MR. OMPRAKASH ABROL (HUF), V. THE ITO 27(9),

ITA 9349/MUM/2004

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7689 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 04-02-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 22-12-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Assessee Lawyers: SANJEEV M SHAH
• Keywords: Unexplained investment; Set aside
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI K BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, (ACCOUNTANT MEMBER), AND SHRI V.D. RAO, (JUDICIAL MEMBER) ITA NO.9349/MUM./2004 ASSESSMENT YEAR : 1998-99 DATE OF HEARING 3.2.2010 OMPRAKASH ABROL (HUF), 11/1, STARWAY CO. OP. HSG. SOCIETY, ASHA COLONY, JUHU ROAD, MUMBAI 400 049 PAN AAAHO3913J .. APPELLANT VS INCOME TAX OFFICER 27(9) MUMBAI RESPONDENT APPELLANT BY : SHRI SANJEEV M. SHAH RESPONDENT BY : SHRI DEEPAK SUTARIA O R D E R PER PRAMOD KUMAR A.M. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CALLED INTO QUESTION CORRECTNESS OF LD. COMMISSIONER (APPEALS)S ORDER D ATED 27 TH OCTOBER 2004, FOR ASSESSMENT YEAR 19998-99. ITA NO.9349/MUM./2004 OMPRAKASH ABROL (HUF) [2] 2. THE SHORT ISSUE THAT WE ARE REQUIRED TO ADJUDICA TE AS TO WHETHER OR NOT THE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDI TION OF RS.6,84,984/- BEING UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT , 1961 (FOR SHORT THE ACT ). 3. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT D ATED 2 ND JULY 2009, DECIDED IN THE CASE OF CIT VS UTTAMCHAND JAIN. IT IS POINTED OUT T HAT IN THE PRESENT CASE, THE VDIS CERTIFICATE U/S 68(2) WAS ISSUED ON 30 TH SEPTEMBER 1997 AND IT IS NOT OPEN TO THE ASSESSING OFFICER TO GO BEYOND SUCH CERTIFICATE AND THEREBY IGNORE THE SAME AND ASSESS THE INCOME WHICH HAS BEEN OFFERED TO TAX UND ER VDIS. IT IS CONTENDED THAT ON MATERIALLY IDENTICAL FACTS, THE HON'BLE BOMBAY HIGH COURT HAS DISMISSED THE APPEAL OF THE REVENUE AND UPHELD THE ORDER PASSED BY THE TRIB UNAL IN THE CASE OF UTTAMCHAND JAIN (SUPRA), REPORTED AS 103 ITD 1 (TM). LEARNED D EPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, POINTED OUT THAT IT IS A CASE IN WHICH JEWELLERY WHICH HAS BEEN DECLARED UNDER VDIS HAS BEEN SOLD BEFORE ISSUANCE OF VDIS CE RTIFICATE AND NOT AFTER THE ACCEPTANCE OF VDIS CERTIFICATE ISSUED BY THE COMMIS SIONER 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED THE APPLICABLE LEGAL POSITION AS ALSO TH E FACTUAL MATRIX OF THE CASE. IT IS NOTICED THAT THE VDIS CERTIFICATE IS STILL VALID AN D HAS NOT BEEN REVOKED OR WITHDRAWN. ONCE THE DECLARATION MADE BY THE ASSESSEE ABOUT JEW ELLERY IS ACCEPTED AND THE SAID ACCEPTANCE HAS NOT BEEN REVOKED OR WITHDRAWN, IT CA NNOT BE OPEN TO THE ASSESSING OFFICER TO BRUSH ASIDE THE DECLARATION AT A LATER S TAGE. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS PROCEEDED TO DISREGARD STATEMENT GIVEN IN THE VDIS BY OBSERVING THAT ITA NO.9349/MUM./2004 OMPRAKASH ABROL (HUF) [3] JEWELLERY WHICH HAS BEEN SOLD ON 20 TH SEPTEMBER 1997, CANNOT OBVIOUSLY BE MADE IN A DECLARATION DATED 26 TH SEPTEMBER 1997 BUT THIS APPROACH DISREGARD THE FAC T THAT THE DECLARATION OF JEWELLERY THOUGH MADE ON A LATER DAT E INDICATES THE POSITION ON AN EARLIER DATE AND ALSO THE ASSESSEES CLAIM THAT PART OF JEW ELLERY HAD TO BE SOLD TO PAY THE TAX ON VDIS. KEEPING IN VIEW THE DISCUSSION MADE ABOVE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND DELETE THE ADDITION OF RS.6,84,984/-. TH E ASSESSING OFFICER IS DIRECTED TO RE- COMPUTE THE INCOME IN THE LIGHT OF OUR AFORESAID DI RECTIONS. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON 12 TH DAY OF FEBRUARY 2010. SD/- (V.D. RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI; 12 TH DAY OF FEBRUARY 2010 COPIES OF THE ORDER FORWARDED TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT, MUMBAI (4) CIT(A), MUMBAI (5) DR, I BENCH (6) GUARD FILE TRUE COPY BY ORDER, ETC. ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PRADEEP J. CHOWDHURY MUMBAI BENCHES SR. PRIVATE SECRETARY ITA NO.9349/MUM./2004 OMPRAKASH ABROL (HUF) [4] DATE INITIAL 1. DRAFT DICTATED ON 5.2.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 5.2.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 8.2.2010 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 8.2.2010 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 11.2.2010 SR.PS/PS 6. DATE OF PRONOUNCEMENT 12.2.2010 SR.PS 7. FILE SENT TO THE BENCH CLERK 22.2.2010 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER