ACIT 6(1), MUMBAI V. SARLA H. DOSHI, MUMBAI

ITA 7715/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75912 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 05-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RUTURAJ H GURJAR V V BHAGWAT
• Keywords: Salary income; Additional evidence
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , %, & BEFORE SHRI SANJAY ARORA, A.M. AND SHRI AMIT SHUKL A, J.M. ./ I.T.A. NO. 7715/MUM/2010 ( * * * * * * * * / / / / ASSESSMENT YEAR: 2007-08) ASST. CIT, CIRCLE 6(1) R.NO.506, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.RD. MUMBAI- 400020 / VS. SMT. SARLA H. DOSHI, BINDU, IRLA BRIDGE, SV ROAD, VILE PARLE(W), MUMBAI-400056 ./ ./ PAN/GIR NO. AAEPD6713D ( / REVENUE ) : ( *. / ASSESSEE ) / / REVENUE BY : SHRI RAVIPRAKASH *. / / ASSESSEE BY : SHRI RUTURAJ H.GURJAR,& V.V.BHAGWAT / 1 / // / DATE OF HEARING : 05.03.2014 / 1 / DATE OF PRONOUNCEMENT : .03.2014 / O R D E R PER AMIT SHUKLA, J. M.: THIS APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT AG AINST IMPUGNED ORDER DATED 23.08.2010 PASSED BY THE CIT(A)-14 MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) FOR ASSESSMENT YEAR 2007-08 ON FO LLOWING GROUNDS OF APPEAL: 2 ITA NO. 7715/MUM/2010 SMT. SARLA H.DOSHI 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.33,20,803/- ON ACCOUNT OF UNDISCLOSED INVESTMENT MADE IN SBI MUTUAL FUND, BY ADMITTING TH E ADDITIONAL EVIDENCE IN VIOLATION OF THE PROVISION OF RULE 46A.. 2. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 2. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE I S AN INDIVIDUAL HAVING INCOME FROM SALARY, INCOME FROM OTHER SOURCES AND CAPITAL GAINS. SHE HAS FILED HER RETURN OF INCOME AT RS.6,85,372/- ON 04.10.2007. IN THIS C ASE, AIR INFORMATION WAS RECEIVED TO THE DEPARTMENT THAT ASSESSEE HAD MADE P AYMENT FOR PURCHASE OF SBI MUTUAL FUNDS FOR SUMS AGGREGATING RS.33,20,803/-, WHICH ARE AS UNDER: DATE NAME OF FUND AMOUNT(RS.) 28.02.2007 SBI MUTUAL FUND 7,09,770/- 02.05.2006 SBI MUTUAL FUND 11,00,000/- 09.03.2007 SBI MUTUAL FUND 7,11,033/- 23.11.2006 SBI MUTUAL FUND 2,50,000/- 01.09.2006 SBI MUTUAL FUND 5,50,000/- 3. IT APPEARS THAT IN RESPONSE TO NOTICES ISSUED B Y THE ASSESSING OFFICER, ASSESSEE DID NOT MADE FULL COMPLIANCE, ACCORDINGLY, HE MADE THE ADDITION OF RS.33,20,803/- U/S.69, AS THE SOURCE OF INVESTMENT MADE IN THE SAID MUTUAL FUND HAS NOT BEEN REFLECTED IN THE BOOKS OF ACCOUNT. 4. BEFORE, THE CIT(A), ASSESSEE SUBMITTED THAT SPEC IFIC REQUEST WAS MADE BEFORE THE AO ON VARIOUS OCCASIONS TO PROVIDE THE COPY OF AIR STATEMENT, BETWEEN THE SAME WAS NOT PROVIDED BY THE AO. IT WAS BROUGHT ON RECORD THAT THE INVESTMENT OF RS.33,20,803/- MADE IN THE SBI MUTUAL FUND WERE MADE BY ASSESSEES MARRIED DAUGHTER, MRS. BINDU CHOKSI IN T HE JOINT NAME WITH THE 3 ITA NO. 7715/MUM/2010 SMT. SARLA H.DOSHI ASSESSEE. THE LEARNED CIT(A) ON THE BASIS OF RECORD S PLACED BEFORE HIM, OBSERVED THAT AN IDENTICAL AIR REPORT WAS RECEIVED IN THE CA SE OF ASSESSEES DAUGHTER, FOR THE SAME ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2007-08, WHEREIN SHE HAD EXPLAIN THE ENTIRE SOURCE OF INVESTMENT IN HER HANDS. A COPY OF THE LETTER DATED 23.11.2009 ALONG WITH THE ENCLOSURES, EXPLAINING THE SOURCE OF INVESTMENT WAS FILED, WHICH STATED AS UNDER: 2. RE: AIR INFORMATION INVESTMENT OF RS.11 LACS IN SBL MUTUAL FUND. THE SAID INVESTMENT WAS MADE BY THE ASSESSEE BY ISS UING CHEQUE FROM HER BANK ACCOUNT WITH INDIAN OVERSEAS BANK, MAHIM BRANCH. THE SAID W AS REDEEMED ON 10.052006 FOR RS.10,61,754/-- THE ASSESSEE INCURRED SHORT TERM LO SS OF RS.38,246/-, BY OVERSIGHT WAS NOT CLAIMED IN THE RETURN OF INCOME. 3. RE: AIR IN FORMATION SB! MUTUAL FUND RS.7,09 ,77O/- ON 28.02.2007 & RS.7,11,033/- ON 09.03.2007 IN NOVEMBER 2006, THE ASSESSEE INVESTED RS.5,50,000 /- ON 01.112006 & RS.2,50,000/- ON 23.11.2006 IN SB! MUTUAL FUND BY ISSUING CHEQUES FR OM HER BANK ACCOUNT WITH INDIAN OVERSEAS BANK, MAHIM BRANCH. THIS INVESTMENT OF RS. 8 LACS WAS SWITCH OUT/IN ON 28.02.2007 FOR RS.7,09770/- AND AGAIN ON 09.03.2007 FOR RS.7,11,033/-. THE ASSESSEE INCURRED A SHORT TERM LOSS OF RS.88,967/- (INVESTME NT OF RS.8 LACS WAS SWITCH IN FOR RS. 7,1 1,033/- ON 09.03.2007). 5. ON THE PERUSAL OF THE AFORESAID RECORD, THE LEARNED CIT(A), DELETED THE ADDITION FROM THE HANDS OF THE ASSESSEE ON THE GROU ND THAT, FIRST OF ALL, THE ASSESSING OFFICER DID NOT PROVIDE THE INFORMATION A S CONTAINED IN THE AIR AND SECONDLY, THE SAID INFORMATION REVEALED THAT INVEST MENT WAS MADE IN JOINT ROOMS. FURTHER, IT IS CLEARLY ABOVE OUT FROM THE RECORDS T HAT THE INVESTMENT IN THE SAID MUTUAL FUNDS STANDS EXPLAINED IN THE HANDS OF MRS. BINDU CHOKSI, THEREFORE, THERE IS NO QUESTION OF ADDING THE SAME AMOUNT HERE. THE RELEVANT FINDINGS AND OBSERVATIONS OF THE LEARNED CIT(A) ARE AS UNDER : 7. I HAVE GONE THROUGH THE ABOVE SUBMISSIONS VERY C AREFULLY AND FACTS OF TRI CASE. ON THE BASIS OF AIR INFORMATION, THE ASSESSING OFFICER HAS MADE ADDITION OF RS.33,20,803/- U/S. 69 AS THE INVESTMENT IN THE MUTUAL FUND HAS NOT BEE N EXPLAINED BY THE APPELLANT. ON THE OTHER HAND, THE APPELLANT ARGUED THAT NO DETAILS OF INVESTMENT IN MUTUAL FUND HAS BEEN SUPPLIED TO THE APPELLANT. THEREFORE, SHE WAS NOT I N A POSITION TO EXPLAIN THE INVESTMENT IN QUESTION. NOW, DURING THE APPELLATE PROCEEDINGS THE APPELLANT HAS SUBMITTED THAT ENTIRE INVESTMENT IN THE MUTUAL FUNDS WERE MADE BY THE ASSESSEES MARRIED DAUGHTER 4 ITA NO. 7715/MUM/2010 SMT. SARLA H.DOSHI MRS. BINDU CHOKSHI IN THE JOINT NAMES WITH THE ASSE SSEE. AN IDENTICAL AIR REPORTING WAS ALSO RECEIVED IN THE CASE OF MRS. BINDU CHOKSHI FOR A.Y. 200708 WHEREIN THE ENTIRE INVESTMENT OF RS.33,20,803/- TRUTHFULLY EXPLAINED B Y MRS. BINDU CHOKSHI IN HER HANDS. A COPY OF LETTER DATED 23RD NOVEMBER, 2009 ALONG WITH THE ENCLOSURES TO THE SAME, EXPLAINING THE SOURCE OF INVESTMENT OF RS.33,20,803 /- AS FILED WITH THE I.T.O. 21(1 )(1). 8. IN VIEW OF THE ABOVE SUBMISSION, IT IS BEYOND DO UBT THAT THE ENTIRE INVESTMENT WAS MADE BY MRS. BINDU CHOKSHI MARRIED DAUGHTER OF THE APPEL LANT IN THE JOINT NAME OF THE APPELLANT AND IN HER OWN NAME, WHICH STANDS FULLY E XPLAINED IN THE ASSESSMENT OF MRS. BINDU CHOKSHI. THEREFORE, THE QUESTION OF REFLECTIO N OF THE ABOVE AMOUNT IN THE BOOKS OF ACCOUNT / BALANCE SHEET OF THE APPELLANT DOES NOT A RISE AT ALL. IN VIEW OF THE FACT, THE ACTION OF THE ASSESSING OFFICER DOES NOT APPEAR TO BE JUSTIFIED. HENCE, THE SAME DESERVE TO BE DELETED. 6. BEFORE US, THE LEARNED DR SUBMITTED THAT EVEN IF THE SIMILAR INFORMATION WAS RECEIVED IN THE CASE OF ASSESSEES DAUGHTER, WHEREI N THE SOURCE OF INVESTMENT HAS BEEN EXPLAINED, HOWEVER, THESE DETAILS AND INFORMAT ION SHOULD HAVE BEEN PROVIDED BEFORE THE AO, WHO COULD HAVE VERIFIED THE SAME. TH US, THERE WAS CLEAR CUT IT VIOLATION OF RULE 46A, AS THE AO WAS NOT GIVEN ANY OPPORTUNITY TO REBUT THE SAID RECORDS WHICH WAS PLACED IN THE CASE OF THE ASSESSE ES DAUGHTER. 7. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ENTIRE SOURCE OF INVESTMENT STOOD EXPLAINED IN THE CASE OF ASSESSEES DAUGHTER, WHICH WAS FURNISHED BEFORE THE DEPARTMENT ITSELF. WHEN SIMILA R ENQUIRY WAS UNDERTAKEN BY THE DEPARTMENT ON THE BASIS OF SAME AIR INFORMATION THEREFORE, IT CANNOT BE SAID THAT IT IS AN ADDITIONAL EVIDENCE, WHICH CAN BE SAI D TO HAVE BEEN FILED IN VIOLATION RULE 46A. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED RELEVANT FINDING OF AO AS WELL AS CIT(A). THE ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSESSEE U/S 69 ON THE BASIS OF AIR INFORMATION RECEIVED BY THE AO. THE SAID INFORMATION WAS NOT MADE AVAILABLE TO THE ASSESSEE AT THE TIME OF THE ASSESSMENT PROCEEDINGS. BEFORE THE CIT(A), IT WAS BROUGHT ON RECORD THAT SI MILAR AIR INFORMATION WAS ALSO 5 ITA NO. 7715/MUM/2010 SMT. SARLA H.DOSHI RECEIVED IN THE CASE OF ASSESSEES DAUGHTER, MRS. B INDU CHOKSI FOR THE SAME ASSESSMENT YEAR. IN THAT CASE, MRS. BINDU CHOKSI HA S SATISFACTORILY EXPLAINED THE SOURCE OF INVESTMENT WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT. ONCE THE SAME SOURCE OF INVESTMENT STANDS EXPLAINED IN THE HANDS OF ASSESSEES DAUGHTER, WHO HAS OWNED THE INVESTMENT MADE IN THE SBI MUTUAL FUNDS, THERE IS NO REASON FOR SUSTAINING THE ADDITION ON ACCOUNT OF UNEXPLAINED I NVESTMENT U/S 69 IN THE HANDS OF THE ASSESSEE. MOREOVER THE SAID INFORMATION PLACED BEFORE CIT(A) ARE PART OF DEPARTMENTAL RECORD AND ONLY CLARIFICATORY IN NATUR E AND IT CANNOT SAID TO BE AN ADDITIONAL EVIDENCE. THE DEPARTMENT HAD ALREADY VER IFIED THE CONTENTS AND SOURCE OF INVESTMENT IN THE CASE OF ASSESSEES DAUGHTER. T HERE IS NO POINT FOR GIVING FURTHER OPPORTUNITY TO THE AO, WHEN THE POSER OF CI T(A) IS CONTINUOUS WITH THE ASSESSING OFFICER. UNDER THESE FACTS, WE DO NOT FIN D ANY REASON TO DEVIATE FROM THE FINDINGS RECORDED BY THE CIT(A) AS REPRODUCED ABOVE AND ACCORDINGLY GROUNDS TAKEN BY THE DEPARTMENT STANDS DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 14 TH , 2014 SD/- SD/- (SANJAY ARORA) (AMIT SH UKLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 3 DATED : 14 .03.2014 A.K. PATEL, PS / // / 45 45 45 45 65 65 65 65 / COPY OF THE ORDER FORWARDED TO : 1. 7 / THE APPELLANT 2. 487 / THE RESPONDENT 3. 9 ( ) / THE CIT(A) 6 ITA NO. 7715/MUM/2010 SMT. SARLA H.DOSHI 4. 9 / CIT - CONCERNED 5. 5 4 , , / DR, ITAT, MUMBAI 6. * / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI