN THE ADDITION OF RS.1,16,500/ - AS HAD BEEN UPHELD BY THE CIT(A). 13. THE GROUND OF APPEAL NO. 1 IS DISMISSED. P A G E | 5 ITA NO. 6340/MUM/2017 A.Y. 2010 - 11 SHRI SAILESH MAHIMTURA VS. DCIT - 12(2) 14. THE GROUND OF APPEAL NO. 2 BEING GENERAL IN NATURE IS DISMISSED AS NOT PRESSED. 15. THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 1 8 . 12.2019 S D / - S D / - ( RAJESH KUMAR ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 18 .12 .2019 PS. ROHIT / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI