THE ITO WD 23(2)(4), MUMBAI v. M/S. MAMTA B. SAVLA, MUMBAI

ITA 2626/MUM/2008 | 1998-1999
Pronouncement Date: 07-01-2011 | Result: Dismissed

Appeal Details

RSA Number 262619914 RSA 2008
Assessee PAN AABHK4201Q
Bench Mumbai
Appeal Number ITA 2626/MUM/2008
Duration Of Justice 2 year(s) 8 month(s) 22 day(s)
Appellant THE ITO WD 23(2)(4), MUMBAI
Respondent M/S. MAMTA B. SAVLA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 07-01-2011
Date Of Final Hearing 14-07-2010
Next Hearing Date 14-07-2010
Assessment Year 1998-1999
Appeal Filed On 15-04-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND SHRI R.S.PADVEKAR JUDICIAL MEMBER I.T.A.NO.2626/MUM/2008 A.Y 1998-99 INCOME TAX OFFICER WARD 23 (2)(4) MUMBAI. VS. SMT. MAMTA B. SAVLA A-3 MEGH MALHAR MURAR ROAD MULUND (W) MUMBAI 400 080. PAN: AABHK 4201 Q (APPELLANT) (RESPONDENT) APPELLANT BY : MR. HARI GOVIND SINGH. RESPONDENT BY : MR. A. L. SHARMA. O R D E R PER T.R.SOOD AM: IN THIS APPEAL REVENUE HAS RAISED THE FOLLOWING GR OUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT[A] ERRED IN ALLOWING RELIEF OF ` `` ` .4 71 573/- ON THE BASIS THAT THERE WAS NO MATERIAL IN THE ASSESSING OFFICER S P OSSESSION TO SHOW THAT THE IMPUGNED TRANSACTION WAS NOT GENUINE WHEN THE ASSESSEE HAD NOT FURNISHED ANY EVIDENCE OF THE EXIS TENCE OF JEWELLERY PRIOR TO THE DATE OF VDIS 1997 DISCLOSURE OR THE DATE OF SUBSEQUENT SALE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT[A] ERRED IN COMING TO A CONCLUSION THAT THE AO HAD MADE NO INVESTIGATION WHEN UNDER THE LAW THE PRIMARY ON US LAY ON THE ASSESSEE TO PROVE THE EXISTENCE OF JEWELLERY PR IOR TO THE DATE OF DISCLOSURE UNDER THE VDIS 1997 OR PRIOR TO THE D ATE OF SUBSEQUENT SALE AND THE SAID ONUS HAVING NEVER BEE N DISCHARGED BY THE ASSESSEE DURING THE ASSESSMENT PR OCEEDINGS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT[A] ERRED IN DELETING THE ADDITION IGNORING THE FACT THAT THE ASSESSEE HAD OBTAINED VDIS CERTIFICATE ON THE BASIS OF HAWALA ENTRIES WHICH HAD BEEN CONFIRMED BY THE COUNTER PA RTY WHICH HAD ARRANGED THE ENTRIES OF THE ASSESSEE. 4. THE LD. CIT[A] ERRED IN PLACING ONUS ON THE AO TO E STABLISH THAT THE ASSESSEE HAD LAUNDERED HIS OWN MONEY BY OB TAINING BOGUS OR ARRANGE BILLS WHICH IN FACT IS NOT REQUIR ED IN LAW TO BE PROVED IN VIEW OF ASSESSEE HAVING FAILED TO DISCHAR GE HIS PRIMARY ONUS OF EXISTENCE OF JEWELLERY. 2 2. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT N OW THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS. UTTAMCHAND JAIN 320 ITR 554. 3. ON THE OTHER HAND LD. DR RELIED ON THE ORDER OF THE AO. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. UTTAMCHAND JAIN [SUPRA] WHEREIN ALMOST IDENTICAL FACTS WERE INVOLVED HAS HE LD AS UNDER: HELD DISMISSING THE APPEAL THAT THE RETRACTED CO NFESSION OF T COULD BE RELIED UPON ONLY IF THERE IS INDEPENDENT AND COG ENT EVIDENCE TO CORROBORATE THE STATEMENT OF T. THE TRIBUNAL HAD RE CORDED A FINDING THAT THE STATEMENT OF T RECORDED ON 31ST MARCH 200 0 WAS A GENERAL `STATEMENT AND NOWHERE IN THE SAID STATEMENT WAS IT RECORDED THAT THE TRANSACTION WITH THE ASSESSEE WAS NOT A GENUINE TRA NSACTION. IF THE EXISTENCE OF DIAMOND JEWELLERY WITH THE ASSESSEE PR IOR TO THE SALE WAS EVIDENCED BY THE CERTIFICATE GRANTED UNDER THE SCHE ME AND ON SALE OF THE JEWELLERY THE ASSESSEE HAD RECEIVED THE CONSIDE RATION WHICH WAS DULY ACCOUNTED FOR THEN THE MERE FACT THAT THE JEW ELLERY SOLD BY THE ASSESSEE WAS NOT FOUND WITH THE PURCHASER COULD NOT BE A GROUND TO HOLD THAT THE TRANSACTION WAS BOGUS AND THAT THE CO NSIDERATION RECEIVED BY THE ASSESSEE WAS THE UNDISCLOSED INCOME OF THE A SSESSEE. THE DELETION OF THE ADDITION WAS JUSTIFIED. RESPECTFULLY FOLLOWING THE ABOVE DECISION WE DECID E THE ISSUE AGAINST THE REVENUE. 5. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF JANUARY 2011. SD/- SD/- (R.S.PADVEKAR) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 5 TH JANUARY 2011. 3 P/-*