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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आदेश / O R D E R PER KUL BHARAT, J.M: This appeal filed by the assessee is directed against order of the CIT(A)-II, Indore dated 11.12.2017 for the A.Y.
[ Mustafa Chhawaniwala, Indore] 2014-15. The assessee has raised following grounds of appeal:
1. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in sustaining the addition of Rs.49,50,000/- under section 69 of Income Tax Act, without considering the facts and circumstances of the case.
On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred by not following the principles of natural justice as he did not pass a speaking appellate order. 3. The appellant craves leave to add, amend, alter or delete the said ground of appeal
2. The only effective ground is against sustaining the addition of Rs.49,50,000/- u/s 69 of the Income Tax Act, 1961 (hereinafter called as ‘the Act’). The facts giving rise to the present appeal are that case of the assessee was taken up for scrutiny assessment and the assessment u/s 143(3) of the Act was framed vide order dated 15.12.2016.
The A.O. while framing the assessment observed that the assessee had purchased two properties valued at Rs.58,88,000/- & Rs.48,21,000/- during the year under consideration. In respect of source of investment it was [ Mustafa Chhawaniwala, Indore] stated that he had taken loan of Rs.44 lakhs from relatives and Rs.55,00,000/- was invested out of his own sources.
The A.O. did not accept this contention and made addition of Rs.49,50,000/- in the income of the assessee. The A.O. further made addition of Rs.10,000/- on account of excessive deduction claimed by the assessee. Hence, the A.O. assessed income at Rs.52,84,650/- against the disclosed income of Rs.3,24,650/-.
Aggrieved against this order, the assessee preferred an appeal before Ld. CIT(A), who after considering the submissions dismissed the appeal. Now the assessee is in further appeal before this Tribunal. Ld. Counsel for the assessee vehemently argued that the authorities below were not justified in making the addition and sustaining the same.
Ld. Counsel for the assessee submitted that Ld. CIT(A) was not justified in sustaining the addition. Ld. Counsel
[ Mustafa Chhawaniwala, Indore] submitted that even the action of the A.O. is not in accordance with law as admittedly properties were in the joint name. Ld. Counsel for the assessee reiterated the submissions as made in the reply to remand report submitted before the Ld. CIT(A). He submitted that the source of acquisition of property initially was stated to be out of the loan/gifts received from various persons. The confirmations of the persons were also furnished during the assessment proceedings. However, the assessee realised that the submissions made before the A.O. were not correct as the amount was received from contribution by the brother of the assessee. The amount was remitted by the brother of the assessee. The assessee is not very educated person. He was not aware of the nitty gritty of the law. Therefore, the Ld. Counsel for the assessee pointed out that the evidence supporting the contention that the amount was remitted from abroad and there were cash
[ Mustafa Chhawaniwala, Indore] withdrawals as well. He drew our attention to bank statement enclosed with paper book. Ld. Counsel for the assessee placed reliance on the judgement of the Hon'ble High Court of Allahabad relevant in the case of CIT Vs. Dilbagh Rai Arora (2019) 104 Taxmann.com 371 to buttress the contention that the authorities below ought to have considered these evidences.
On the contrary, Ld. D.R. vehemently opposed these submissions and submitted that the assessee himself took a stand that the source of money was out of the loan/gifts received from various persons. Before assessing authority, the assessee has not stated the fact which he made before the Ld. CIT(A) i.e. the money was contributed by the brother of the assessee through remittances from abroad.
He submitted that it is settled law that when the assessee does not approach with clean hands before the authorities, he will not deserve any leniency. He submitted that the [ Mustafa Chhawaniwala, Indore] assessee is cooking up stories just to avoid tax liability, which is not permissible under the law.
We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. Undisputed fact remains that before the A.O. the assessee has categorically stated that the property in question was purchased out of his own resources, which he stated to be out of loan taken from the bank and loan/gifts from various persons. In support of loan/gifts, he has also filed confirmations who had given loan to the assessee. However, before Ld. CIT(A), the assessee took a U-turn and submitted that the properties were acquired out of the contribution made by the brother of the assessee. The only explanation before this Tribunal for taking such contradictory stand is that in support of the contention documents furnished before the authorities below are third party documents, which cannot be termed as self-created and self-served documents. The assessee has demonstrated with evidence that the brother of the assessee has been remitting money from Kuwait and the cash was being withdrawn by the father of the assessee.
[ Mustafa Chhawaniwala, Indore] We find that Ld. CIT(A) has decided the issue by observing as under:
[ Mustafa Chhawaniwala, Indore] [ Mustafa Chhawaniwala, Indore] [ Mustafa Chhawaniwala, Indore] [ Mustafa Chhawaniwala, Indore] [ Mustafa Chhawaniwala, Indore]
From the above, it is clear that the contention of the assessee was not accepted by the Ld. CIT(A) on the ground that the assessee has been changing his stance. However, the assessee has also furnished certain documentary evidences demonstrating that the joint owner of the property being brother of the assessee has also contributed for the acquisition of property as he made remittances from Kuwait. It is a fact that the assessee has been changing his stand but it is also fact that the assessee has filed certain evidences in support of his contention that the brother of assessee remitted certain amounts from Kuwait who happened to be co-owner of the properties in question. 12
[ Mustafa Chhawaniwala, Indore] Moreover, there is no finding by the lower authorities as to what happened to money which the assessee claimed to have received as gift/loan. Under these facts, we deem it proper to restore this issue to the file of the Ld. CIT(A) to decide the issue afresh after examining the aspect of remittance by the co-owner of the property and also the loan/gift claimed by the assessee. Ground of the assessee’s appeal is allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order was pronounced in the open court on 19 .12.2019.