ISMAIL SAHABJAN SHAIKH,MUMBAI vs. ITO 19(3)(2), KALYAN

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ITA 218/MUM/2016Status: DisposedITAT Mumbai23 May 2018AY 2009-105 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal admitted additional evidence submitted by the assessee, finding it relevant to the addition. The Tribunal set aside the CIT(A)'s order and restored the matter to the AO for a de novo assessment.

What were the facts?

The assessee received Rs. 99,00,000/- from M/s Dewan Housing for surrendering tenancy rights. The Assessing Officer (AO) treated this as unexplained income and made an addition. The CIT(A) confirmed the AO's action.

What were the issues?

Whether the receipt of Rs. 99,00,000/- is a capital receipt and whether additional evidence should be admitted at the appellate stage.

Which sections of the Income-tax Act were involved?

Section 144,Section 147,Section 131,Section 68

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Income Tax Appellate Tribunal, MUMBAI BENCH “I” MUMBAI

Before: SHRI SAKTIJIT DEY & SHRI N.K. PRADHAN

For Appellant: Mr. K. Gopal, AR
For Respondent: Mr. Saurabh Kumar Rai, DR
Hearing: 15/05/2018Pronounced: 23/05/2018

ORDER

PER N.K. PRADHAN, AM

1.

This is an appeal filed by the assessee. The relevant assessment year is 2009-10. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-32, Mumbai [ in short ‘CIT(A)’] and arises out of the assessment completed u/s 144 r.w.s. 147 of the Income Tax Act 1961, (the ‘Act’).

2.

The grounds of appeal

filed by the assessee/appellant read as under:

1. The Ld. CIT(A) has erred in not considering the facts and evidence on record and raise several questions first time in assessment without giving any opportunity of being heard. These questions were about ignorance of Ismail Sahabjan Shaikh existing laws and court order hence are mistake apparent hence plea of the assessee to be considered in right spirit and after considering full facts.

2. The Ld. CIT(A) has erred in considering capital receipt as income from other source.

3. The Ld. CIT(A) has erred in not considering the plea of assessee that this receipt of Rs.99,00,000/- is Hardship Allowance and being a “Capital Receipt” cannot be added u/s 68.

3. The appellant has moved an application dated 01.05.2018 before the Tribunal under Rule 29 of the ITAT Rules, 1963 to admit additional evidence. The Ld. counsel of the appellant files a Paper Book (P/B) containing (i) petition to admit additional evidences under Rule 29 of the Income Tax Appellate Tribunal Rules, 1963, (ii) copy of the letter dated 22.01.1975 issued by Maharashtra Housing Board to Ismail Shaikh pertaining to the allotment of plot at Bandra Kurla Complex (Bandra), (iii) copy of undertaking given by the Ismail Shaikh, (iv) copy of letter issued by the Maharashtra Housing Board to Ismail Shaikh for calling counterfoils pertaining to the tenements at Transit Camp, (v) copy of letter dated 15.02.1975 addressed to the Housing Commissioner, Maharashtra Housing Board, (vi) copy of the letter dated 11.07.1978 issued by Estate Manager (Maharashtra Housing Board) with respect to the rent recovery due from Ismail Shaikh along with charge sheet, (vii) copy of the letter issued by Bombay Housing Development Board along with annexures, (viii) copy of the submission dated 21.04.2015 filed before the Ld. CIT(A) and (ix) copy of the letter dated 13.12.2016 addressed to HDIL for asking documents against surrendering tenancy right at Plot No. 6 at Bandra Kurla Complex.

Ismail Sahabjan Shaikh The Ld. counsel submits that the documents compiled at serial no. 2 and 8 were available before the Ld. CIT(A) whereas documents compiled at serial no. 3 to 7 and 9 are being produced for the first time before the Tribunal. It is stated that the appellant is illiterate and he cannot even sign as all along in the documents he is putting his thump impression for signature. It is submitted that the additional evidence produced by it at serial no. 3 to 7 and 9 have got direct bearing on the present appeal. Reliance is placed by him on the decision in Prabhavati Shah v. CIT 231 ITR 1 (Bom) and Abhay Kumar 63 ITD 144 (Pat) (TM) for admission of the above additional evidence.

4.

Per contra, the Ld. DR submits that nothing prevented the appellant in producing the above documents either before the AO or the Ld. CIT(A). It is stated by him that the assessee had not filed his return of income for the impugned assessment year. After receipt of certain information, the case was re-opened by the AO by issuing notice u/s 148 on 20.03.2013. As there was no compliance in the assessment proceedings, the AO completed the assessment u/s 144 r.w.s. 147 on 10.03.2014. It is also stated that the appellant could have produced the said documents before the Ld. CIT(A). However, he failed to do so. The Ld. DR further states that the documents pertain to the year 1975 and 1978 and could have been produced before the AO or the Ld. CIT(A), whereas the appellant failed to do so. It is further submitted by him that the nature of payment as per the said documents is not clear.

Ismail Sahabjan Shaikh

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