NIMMI K. CHABRIA, MUMBAI V. DCIT CC 47, MUMBAI

ITA 7622/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9137 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YESHWANT CHAVAN
• Assessee Lawyers: K R LAKSHMI NARAYANAN
• Keywords: Loose papers; Document seized; Documents seized
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.7622/M/2016 ASSESSMENT YEAR: 2010-11 MRS. NIMMI K. CHHABRIA, PROP. THE DESIGNERS, 802-B, SURYA APARTMENTS, 53 BHULABHAI DESAI ROAD, OPP. BREACH CANDY HOSPITAL, MUMBAI-400 026 PAN: AAAPC6121G VS. DCIT CC-47 AAYAKAR BHAWAN, MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI K.R. LAKSHMINARAYANAN, A.R. REVENUE BY : SHRI YESHWANT CHAVAN, D.R. DATE OF HEARING : 01.08.2017 DATE OF PRONOUNCEMENT : 03.10.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 21.09.2016 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE SHORT FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE ACTION WAS CARRIED OUT U/S 132 OF THE ACT AT THE RESIDENCE OF THE ASSESSEE IN MAY 2011. CONSEQUENT TO SEARCH A NOTICE UNDER SECT ION 153A WAS ISSUED AND THE ASSESSEE HAS FILED THE RETURN. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS MADE THE AD DITION OF RS.11,24,300/- BY OBSERVING AS UNDER: ITA NO.7622/M/2016 MRS. NIMMI K. CHHABRIA 2 5.1.. 6. DURING THE SEARCH ACTION AT THE RESIDENCE OF TH E ASSESSEE'S CERTAIN LOOSE PAPERS WHERE FOUND AND SEIZED. THE AS SESSEE WAS GIVEN OPPORTUNITY TO RECONCILE IT DURING THE POST SEARCH PROCEEDINGS. BUT THE ASSESSEE COULD NOT FILE SATISFACTORY REPLY. AT THE TIME OF SEARCH ASSESSMENT, THE ASSESSEE WAS ONCE AGAIN' GIVEN OPPORTUNITY TO RECONCILE THE SEIZED DOCUMENTS FOUND FROM THE RESIDENCE OF KK CHHABRIA AT SURYA APTS, MUMBAI IN ANNEXURE A-I WITH BOOKS OF ACCOUNTS. THE ASSESSEE WAS ASKED TO PARTICULARLY RE CONCILE PAGE NO. 11 & 26 (COPY ENCLOSED AS ANNEXURE). THE SAME APPARENTLY SE EMS TO BE CASH RECEIPTS FROM OUT OF BOOKS. THE ASSESSEE WAS ASKED TO RECONC ILE THE SAME WITH BOOKS OF ACCOUNT. THE ASSESSEE COULD NOT RECONCILE PAGE N O. 11 & 26. THESE UNEXPLAINED PAPERS CONTAIN THE DETAIL OF CASH TRANS ACTIONS DONE BY THE ASSESSEE. THE NATURE OF CASH TRANSACTIONS INDICATE THAT EITHER UNACCOUNTED CASH HAS BEEN RECEIVED BY THE ASSESSEE AGAINST THE SALE. DURING THE ASSESSMENT PROCEEDINGS, THE AR HAS EXPLAINED THAT T HESE AMOUNTS APPEARING ON THE SEIZED PAPERS ARE ACCOUNTED BUT WI TH DIFFERENT GROUPING THAT'S WHY IT CANNOT BE RECONCILED IN EXACT FIGURE. THE EXPLANATION OF THE AR CANNOT BE ACCEPTED BECAUSE RECONCILIATION BETWEEN T HE FIGURES MENTIONED ON THE SEIZED PAPERS AND ACCOUNTED FIGURE S COULD NOT BE FURNISHED BY THE AR. PAGE NO. 11 OF SEIZED ANNEXURE-THE PAPER CONTAINS T HE INFORMATION REGARDING CASH RECEIPT AGAINST THE SALE. THE PAPER CONTAINS T HE INFORMATION REGARDING YEAR WISE TRANSACTION DONE BY THE ASSESSE E. FOR THE YEAR UNDER CONSIDERATION AMOUNT INVOLVE IS RS. 4,75,000/-. THE AR IS ASKED TO RECONCILE THE SAME WITH THE BOOKS OF ACCOUNT. DUE TO THE NON- RECONCILIATION OF THE SEIZED PAPER AS DISCUSSED IN THE ABOVE PARAGRAPH, A N AMOUNT OF RS. 4,75,000/- IS ADDED TO THE INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S 271(1) (C) IS INITIATED SEPARATELY. PAGE NO. 26 OF SEIZED ANNEUXRE-THE PAPER CONTAINS T HE INFORMATION REGARDING THE CASH RECEIPT AGAINST THE SALE AMOUNTI NG TO RS.6,49,300/-. THE AR IS ASKED TO RECONCILE THE SAME WITH THE BOOK S OF ACCOUNT. DUE TO THE NON-RECONCILIATION OF THE SEIZED PAPER AS DISCU SSED IN THE ABOVE PARAGRAPH, AN AMOUNT OF RS.6,49,300/- IS ADDED TO T HE INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S 271 (1)(C) IS INI TIATED SEPARATELY. 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A) HAS CONFIRMED THE ADDITION OF RS.4,59,500/-. THEREFORE , ASSESSEE IS IN APPEAL BEFORE US. ITA NO.7622/M/2016 MRS. NIMMI K. CHHABRIA 3 4. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. I HAVE GONE THROUGH THE ORDER OF LD. CIT(A) AND THE LD. CI T(A) HAS CONFIRMED THE ADDITION OF RS.4,75,000/- ON ACCOUNT THAT MR. JAYANTILAL HAS RECEIVED THIS AMOUNT. I FIND THAT W ITHOUT EXAMINING MR. JAYANTILALBHAI PATEL NO ADDITION CAN BE MADE. I FIND THAT UNLESS AND UNTIL MR. JAYANTILALBHAI PATEL IS EXAMINED NO A DDITION CAN BE MADE, THEREFORE, THE ASSESSEE IS DIRECTED TO PRODUC E MR. JAYANTILALBHAI PATEL BEFORE THE AO. I RESTORE THIS ISSUE BACK TO THE FILE OF THE AO TO DECIDE THE MATTER AFRESH, AS PER LAW. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03.10.2017. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 03.10.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.