MADHU S. JHUNJHUNWALA, MUMBAI V. ACIT CEN CIR 11, MUMBAI

ITA 6542/MUM/2010

• Counselvise Citation: 654219914 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAVIN VARMA
• Assessee Lawyers: SUDHIR JHUNJHUNWALA
• Keywords: Additional evidence
• Section: 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI G.E. VEERABHADRAPPA, PRESIDENT AND SHRI S.S. GODARA, JUDICIAL MEMBER ITA NOS.6510/M/2010 (AY: 2002-03) ITA NOS. 6511/M/2010 (AY: 2006-07) ITA NOS. 6512/M/2010 (AY: 2007-08) ITA NOS. 6513/M/2010 (AY: 2008-09) THE DCIT, CENT. CIR-11, ROOM NO. 804, 8 TH FLOOR, OLD CGO ANNEXE BLDG., MUMBAI 400 020. SMT. MADHU S. JHUNJHUNWALA, FLAT NO.41/42, 4 TH FLOOR, MEGHANA APTS., S.V. ROAD, SANTACRUZ (W), MUMBAI 400 054. PAN: ARFPJ4819K (APPELLANT) (RESPONDENT) ITA NO.6542/M/2010 (AY: 2008-09) SMT. MADHU S. JHUNJHUNWALA, FLAT NO.41/42, 4 TH FLOOR, MEGHANA APTS., S.V. ROAD, SANTACRUZ (W), MUMBAI 400 054. PAN: ARFPJ4819K THE DCIT, CENT. CIR-11, ROOM NO. 804, 8 TH FLOOR, OLD CGO ANNEXE BLDG., MUMBAI 400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI SUDHIR JHUNJHUNWALA REVENUE BY: SHRI PRAVIN VARMA ORDER DATE OF HEARING: 10.5.2012 DATE OF OR DER:15.6.2012 PER BENCH: THESE APPEALS; FOUR BY REVENUE AND ONE BY ASSESSEE ARISE FROM COMMON ORDER OF LD. CIT (A) 17.6.2010 FOR ASSESSMENT YEARS 2002-03, 2006-07, 2007-08 AND 2008-09 RESPECTIVELY. REGARDING AY 2008-09 ONLY, P ARTIES HAVE PREFERRED CROSS APPEALS. 2 ITA NOS. 6510 TO 6513 & 6542/M/2010 2. WE FIND THAT IN ALL THE REVENUES APPEALS, SAME GROUNDS HAVE BEEN RAISED. GROUNDS NO.1 & 2 ONLY AMONGST ALL GROUNDS ARE SUBST ANTIVE IN NATURE WHICH READ AS UNDER: 1. THE LD. CIT (A) ERRED ON THE FACTS AND IN CIRCUMSTA NCES AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES ADDUCED BY THE ASSES SEE IN CLEAR CONTRAVENTION TO THE STATUTORY PROCEDURE LAID DOWN IN RULE-46A WITHOUT RECORDING REASONS THAT THE ASSESSEE WAS PREVENTED B Y SUFFICIENT CAUSE FROM FILING A RETURN OF INCOME AND OTHER EVIDENCE BEFORE THE ASSESSING OFFICER. 2. THE LD. CIT (A) ERRED ON THE FACTS AND IN CIRCUM STANCES AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES ADDUCED BY ASSESSEE WITHOUT GIVING A CLEAR FINDINGS THAT THE RIGOROUS TESTS LAID DOWN IN RULE- 46A WERE IN THE CASE. 3. WE HAVE HEARD BOTH THE SIDES AND CAREFULLY GONE THROUGH THE IMPUGNED ORDER. THE RULE 46A OF THE I.T. RULES, 1962 READS AS UNDER: THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFO RE THE [DEPUTY (APPEALS)] ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER TH AN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE [AS SESSING OFFICER], (A) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE [ASSESSING OFFICER]; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE [ASSESSING OFFICER] ANY EVIDENCE WHICH IS RELEV ANT TO ANY GROUND OF APPEAL; OR (D) WHERE THE [ASSESSING OFFICER] HAS MADE THE ORDER AP PEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO A DDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. 2. NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1) UNLESS THE [DEPUTY COMMISSIONER (APPEALS) [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. 3. THE [DEPUTY COMMISSIONER (APPEALS) [OR, AS THE C ASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE [ASSESSING OFFICER] HAS BEE N ALLOWED A REASONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS -EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. 3 ITA NOS. 6510 TO 6513 & 6542/M/2010 4. A CAREFUL READING OF THE ABOVE PROVISION SHOWS THAT THE FIRST APPELLATE AUTHORITY WAS WELL WITHIN HIS RIGHTS TO ADMIT ADDIT IONAL EVIDENCE PROVIDED SUCH EVIDENCE SHALL NOT BE TAKEN INTO CONSIDERATION UNLESS A REAS ONABLE OPPORTUNITY HAS BEEN GIVEN TO AO. AS DISCUSSED IN THE IMPUGNED ORDER SHOWS THAT THE CIT (A) AFTER HAVING ADMITTED FRESH EVIDENCE, HAS CALLED FOR A REMAND REPORT AND THE AO HAS GIVEN HIS COMMENTS THERETO, MEANING THEREBY, THE PROCEDURAL REQUIREMEN T OF THE RULES HAVE BEEN COMPLIED WITH. HAVING REGARD TO THESE FACTS, WE DO NOT AGRE E WITH THE REVENUES STAND THAT THE CIT (A) HAS ERRED IN LAW IN ADMITTING THE ADDITIONA L EVIDENCE. IN THE LIGHT OF THIS, THE GROUNDS RAISED BY THE REVENUE STAND DISMISSED. ITA NO.6542/M/2010 (AY:2008-09): 5. IN THIS APPEAL, ASSESSEE HAS RAISED THE ONLY SU BSTANTIVE GROUND AS UNDER: THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION O F RS. 2,87,580/- ON ACCOUNT OF GOLD AND DIAMOND JEWELLERY AS UNEXPLAINED INCOME U/ S 69A OF THE INCOME TAX ACT. 6. SIMILARLY, IN THIS CASE AS WELL, IN FURTHERANCE TO SAME SEARCH THE AO HAD PROCEEDED U/S 144 OF THE ACT IN PASSING BEST JUDGME NT ORDER AND CAME TO CONCLUSION THAT THE ASSESSEE FAILED TO EXPLAIN GOLD AND DIAMOND JEW ELLERY OF RS. 2,87,580/- AS WELL AS CASH OF RS. 1,09,700/- ALLEGED TO HAVE BEEN FOUND I N HER BED ROOM. PER AO, THE ASSESSEE HAD NOT PRODUCED EITHER SOURCE OF INCOME OR ANY EVI DENCE. THEREFORE, THE SUM TOTAL OF BOTH AMOUNTS WAS TREATED AS UNEXPLAINED INCOME U/ S 69A. 7. IN APPEAL, THE ASSESSEE PREFERRED ADDITIONAL EV IDENCE. THE LD CIT (A) SOUGHT COMMENTS OF AO / REMAND REPORT. THE ASSESSEE WAS C ONFRONTED WITH THE SAME. AGAIN, SHE FAILED TO EXPLAIN THE SOURCE OF JEWELLERY. HEN CE, THE LD. CIT (A) IN VIEW OF AOS REPORT TO THE EFFECT THAT ASSESSEES EXPLANATION ON LY REGARDING CASH AMOUNT OF RS. 1,09,700/- (SUPRA) WAS LIABLE TO BE ACCEPTED, GRANT ED RELIEF IN PART AND ONLY CONFIRMED AOS ORDER TO THE EXTENT OF JEWELLERY AMOUNT. 4 ITA NOS. 6510 TO 6513 & 6542/M/2010 8. BEFORE US, IT HAS BEEN ARGUED ON ASSESSEES BEH ALF THAT THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION IN QUESTION U/S 69 A OF THE ACT. THE ASSESSEE HAS SUBMITTED THAT ABOVE SAID JEWELLERY AMOUNT WAS HER PERSONAL BELONGING BEING A HOUSEHOLD LADY. THEREFORE, ACCEPTANCE OF THE ISSUE NO.2 N ASSESSEES FAVOUR HAS BEEN PRAYED FOR. 9. WE HAVE HEARD BOTH THE PARTIES AT LENGTH. NECE SSARY FINDINGS HAVE ALSO BEEN PERUSED. IT IS EVIDENT THAT THE AO HAD PASSED BES T JUDGMENT ORDER AGAINST THE ASSESSEE REGARDING UNDISCLOSED JEWELLERY ITEMS. IN APPEAL, ASSESSEES ADDITIONAL EVIDENCE WAS ADMITTED. READING THROUGH THE LINES, IT TRANSPIRES THAT THE LD. CIT (A) GRANTED THE ASSESSEE ANOTHER OPPORTUNITY TO EXPLAIN THE SOURCE OF JEWELLERY IN QUESTION BEFORE AO. AFTER REMAND REPORT, SHE WAS ALSO CONFRONTED WITH T HE AOS FINDINGS. BUT THEN ALSO, THERE WAS NO JUSTIFICATION. 10. THE ASSESSEE HAS MADE BEST EFFORTS TO CONVINCE US THAT THE ADDITION IN QUESTION IS NOT WARRANTED. APART FROM HER BALD STA TEMENT, THERE IS NO CONVINCING EVIDENCE. IN THE ABSENCE OF ANY MATERIAL OR ANY EV IDENCE IN SUPPORT OF THE SAME, WE HAVE NO REASON TO INTERFERE. 11. IN VIEW OF OUR ABOVE DISCUSSION, ALL FIVE APPE ALS I.E. FOUR BY REVENUE AND ONE FILED BY ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.6.2012. SD/- SD/- (G.E. VEERABHADRAPPA) (S.S.GODARA) PRESIDENT JUDICIA L MEMBER DATE : 15.6.2012 AT :MUMBAI 5 ITA NOS. 6510 TO 6513 & 6542/M/2010 OKK COPY TO : 1. DCIT, CENTRL CIR-11, MUMBAI. 2. SMT. MADHU S. JHUNJHUNWALA 3. CIT (A)-37, MUMBAI 4. CIT CONCERNED 5. DR B BENCH, ITAT, MUMBAI. 6. GUARD FILE // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI