RAJESH P. DESAU, MUMBAI V. DCIT 16(2), MUMBAI

ITSSA 47/MUM/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1183 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-10-2015
• Assessment Year: misc
• Appeal Filed On: 04-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J D MISTRY
• Keywords: Unexplained investment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER / I .T.(SS)A. NO.47/MUM/2011 BLOCK PERIOD 1.4.1996 TO 17.7.2002 SHRI RAJESH P. DESAI, 4/A-6, SONAWALA BLDG., 3 RD FLOOR, TARDEO, MUMBAI-400 007 / VS. THE DCIT 16(2), MATRU MANDIR, TARDEO MARG, MUMBAI-400 007 ./ ./ PAN/GIR NO. :AADFN 9444Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI J.D. MISTRY / RESPONDENT BY: SHRI SANJEEV KASHYAP / DATE OF HEARING :21.10.2015 ! / DATE OF PRONOUNCEMENT : 28.10.2015 '# / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-27, MUMBAI DATED 25.3.2011 PERTAINI NG TO BLOCK PERIOD 1.4.1996 TO 17.7.2002. 2. THE ASSESSEE HAS RAISED 12 GROUNDS OF APPEAL. T HE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE CAN BE F OUND FROM GROUND NO.6 WHICH READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) FAILED TO APPRECIATE THAT THE AO ERRED IN MA KING IT(SS)A. NO. 47/M/2011 2 ADDITION OF RS. 84,00,000/- MERELY ON THE BASIS THAT IN THE CASE OF M/S. NATIONAL BUILDERS & DEVELOPERS IT IS HELD THAT A SUM OF RS. 84 LAKHS IS UNACCOUNTED INVESTMENT. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE BROUGHT TO OUR NOTICE THE DECISION OF THE TRIBUNAL AHMEDABAD B ENCH IN THE CASE OF NATIONAL BUILDERS & DEVELOPERS IN IT(SS)A NO. 13 5/AHD/2005. IT IS THE SAY OF THE LD. COUNSEL THAT THE ADDITIONS WH ICH WERE MADE ON THE BASIS OF THE FINDINGS GIVEN IN THE CASE OF NATI ONAL BUILDERS & DEVELOPERS HAVE BEEN DELETED BY THE TRIBUNAL BY ITS ORDER (SUPRA), THEREFORE THE ADDITION DESERVES TO BE DELETED FROM THE HANDS OF THE ASSESSEE. 4. THE DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY DISTINGUISHING FACTS/DECISION IN FAVOUR OF THE REVE NUE. 5. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE CONTENTION OF THE SENIOR COUNSEL. THE TRIBUNAL IN THE CASE OF NATIONAL BUIL DERS & DEVELOPERS (SUPRA) AT PAGE-16 OF ITS ORDER HAS CONSIDERED THE FOLLOWING FINDINGS ON THE SEIZED MATERIAL. THE SEIZED PAPER ANN. BS-3, P. 14 & 15 ARE ANNEXED TO THIS ORDER AS ANNEXURE-1. PAGE NO. 14 SHOWS THE FOLLOWING INSCRIPTIONS:- 1) RAJESH DESAI }368A 2) PROPERTY DETAIL }194/2P 3) FRONT SIDE -------X ------- 2327 SQ. MTR .000 SQ. MTR SOLD 1727 BAL X RS. 600 SQ. MTR LUMP = 10,00,000 IT(SS)A. NO. 47/M/2011 3 3 PART DIVIDED = 28 + 28 AGRI. 3.36 ACRE + 28 LUMP 16,00,000 LAND COST 26 WHITE BAL BLACK TOTAL = 84,00,101 6. WE FIND THAT ON IDENTICAL FINDINGS, THE LD. CIT( A) HAS CONSIDERED THE ISSUE AT PRA-3 OF ITS ORDER. THE IM PUGNED ADDITION OF RS. 84 LAKHS WAS DELETED BY THE TRIBUNAL IN THE CAS E OF NATIONAL BUILDERS & DEVELOPERS (SUPRA) BY HOLDING : FOR THE ABOVE SAID REASONS, WE ARE OF THE CONSIDER ED VIEW THAT THE ADDITION MADE BY THE LD. AO FOR RS. 8 4 LAKHS TOWARDS ALLEGED UNDISCLOSED INVESTMENT IS NOT SUSTA INABLE AND THEREFORE WE HEREBY DIRECT THE SAME SHOULD BE DELET ED. 7. SINCE THE AMOUNT HAS BEEN DELETED FROM THE HANDS OF THE PAYER (NATIONAL BUILDERS & DEVELOPERS), THE SAME CANNOT B E ADDED IN THE HANDS OF THE PAYEE (ASSESSEE). RESPECTFULLY FOLLOW ING THE DECISION OF THE CO-ORDINATE BENCH (SUPRA), WE SET ASIDE THE ORD ER OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS. 84 LAKHS. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2015 SD/- SD/- (AMARJIT SINGH ) (N.K. BILLAIYA) $% ' /JUDICIAL MEMBER ' / ACCOUNTANT MEMBER & ' MUMBAI; (' DATED :28 TH OCTOBER, 2015 . % . ./ RJ , SR. PS IT(SS)A. NO. 47/M/2011 4 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+, %%-. , -.! , & ' / DR, ITAT, MUMBAI 6. ,/0 1 / GUARD FILE. ' / BY ORDER, * % //TRUE COPY// # / '$ % (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI