Induben M. Morabia, Ahmedabad V. The Dy. CIT, Central Circle-2(3), Ahmedabad

ITSSA 420/AHD/2017

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4976 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-03-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 69; 132; 153A

Judgement Text

IT(SS)A No.420/Ahd/2017 A.Y. 2010-11 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH, AHMEDABAD BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT AND Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER (Conducted through Virtual Court) IT(SS)A No.420/Ahd/2017 Assessment Year: 2010-11 Induben M. Morabia, vs. Dy. Commissioner of Income Tax, 14, Saryu Flats, Central Circle-2(3), Ahmedabad. Mithakhali Six Roads, Ahmedabad – 380 009. [PAN – AEKPM 6694 J] (Appellant) (Respondent) Appellant by : Shri Sakar Sharma, A.R. Respondent by : Shri Vijaykumar Jaiswal, CIT DR. Date of hearing : 27.01.2022 Date of pronouncement : 16.03.2022 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This appeal is filed by the assessee against the order dated 18.10.2017 passed by the CIT(A)-12, Ahmedabad for the Assessment Year 2010-11. 2. The grounds of appeal raised by the assessee are as under : “(1) The Ld. CIT(A) erred on facts and in law in holding that noting/entry found in third party documents to be belonging to the appellant even though appellant had no financial transactions with the party in whose possession such documents were seized. (2) The Ld. CIT(A) erred on facts and in law confirming addition of Rs.8,50,000/- on account of alleged receipt of undisclosed consideration received on sale of property at Vardhman Nagar, Sukhpar”. 3. The assessee has also raised an additional ground of appeal which reads as under: IT(SS)A No.420/Ahd/2017 A.Y. 2010-11 Page 2 of 4 “Ld. Assessing Officer erred on facts and in law in invoking provisions of section 153A of the Act and in making consequential assessment without appreciating that no search warrant u/s.132 was issued to me and therefore, assessment so made is illegal and void ab-initio and is liable to be quashed which Ld. CIT(A) ought to have done.” 4. The assessee is an individual having income from interest and other sources. Notice u/s.153A of the Income Tax Act, 1961 was issued on 17.06.2014 and was served upon the assessee. Return in response thereto was filed for the year under consideration on 26.05.2015 declaring total income at Loss to be carried forward. Assessee complied with all the notices issued and therefore, Assessing Officer has completed assessment u/s.153(A)(1)(b) of the Act on 29.03.2016 at Rs.10,07,634/- resulting into addition of Rs.16,64,718/- on account (A) Rs.8,14,718/- being unexplained investment u/s 69 in cost of construction and (B) Rs.8,50,000/- being unexplained income for the sale of property at Vardhaman Nagar, Sukhpur. 5. Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee. 6. The Ld. A.R. submitted that as regards the additional ground the records show that no search warrant under Section 132 of the Act was issued to the assessee and therefore, assessment is bad in law and void ab-initio in respect of invoking provisions of Section 153A of the Act. As regards merits of the case is concerned, the ld. A.R. submitted that the addition of Rs.8,50,000/- on account of unexplained income for sale of property at Vardhaman Nagar, Sukhpur is not just and proper as the assessee has given all the details, the contention of the assessee that this plot was sold on 31.01.2011 to Smt. Nanbhai Manji Khetani, Sukhpur Taluka, Bhuj for the consideration of Rs.1,90,000/-, Jantri value was below Rs.1,90,000/- on that day and Shri Rajubhai had anything to do with it. The documents were found which were not at all concerned to the assessee and cannot be treated as incriminating documents in assessee’s case. Thus, the Ld. A.R. submitted that the addition does not sustain on merit as well. IT(SS)A No.420/Ahd/2017 A.Y. 2010-11 Page 3 of 4 7. The Ld. D.R. submitted that the warrant of authorisation under Section 132 of the Act clearly set out the assessee’s name and, therefore, the contention of the Ld. A.R. that the warrant was not issued to the assessee is incorrect. As regards merits of the case are concerned, the Ld. D.R. relied upon the order of the CIT(A) and further submitted that incriminating material was found during the search which points out that the payment of Rs.8,50,000/- to Shri M.H. Morabia on account of plot of land belonging to Smt. Induben Morabia was sold to Smt. Nanbhai Manji Khetani is set out from the documents found during the search. 8. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the warrant of authorisation has clearly set out the name of the assessee and, therefore, the additional ground that of challenging assessment order does not survive. Thus, the additional ground of the assessee is dismissed. 9. As regards merits of the case are concerned, there was no incriminating documents found in the name of Smt. Induben Morabia during the search at the residence of Karsen Veljibhai Patel pertaining to Rajendra V. Shah related to purchase of plot no.7 Vardhaman Nagar, Sukhpur did not mention the name of Smt. Induben Morabia. In fact, the assessee has demonstrated before the Assessing Officer as well as before the CIT(A) that the plot was sold by the assessee on 31.01.2011 to Smt. Nanbhai Manji Khetani was situated at Bhuj for the consideration of Rs.1,90,000/-. Therefore, the observation made by the Assessing Officer as well as the CIT(A) is contrary to the records and the addition does not sustain,. Hence ground nos.1 & 2 of the assessee’s appeal are allowed. 10. In the result, appeal of the assessee is partly allowed. Order pronounced in the open Court on this 16 th day of March, 2022. Sd/- Sd/- (P.M. JAGTAP) (SUCHITRA KAMBLE) Vice President Judicial Member Ahmedabad, the 16 th day of March, 2022 PBN/* IT(SS)A No.420/Ahd/2017 A.Y. 2010-11 Page 4 of 4 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad