Shri Mustafa Haveliwala, Indore v. The ITO, Ratlam

ITA 312/IND/2010 | 2006-2007
Pronouncement Date: 30-11-2011 | Result: Allowed

Appeal Details

RSA Number 31222714 RSA 2010
Assessee PAN ADSPH9705N
Bench Indore
Appeal Number ITA 312/IND/2010
Duration Of Justice 1 year(s) 6 month(s) 13 day(s)
Appellant Shri Mustafa Haveliwala, Indore
Respondent The ITO, Ratlam
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2011
Assessment Year 2006-2007
Appeal Filed On 17-05-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.312/IND/2010 A.Y.2006-07 SHRI MOHAMMAD MUSTAFA HAVELIWALA 69 CHANDNI CHOWK RATLAM NOW RESIDENT OF F/21 SACRED HEART TOWN JAGTAP CHOWK WANWADI NEAR SINDE CHHATRI PUNE PAN ADSPH 9705N :: APPELLANT VS INCOME TAX OFFICER WARD 1 RATLAM :: RESPONDENT APPELLANT BY : SHRI RAVI SARDA RESPONDENT BY : SHRI ARUN DEWAN DATE OF HEARING : 30.11.2011 DATE OF PRONOUNCEMENT : 30.11.2011 2 O R D E R PER JOGINDER SINGH THIS IS AN APPEAL BY THE ASSESSEE CHALLENGING THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 24 TH FEBRUARY 2010 ON VARIOUS GROUNDS. 2. DURING HEARING THE LEARNED COUNSEL FOR THE ASSE SSEE SHRI RAVI SARDA ADVOCATE CHALLENGED THE INITIATION OF PROCEEDINGS U/S 148 OF THE ACT ON THE GROUND OF SERVICE OF NOTI CE AND FURTHER CONFIRMING THE LONG TERM CAPITAL GAINS OF PROPERTIE S OF MOHD. MUSTAFA AND SHAMINA TOGETHER. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE AT THE RELEVA NT TIME WAS RESIDING IN QUWAIT AND AUTHORISED HIS SON MOHAM MED AS HIS GENERAL POWER OF ATTORNEY. SIMILARLY SMT. SHAM INA WIFE OF THE ASSESSEE ALSO EXECUTED POWER OF ATTORNEY IN TH E NAME OF HER SON WHO IS RESIDING AT PUNE. THERE WAS SOME P ROPERTY AT RATLAM IN THE JOINT NAMES OF SMT. SHAMINA AND THE A SSESSEE. THE ITO RATLAM ISSUED NOTICE U/S 148 TO THE ASSES SEE AT RATLAM ADDRESS. ULTIMATELY IN THE ABSENCE OF ANY A DDRESS OF 3 THE ASSESSEE THE NOTICE WAS AFFIXED AT THE ADDRESS KNOWN TO THE ASSESSEE AND THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT. A STRONG PLEA WAS RAISED THAT THE ITO RATLAM MECHANICALLY ISSUED THE NOTICE AND DID NOT TAKE NOT E OF NEW ADDRESS MENTIONED IN THE RETURN OF INCOME. IT WAS FURTHER CLAIMED THAT THE ASSESSEE ALSO FILED THE COPY OF SA LE DEED DATED 6.10.1999 BEFORE THE ASSESSING OFFICER. A ST RONG PLEA WAS RAISED THAT THE NOTICES ISSUED BY THE ITO WERE RETURNED WITH THE REMARK EITHER THE ASSESSEE IS RESIDING IN PUNE OR ABROAD. THEREFORE THE ASSESSING OFFICER WAS BOUND TO EXAMINE THE MATERIAL AVAILABLE WITH HIM ON RECORD. IT WAS FURTHER SUBMITTED THAT AN EX-PARTE ASSESSMENT FRAME D BY THE ITO RATLAM IS WITHOUT JURISDICTION THEREFORE OU T RIGHTLY LIABLE TO BE ANNULLED. IT WAS ALSO PLEADED THAT THE ENTIR E ASSET DOES NOT BELONG TO THE ASSESSEE THEREFORE IMPOSING THE ENTIRE TAX LIABILITY SOLELY ON THE ASSESSEE IS UNJUSTIFIED FOR WHICH THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON CERTA IN JUDICIAL PRONOUNCEMENTS. 4 3. ON THE OTHER HAND THE LEARNED SR. DR DEFENDED T HE ACTION OF THE ASSESSING OFFICER ON THE PLEA THAT TH E ASSESSING OFFICER HAD NO OPTION BUT TO SERVE THE NOTICE THROU GH AFFIXTURE AS NEW ADDRESS WAS NOT AVAILABLE WITH HIM AND IT WA S THE DUTY OF THE ASSESSEE TO PROVIDE THE CORRECT ADDRESS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. BRIEF FACTS OF THE CASE ARE THAT ONE PROPERTY SITUATED AT 115 STATION ROAD RATLAM WAS IN THE JOINT NAMES OF SMT. SHAMINA AND SHRI MUSTAFA. THE C OPY OF SALE DEEDS ARE AT PAGES 27 TO 42 43 TO 58 AND 59 T O 68OF THE PAPER BOOK. SHRI MOHD. MUSTAFA CLAIMED TO HAVE EXEC UTED THE SALE DEED IN FAVOUR OF SHRI BRIJMOHAN BHATIA SHRI DEVENDRA SINGH BHATIA AND SMT. RAJNI SINGH. THE STAND OF T HE ASSESSEE IS THAT THE ASSESSING OFFICER WAS HAVING THIS INFOR MATION AND IGNORED THE SALES OWNED THESE THREE INDEPENDENT PER SONS. THE ASSESSEE FILED INCOME TAX RETURN FOR THE ASSESS MENT YEAR 2006-07 (PAGES 69 TO 72 OF THE PAPER BOOK) AND THAT OF HIS WIFE SMT. SHAMINA (PAGES 73 TO 76 OF THE PAPER BOOK) AT PUNE. THE ASSESSEE ALSO FILED AFFIDAVITS BEFORE THE DEPARTMEN T IN SUPPORT 5 OF ITS CLAIM (PAGES 77 TO 80 AND 81 TO 84 OF THE PA PER BOOK).THE ASSESSEE CLAIMED TO HAVE PAID THE REQUISITE TAX AT PUNE WHERE THE JURISDICTION WAS CLAIMED TO BE LYING. IN VIEW OF THESE FACTS AND ESPECIALLY WHEN THE ASSESSMENT WAS FRAMED U/S 1 44 OF THE ACT WE REMAND THIS FILE TO THE FILE OF THE ASSESSI NG OFFICER RATLA WITH THE DIRECTION TO CONSIDER THE RETURN OF INCOME FILED AT PUNE ALONG WITH ITS DUE CREDIT OF TAX ALREADY PAID IF ANY AT PUNE ALONG WITH THE OTHER MATERIAL AVAILABLE WITH THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FURNISH EVIDENCE IF ANY IN SUPPORT OF HIS CLAIM FOR WHICH DUE OPPORTUNITY BE GIVEN TO THE ASSESSEE CONSEQUENTLY THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE O F LEARNED REPRESENTATIVES FROM BOTH THE SIDES AT THE CONCLUSION OF THE HEARING. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30.11.2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE DN/- 6