VINOD RIKHABCHAND KOTHARI, MUMBAI V. ASST CIT 14(1), MUMBAI

ITA 641/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3617 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 14-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 27-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MUKUNDRAJ M CHATE
• Assessee Lawyers: JITENDRA S SANGHVI
• Keywords: Cost of acquisition; Corroborative evidences
• Section: 142(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, F MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.641/MUM/2014 ASSESSMENT YEAR: 2010-11 SHRI VINOD RIHABCHAND KOTHARI, 15/16, LATA KUNJ, ZAOVABA WADI, THAKURDWAR ROAD, MUMBAI-400002 / VS. ACIT-14(1), 202, 2 ND FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI ( #$% & /ASSESSEE) ( ' / REVENUE) PAN. NO. AACPK4247R ( ') * & + / DATE OF HEARING : 08/03/2016 * & + / DATE OF ORDER: 11/03/2016 #$% & ! / ASSESSEE BY SHRI JITENDRA S SANGHVI ' ! / REVENUE BY SHRI MUKUNDRAJ M. CHATE ITA NO.641/MUM/2014 VINOD RIKHABCHAND KOTHARI 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 02/12/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ASSESSEE IS AGGRIEVED BY THE CONFIRMATION OF DISALL OWANCE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WITHOU T APPRECIATING THAT THERE WAS NO LEGAL LIABILITY OF T HE ASSESSEE TO PRODUCE ORIGINAL BILLS FOR IMPROVEMENT COST, BANK S TATEMENT AND BOOKS OF ACCOUNTS OF A.YS 1997-98, 1998-99 AND 1999- 2000 AS THE SAME WAS TIME BARRED. 2. DURING HEARING SHRI JITENDRA S. SANGHVI, AUTHORI ZED REPRESENTATIVE OF THE ASSESSEE ADVANCED ARGUMENTS W HICH ARE IDENTICAL TO THE GROUND RAISED BY CONTENDING THAT P HOTOCOPY OF THE BILLS EVIDENCING EXPENSES FOR COST OF IMPROVEME NT WERE DULY FURNISHED BEFORE THE ASSESSING OFFICER AND THE ASSESSEE WAS NOT LEGALLY DUTY BOUND TO PRODUCE THE ORIGINAL BILLS. IT WAS CONTENDED THAT IT IS THE DUTY OF THE ASSESSING OFFICER TO PROVE THAT COST OF IMPROVEMENT WAS NOT INCURRED BY THE ASSESSEE. ON THE OTHER HAND, THE LD. DR, SHRI MUKU NDRAJ M. CHATE DEFENDED THE CONCLUSION ARRIVED AT IN THE IMP UGNED ORDER BY CONTENDING THAT IN SPITE OF PROVIDING OPPO RTUNITIES TO THE ASSESSEE, ORIGINAL BILLS WERE NEVER PRODUCED. IT WAS THE DUTY OF THE ASSESSEE TO SUBSTANTIATE ITS CLAIM WITH DOCUMENTARY EVIDENCE. ITA NO.641/MUM/2014 VINOD RIKHABCHAND KOTHARI 3 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRI EF ARE THAT THE ASSESSEE DECLARED INCOME OF RS.41,41,830/- IN HIS R ETURN FILED ON 31.3.2012. THE CASE WAS SELECTED FOR SCRUTINY, THEREFORE NOTICE U/S. 143(2) DT. 1.8.2012 WAS SERVED UPON THE ASSESSEE. ANOTHER NOTICE DT. 11.10.2012 U/S. 142(1) ALONGWITH QUESTIONNAIRE WAS ALSO SERVED UPON THE ASSESSEE. T HE ITP, MR. SANGHVI ATTENDED THE PROCEEDINGS. THE ASSESSEE SOLD THREE PLOTS OF LAND THROUGH A SINGLE SALE AGREEMENT DT. 25.9.2009 ON A SALE CONSIDERATION OF RS. 1,05,37,60 0/- AND OFFERED RS. 35,62,788/- AS LONG TERM CAPITAL GAIN A FTER INDEXATION. THE ASSESSEE WORKED OUT THE LONG TERM CAPITAL GAIN AFTER REDUCING THE SALE PROCEEDS, COST OF SELL ING, COST OF ACQUISITION AND COST OF IMPROVEMENT. THE ASSESSEE C LAIMED RS.27,75,000/- AS COST OF IMPROVEMENT. THE ASSESSE E WAS ASKED TO FURNISH THE EVIDENCE WITH RESPECT TO COST OF IMPROVEMENT. THE ASSESSEE PRODUCED PHOTOCOPIES OF 3 0 BILLS FROM DIFFERENT PARTIES. THE ASSESSEE WAS ASKED TO PRODUCE THE ORIGINAL BILLS AND DETAILS OF PAYMENTS REFLECTED IN THE BANK ACCOUNT WITH RESPECT TO PAYMENT TO THE CONCERNED PA RTIES. THE ASSESSEE SHOWED ITS INABILITY TO PRODUCE THE OR IGINAL BILLS AND ALSO THE BANK STATEMENT REFLECTING PAYMENT DETA ILS VIDE LETTER DT. 15.2.2013. IDENTICAL IS THE SITUATION B EFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE BENCH WH ILE HEARING THE ASSESSEE ASKED THE ASSESSEE EVEN IF THE ORIGINAL BILLS ARE NOT PRODUCED WHETHER THE ASSESSEE IS IN A POSITION TO PRODUCE THE PARTIES TO WHOM PAYMENTS WERE MADE. TH E ASSESSEE SPECIFICALLY SAID NO. IN SUCH A SITUATI ON IT IS ITA NO.641/MUM/2014 VINOD RIKHABCHAND KOTHARI 4 EVIDENTLY CLEAR THAT THE ORIGINAL BILLS WERE NEVER PRODUCED BY THE ASSESSEE RIGHT FROM ASSESSMENT STAGE AND TILL T HE STAGE OF THIS TRIBUNAL MEANING THEREBY EITHER THE ASSESSEE I S HIDING SOMETHING OR HAVING NO PROOF OF PAYMENT. OUR OBSER VATION IS FURTHER FORTIFIED BY THE FACT THAT THIS BENCH FURTH ER PROVIDED OPPORTUNITY TO THE ASSESSEE THAT THE PARTIES TO WHO M THE PAYMENTS WERE MADE CAN BE PRODUCED BEFORE THE ASSES SING OFFICER, THE ASSESSEE REPLIED IN NEGATIVE. THUS, I T IS CLEAR THAT THERE IS NO PROOF WITH THE ASSESSEE. IT IS ALSO OB SERVED THAT IF THE ASSESSEE CAN RETAIN PHOTOCOPIES, CERTAINLY NOTH ING PREVENTED HIM TO KEEP THE ORIGINALS OF THE BILLS BU T THAT WAS NOT DONE TO THE REASONS BEST KNOWN TO THE ASSESSEE. IN THE ABSENCE OF ANY SUPPORTING EVIDENCE LIKE ORIGINAL BI LLS, BANK STATEMENT, NON-PRODUCTION OF PARTIES, THE DISALLOWA NCE WAS RIGHTLY MADE. WE AFFIRM THE STAND OF THE LD. COMMI SSIONER OF INCOME TAX (APPEALS) RESULTING INTO DISMISSAL OF AP PEAL OF THE ASSESSEE. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 08/03/2016. SD/- SD/- ( JASON P. BOAZ ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER ( ) MUMBAI; , DATED : 11/03/2016 F{X~{T? P.S/. .. ITA NO.641/MUM/2014 VINOD RIKHABCHAND KOTHARI 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./ / THE APPELLANT (RESPECTIVE ASSESSEE) 2. 01./ / THE RESPONDENT. 3. 2 2 ( 3& ( - ) / THE CIT, MUMBAI. 4. 2 2 ( 3& / CIT(A)- , MUMBAI, 5. 5'6 0&# , 2 -+ -# 7 , ( ) / DR, ITAT, MUMBAI 6. 8$ ) / GUARD FILE. ! / BY ORDER, 15& 0& //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , ( ) / ITAT, MUMBAI