NAZNEEN FAROOQ, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 36, MUMBAI

MA 130/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6940 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 69C; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI R. C. SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A NO. 130/MUM/2018 IN ITA NO.1458/MUM/2012 FOR A Y: 2007-08 NAZNEEN FAROOQ SARANG 300, SHABNAM APARTMENT, S.V. ROAD, ANDHERI (W), MUMBAI-400058 . PAN: BEJPS3282N VS. DCIT CENTRAL CIRCLE-36 MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH CHHAJE D (AR) REVENUE BY : SHRI RAM TIWARI (SR. DR) DATE OF HEARING : 29.06.2018 DATE OF PRONOUNCEMENT : 04.07.2018 ORDER UNDER SECTION 254(2) OF INCOME-TAX ACT PER PAWAN SINGH, JM: 1. THIS MISCELLANEOUS APPLICATION (MA) FILED BY ASSESS EE FOR RECTIFICATIONS OF ALLEGED MISTAKE IN ORDER DATED 09.10.2017 PASSED IN ITA NO. 1458/MUM/2012 FOR ASSESSMENT YEAR 2007-08. IN THE M A, THE APPLICANT /ASSESSEE HAVE CONTENDED THAT THERE IS MISTAKE APPA RENT IN PARA NO.10, WHICH NEED RECTIFICATION. THE LD. AUTHORIZED REPRES ENTATIVE (AR) FOR THE ASSESSEE SUBMITS THAT THE INVESTMENT IF ANY WAS MAD E BY HUSBAND OF MRS. FAROOQ SARANG, THEREFORE, ANY ADDITION IN THE HAND OF THE ASSESSEE DOES NOT ARISE. FURTHER, THE RELIANCE PLACED ON THE STATEMEN T OF FAROOQ SARANG RECORDED UNDER SECTION 132(4) ON 24.02.2009 IS ALSO INCORRECT AS NO MATERIAL WAS FOUND IN THE SAID FLAT DURING THE COUR SE OF SEARCH. THE 2 MA NO. 130 M 2018-NAZNEEN FAROOQ SARANG ASSESSEES HUSBAND DURING HIS STATEMENT RECORDED ON 11.04.2009 PROVIDED THE COPY OF ALLOTMENT LETTER AND THAT NO INCRIMINAT ING MATERIAL WAS FOUND IN THE SEARCH. THE LD. AR FURTHER SUBMITS THAT THE ORDER SUFFERS FROM VARIOUS OTHER MISTAKE AND REQUIRED RECTIFICATION AN D THE ADDITION SUSTAINED TO THE EXTENT OF RS. 36,00,000/- IS LIABLE TO BE DE LETED AS RECORDED IN PARAGRAPH NO.11 OF THE ORDER. 2. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE SUBMITS THAT ORDER OF TRIBUNAL IS BASED ON FACTUAL APPRECIATION OF THE FACT AND NEEDS NO RECTIFICATION. THE CONTENTIONS RAISED BY LD. AR ARE BEYOND THE SCOPE OF SECTION 254(2). THE TRIBUNAL HAS NO PO WER TO REVIEW ITS ORDER. THE REMEDY LIES UNDER OTHER PROVISIONS OF THE ACT. IN SUPPORT OF HIS SUBMISSIONS THE LD DR RELIED ON THE DECISION OF JUR ISDICTIONAL HIGH COURT IN CIT VS RAMESH TRADING COMPANY (203 ITR 597) 3. WE HAVE CONSIDERED THE CONTENTION OF LD. AR OF THE ASSESSEE AND LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE SPECIFICALLY PERUSED THE PARAGRAPH NO.10&11 OF THE CONSOLIDATED ORDER DATED 09.10.2017, FOR ASSESSMENT YEARS 2003-4 TO 20 07-08, FOR APPRECIATION OF CONTENTION RAISED IN THIS MA, THE R ELEVANT PARA OF THE ORDER IS EXTRACTED BELOW ; 10. NOW REMAINS GROUND NO.3 IN AY 2007-08 RELATIN G TO THE ADDITION OF RS. 56 LACS MADE BY THE ASSESSING OFFICER U/S 69C T OWARDS INVESTMENT IN THE RESIDENTIAL FLAT. WE HEARD THE RIVAL SUBMISSION IN THIS REGARD. THE LEARNED AR, BEFORE US VEHEMENTLY CONTENDED THAT THI S ADDITION HAS BEEN 3 MA NO. 130 M 2018-NAZNEEN FAROOQ SARANG MADE BY THE ASSESSING OFFICER ON THE BASIS OF REPLY FURNISHED BY THE ASSESSEE IN RESPONSE TO QUARRY NO. 4(V) DATED 11.04 ..2009 AND THIS IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH. THE LEARNED DR HAS RELIED ON THE STATEMENT RECORDED UND ER SECTION 134(4) OF ASSESSEE SHRI MOHAMMED FAROOQ, ON 24.02.2009, WHERE IN HE HAS STATED THAT HIS WIFE HAS PURCHASED A FLAT NO. 603, B WIN G, HERITAGE HOUSE DEVELOPMENT (INDIA) PRIVATE LTD HAVING CARPET AREA OF 1045 FT. AT SANTACRUZ, AND THE INVESTMENT OF RS. 61 LACS WAS MA DE BY THE ASSESSEE FOR WHICH PAYMENT HAS BEEN MADE DURING 2006-07. SUBSEQU ENTLY, IN REPLY TO QUESTION NO. 1, THE HUSBAND OF ASSESSEE STATED THAT IN RESPECT OF THE SAID FLAT A SUM OF RS. 20 LAKHS HAD BEEN GIVEN IN CASH. IT IS A FACT THAT ASSESSEE IS A MUSLIM LADY AND AS PER THEIR RELIGION THEY ARE NOT PERMITTED TO SHOW THEIR FACE TO ANY PERSON OUTSIDE FAMILY. THEREFORE, WE NO TED, UNDER THESE CIRCUMSTANCES, THE REVENUE HAS TAKEN THE STATEMENT OF ASSESSEES HUSBAND. THE STATEMENT UNDER THESE CIRCUMSTANCES GIVEN BY HU SBAND OF THE ASSESSEE, IN OUR OPINION, WILL BE BINDING ON THE ASSESSEE. 11. NOW THE QUESTION BEFORE US ARISES WHETHER THE S TATEMENT SO RECORDED WILL BE REGARDED AS INCRIMINATING MATERIAL FOR THE PURPOSE OF MAKING ADDITION IN UNABATED ASSESSMENT. THE LEARNED DR IN THIS REGARD RELIED ON THE DECISION OF HON'BLE KERALA HIGH COURT IN THE CA SE OF CIT VS. M/S. ST. FRANCIS CLAY DECOR TILES (SUPRA). WE NOTED, IN THIS DECISION, THE HON'BLE HIGH COURT DEFINED THE PHRASEOLOGY 'INCRIMINATING' AND TOOK THE VIEW THAT INCRIMINATING WILL MEAN ANY MATERIAL UNEARTHED DURI NG SEARCH OPERATIONS OR ANY STATEMENT MADE DURING THE COURSE OF SEARCH BY T HE ASSESSEE WILL BE A VALUABLE PIECE OF EVIDENCE IN ORDER TO INVOKE SECTION 153A OF THE ACT. NO CONTRARY DECISION WAS BROUGHT TO OUR KNOWLEDGE BY T HE LEARNED AR BUT AS A ALTERNATIVE, HE SUBMITTED THAT THE ASSESSEE HAS PAI D A SUM OF RS. 5 LACS THROUGH CHEQUE OUT OF HER BANK ACCOUNT WHILE A SUM OF RS.20 LACS WAS PAID BY HER HUSBAND SHRI MOHAMMED FAROOQ AND THE SAID AM OUNT HAS DULY BEEN SHOWN BY HIM IN HIS IT RETURN, A COPY OF WHICH WAS FILED BEFORE US. THUS, IT WAS CONTENDED THAT IF ANY ADDITION HAS TO MADE, THE SUM OF RS. 20 LACS HAS ALSO TO BE TREATED AS SOURCE OF INVESTMENT ALONG WITH THE SUM OF 4 MA NO. 130 M 2018-NAZNEEN FAROOQ SARANG RS. 5 LACS, AS HAS BEEN ALLOWED BY THE ASSESSING OF FICER. WE NOTED THAT IN THIS CASE, THE ASSESSEE HAS MADE AN INVESTMENT OF R S. 61 LACS AS HAS BEEN DISCLOSED BY THE ASSESSEE'S HUSBAND IN THE STATEMEN T RECORDED U/S. 132(4). OUT OF THE SAID SUM OF RS. 61 LACS, RS. 5 LACS HAS BEEN PAID BY THE ASSESSEE AND RS. 20 LACS HAS BEEN PAID BY THE ASSESSEE'S HUS BAND, WHICH HAS BEEN SHOWN IN HIS IT RETURN COPY OF WHICH HAS FILED BEFO RE US. FOR THE BALANCE AMOUNT OF RS. 36 LACS, THE ASSESSEE HAS NOT PROVED ANY SOURCE. THEREFORE, WE CONFIRM THE ADDITION OF RS. 36 LACS AS UNDISCLOS ED INVESTMENT U/S. 69C OF THE I.T ACT. THUS, GROUND NO.3 IN A.Y. 2007-08 I S PARTLY ALLOWED, THEREBY REDUCING THE ADDITION OF RS. 56 LACS TO RS. 36 LACS. THE QUANTUM APPEALS FOR A.YS. 2003-04 TO 2006-07 A RE ALLOWED AND THE APPEAL FOR A.Y. 2007-08 IS PARTLY ALLOWED. 4. PERUSAL OF THE RELEVANT PARAS REVEALS THAT THE ORDE R WAS PASSED AFTER CONSIDERING THE SUBMISSIONS OF THE LD. AR FOR THE A SSESSEE AND THE MATERIAL ON RECORD. THE JURISDICTION OF THIS TRIBUNAL IS LIM ITED WHILE CONSIDERING THE APPLICATION UNDER SECTION 254(2). THE TRIBUNAL HAS NO POWER TO APPRECIATE THE FACTS AND EVIDENCE AND TO REVIEW ITS ORDER IN THE APPLICATION UNDER SECTION 254(2). SIMILAR OBSERVATION WAS HELD BY HONBLE BOMBAY HIGH COURT IN CIT VS RAMESH TRADING COMPANY (SUPRA) . THEREFORE, THE PRAYER MADE IN THE APPLICATION HAS NO SUBSTANCE UND ER LAW AND DESERVE DISMISSAL. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY A SSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH JULY 2018 SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 04/07/2018 5 MA NO. 130 M 2018-NAZNEEN FAROOQ SARANG S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/