Namita Anal Shah, Ahmedabad V. The ITO, Ward-5(3)(2), Ahmedabad

ITA 71/AHD/2020

AI Insights

This case involves an appeal by Namita Anal Shah against the order of the CIT(A)-5, Ahmedabad, which confirmed an addition of Rs.16,73,700 as unexplained investment for the Assessment Year 2011-12. The addition was initially made by the Assessing Officer following a reopening of the assessment under Section 147 of the Income Tax Act, 1961, based on information from a search/survey action related to the HN Safal Group. The main contention was whether the assessee had made an on-money payment for a property, which she jointly owned with her husband. The tribunal's decision highlighted procedural lapses in how the addition was substantiated and the lack of a proper opportunity for the assessee to contest the evidence.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129458 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-01-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2020
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 147; 148; 132; 143(3); 69B; 153C

Judgement Text

ITA No.71/Ahd/2020 A.Y. 2011-12 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA No.71/Ahd/2020 Assessment Year: 2011-12 Namita Anal Shah, vs. Income Tax Officer, 2, Kalyan, Ward – 5(3)(2), Zaveri Park, Ahmedabad. Near Little Flower School, Paldi, Ahmedabad – 380 007 [PAN – AAQPS 5359 E] (Appellant) (Respondent) Assessee by : Shri Hardik Vora, AR Respondent by : Shri Atul Pandey, Sr. DR Date of hearing : 03.01.2023 Date of pronouncement : 06.01.2023 O R D E R This appeal is filed by the Assessee against the order dated 27.11.2019 passed by the CIT(A)-5, Ahmedabad for the Assessment Year 2011-12. 2. The grounds of appeal raised by the assessee are as under :- “1. That the Ld. Commissioner of Income Tax (Appeals) has erred in confirming addition of Rs.16,73,700/- being made as unexplained investment u/s.69B of the Act. 2. That the various reasons advanced by ld. Commissioner of Income Tax (Appeals) in confirming the addition of Rs.16,73,700/-- are contrary to the facts of the case and evidence on record. 3. The appellant respectfully submits that she has paid Rs.9,96,250/- for purchase of plot no.154 at Nirvana and is having 50% share in property. She has not paid any further amount. The addition of Rs.16,73,700/- is made without any cogent evidence. The appellant further submits that she has not been given relevant material or opportunity to cross examine the person and therefore the addition of Rs.16,73,700/- be deleted. ITA No.71/Ahd/2020 A.Y. 2011-12 Page 2 of 4 4. The appellant further submits that 50% of share in the property is owned by Anal N Shah her husband. The learned CIT(A) has deleted the addition of Rs.8,36,850/- made in the case of Anal N Shah. The appellant therefore submits that facts being the same addition made in the appellants case should be deleted. 5. Without prejudice to the above, the appellant further submits that she has only 50% share in the property and therefore the addition should be restricted to 50% of Rs.16,73,700/- i.e. Rs.8,36,850/-” 3. In this case, the return was originally filed by the assessee on 14.07.2011 declaring total income of Rs.5,23,194/-. The case was reopened under Section 147 of the Income Tax Act, 1961 on the basis of information received from the office of the DCIT regarding search/survey action under Section 132 of the Act carried out at Ahmedabad in respect of various premises of HN Safal Group on 04.09.2013. Notice under Section 148 of the Act was issued to the assessee for reopening the assessment for A.Y. 2011-12 after recording the reasons. The Assessing Officer made addition of Rs.16,73,700/- as unexplained investment under Section 69B of the Act. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that the information received in excel sheet was in the name of Anil N Shah and Namita A Shah which leads to the fact that the husband of the assessee was also part of the said transaction as per the contentions of the Revenue. The Ld. AR further submitted that REC-DIS does not stand for on-money receipt of money and, therefore, the additions made in the hands of the assessee were not genuine. The Ld. AR further submitted that in the case of assessee’s husband, the CIT(A) has allowed the appeal of the husband of the assessee on the issue that notice under Section 153C of the Act issued was void and, therefore, the addition was deleted. The Ld. AR submitted that once it is clear that the property is in the joint name, the same cannot be treated solely held by the assessee and entire addition cannot be made in assessee’s case. The Ld. AR did not press the additional ground as the proceedings in assessee’s case are that of Section 143(3) read with Section 147 of the Act. The Ld. AR submitted that no contrary evidence was found by ITA No.71/Ahd/2020 A.Y. 2011-12 Page 3 of 4 the Assessing Officer to show that the assessee has paid on-money receipt to the builder M/s. Munishi Land Developer LLP, Ahmedabad. Therefore, Ld. AR submitted that the addition may be deleted. 6. The Ld. DR submitted that the addition deleted in assessee’s husband’s case is on technical ground and the same cannot be applied in the present case. Ld. DR further submitted that the assessee has never denied that the cheque payments were made which was under the caption of REC-CHQ. The Ld. DR submitted that REC- DIS also contemplates that the receipt on discount and, therefore, the addition was rightly made by the CIT(A)/Assessing Officer. The Ld. DR relied upon the order of the CIT(A). 7. Heard both the parties and perused all the relevant material available on record. The assessee has 50% share in the property with Anal N. Shah who is husband of the assessee. This fact was never discussed by the Assessing Officer and, therefore, the assessee cannot be solely held responsible for the entire addition of Rs.16,73,700/-. Besides this, the Assessing Officer in the assessment order has solely relied upon the statement of builder M/s. Munishi Land Developer LLP made before the Hon’ble Settlement Commission but nowhere it has been described that the assessee has paid on-money receipt and the Assessing Officer also failed to show/demonstrate in the Assessment Order that REC-DIS is actually on-money payment in cash. Merely relying on the excel sheet and admission part of the builder which was never confronted to the assessee cannot make the addition. Hence, the addition made by the Assessing Officer is not justifiable. Thus, appeal filed by the assessee is allowed. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open Court on this 6 th day of January, 2023. Sd/- (SUCHITRA KAMBLE) Judicial Member Ahmedabad, the 6 th day of January, 2023 PBN/* ITA No.71/Ahd/2020 A.Y. 2011-12 Page 4 of 4 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad