AARTI S. KHETWANI, MUMBAI v. ITO 7(2)(3), MUMBAI

ITA 5882/MUM/2011 | 2000-2001
Pronouncement Date: 30-04-2014 | Result: Allowed

Appeal Details

RSA Number 588219914 RSA 2011
Assessee PAN AAGPK7433D
Bench Mumbai
Appeal Number ITA 5882/MUM/2011
Duration Of Justice 2 year(s) 8 month(s) 7 day(s)
Appellant AARTI S. KHETWANI, MUMBAI
Respondent ITO 7(2)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-04-2014
Date Of Final Hearing 22-04-2014
Next Hearing Date 22-04-2014
Assessment Year 2000-2001
Appeal Filed On 23-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI BEFORE S/SHRI D.MANMOHAN VICE-PRESIDENT AND N.K.BILLAIYA ACCOUNTANT MEMBER . . . ./I.T.A.NO.5882/MUM/2011 ( # / ASSESSMENT YEAR: 2000-01) AARTI S KHETWANI C/O SKYLITE ELECTRO FIX PVT. LTD. JOHN ROBERT COMPOUND SEWRI FORT ROAD SEWRI (E) MUMBAI-400015 / VS. I NCOME TAX OFFICER 7(2)(3) AAYAKAR BHAVAN M K ROAD MUMBAI-400020 ./ ./PAN/GIR NO. : AAGPK7433D ( * / APPELLANT) .. ( + * / RESPONDENT) * / ASSESSEE BY : SHRI D J SHUKLA + * . /REVENUE BY : SHRI GANES H BARE . 2 / DATE OF HEARING : 22.4.2014 . 2 /DATE OF PRONOUNCEMENT : 30.4.2014 / O R D E R PER N.K.BILLAIYA AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-13 MUMBAI DATED 15.4.2011 PERTAINING TO ASSESSMENT YE AR 2000-01. 2. GRIEVANCE OF THE ASSESSEE IS TWO FOLD. FIRSTLY THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.3 90 000/- MADE BY AO AND CONFIRME D BY LD. CIT(A) UNDER SECTION 69 OF THE INCOME TAX ACT 1961 (THE ACT). SECONDLY THE ASSESSEE HAS CHALLENGED THE VERY JURISDICTION OF THE ASSESSING OFFICER IN REOPENIN G THE ASSESSMENT AND PASSING RE- ASSESSMENT ORDER U/S 143(3) R.W.SECTION 147 OF THE ACT. IN THIS CASE THE ORIGINAL RETURN WAS FILED ON 30.11.2000 DECLARING TOTAL INCO ME AT RS.1 68 220/-. THE ASSESSEE IS A DIRECTOR IN M/S SKYLITE ELECTRO FIXTURES PVT LTD. FROM WHICH SHE HAS EARNED SALARY INCOME OF RS.1 34 400/-. THE ASSESSEE HAS ALSO DECL ARED BUSINESS INCOME OF I.T.A.NO.5882/MUM/2011 2 RS.55 000/- INCOME FROM OTHER SOURCES AT RS.3 254 /- AND AGRICULTURAL INCOME OF RS.24 000/-. 3. ON THE BASIS OF INFORMATION RECEIVED FROM INVES TIGATION UNIT-III(3) MUMBAI THE CASE WAS REOPENED AND NOTICE U/S 148 OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE HAS STATED THAT THE RETURN FILED ON 30.11.2000 MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S 148 O F THE ACT. IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE THAT DURING THE COURSE OF SEARCH IN CASE OF M/S RAMARAO ADIK EDUCATION SOCIETY WORLI THE INVESTIGATION WING CAME TO KNOW THAT THE ASSESSEE HAS PAID THE DONATION /CAPITATION FEES TO THE TUNE OF RS.3 90 0 00/- FOR THE ADMISSION OF HER SON MR. VISHAL KHETWANI. THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF EDUCATION /CAPITATION FEES OF RS.3 90 000/- THE ASSESSEE WAS ALSO ASKED TO EX PLAIN THE SOURCE OF PAYMENT . THE ASSESSEE REPLIED THAT DURING THE FINANCIAL YEAR 199 9-2000 THE ASSESSEE HAS PAID A SUM OF RS.1 60 000/- BY TWO SEPARATE DRAFTS TO M/S RAMA RAO ADIK EDUCATION SOCIETY FOR THE ADMISSION OF HER SON VISHAL KHETWANI. IT WAS FURTH ER SUBMITTED THAT THE ASSESSEE DOES NOT REMEMBER ABOUT THE PAYMENT OF RS.2 30 000/- TO RAMARAO ADIK EDUCATION SOCIETY. THE AO STRONGLY RELIED UPON THE FINDING OF INVESTI GATION UNIT AND CAME TO THE CONCLUSION THAT THE ASSESSEE HAS PAID A SUM OF RS. 3 90 000/- FOR THE ADMISSION OF HER SON TO DR.D.Y.PATIL MEDICAL COLLEGE. THE AO FURT HER DREW SUPPORT FROM THE STATEMENT OF SHRI SHASHIKANT MANDAVKAR ACCOUNT CLERK RECOR DED U/S 132(4) OF THE ACT WHEREIN THE ACCOUNT CLERK HAS CONFIRMED OF HAVING RECEIVED DONATION/CAPITATION FEES OF RS.3 90 000/- FROM THE ASSESSEE FOR THE ADMISSION O F HER SON. WITHOUT CONFRONTING WITH THIS STATEMENT OF THE ACCOUNT CLERK THE ASSESSEE STRONGLY REPLIED THAT SUCH STATEMENT IS NOT BINDING ON THE ASSESSEE. IT WAS FURTHER POI NTED OUT THAT PRIMARY ONUS U/S 69C OF THE ACT IS ON THE REVENUE AND THE REVENUE HAS TO P ROVE THAT THE ASSESSEE HAS GIVEN DONATION OF RS.3 90 000/-. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND PROCEEDED TO MAKE ADDITION OF RS.3 90 000/- AS UNEX PLAINED EXPENDITURE U/S 69C OF THE ACT. I.T.A.NO.5882/MUM/2011 3 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A ) BUT WITHOUT SUCCESS. THE LD. CIT(A) WAS CONVINCED THAT THE ASSESSEE HAS FAILED TO CONTRADICT THAT THE SAID AMOUNT WAS NOT PAID BY HER IN CASH. AGGRIEVED BY THIS TH E ASSESSEE IS BEFORE US. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHA T HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. IT IS THE SAY OF THE COUNSEL TH AT THE ENTIRE ADDITION HAS BEEN MADE ON THE STRENGTH OF THE STATEMENT OF ACCOUNT CLERK EXCEPT FOR THAT THE AO COULD NOT BRING ANY MATERIAL ON RECORD TO ESTABLISH THAT THE ASSESSEE HAS ACTUALLY PAID THE SUM OF RS.3 90 000/- AS DONATION/CAPITATION FEES TO M/S RA MARAO ADIK EDUCATIONAL SOCIETY. THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF THE LOWER AUTHORITIES. 6. WE HAVE CAREFULLY PERUSED THE ORDERS OF LOWER AU THORITIES AND THE RELEVANT MATERIAL EVIDENCES BROUGHT ON RECORD. IT IS NO T IN DISPUTE THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION UNIT VIII(3) MUMBAI. THE INVESTIGATION UNIT INFORMED THAT MRS. AARTI KHETWANI HAS PAID DONATION/CAPITATION FEES OF RS.3 90 000/- FOR THE ADMISSION OF HER SON MR. VISHAL KHETWANI TO DR. D Y PATIL MEDICAL COLLEGE. IT IS ALSO NOT IN DISPUTE THAT THE STATEMENT MADE U/S 132(4) OF THE ACT RELIED UPON BY THE REV ENUE IS OF AN EMPLOYEE WHO IS EMPLOYED WITH M/S RAMARAO ADIK INSTITUTE OF TECH NOLOGY NERUL NAVI MUMBAI. THE LOOSE SHEETS REFERRED TO BY THE AO AND WHICH IS PLA CED BEFORE US AS EX-II AND XII SHOW VARIOUS NAMES AND ONE OF THE NAMES IS MR. VISHAL KHETWANI. THE REVENUE COULD NOT BRING ANY COGENT MATERIAL EVIDENCE ON RECORD TO SHO W WHAT HAPPENED IN THE CASE OF OTHER NAMED PERSONS. SECONDLY THE PRESUMPTION U/ S 132(4A) IS IN RESPECT OF PERSON IN WHOSE POSSESSION THE BOOKS OF ACCOUNTS AND OTH ER DOCUMENTS ETC ARE FOUND. SINCE DIARIES WERE FOUND DURING THE COURSE OF SEARCH IN THE CASE OF DR.D.Y.PATIL GROUP PREMISES PRESUMPTION MAY BE VALID AGAINST THAT GR OUP BUT CANNOT BE STRETCHED TO THE ASSESSEE. THE PROVISIONS OF SECTION 69C OF THE ACT CLEARLY SHOW THAT THE IT WAS FOR THE REVENUE TO FIRST ESTABLISH THAT THE ASSESSEE HAS IN CURRED CERTAIN EXPENDITURE AND THEN I.T.A.NO.5882/MUM/2011 4 THE ASSESSEE DOES NOT OFFER ANY EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE. IN THE CASE IN HAND THE ASSESSEE HAS PAID RS.1 60 00 0/- TO M/S RAMARAO ADIK EDUCATION SOCIETY. THE REVENUE HAS GROSSLY FAILED TO DEMONST RATE THAT THE ASSESSEE HAS PAID CAPITAL FEES FOR THE ADMISSION OF HER SON TO DR.D Y PATILA MEDICAL COLLEGE. IN OUR CONSIDERED VIEW THE ADDITIONS CANNOT BE SUSTAINED O N THE STRENGTH OF INSUFFICIENT EVIDENCE. THE FINDING OF THE LD. CIT(A) ARE ACCOR DINGLY REVERSED AND THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.3 90 000/-. 7. SINCE WE HAVE DIRECTED THE AO TO DELETE THE A DDITIONS ON MERITS WE DO NOT FIND IT NECESSARY TO DECIDE THE GRIEVANCE OF THE ASSESSEE TO SO FAR AS IT RELATES TO RE- OPENING OF THE ASSESSMENT . 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH DAY OF APRIL 2014 . 5 6 7 30TH DAY OF APRIL 2014 . SD S D ( . / D.MANMOHAN) ( . . /N.K.BILLAIYA ) / VICE-PRESIDENT / ACCOUNTANT MEMBER MUMBAI : 30.4.2014 . # . ./ SRL SR. PS / COPY OF THE ORDER FORWARDED TO : 1. * / THE APPELLANT 2. + * / THE RESPONDENT. 3. D ( ) / THE CIT(A)- 4. D / CIT 5. E +##G 2 G / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER TRUE COPY (ASSTT. REGISTRAR) 2 G /ITAT MUMBAI