ACIT 25(3), MUMBAI v. MUKTABEN B . RATHOD, MUMBAI

ITSSA 13/MUM/2010 | misc
Pronouncement Date: 18-03-2011 | Result: Dismissed

Appeal Details

RSA Number 1319916 RSA 2010
Assessee PAN AHHPR3668K
Bench Mumbai
Appeal Number ITSSA 13/MUM/2010
Duration Of Justice 1 year(s) 1 month(s)
Appellant ACIT 25(3), MUMBAI
Respondent MUKTABEN B . RATHOD, MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted J
Tribunal Order Date 18-03-2011
Date Of Final Hearing 24-02-2011
Next Hearing Date 24-02-2011
Assessment Year misc
Appeal Filed On 18-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH MUMBAI BEFORE SHRI R.V. EASWAR PRESIDENT AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER IT(SS) A NO. 13 & 14/MUM/2010 (BLOCK PERIOD: 01.04.1994 TO 31.03.2005) ACIT - 25(3) SMT. MUKTABEN B. RATHOD C-11 PRATHAKSH KAR BHAVAN B-701 VASANT SARITA BANDRA-KURLA COMPLEX BANDRA (E) VS. KANDIVALI (E) MUMBAI 400101 MUMBAI 400051 PAN - AHHPR 3668 K APPELLANT RESPONDENT CO NOS. 178 & 179/MUM/2010 (BLOCK PERIOD: 01.04.1994 TO 31.03.2005) SMT. MUKTABEN B. RATHOD ACIT - 25(3) B-701 VASANT SARITA C-11 PRATHAKSH KAR BHAVAN KANDIVALI (E) MUMBAI 400101 VS. BANDRA-KURLA COMPLEX BANDRA (E) PAN - AHHPR 3668 K MUMBAI 400051 CROSS OBJECTOR APPELLANT IN APPEAL APPELLANT BY: SHRI SUMEET KUMAR RESPONDENT BY: SHRI PRAMOD KUMAR PARIDA & SMT. SANJUKTA CHOWDHURY O R D E R PER B. RAMAKOTAIAH A.M. THE APPEALS ARE BY THE REVENUE AGAINST THE COMMON O RDER PASSED BY THE CIT(A)-35 MUMBAI DATED 23.11.2009. THE CROSS O BJECTIONS ARE IN SUPPORT OF THE ORDER OF THE CIT(A). THE APPEAL IN I T(SS) A NO. 13/MUM/2010 IS WITH REFERENCE TO THE PENALTY CANCELLED AND IT( SS)A NO. 14/MUM/2010 IS WITH REFERENCE TO THE QUANTUM OF ADDITION DELETED B Y THE CIT(A). 2. BRIEFLY STATED THERE WAS A SEARCH IN THE CASE OF M /S. SETH DEVELOPERS PVT. LTD. ON 21.02.2002 AND AS SEEN FROM THE BOOKS THE ASSESSEE WAS FOUND TO HAVE PURCHASED FLAT IN SHIVAM BUILDING FROM THE SAID DEVELOPER. THE DCIT CENTRAL-24 MUMBAI VIDE THE LETTER DATED 18.0 3.2005 INTIMATED THE FACT OF PURCHASE OF FLAT FOR EXAMINING THE ISSUE AN D ASSESS ACCORDINGLY. PROCEEDINGS UNDER SECTION 158BD WERE INITIATED. IT WAS THE CONTENTION OF THE ASSESSEE THAT THE FLAT WAS PURCHASED BY THE ASSESSE ES HUSBAND SHRI IT(SS) A NO. 13 & 14/MUM/2010 CO NOS. 178&179/MUM/2010 SMT. MUKTABEN B. RATHOD 2 BHAGWANDAS H. RATHOD AND THE SOURCE OF FUNDS WERE A GRICULTURAL INCOME. THE A.O. DEPUTED HIS INSPECTOR WHO INSPECTED BUT D OUBTED THE SOURCE OF INCOME. HE MADE THE ADDITION OF ENTIRE INVESTMENT M ADE AND ALSO LEVIED THE PENALTY UNDER SECTION 158BFA(2). 3. THE LEARNED CIT(A) AFTER HEARING THE CONTENTIONS DELETED THE ADDITION ON LEGAL PRINCIPLES AS WELL AS ON MERITS. ON LEGAL PRINCIPLES HE WAS OF THE OPINION THAT THE MERE INTIMATION FROM OTHER A.O. WH O WAS ASSESSING THE DEVELOPER DOES NOT MEAN THAT THERE IS SATISFACTION REQUIRED UNDER THE PROVISIONS OF THE ACT ON THE FACT THAT DCIT CENTRA L-24 MUMBAI ADDED THAT NOTICE UNDER SECTION 158BD MIGHT BE ISSUED AFTER EX AMINING THE ISSUE AND OTHER DETAILS SHOWS THAT THE REQUIRED SATISFACTION WAS NOT ARRIVED AT BY HIM AND FURTHER ON FACTS THE ASSESSEE PAID AN AMOUNT O F ` 10 08 001/- AND NOT ` 5 55 000/- REPORTED BY THE OTHER A.O. WHEREAS THE A .O. WAS UNDER THE IMPRESSION THAT THE ASSESSEE PAID ` 7 33 000/-. FOR THE DETAILED REASONS STATED IN PARA 5 OF THE ORDER THE CIT(A) HELD THAT THE INITIATION OF PROCEEDINGS UNDER SECTION 158BD WERE ABINITIO VOID. ON MERITS THE CIT(A) ALSO EXAMINED THE ISSUE AND WAS OF THE OPINION THAT THE PROCEEDINGS INITIATED AGAINST THE ASSESSEE WAS NOT CORRECT AS T HE HUSBAND HAS ADMITTED PAYING THE AMOUNTS IN THE NAME OF WIFE AND THE SOUR CE SHOULD HAVE BEEN EXAMINED IN HIS CASE. FURTHER HE ALSO VERIFIED THE REPORT OF THE INSPECTOR AND CAME TO THE CONCLUSION THAT THE SOURCE OF AGRICULTU RAL INCOME HAS BEEN VERIFIED AND NO ADVERSE FINDING WAS REPORTED BY THE ITI. THE CIT(A) HELD THAT THERE WAS NO NECESSITY TO ADD INVESTMENT IN THE PUR CHASE OF FLAT THAT TOO IN THE BLOCK ASSESSMENT IN THE HANDS OF THE ASSESSEE. THE SAME WAS DELETED. REVENUE IS AGGRIEVED. 4. WE HAVE HEARD THE ARGUMENTS OF THE RIVAL PARTIES AN D EXAMINED THE ISSUE. AS RIGHTLY HELD BY THE CIT(A) THERE IS NO S ATISFACTION FOR INITIATING THE PROCEEDINGS UNDER SECTION 158BD AND THE MERE INTIMA TION OF ACCOUNT COPY FROM THE BOOKS OF ACCOUNT DOES NOT ESTABLISH THAT T HE TRANSACTIONS ARE UNACCOUNTED. THE PROCEEDINGS UNDER SECTION 147 COUL D HAVE BEEN INITIATED BUT NOT UNDER SECTION 158BD OF THE ACT. BE THAT AS IT MAY THE ISSUE ON MERITS WAS ALSO ELABORATELY CONSIDERED BY THE CIT(A ) AND HELD THAT THERE IS NO NECESSITY TO ADD THE INVESTMENT. THERE WAS ADMIS SION BY THE ASSESSEES IT(SS) A NO. 13 & 14/MUM/2010 CO NOS. 178&179/MUM/2010 SMT. MUKTABEN B. RATHOD 3 HUSBAND THAT THE INVESTMENT WAS MADE BY HIM IN HIS WIFE NAME AND THE SOURCE WAS AGRICULTURAL INCOME. THE AO DID NOT EVEN VERIFY THE AMOUNT INVESTED IN THE SAID FLAT LEAVE ALONE ITS SOURCES. THE REPORT OF ITI CONSIDERED BY THE CIT(A) ALSO CONFIRMS THAT THE ASSESSEES HUS BAND HAS AGRICULTURAL INCOME. THIS FINDING COULD NOT BE CONTROVERTED. TH E ORDER OF THE CIT(A) IS UPHELD AS IT CONSIDERED THE FACTS AS WELL AS LEGAL PRINCIPLES CORRECTLY WITH WHICH WE AGREE. THE GROUNDS RAISED ARE THEREFORE DI SMISSED. SINCE THE ISSUE ON QUANTUM ADDITION WAS HELD AGAINST REVENUE THE C ANCELLATION OF PENALTY UNDER SECTION 158BFA(2) CONTESTED IN IT(SS) 13/MUM/ 2010 IS ALSO UPHELD. THE APPEAL ON PENALTY IS ALSO DISMISSED 5. THE CROSS OBJECTIONS FILED IN CO NOS. 178 & 179/MUM /2010 ARE IN SUPPORT OF THE ORDER OF THE CIT(A). THEREFORE THEY ARE ACADEMIC IN NATURE. NO SEPARATE ADJUDICATION IS REQUIRED. 6. IN THE RESULT APPEALS OF THE REVENUE AND CROSS OBJ ECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH 2011. SD/- SD/- (R.V. EASWAR) (B. RAMAKOTAIAH) PRESIDENT ACCOUNTANT MEMBER MUMBAI DATED: 18 TH MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 35 MUMBAI 4. THE CIT 25 MUMBAI CITY 5. THE DR J BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.