ACIT CEN CIR 40, MUMBAI V. MUNISH M. KHAN, MUMBAI

ITA 8002/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92495 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 28-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S J SINGH
• Assessee Lawyers: BHOOMIKA VORA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ./ I.T.A. NOS. 8002, 8003 & 8004 /MUM/2011 ( / ASSESSMENT YEARS : 2007-08, 2008-09 & 2009-10 ACIT CC 40, ROOM NO. 653, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 20. / VS. MR. MUNISH M. KHAN, 1403, A-WING, RAJ CLASSIC BLDG., YARI ROAD, VERSOVA, ANDHERI (W). ./ PAN : AAQBTM9300L ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI S.J. SINGH CIT DR R E SPONDENT BY : MS. BHOOMIKA VORA / DATE OF HEARING : 29-04-2015 / DATE OF PRONOUNCEMENT : 29-04-2015 [ !' / O R D E R PER BENCH . : THE CAPTIONED THREE APPEALS BY THE REVENUE ARE DIRE CTED AGAINST THREE SEPARATE ORDERS OF THE LD. CIT(A) 38, MUMBAI DATE D 30-08-2011, WHICH IN TURN HAS ARISEN FROM THE ORDERS PASSED BY THE ASSES SING OFFICER UNDER SECTION 143(3) READ WITH SECTION 153C OF THE INCOME TAX ACT, 1961 DATED 30- 12-2010 PERTAINING TO ASSESSMENT YEARS 2007-08 TO 2 009-10. 2. IN ALL THE APPEALS, A COMMON ISSUE IS INVOLVED, AND THEREFORE THE APPEALS HAVE BEEN CLUBBED AND HEARD TOGETHER FOR TH E SAKE OF CONVENIENCE AND BREVITY. ITA 8002 & 8003/M/11 2 3. IN ALL THE APPEALS, A COMMON GRIEVANCE OF THE RE VENUE IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE ON PROT ECTIVE BASIS IN THE HANDS OF THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ADDITION MADE ON SUBSTANTIVE BASIS IN THE HANDS OF MR. MUNIR KHAN H AD NOT BECOME FINAL YET. 4. IN BRIEF, THE RELEVANT FACTS ARE THAT A SEARCH & SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT ON MR. MU NIR KHAN ON 28-02-2009, WHICH, INTER ALIA, REVEALED A LARGE NUMBER OF BANK ACCOUNTS MAINTAINED IN THE NAMES OF DIFFERENT PERSONS, INCLUDING THE ASSESSEE BEFORE US. THE DETAILS OF THE BANK ACCOUNTS REVEALED DEPOSIT OF HUGE AMOUNTS OF CASH. ALL THE AMOUNTS DEPOSITED IN THE BANK ACCOUNTS MAINTAINED IN DIFFER ENT NAMES, INCLUDING THAT IN THE NAME OF THE ASSESSEE, WERE TAKEN INTO CONSID ERATION DURING THE ASSESSMENT PROCEEDINGS OF MR. MUNIR KHAN AND ADDITI ONS WERE MADE ON SUBSTANTIVE BASIS, ON THE GROUND THAT MR. MUNIR KHA N WAS THE MAIN PERSON WHO WAS RUNNING A BUSINESS OF SELLING SPURIOUS MEDI CAL PRODUCTS; AND, EARNINGS FROM SUCH BUSINESS WERE DEPOSITED IN SEVER AL BANK ACCOUNTS MAINTAINED IN HIS OWN NAME AND IN THE NAME OF HIS F AMILY MEMBERS, ETC. HOWEVER, THE ASSESSING OFFICER ALSO MADE PROTECTIVE ASSESSMENTS IN THE HANDS OF THE RESPECTIVE PERSONS IN WHOSE NAMES THE BANK ACCOUNTS WERE MAINTAINED. THUS, THE ASSESSMENT YEAR-WISE DETAILS OF THE BANK DEPOSITS ASSESSED ON PROTECTIVE BASIS IN THE HANDS OF THE AS SESSEE ARE AS FOLLOWS:- ASSESSMENT YEAR AMOUNT 2007-08 RS. 38,53,650/- 2008-09 RS. 65,92,882/- 2009-10 RS 98,116/- 5. THE AFORESAID THREE ADDITIONS MADE ON PROTECTIVE BASIS ARE THE SUBJECT MATTER OF DISPUTE BEFORE US IN THE THREE CAPTIONED APPEALS. THE LD. CIT(A) HAS DELETED THE ABOVE ADDITIONS IN THE HANDS OF THE ASS ESSEE ON THE GROUND THAT ITA 8002 & 8003/M/11 3 SIMILAR AMOUNTS HAVE BEEN FULLY CONSIDERED AS INCOM E IN THE HANDS OF MR. MUNIR KHAN ON SUBSTANTIVE BASIS. 6. THE LD. CIT-DR POINTED OUT THAT THE LD. CIT(A) H AS ERRED IN DELETING THE IMPUGNED PROTECTIVE ADDITIONS BECAUSE THE ADDITION MADE ON SUBSTANTIVE BASIS IN THE HANDS OF MR. MUNIR KHAN HAD NOT BECOME FINAL INASMUCH AS THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SHRI MU NIR MOHAMAD KHAN VIDE ORDER NO. ITA NOS. 7928 TO 7931/MUM/2011 DATED 16-1 0-2014 FOR ASSESSMENT YEARS 2005-06 TO 2008-09 HAS SET ASIDE T HE MATTER TO THE FILE OF THE ASSESSING OFFICER IN ORDER TO VERIFY AND DECIDE THE ISSUE AFRESH. A COPY OF THE SAID ORDER HAS BEEN PLACED ON RECORD. 7. THE LD. REPRESENTATIVE APPEARING FOR THE RESPOND ENT ASSESSEE SUBMITTED THAT THE ASSESSEE HAS NO OBJECTION IF THE MATTER IS REMANDED BACK TO THE FILE OF ASSESSING OFFICER TO BE DECIDED AFRE SH, AS A RESULT OF THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI MUNIR MOHAMAD K HAN (SUPRA). 8. HAVING REGARD TO THE ABOVE SUBMISSIONS MADE BY T HE RIVAL COUNSELS, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AFRESH. THE ASSESS ING OFFICER SHALL ALLOW THE ASSESSE A REASONABLE OPPORTUNITY OF BEING HEARD, AN D THEREAFTER PASS AN APPROPRIATE ORDER AS PER LAW FOR THE CAPTIONED THRE E ASSESSMENT YEARS. 9. IN THE RESULT, THE APPEALS OF THE REVENUE ARE TR EATED AS ALLOWED FOR STATISTICAL PURPOSE. ITA 8002 & 8003/M/11 4 10. ABOVE DECISION WAS PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING ON 29- 04-2015. SD/- SD/- (AMIT SHUKLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER . / MUMBAI ; 0! DATED 29-04-2015 .8../ RK RKRK RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 9 () / THE CIT(A), CONCERNED, MUMBAI 4. 9 / CIT, - CONCERNED, MUMBAI 5. <=> 88?@ , ?@ , . / / DR, ITAT, MUMBAI B BENCH 6. >BC D / GUARD FILE. ' / BY ORDER, < 8 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , . / / ITAT, MUMBAI