TANVEER FATIMA AHMED ADAM, V. ITO 20(3)(1),

MA 288/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4570 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2015
• Court: TRIBUNAL
• Department Lawyers: D S RATNAM
• Assessee Lawyers: AAKRITI SETH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE S/SHRI MAHAVIR SINGH (JM) & B.R. BASKARAN (AM) M.A.NO. 288/MUM/2015 ARISING OUT OF I.T.A. NO. 3411 /MUM/ 2014 (ASSESSMENT YEAR 2008 - 09 ) TANVEER FATIMA AHMAD ADAM 505, MAGNUM TOWER 2 ND CROSS L ANE ANDHERI WEST MUMBAI - 400 053. VS. ITO 20(3)(1) MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . ADEPA9315G ASSESSEE BY MS. AAKRITI SETH DEPARTMENT BY SHRI D.S. RATNAM DATE OF HEARING 3.6 . 201 6 DATE OF PRONOUNCEMENT 3. 6 . 201 6 O R D E R PER B.R. BASKARAN, A M : - THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION WITH THE PLEA THAT THERE ARE MISTAKES APPARENT FROM RECORD IN THE ORDER DATED 26 - 08 - 2015 PASSED AGAINST THE APPEAL CITED ABOVE. 2. THE FIRST MISTAKE POINTED OUT BY THE ASSESSEE R ELATES TO DEDUCTION TOWARDS CIVIL WORKS C ARRIED OUT BY THE ASSESSEE AS PART OF THE COST OF BUILDING . THE ASSESSEE HAD CLAIMED A SUM OF ` 2,57,000/ - AS COST OF CIVIL WORKS AND DEDUCTED THE SAME WHILE COMPUTING CAPITAL GAIN A RISING ON SALE OF PREMISES. THE L EARNED CIT(A) RESTRICTED THE ALLOWED THE CLAIM TO THE TUNE OF ` 1,19,000 / - ON THE REASONING THAT THE ASSESSEE COULD PRODUCE EVIDENCES TO THAT EXTENT ONLY. THE TRIBUNAL CONFIRMED THE ORDER PASSED BY LEARNED CIT(A) ON THIS ISSUE. 3. IT IS THE PLEA OF THE ASSESSEE THAT SHE HAS FILED AN AFFIDAVIT OBTAINED FROM THE CONTRACTOR, WHEREIN THE CONTRACTOR HAS D EPO SED THAT HE HAS RECEIVED TANVEER FATIMA AHMAD ADAM 2 BALANCE AMOUNT OF ` 1,38,000/ - (2,57,000 MINUS 1,19,000) DURING THE FINANCIAL YEAR 2013 - 14 TO 2015 - 16. ACCORDING TO THE ASSESSEE THE TRIBUNAL DID NOT CONSIDER THE AFFIDAVIT SO FILED AND THE SAME HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. 4. WE HAVE HEARD THE PARTIES ON THIS ISSUE. WE NOTICE THAT THE ABOVE SAID ISSUE HAS BEEN DEALT WITH BY THE TRIBUNAL IN PARA GRAPH 8 OF THE O RDER. A PERUSAL OF THE SAME WOULD SHOW THAT THE TRIBUNAL HAS NOTED DOWN THAT : (A) T HE ASSESSEE DID NOT CLARIFY THE PENDENCY OF DISPUTE AND POSSIBILITY OF RESOLUTION AT THE TIME OF FINALIZATION OF ASSESSMENT . (B) THE ASSESSEE ALSO DID NOT FURNISH DETAI LS OF RENOVATION CARRIED OUT BY THE CONTRACTOR, ON THE BASIS OF WHICH THE CLAIM OF THE ASSESSEE WOULD HAVE BEEN EXAMINED. 5. NOW, THE ASSESSEE ALSO PLACED RELIANCE ON THE AFFIDAVIT FILED BY THE CONTRACTOR . A PERUSAL OF THE AFFIDAVIT WOULD SHOW THAT THE CONTACTOR DID NOT MENTION ANYTHING ABOUT THE WORK CARRIED OUT BY HIM, THE DETAILS OF DISPUTE AND HOW IT WAS RESOLVED , HOW THE PAYMENT S W ERE RECEIVED BY HIM ETC . HE MERELY STATES THAT THE BALANCE AMOUNT WAS RECEIVED OVER A PERIOD OF THREE YEARS. THUS, WE N OTICE THAT THE AFFIDAVIT IS BA LD IN THE NATURE. WE FURTHER NOTICE THAT THE TRIBUNAL HAS CONFIRMED THE ORDER OF LD CIT(A) ON ONE MORE REASONING THAT THE ASSESSEE DID NOT FURNISH DETAILS OF THE RENOVATION CARRIED OUT BY THE CONTRACTOR . THUS, IT CAN BE NOTI CED THAT EVEN IF THE AFFIDAVIT IS CONSIDERED TO BE ADMISSIBLE EVIDENCE, THE DECISION REACHED BY THE TRIBUNAL WOULD REMAIN INTACT IN VIEW OF THE SECOND REASONING GIVEN ABOVE. ACCORDINGLY, WE ARE OF THE VIEW THAT THE AFFIDAVIT FILED BY THE CONTRACTOR COULD NOT BE OF ANY HELP TO THE ASSESSEE. ACCORDINGLY, WE DO NOT FIND ANY ERROR IN THE ORDER PASSED BY THE TRIBUNAL ON THIS ISSUE. 6. NEXT MISTAKE POINTED OUT BY THE ASSESSEE RELATES TO THE CLAIM OF ` 2 8 ,000/ - MADE BY THE ASSESSEE AS COST OF IMPROVEMENT. THI S ISSUE HAS BEEN DEALT WITH BY THE TRIBUNAL IN PARA GRAPH 4 OF THE ORDER, WHEREIN THE TRI BUNAL HAS CONFIRMED THE ORDER PASSED BY LEARNED CIT(A) ON THIS ISSUE . THE FIRST TANVEER FATIMA AHMAD ADAM 3 APPELLATE AUTHORITY HAD OBSERVED THAT THE ASSESSEE COULD NOT FURNISH DETAILS/EVIDENCES RELATING TO THE COST OF CLAIM OF IMPROVEMENT OF ` . 28,000/ - AND THE SAID OBSERVATION WAS NOT DISPROVED BEFORE US . THUS, WE NOTICE THAT T HE TRIBUNAL HAS TAKEN A VIEW ON THIS MATTER AND THE SAME CANNOT BE RECTIFIED U/S. 254(2) OF THE ACT. 7. IN VIEW OF THE FOREGOING DISCUSSIONS, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. ACCORDINGLY, WE REJECT THE SAME . 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 03 .6 .2016 . SD/ - SD/ - (MAHAVIR SINGH ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 03 / 6/ 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. TH E APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS