SOMPALSINGH JAGGUSINGH KATARIA, THANE V. ITO WARD 3(5), MUMBAI

MA 484/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8306 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 27-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 201; 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S/SHRI RAJESH KUMAR , ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH, JUDICIAL MEMBER M.A. N O . 484 / M/201 9 (ARISING OUT OF ITA NO. 4192 /MUM/201 7 ) ( / ASSESSMENT YEAR: 2012 - 13 ) SOMPAL SINGH JAGGUSINGH KATARIA 2202 , ORCHID, HIRANANDANI MEADOWS SMT. GLADY ALWARES MARG, THANE (W), THANE - 400610. / VS. ITO WARD 3(5) ASHAR IT PARK, 6 TH FLOOR, W AGALE ESTATE, THANE (W) - 400604. / . / . PAN/GIR NO. : AADPK3293N ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 08/11/ 201 9 /DATE OF PRONOUNCEMENT: 09 /01 / 2020 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APPLICATION BEARING NO. 484 /M/2019 MOVED BY APP LICANT /ASSESSEE ARISING OUT OF ITA. NO. 4192 /M/1 7 FOR THE A.Y.2012 - 13 DATED 25 . 03 .201 9 . 2. IT IS AVERRED THAT IN THE APPLICATION THAT THE HONBLE ITAT HAS DECIDED THE APPEAL OF THE APPLICANT/ASSESSEE BEARING ITA. NO.4192/M/2017 VIDE ORDER DATED 25.03.2019. THE ASSESSEE HAS RAISED THE CLAIM OF COST OF IMPROVEM ENT OF RS. 50,00,000/ - . THE ASSESSEE HAS PRODUCED THE BILL O F M/S. HARIOM INTERIOR FOR RS.25 ,00,000/ - WHICH WAS REPRODUCED AT PAGE NO.12 . THE VOUCHERS IN SUPPORT OF THE PAYMENT MADE TO THE SAID PARTY WERE ALSO PRODUCED AND ACCORDINGLY THE PAYMENT WAS MADE THROUGH ACCOUNT PAYEE CHEQUE WHICH LIES AT PAGE NO. 1 TO 8 OF THE PAPER BOOK. THE PARTY WAS NOT PRODUCED . T HE CLAIM OF THE ASSESSEE WAS DECLINED BY THE HONBLE ITAT WHO HAS GIVEN THE CONTRADICTORY FINDING BY ASSESSEE BY: SHRI SUBODH RATNA PARKHI REVENUE BY: SHRI V. VINOD KUMAR MA 484 / MUM/201 9 A.Y.2012 - 13 MENTIONING THIS FACT THAT NO BILL/INVOICES WERE PRODUCED. HOWEVER , THE FINDING OF THE HONBLE ITAT HAS ALSO SPEAKS THIS FACT THAT THE BILL ISSUED BY M/S. HARIOM INT ERIOR NOWHERE DISCLOSED THE PHONE NUMBER, LANDLINE, CONTACT AND ADDRESS ETC . THE FINDING IS CONTRADICTORY . T HE CONTENTION OF THE ASSESSEE WA S NOT PROPERLY DEALT WITH. SO FAR AS THE ISSUE NO. 2 IS CONCERNED , THE ASSESSEE IN SUPPORT OF THE CLAIM OF BROKERAGE OF RS.2,00,000/ - HAS PRODUCED THE NECESSARY DOCUMENTS I.E. BILL/RECEIPT OF BROKER AND PAYMENT THROUGH BANKING CHANNEL. T HE HONBLE ITAT HAS GIVEN THE FINDING THAT THERE IS NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE BROKERAGE WAS PAID IN CASH OR THROUGH CHEQUE. IN FACT, THE ASSESSEE HAS INCURRED THE BROKERAGE EXPENSES OF RS.2,00,000/ - TOWARDS SALE OF THE FLATS. THE SAID BROKERAGE WA S PAID TO M/S. K. RELIANCE ESTATE BY WAY OF ACCOUNT PAYEE CHEQUE ON 27.03.2012. VIDE BILL RECEIPT DATED 27.03.2012 LIES AT PAGE NO. 9 OF THE PAPER BOOK. THE AO DISALLOWED THE CLAIM OF THE ASSESSEE . THE HONBLE CONFIRMED THE FINDING OF THE CIT(A) BY SAYING THAT THE CLAIM OF THE ASSESSEE WAS NOT SUPPORTED BY ANY DOCUMENT AND NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE PAYMENT WAS MADE IN CASH THROUGH CHEQUE, HENCE, T HE FINDING IS NOT JUSTIFI ABLE A CCORDINGLY, MODIFED /RECALLED. 3 . NOTICE GIVEN. 4 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. R EGARDING THE CLAIM OF THE COST OF IMPROVEMENT OF RS.50,00,000/ - , W E FIND THAT THE ASSESSEE SUBMITTED ONE BILL OF M/S. HARIOM INTERIOR FOR RS.25,00,000/ - WHICH WAS PRODUCED AT PAGE NO.12 OF THE PAPER BOOK . THE VOUCHERS IN SUPPORT OF PAYMENT MADE TO THE SAID PARTY BY ACCOUNT PAYEE CHEQUE WERE ALSO PRODUCED WHICH LIES AT PAGE NO. 1TO 8 OF THE PAPER BOOK . WHILE GIVEN THE FINDING BY HONBLE ITAT IN PARA NO. 6 , IT HAS BEEN SPECIFICALLY MENTIONED THAT NO BILL/INVOICES WERE PRODUCED. IT IS ALSO MENTIONED IN THIS PARA THAT BILL ISSUED BY M/S. HARIOM INTERIOR NOWHERE DISCLOSED THE PHONE NUMBER, LANDLINE, C ONTACT AND ADDRESS ETC. IT IS CLEAR THAT THE FINDING IS CONTRADICTORY AND APPRECIATION OF THE EVIDENCE IS NOT PROPER ON RECORD. IT IS MISTAKE APPARENT ON MA 484 / MUM/201 9 A.Y.2012 - 13 RECORD WHICH CERTAINLY COMES WITHIN THE AMBIT OF SECTION 254(2) OF THE ACT. SINCE PROPER APPRECIATION OF THE EVIDENCE IS REQUIRED AND ACCORDINGLY THE FINDING IS LIABLE TO BE GIVEN, THEREFORE, WE ARE OF THE VIEW TH AT THE FINDING OF THE ISSUE NO.1 IS LIABLE TO BE RECALL ED. NOW COMING TO THE FINDING OF THE ISSUE NO. 2 , THE LD. REPRESENTATIVE OF THE APPLICANT/ASSESSEE HAS ARGUED THAT T HE TRIBUNAL HAS GIVEN THE FINDING THAT THERE IS NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE BROKERAGE WAS PAID ON CASH OR THROUGH CHEQ UE WHEREAS THE BROKERAGE WAS PAID TO M/S. K. RELIANCE ESTATE BY WAY OF ACCOU NT PAYEE CHEQUE ON 27.03.201 2 VIDE BILL/RECEIPT DATED 27.03.2012 LIES AT PAGE NO.9 OF THE PAPER BOOK. THE AO DISALLOWED THE CLAIM OF THE ASSESSEE WHICH WAS CONFIRMED BY THE CIT(A). UNDOUBTEDLY, WHILE DECIDING THE ISSUE , THE HONBLE ITAT NOWHERE CONSIDERED THE PIECE OF EVIDENCE I.E. PAYMENT OF BROKERAGE TO M/S. K. RELIANCE ESTATE BY WAY OF ACCOUNT PAYEE CHEQUE ON 27.03.2012. VIDE BILL/RECEIPT DATED 27.03.2012 WHICH LIES AT PAGE. NO.9 OF THE PAPER BOOK. SINCE THE IMPORTANT PIECE OF EVIDENCE HAS NOT BEEN CONSI DERED BY HONBLE ITAT AND THERE IS NOTHING ON RECORD FOR NOT RELYING UPON THE EVIDENCE, THE REFORE, WE ARE OF THE VIEW THAT IT IS A MISTAKE APPARENT ON RECORD WHICH FALLS WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. ACCORDINGLY, WE RECALLED T HE FINDING GIVEN IN ISSUE NO.2 . SINCE BOTH THE ISSUES IN QUESTION IN THE APPEALS, THERE FO RE, WE RECALL THE ORDER DATED 25.03.2019 AND DIRECT THE REGISTRY TO REFIX T HE MATTER IN DUE COURSE OF TIME. THE PRESENT MISCELLANEOUS APPLICATION IS HEREBY ALLOWED ACCORDINGLY . IN THE RESULT , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED ACCORDINGLY . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 09 /01 / 2020 SD/ - SD / - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DT: 09 /01 / 2020 V IJAY /SR. PS COPY TO : MA 484 / MUM/201 9 A.Y.2012 - 13 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, G , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES