ITO 17(3)(2), V. HAFIZULLAH ANSARI,

MA 392/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5290 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-10-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 17-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: PRADIP KEDIA
• Keywords: Income from undisclosed sources; Onus to prove
• Section: 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER. AND SHRI D.K. AGARWAL, JUDICIAL MEMBER M.A. NO.392/MUM./2010 (ARISING OUT OF ITA NO.4770/MUM./2008 ) (ASSESSMENT YEAR : 200304 ) DATE OF HEARING: 22.10.2010 INCOME TAX OFFICER, WARD 17(3)(2) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI 400 012 . APPELLANT V/S MRS. HAFIZULLAH ANSARI C/O CHHAJED & KEDIA ASSOCIATES 208, BLUE MOON CHAMBERS NAGINDAS MASTER ROAD MUMBAI 400 023 AAAPA8351N .... RESPONDENT REVENUE BY : SHRI SURENDRA KUMAR ASSESSEE BY : SHRI PRADIP KEDIA O R D E R PER S.V. MEHROTRA, A.M. THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATIO N FOR RECTIFICATION OF CERTAIN MISTAKES ALLEGEDLY HAVING BEEN CREPT IN THE ORDER OF THE TRIBUNAL DATED 4 TH JANUARY 2010. IN THE MISCELLANEOUS APPLICATION, IT IS POINTED OUT THAT THE MAIN ISSUE BEFORE THE TRIBUNAL WAS THAT TH E ASSESSEE HAD FAILED TO DISCHARGE THE ONUS TO PROVE THE OWNERSHIP OF THE FL AT AND, THEREFORE, IN THE ABSENCE OF SUPPORTING DETAILS AND DOCUMENTS, DEDUCT ION UNDER SECTION 154 WAS DENIED. ACCORDINGLY, THE CONSIDERATION RECEIVED WAS ADDED BACK TO THE TOTAL INCOME TREATING THE SAME AS INCOME FROM UNDIS CLOSED SOURCES. IT IS SUBMITTED BEFORE US THAT THE TRIBUNAL ALLOWED THE A SSESSEES APPEAL TREATING THE CONSIDERATION BEING RECEIVED FROM KNOWN SOURCES I.E., SALE OF FLAT AND MRS. HAFIZULLAH ANSARI MA NO.392/MUM./2010 2 ACCORDINGLY THE REVENUE HAS FILED THIS MISCELLANEOU S APPLICATION BEFORE THE TRIBUNAL. 2. BRIEF FACTS, APROPOS THIS MISCELLANEOUS APPLICATION , ARE THAT THE ASSESSEE HAD TAKEN, INTERALIA, FOLLOWING GROUNDS O F APPEAL BEFORE THE TRIBUNAL. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN SUS TAINING THE ACTION MADE BY THE A.O. ON ACCOUNT OF INCOME FROM UNDISCLO SED SOURCES ` 21,00,000 BEING SALE CONSIDERATION OF FLAT AT KIDY TOWERS . 2. THE TRIBUNAL, WHILE DECIDING THIS ISSUE VIDE PARA3 OF ITS ORDER, NOTED AS UNDER: 3. THE LD. A.R. FAIRLY STATED THAT THE QUESTION HERE B EFORE THE TRIBUNAL IS NOT IN RESPECT OF ALLOWING DEDUCTIO N U/S 54 BUT IS AGAINST HOLDING THAT THE AMOUNT OF CONSIDERATION IS FROM UNDISCLOSED SOURCES. 3. AFTER CONSIDERING THE SUBMISSIONS AND ON PERUSAL OF THE RECORD, THE TRIBUNAL HELD THAT THE AMOUNT OF ` 21,00,000 WAS NOT ON ACCOUNT OF UNDISCLOSED SOURCES BUT ON ACCOUNT OF SALE OF FLAT IN KIDY TOWERS, OBSERVING IN PARA4 AS UNDER: 4. AFTER CONSIDERING THE SUBMISSIONS AND PURSUING THE MATERIAL ON RECORD, IT IS SEEN THAT THE ASSESSEE HAS SHOWN SALE CONSIDERATION OF ` 21,00,000 IN HIS RETURN. THE SALE CONSIDERATION HAS BEEN SHOWN ON ACCOUNT OF SALE OF FLAT AT KIDY TOWER. THEREFORE, T HE AMOUNT OF ` 21,00,000 CANNOT BE SAID TO BE OUT OF UNDISCLOSED S OURCES. THE SOURCE HAS BEEN EXPLAINED BY THE ASSESSEE AND THE AMOUNT H AS BEEN SHOWN IN THE RETURN. THEREFORE, IT IS UNUNDERSTANDABLE HO W THE AMOUNT IN QUESTION IS INCOME FROM UNDISCLOSED SOURCES. WHET HER DEDUCTION U/S 54 IS ALLOWABLE ON THIS CONSIDERATION OR NOT IS NOT HERE BEFORE US. THEREFORE, THIS MATTER CAN BE EXAMINED BY THE A.O. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE HOLD THAT THE AMO UNT OF ` 21,00,000 IS NOT ON ACCOUNT OF UNDISCLOSED SOURCES BUT ON ACCOUNT OF SALE OF FLAT IN KIDY TOWER. WITH THESE OBSERVATIONS , WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS POINT AND S END THE MATTER BACK TO THE A.O. TO EXAMINE THE ALLOWABILITY OF DEDUCTIO N U/S 54 AS PER PROVISIONS OF LAW. WE ORDER ACCORDINGLY. 5. THUS, THE ONLY POINT DECIDED BY THE TRIBUNAL WAS TH AT THE IMPUGNED AMOUNT WAS FROM KNOWN SOURCES AND NOT FROM UNDISCLO SED SOURCES BUT THE ISSUE RELATING TO ALLOWABILITY OF DEDUCTION UNDER S ECTION 54 WAS RESTORED BACK MRS. HAFIZULLAH ANSARI MA NO.392/MUM./2010 3 TO THE FILE OF ASSESSING OFFICER TO BE DECIDED AS P ER LAW. CONSEQUENTLY, WE DO NOT FIND ANY MISTAKE BEING APPARENT ON THE FACE OF RECORD REQUIRING ANY RECTIFICATION. 6. IN THE RESULT, REVENUES MISCELLANEOUS APPLICATION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.10.2010. SD/- D.K. AGARWAL JUDICIAL MEMBER SD/- S.V. MEHROTRA ACCOUNTANT MEMBER MUMBAI, DATED: 29 TH OCTOBER 2010. COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, A BENCH, ITAT, MUMBAI TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY MRS. HAFIZULLAH ANSARI MA NO.392/MUM./2010 4 DATE INITIAL 1. DRAFT DICTATED ON 25.10.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 26.10.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 26.10.2010 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 26.10.2010 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 26.10.2010 SR.PS/PS 6. DATE OF PRONOUNCEMENT 29.10.2010 SR.PS 7. FILE SENT TO THE BENCH CLERK 29.10.2010 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER