ITO 19(3)(2), MUMBAI v. JUDELINE LYDIA DSOUZA, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI N.V.VASUDEVAN JM ITA NO.3043/MUM/2009 : ASST.YEAR 1998-1999 THE INCOME TAX OFFICER WARD 19(3)(2) MUMBAI. VS. MRS.JUDELINE LYDIA DSOUZA 62 CRESCENT 164 CONVENT ROAD BANDRA (WEST) MUMBAI 400 012. PA NO.AABPD0441R. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANILKUMAR MISHRA RESPONDENT BY : SHRI SATISH R.MODY O R D E R PER R.S.SYAL AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 2 ND MARCH 2009 IN RELATION TO THE ASSESSMENT YEAR 1998-99. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE DELETION OF ADDITION OF RS.10 92 096 MADE U/S.68 AND RS.87 368 U/S.69C INGO RING THE FACT THAT THE ABOVE ADDITIONS WERE MADE ON THE BASIS OF WELL ESTABLISHE D PRINCIPLE OF PREPONDERANCE OF PROBABILITIES AND IN THE LIGHT OF THE FINDING MADE IN THE CASE OF MR.KAMAL KUMAR JOHARI AND MR.HARI OM SHARMA. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THIS ISSUE HAS COME UP BEFORE THE TRIBUNAL IN SEVERAL CASES. ONE OF SUCH CASES HAS BEEN DEALT WITH BY THE TRIBUN AL IN ITO VS. SMT.CHANDRALEKHA G.JAIN VIDE ITS ORDER DATED 19.9.2 008 TO WHICH ONE OF US (NAMELY THE AM) IS PARTY. THE RELEVANT DISCUSSION HAS BEEN MADE IN PARA 4 WHICH IS AS UNDER:- WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOTED THAT SEARCH ACTION WAS TAKEN ON M/S GALAXY EXPORTS WITH THE CLOSE RELATIVES OF SHRI KAM AL KUMAR JOHARI ITA NO.3043/MUM/2009 MRS.JUDELINE LYDIA DSOUZA. 2 AND SHRI HARI OM SHARMA THE CHARTERED ACCOUNTANTS AS THE PARTNERS . WHEN THE MATTER FINALLY TRAVELED TO THE TRIBUNAL IN THAT CASE IT WAS HELD THAT THE TRANSACTIONS OF PURCHAS E AND SALE OF DIAMONDS WERE GENUINE AND THE ADDITIONS WERE DELETE D. WE OBSERVE THAT SIMILAR ISSUES HAVE COME UP BEFORE VARIOUS BEN CHES OF THE TRIBUNAL IN WHICH THE SUCH CONCERNS THROUGH THE R ELATIVES OF SHRI KAMAL KUMAR JOHARI AND SHRI HARI OM SHARMA HAD ENTE RED INTO TRANSACTIONS. SUCH TRANSACTIONS HAVE BEEN FINALLY H ELD TO BE VALID. SIMILAR ISSUE CAME UP BEFORE THE MUMBAI BENCH OF TH E TRIBUNAL IN THE CASE OF ITO VS. SHAILESH M. SHAH IN ITA NO.4723 /M/06. VIDE ORDER DATED 14.8.06 THE APPEAL OF THE REVENUE HAS BEEN DISMISSED. RESPECTFULLY FOLLOWING THE PRECEDENT WE APPROVE TH E VIEW TAKEN BY THE LD. CIT(A). 4. FURTHER THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KAUSHIK P.JHAVERI VIDE ITS JUDGEMENT DATED 3.8.2009 IN INCOME TAX A PPEAL (LDG) NO.1777 OF 2009 HAS DISMISSED THE REVENUES APPEAL AGAINST THE ORDER PASSED BY THE TRIBUNAL DELETING THE ADDITIONS ON THE BASIS OF VDIS CERTIFICATE ISSUED UNDER VDIS 1997 IN RESPECT OF TRANSACTION WITH M/S.GALAX Y EXPORTS AND SHRI HARI OM SHARMA. 5. THE LD. DR COULD NOT POINT OUT ANY DISTINGUISHIN G FEATURE IN THE FACTS OF THE INSTANT CASE FROM SEVERAL OTHER CASES DECIDED BY TH E TRIBUNAL ON THE SAME LINES. FOLLOWING THE VIEW CONSISTENTLY TAKEN BY THE MUMBAI BENCHES IN SUCH CASES AS APPROVED BY THE HONBLE HIGH COURT IN THE AFORE NOT ED CASE WE APPROVE THE OPINION OF THE LEARNED CIT(A) ON THIS ISSUE. 6. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 28 TH DAY OF JANUARY 2010. SD/- SD/- (N.V.VASUDEVAN) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI : 28 TH JANUARY 2010. DEVDAS* ITA NO.3043/MUM/2009 MRS.JUDELINE LYDIA DSOUZA. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-XIX MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI. ITA NO.3043/MUM/2009 MRS.JUDELINE LYDIA DSOUZA. 4 DATE INITIAL 1. DRAFT DICTATED ON 27.01.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27.01.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.