SHABBIR S. RASOOL, MUMBAI V. ITO WD 21(3)(2), MUMBAI

ITA 7623/MUM/2013

• Counselvise Citation: 762319914 RSA 2013
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 27-12-2013
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: PRAKASH G JHUNJHUNWALA
• Keywords: Source of fund
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & MS. SUSHMA CHOWLA , J M ./ I TA NO. 7623 / MUM/20 1 3 ( / ASSESSMENT YEAR : 200 8 - 0 9 ) MR. SHABBIR S.RASOOL, FLAT NO.501, SHELDON APTS. CHANDIVALI FARM LANE, OPP. LATHIA RUBBER CO. ABOVE HDFC BANK, CHANDIVALI VILLAGE, MUMBAI - 400072 VS. ITO, WARD - 21(3)(2), MUMBAI ./ ./ PAN/GIR NO. : A A BPR 5606 G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI PRAKASH G. JHUNJHUNWALA /REVENUE BY : SHRI NEIL PHILIP / DATE OF HEARING : 0 1 /0 6 / 2015 / DATE OF PRONOUNCEMENT 10/06 /2015 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 32 , MUMBAI , DATED 6 - 11 - 2013 FOR THE ASSESSMENT YEAR 200 8 - 0 9 , IN THE MATTER OF ORDER P ASSED U/S.144 OF THE ACT . 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FROM THE RECORD WE FOUND THAT AFTER TAKING THE CASE INTO SCRUTINY THE AO ISSUED NOTICE U/S.143(2) & 142(1) OF THE ACT, HOWEVER, NOBODY APPEARED ON BEHALF OF THE ASSESSEE, TH EREFORE, THE AO COMPLETED THE ASSESSMENT U/S.144 OF THE ACT, WHEREIN ADDITION WAS MADE U/S.69 IN RESPECT OF PURCHASE OF RESIDENTIAL FLAT , ON ACCOUNT OF OUTSTANDING CREDITOR ON ADHOC ITA NO. 7623 /1 3 2 BASIS, DISALLOWANCE OF PURCHASE AND DISALLOWANCE OF EXPENSES ON ESTIMATED BASIS. 3. AT THE OUTSET, IT WAS BROUGHT TO OUR NOTICE BY THE LD. AR THAT ASSESSEE WAS SUFFERING FROM BAD HEALTH AND WAS IN BED REST SINCE NOV.2010. IT WAS ALSO SUBMITTED THAT EARLIER CHARTERED ACCOUNTANT ALSO COULD NOT ATTEND THE ASSESSMENT PROCEEDINGS DU E TO ILLNESS OF HIS PARENTS. AN AFFIDAVIT TO SUPPORT SUCH CONTENTION WAS ALSO PLACED ON RECORD. ACCORDINGLY, IT WAS PRAYED THAT ASSESSEE WAS NOT GIVEN DUE OPPORTUNITY AND THE AO HAS PASSED EX - PARTE ORDER U/S.144. O N THE BASIS OF AIR INFORMATION ON SALE OF IMMOVABLE PROPERTY ON 1 - 12 - 2007, THE AO HAS MADE ADDITION U/S.69 OF THE ACT. HOWEVER, BEFORE THE CIT(A), THE ASSESSEE FILED EVIDENCE TO THE EFFECT THAT ASSESSEE HAS NOT SOLD ANY FLAT BUT ON OTHER HAND ASSESSEE HAS PURCHASED RESIDENTIAL FLAT WHICH WAS DULY DISCLOSED IN THE BALANCE SHEET AS ON 31 - 3 - 2008. COPY OF THE AGREEMENT WITH SOURCE OF FUND WAS ALSO SUBMITTED WHICH IS AS UNDER : - DATE PARTICULARS CH.NO.&DETAILS GROSS TOTAL 12 - 09 - 2012/09/2007 THE MOGAVEERA BANK CH.NO.636467 TO G.H.P.ENT. 3,600,000 08 - 1 2 - 2008/12/2007 STAMP, REGISTRATION CHARGES 2,24,210 07 - 12 - 2007/12/2007 THE MOGAVEERA BANK CH.NO.668734 10,00,000 08 - 12 - 2008/12/2007 THE MOGAVEERA BANK CH.NO.673811 2,63,000 07 - 01 - 2007/01/2008 GE MONEY FINANCE LTD. BANK LOAN 26,51,000 THE ASSESSEE HAS SUBMITTED LOAN SANCTIONING LETTER FROM GE MONEY FINANCIAL LTD. OF RS.26,51,000/ - . BANK STATEMENTS HAVE BEEN PROVIDED AS SOURCE OF RS.17,87,210/ - BEING PAID THROUGH BANKING CHANNELS. THE SAME HAVE BEEN PERUSED AND VERIFIED. HOWEVER, ON PERUSAL OF THE BANK STATEMENT, IT IS SEEN THAT PRIOR TO ISSUE OF CHEQUE NO.668734, THERE IS CASH DEPOSIT OF RS.1,03,000/ - ON THE SAME DATE. ALSO ON 08/12/2007, ITA NO. 7623 /1 3 3 PRIOR TO ISSUE OF CHEQUE NO.673811, THERE IS CASH DEPOSIT OF RS.2,75,000/ - ON THE SAME DATE. THE SOURCE OF CASH DEPO SITED IN THE BANK HAS NOT BEEN FURNISHED BY THE ASSESSEE. OUT OF RS.2,24,210/ - , PAYMENT OF RS.1,93,360/ - BEING STAMP DUTY IS REFLECTED IN THE BANK STATEMENT. HOWEVER, THE SOURCE OF CASH DEPOSIT OF RS.3,78,000/ - IS NOT EXPLAINED AS ALSO THAT OF RS.30,850/ - BEING REGISTRATION CHARGES. 4 . AFTER CONSIDERING THE REMAND REPORT, THE CIT(A) OBSERVED THAT IN THE REMAND REPORT, THE AO FOUND THAT THE ASSESSEE HAD IN FACT PURCHASED A FLAT FOR RS.44,38,210 AND WHICH WAS DISCLOSED IN THE BALANCE SHEET DATED 31/03/2008 . HOWEVER, WITH RESPECT TO THE SOURCES FOR SUCH PURCHASE, THE AO HAS GIVEN FINDING THAT SOURCE OF CASH DEPOSIT OF RS.378,000 HAS NOT BEEN EXPLAINED AS ALSO OF RS.30,850/ - BEING THE REGISTRATION CHARGES. ACCORDINGLY SAME WAS SUSTAINED BY CIT(A). 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND FOUND THAT ASSESSEE DID NOT GET PROPER OPPORTUNITY TO PRESENT HIS CASE. MOREOVER, DOCUMENTS FURNISHED BEFORE THE CIT(A) WAS ALSO NOT PROPERLY APPRECIATED BY THE AO WHICH GOES TO THE ROOT OF THE ISSUE. NON - APPEARANCE BEFORE THE AO WAS BASICALLY DUE TO ASSESSEES ILLNESS WHICH IS DULY SUPPORTED BY THE AFFIDAVIT PLACED ON RECORD, THEREFORE, WITHOUT GOING INTO MERIT OF THE ADDITION, WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR DECIDING AFRESH. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE AO WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF THE COPY OF THIS ORDER. IN CASE OF ANY FAILURE ON THE PART OF THE ASSESSEE TO APPEAR BEFORE THE AO WITHIN THE STIPULATED PERIOD, THE AO WILL BE AT LIBERTY TO PASS ORDER AS PER LAW. WE DIRECT ACCORDINGLY. ITA NO. 7623 /1 3 4 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 10/06 / 201 5 . SD/ - SD/ - ( ) ( SUSHMA CHOWLA ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 10/06 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/