Appeal details
Counselvise Citation
[2017] 128 COUNSELVISE.COM (IT) 8466 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-01-2017
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
SMC
Assessment Year
2001-2002
Appeal Filed On
07-11-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI R P TOLANI, JUDICIAL MEMBER ITA NO.6535/MUM/2016 ASSESSMENT YEAR : 2001-02 LATE SHRI KANTILAL C KOTHAWALA BY LEGAL HEIR DR. ASHA JHAVERI A/22, TECHNOCRAFT SOCIETY, V S MARG, PRABHADEVI, MUMBAI- 400 025 PAN AABPK1498H VS. ITO 18 ( 1 )( 3 ) , MUMBAI (APPELLANT) RESPONDENT) APPELLANTS BY : SHRI JITENDRA JAIN RESPONDENT BY : MS. BEENA SANTOSH DATE OF HEARING : 3 1 .01.2017 DATE OF PRONOUNCEMENT : 3 1 .0 1 . 201 7 O R D E R PER R P TOLANI, JUDICIAL MEMBER THIS IS ASSESSEES APPEAL. 2. GROUND NO.I IN RELATION TO SECTION 148(1) WAS NO T PRESSED AND, HENCE, DISMISSED. 3. ONE ISSUE IS RAISED BY FOLLOWING GROUND: II MERIT 3. THE LD. CIT(A) ERRED IN UPHOLDING THE ACTION OF A.O. IN MAKING ADDITION OF RS.11,02,500/- RELYING ON THE DIARY SEI ZED FROM THE PREMISES OF A THIRD PARTY WITHOUT VERIFYING THE AUTHENTICITY OF THE CONTENTS OF THE SAID DIARY. THE APPELLANT, THEREFORE, PRAYS THAT T HE ADDITION OF RS.11,02,500/- UNDER SECTION 68 OF THE ACT IS UNJUS TIFIED AND THE SAME MAY BE DELETED. ITA NO.6535/MUM/2016 LATE SHRI KANTILAL C KOTHAWALA BY LEGAL HEIR DR. ASHA JHAVERI. 2 4. THE LD. CIT(A) FAILED TO APPRECIATE THAT MR. SHA SHIKANT J MANDAVKAR, PURPORTED TO HAVE BEEN MAINTAINED THE SE IZED DIARY, DURING THE CROSS EXAMINATION CATEGORICALLY DENIED OF RECEI VING ANY MONEY FROM THE APPELLANT. HENCE, THE ADDITION OF RS.11,02,500 /- UNDER SECTION 68 OF THE ACT IS WITHOUT ANY BASIS AND THE SAME MAY BE DE LETED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDS TH AT IDENTICAL ISSUE AROSE IN VARIOUS OTHER CASES, WHICH HAVE BEEN CONSIDERED BY THE TRIBUNAL VIDE ITS ORDER DATED 11.09.2015 IN ITA 306/MUM/2014 FOR A.Y. 2001-02 IN THE CASE OF DR PRAKESH KHER, WHICH ARE AS UNDER: I. MR. BABANRAO V MANDE, ITA 3441/MUM/2009, A.Y. 2000- 01, DATED 20/08/2010 II. MR. VIJAY D DAGHA, ITA NO. 3718/M/2011, A.Y. 2001-0 2 DATED 27/08/2014 III. MR. VILAS SHANKAR DALVI, ITA NO.1807/MUM/2013 DATED 12/06/2013 CONSIDERING ALL THESE ORDERS, IT WAS HELD THAT I) NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO TH AT ANY CLINCHING EVIDENCE OF PAYMENT OF CAPITATION FEES TO SHRI PRAK ASH PATIL WAS BROUGHT ON RECORD. II) THE BURDEN WAS ON THE AO TO DEMONSTRATE BY SUFFICIE NT EVIDENCE THAT THE ASSESSEE HAD INDEED PAID SEPARATE CASH DON ATION/CAPITATION FEES IN CASH TO DY PATIL GROUP FOR MEDICAL COLLEGE. IN THE AFORESAID THREE JUDGMENTS, ON SIMILAR FACTS AND CIRCUMSTANCES, LEARNED CIT(A) HAD DELETED THE ADDITIONS, WHEREAS IN THE CA SE OF DR. PRAKASH KHER AND THE ASSESSEE IN QUESTION, THE LEARNED CIT(A) HAS TAKEN DIFFERENT VIEW WITHOUT GIVING ANY COGENT REASON AS TO WHY A DIFFERENT VIEW HAS BEEN T AKEN. ITA NO.6535/MUM/2016 LATE SHRI KANTILAL C KOTHAWALA BY LEGAL HEIR DR. ASHA JHAVERI. 3 5. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE ISSUE IN QUESTION, ON FACTS AND CIRCUMSTANCES, IS COVERED IN FAVOUR OF THE ASSESSEE BY NUMEROUS JUDGMENTS AS MENTIONED ABOVE. 6. THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERU SED THE MATERIAL AVAILABLE ON RECORD. THE FACTS AND CIRCUMSTANCES ARE SIMILAR IN THE ABOVE REFERRED CASES, WHICH HAS BEEN DECIDED BY THE MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE OF DR. PRAKASH KHER (SUPRA). RESPECTFULLY FOLLOWING THE M THE GROUND RAISED ON MERITS IS ALLOWED. 8. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 3 1 ST JANUARY, 2017. SD/- (R P TOLANI) J UDICIAL MEMBER MUMBAI, DATED : 31 ST JANUARY, 2017. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI
