SHAHNAZ JALALIE, MUMBAI v. ITO 24(3)(3), MUMBAI

ITA 180/MUM/2009 | 2005-2006
Pronouncement Date: 31-05-2010 | Result: Allowed

Appeal Details

RSA Number 18019914 RSA 2009
Assessee PAN AADPR4574K
Bench Mumbai
Appeal Number ITA 180/MUM/2009
Duration Of Justice 1 year(s) 4 month(s) 22 day(s)
Appellant SHAHNAZ JALALIE, MUMBAI
Respondent ITO 24(3)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 31-05-2010
Date Of Final Hearing 19-05-2010
Next Hearing Date 19-05-2010
Assessment Year 2005-2006
Appeal Filed On 09-01-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI. R.S. SYAL (A.M.) AND SHRI. VIJAY PAL R AO (J.M) ITA NO.180/MUM/2009 ASSESSMENT YEAR: 2005-2006 SHAHNAZ JALALIE PALM PROJECT BLDG. G FLAT NO.1405 LINK RD. MALAD (W) MUMBAI 400 006. PAN : AADPR4574K VS. INCOME TAX OFFICER WARD 24(3)(3) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI YAGNESH DESAI RESPONDENT BY : SHRI SHRAVAN KUMAR O R D E R PER VIJAY PAL RAO J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31.10.2008 OF LEARNED CIT(A)-XXIV MUMBAI FOR THE A SSESSMENT YEAR 2005- 2006. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL. HOWEVER THE FOLLOWING ISSUES ARE ARISES FROM THE GROUNDS OF APP EAL. I) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE CIT(A) IS JUSTIFIED IN CONFIRMING ADDITION OF RS.51.00 LAC S MADE BY THE ASSESSING OFFICER AS UNEXPLAINED CASH CREDIT U/S.68 . II) WHETHER THE CIT(A) JUSTIFIED IN NOT ENTERTAININ G THE NEW EVIDENCE. 3. THE RETURN OF INCOME FILED BY MR. HAMZA RAHIM. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D THAT IN THE CAPITAL ACCOUNT OF THE ASSESSEE A SUM OF RS.51.00 LACS WAS INTRODUCED. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE SAID AMOUNT. THE ASSESSEE SUBMITTED BEFORE THE ASSESSI NG OFFICER THAT LATE MR. ITA NO.180/MUM/2009 A.Y.: 2005-2006 2 MOHD. ABDUL RAHIM FATHER-IN-LAW OF THE ASSESSEE HAD CERTAIN SHARES WHEREIN ASSESSEES SON MR. HAMZA RAHIM WAS THE NOM INEE. AFTER THE DEATH OF HIS FATHER-IN-LAW OF THE ASSESSEE THE SHA RES WERE SOLD AND SALES PROCEEDS WERE SHARED BETWEEN MR. HAMZA MR. RAHIM A ND MS. SOPHIA. MR. HAMZA RAHIM IS SON OF THE ASSESSEE AND MS. SOPH IA IS HER DAUGHTER AND MR. RAHIM IS HUSBAND OF THE ASSESSEE. THE ASS ESSEE BEING A NATURAL GUARDIAN OF MR. HAMZA AND MS. SOPHIA HAS RECEIVED T HE SUM OF SALE PROCEEDS. THE ASSESSING OFFICER WAS NOT IMPRESSED BY THE EXPLANATION OF THE ASSESSEE. ACCORDINGLY THE ASSESSING OFFICER INTER-ALIA MADE THE ADDITION OF RS.51.00 LACS BEING UNEXPLAINED CASE CR EDIT IN THE HANDS OF THE ASSESSEE. 4. ON APPEAL THE CIT(A) ALSO CONFIRMED THE ADDITIO N MADE BY THE ASSESSING OFFICER. BEFORE US THE LEARNED AR OF T HE ASSESSEE HAS SUBMITTED THAT THE AMOUNT HAS COME FROM THE NORMAL BANKING CH ANNEL FROM THE SON OF THE ASSESSEE MR. HAMZA RAHIM. HE HAS FURTHER STA TED THAT THE ASSESSEE WANTED TO EXPLAIN BEFORE CIT(A) THAT THE RETURN OF INCOME FILED BY MR. HAMZA RAHIM IS MOST RELEVANT EVIDENCE FOR ADJUDICATION OF THE ISSUE SINCE THE SAID EVIDENCE COME INTO EXISTENCE ONLY AFTER FINALISATIO N OF THE ASSESSMENT THEREFORE THE ASSESSEE WAS NOT IN A POSITION TO FI LE THE SAME BEFORE THE ASSESSING OFFICER. BUT THE CIT(A) DID NOT ENTER TAIN THE SAID EVIDENCE WHILE PASSING THE ORDER. THE LEARNED AR OF THE ASSESSEE PLEADED THAT SINCE THE EVIDENCE BEING THE RETURN OF INCOME FILED BY THE HA MZA RAHIM THE SON OF THE ASSESSEE IS MOST RELEVANT AND IMPORTANT FOR THE ADJ UDICATION OF THE ISSUE HAS NOT BEEN CONSIDERED AND EXAMINED BY THE LOWER A UTHORITIES MAY BE CONSIDERED BY THIS TRIBUNAL. THE ASSESSEE HAS FIL ED TWO PAPER BOOKS CONTAINING THE DOCUMENTS WHICH WERE FILED BEFORE TH E CIT(A) AS WELL AS THE DOCUMENTS AND EVIDENCE WHICH IS ADDITIONAL AND NOT PRODUCED BEFORE THE LOWER AUTHORITIES. THE LEARNED AR OF THE ASSESSE E HAS URGED FOR ADMISSION OF ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE. HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NA TIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383. ITA NO.180/MUM/2009 A.Y.: 2005-2006 3 5. ON THE OTHER HAND THE LEARNED AR HAS SUBMITTED THAT THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE BEFORE THE LOWER AUT HORITIES IN SUPPORT OF HER CLAIM. HE HAS VEHEMENTLY OPPOSED TO THE PRAYER OF THE LEARNED AR FOR ADMISSION OF ADDITIONAL EVIDENCE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND REL EVANT RECORD. THE CONTENTION OF THE ASSESSEE RIGHT FROM THE BEGINNING IS THAT THE AMOUNT OF RS.51.00 LACS FOUND IN THE CAPITAL ACCOUNT OF THE A SSESSEE WAS THE SALE PROCEEDS OF THE SHARES INHERITED BY THE SON OF THE ASSESSEE FROM FATHER-IN- LAW OF THE ASSESSEE. SINCE THE RETURN OF INCOME O F THE SON OF THE ASSESSEE IS A VITAL RELEVANT EVIDENCE FOR THE ADJUDICATION OF T HIS ISSUE AND THE SAME HAS NOT BEEN CONSIDERED BY THE LOWER AUTHORITIES WHILE DECIDING THE MATTER. THEREFORE IN THE INTEREST OF JUSTICE WE REMIT THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER FOR CONSIDERATION VERIFICATION A ND EXAMINATIONS OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND THERE AFTER DECIDE THE ISSUE AS PER LAW. NEEDLESS TO SAY THE ASSESSEE BE GIVEN PR OPER OPPORTUNITY OF HEARING BEFORE PASSING THE FRESH ORDER. 7. THE ASSESSEE HAS ALSO RAISED A ISSUE REGARDING A DDITION OF RS.1 86 666/- AS GROUND NO.2 IN THIS APPEAL HOWEVE R WE NOTE THAT THE CIT(A) HAS DELETED THE SAID ADDITION SUBJECT TO VER IFICATION BY THE ASSESSING OFFICER ABOUT THE WITHDRAWAL OF RS.5 LACS MADE BY M R. HAMZA RAHIM FOR THE PURPOSE OF FOREIGN TRIP. THEREFORE WE FIND NO R EASON TO INTERFERE WITH THE ORDER OF THE CIT(A) FOR THIS ISSUE AND MOREOVER WHE N THE ADDITION HAS ALREADY DELETED BY THE CIT(A) THE GROUND RAISED BY THE ASSESSEE DOES NOT EMINATE FROM THE IMPUGNED ORDER. ACCORDINGLY TH E SAME IS REJECTED. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 31 ST DAY OF MAY 2010. SD/- (R.S. SYAL) (ACCOUNTANT MEMBER) SD/- (VIJAY PAL RAO) (JUDICIAL MEMBER) MUMBAI DATED 31 ST MAY 2010. ITA NO.180/MUM/2009 A.Y.: 2005-2006 4 JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUM BAI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH E MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI