MADHAV TUKARAM BHOSLE,MUMBAI vs. ITO 26(1)(3), MUMBAI

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ITA 1463/MUM/2017Status: DisposedITAT Mumbai18 September 2017AY 2007-083 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the transactions related to the flat purchase and sale occurred in AY 2006-07, not AY 2007-08. Therefore, the addition made in AY 2007-08 was not justified.

What were the facts?

The assessee, a salaried employee, was found to have made an unaccounted cash transaction of Rs. 3,59,750/- related to the purchase of a flat. The Assessing Officer reopened the assessment for AY 2007-08 to tax this amount as unexplained income.

What were the issues?

Whether the addition of unexplained investment was correctly made in AY 2007-08 when the underlying transactions occurred in AY 2006-07. Validity of reopening of assessment.

Which sections of the Income-tax Act were involved?

Section 147,Section 148

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” Bench, Mumbai

Before: Shri B.R. Baskaran (AM)

For Appellant: Shri R.M. Hagir
For Respondent: Shri Ram Tiwari
Hearing: 18.9.2017Pronounced: 18.9.2017

The appeal filed by the assessee is directed against the order dated 20- 12-2016 passed by Ld CIT(A)-46, Mumbai and it relates to the assessment year 2007-08. The assessee is aggrieved by the decision of Ld CIT(A) in confirming the addition of Rs.3,59,750/- added as unexplained income of the assessee.

2.

The assessee is a salaried employee working in the office of Tourism department. The revenue carried out survey operation in the case of Jay deep developers and found that unaccounted cash transactions were entered in sale of flats. It was noticed that the assessee herein has entered into an agreement on 15.12.2005 for purchase of flat for a sum of Rs.17,50,000/-. It was noticed that the unaccounted cash transaction relating thereto was noted as Rs.3,59,750/-. Hence the assessing officer reopened the assessment of the year under consideration in order to assess the unexplained investment of RS.3,59,750/-. Since the assessee failed to explain the sources before the AO and hence the AO assessed the above said amount as income of the assessee.

2 Shri Madhav Tukaram Bhosle

3.

Before Ld CIT(A), the assessee explained that it had sold the above said flat on 26.11.2005, i.e., prior to the date of its purchase and received consideration partly by way of cash and partly by way of cheque. It was submitted that the consideration received by way of cash as well as withdrawals made from bank accounts were used to give the cash component of Rs.3,59,750/- in December, 2005. The assessee also contended that the entire transactions have taken place in the year relevant to AY 2006-07 and hence the AO was not justified in assessing the above said amount in AY 2007-08. The assessee also furnished documents to support his contentions. Further the assessee also challenged the reopening of assessment on the ground that the reason for reopening was not provided to the assessee. All the grounds were rejected by Ld CIT(A) and hence the assessee has filed this appeal before the Tribunal.

4.

I heard the parties and perused the record. I agree with the view taken by Ld CIT(A) that the reopening was valid, since the assessee has not sought for reason for reopening of assessment. Even otherwise, the AO has recorded proper reasons for reopening and hence the same is valid.

5.

I notice that the assessee has furnished all the documents for the first time before Ld CIT(A) and the Ld CIT(A) has decided the issue without confronting the same with the AO. Further, there appears to be merit in the contention of the assessee that the cause of action, if any, shall arise only in AY 2006-07, since the transactions have taken place in the year relevant to that year only. The Ld D.R submitted that the builder has admitted income in AY 2007-08 and hence the addition was made in AY 2007-08. In my view, the addition would depend upon the facts prevailing in the case of the assessee and hence the offer made by the builder in AY 2007-08 would not change the year of chargeability in the hands of the assessee. There is no material to show that the assessee has 3 Shri Madhav Tukaram Bhosle paid the cash component during the year relevant to AY 2007-08. On the contrary, the explanations furnished by the assessee would show that the entire transactions have taken place in the year relevant to AY 2006-07. Accordingly I am of the view that the addition cannot be made in AY 2007-08. Accordingly, I set aside the order passed by ld CIT(A) on this issue and direct the AO to delete the impugned addition made in AY 2007-08.

6.

In the result, the appeal of the assessee is treated as allowed. Order has been pronounced in the Court on 18.9.2017.

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