MOHAN R. GUPTA, MUMBAI V. ITO 19(2)(4), MUMBAI

ITA 7020/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3237 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 02-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKNANA
• Keywords: Unexplained investment
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.7020/MUM/2013 ASSESSMENT YEAR : 2009-10 MOHAN R GUPTA, 603, NARENDRA APTS., B WING, KHAR (W), MUMBAI- 400 054 PAN AEPPG4514C VS. ITO 19(2)(4), MUMBAI (APPELLANT) RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI G N MAKNANA DATE OF HEARING : 23 .0 5 .201 6 DATE OF PRONOUNCEMENT : 27 .0 5 . 201 6 O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDE R OF THE CIT(A) 30, MUMBAI, IN APPEAL NO.CIT(A)-230/ACIT-19(2)(4)/IT-32 5/11-12 DATED 25.09.2013. THE ASSESSMENT WAS FRAMED BY THE ITO 19(2)(4), MUMB AI, FOR A.Y. 2009-10 VIDE HIS ORDER DATED 28.12.2011 U/S. 143(3) OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A) CONFIRMING THE ACTION OF THE AO IN RESTRICTI NG THE ADDITION OF UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT TO THE TUNE OF RS.4,9 0,458/- OUT OF THE TOTAL ADDITION MADE BY THE AO OF RS.21 LACS. ITA NO.7020/MUM/2013 SHRI MOHAN R GUPTA 2 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE HAS PURCHASED A HOUSE PROPERTY FOR A SUM OF RS.54,67,077/-. THE AO NOTED THIS FACT FROM AIR INFORMATION. WHEN ENQUIRY WAS MADE BY THE AO, IT W AS FOUND THAT THE ASSESSEE HAS PURCHASED A HOUSE FOR A SUM OF RS.22 LACS AND S UBSEQUENTLY PAID STAMP DUTY AND REGISTRATION CHARGES AMOUNTING TO RS.2,86,000/- . THE ASSESSEE FILED EXPLANATION IN RESPECT TO THE SOURCE OF INVESTMENT OF RS.22,00,000/- STATING THAT HE HAD TAKEN LOAN FROM THE STANDARD CHARTERED BANK FOR AN AMOUNT OF RS.17,50,000/- AND RS.3,50,000/- AS LOAN FROM LEENA GUPTA FROM WHO M THE PROPERTY HAD BEEN PURCHASED BY HIM. THE AO GOING THOUGH CLAUSE 4 OF THE AGREEMENT AT PAGE 4 NOTED THAT LEENA GUPTA HAS RECEIVED THE SUM OF 4,50 ,000/- AS ADVANCE AGAINST THE SAID FLAT AND MADE ADDITION OF THE SUM AS UNEXPLAIN ED INVESTMENT U/S. 69 OF THE ACT. THE AO ALSO MADE ADDITION OF LOAN TAKEN FROM THE STANDARD CHARTERED BANK AMOUNTING TO RS.17,50,000/-. AGGRIEVED THE ASSESSE E PREFERRED APPEAL BEFORE THE CIT(A), WHO DELETED THE ADDITION OF RS.17,50,000/- BUT SUSTAINED THE ADDITION OF RS.4,50,000/- OBSERVING AS UNDER: 5.3 UPON PERUSAL OF THE LOAN ACCOUNT NO.43834787, I FIND THAT SMT. LEENA SHARAD GUPTA, VENDOR WITH HER HUSBAND AS CO-B ORROWER WAS ADVANCED LOAN AMOUNT OF RS.18,00,000/- ON 21.03.200 5 BY THE STANDARD CHARTARD BANK. UPTO THE DATE OF AGREEMENT SALE, I. E. 2.2.09, SHE HAD MADE PAYMENT OF RS.7,53,705/-. THE APPELLANT, THER EFORE, HAS MADE TOTAL PAYMENT OF RS.19,42,563.07, INCLUDING RS.17,6 3,109.07 ON 02.11.2009. THUS, OUT OF TOTAL REPAYMENTS OF RS.19 ,42,563.07 MADE BY THE APPELLANT, TWO PAYMENTS HAVE BEEN MADE DURING T HE YEAR AFTER SIGNING OF THE AGREEMENT DTD. 02.02.09 BETWEEN THE VENDOR AND THE PURCHASERS. THE SAID PAYMENTS ARE DTD. 25.02.09 AN D 20.03.09 FOR RS.20,229/- ON EACH OF THE ABOVE DATES, I.E. TOTAL OF RS.40,458/-, AND HAVE BEEN PAID BY THE APPELLANT IN THE SAID ACCOUNT , AS PER CLAUSE 4 OF THE ABOVE AGREEMENT. AS THE APPELLANT HAS NOT FURN ISHED SOURCE OF PAYMENT OF THE ABOVE AMOUNT, I HOLD THE SAME AS UNE XPLAINED AND UPHOLD THE ADDITION OF THE AMOUNT TO THE INCOME OF THE APPELLANT DURING THE YEAR. THE TOTAL ADDITION CONFIRMED, THEREFORE, IS RS.4,90,458 (4,50,000 + 40,458). ITA NO.7020/MUM/2013 SHRI MOHAN R GUPTA 3 AGGRIEVED AGAINST THE ACTION OF THE CIT(A), THE ASS ESSEE PREFERRED SECOND APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE LEARNED SENIOR DR AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO HAS SIMPLY GONE BY CLAUSE 4 OF THE AGREEMENT THAT LEENA GUPTA HAS RECEIVED THE SUM OF RS.4,50,000/- AS ADVANCE AGAINST THE SAID FLAT. WE ALSO FIND THAT APART FRO M THE ABOVE NO OTHER ADVERSE FINDING IS GIVEN BY THE AO IN RESPECT OF THIS PAYME NT AND THE CLAIM OF THE ASSESSEE THAT THIS AMOUNT WAS OUTSTANDING IN THE NAME OF LEE NA GUPTA THE OWNER OF THE HOUSE. IN VIEW OF THIS FACT, WE ARE OF THE VIEW TH AT THIS ISSUE NEEDS TO BE EXAMINED BY THE AO AFRESH FOR THE REASON THAT THE PARTY MUST BE EXAMINED BEFORE MAKING THE ADDITION. ACCORDINGLY, WE RESTORE THIS MATTER BACK TO THE FILE OF THE AO QUA THE ADDITION OF RS.4,50,000/- 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 7 TH MAY 2016. SD/- SD/- (RAJESH KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED : 27 TH MAY, 2016. 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, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI