VINAY B. DESAI,MUMBAI vs. ITO 8(1)(3), MUMBAI

Assessee by : Shri Jayesh Dadia Revenue by : Shri Vivek Batra (DR) Date of hearing : 10.12.2015 Date of Pronouncement : 01.01.2016 O R D E R

PER PAWAN SINGH, JM:

(2) The Learned CIT(A) has erred in law and on the facts of the case in not considering the evidences filed during the course of appellate proceedings which were in accordance with the directions of Hon'ble ITAT.. The action is unjustified and unwarranted. (3) Your Petition craves leave to add, alter, modify or withdraw the aforesaid grounds of appeal

2. The brief fact of the case are that the assessee filed his return of income on 07.12.2006 declaring total income of Rs. 1,94,250/-. The return was processed u/s. 143(1) of the Act and after serving statutory notice, the Assessing Officer (AO) passed the assessment order and made the addition of Rs. 26,32,608/- on account of unexplained investment u/s 69(B) in the assessment order dated 09.12.2008, on observing that assessee along with his brother gifted property at industrial unit no. 7, 8 & 9, measuring 2146 sq.ft. in Satam Industrial Estate, C-Wing, Chakla, Andheri to their wives, the market value of which property was Rs. 5265216/- and the same was treated as unexplained investment u/s.69(B) of the Act, against which the appeal was filed before the CIT(A) as stated in para-1 above.

3. The CIT(A) while disposing of the appeal after remand again confirmed the addition and dismissed the appeal in its order dated 13.12.2013 against which the present appeal is filed before us.

4. We have heard the Authorised Representative (AR) of the assessee and Departmental Representative (DR) of the revenue and perused the material available on record.

5. The AR of the assessee has argued that the assessee has filed all the record before the FAA which includes the copy of agreement dated 30.09.1985 executed between the Anand Krishnaji and Uday B. Desai, Vinay B. Desai, Pankaj B. Desai, Jayaben B. Desai for Gala No. 8 & 9, copy of declaration dated 11.11.1985 from Pankaj B. Desai and Jayaben Desai their right in favour of Vinay B. Desai and Uday B. Desai and copy of agreement dated 08.04.1986 in between Anand Krishnaji & Mrs. Jayaben B. Desai (mother of the assessee), copy of family arrangement dated 05.05.2002 and Gift-deed dated 25.01.2006 in favour of the assessee and Uday B. Desai.

6. The AR of the assessee further argued that against the assessment order dated 19.12.2008, the assessee filed an appeal before the CIT(A) and the same was dismissed vide order dated 09.04.2010 by CIT(A) against which the assessee preferred an appeal before the ITAT, Mumbai and the same was registered as wherein the additional evidence of the assessee was admitted and the matter was remanded to the file of CIT(A) with a direction for verification of the documentary evidence placed before the CIT(A).

7. The AR of the assessee has further argued that despite showing all the documents and explaining the transaction the addition was sustained and the CIT(A) has not considered the material placed on record.

8. We have perused the order of CIT(A) and the document filed before us in the form of Paper Book. The assessee has taken three inconsistent stand in respect of original of the document dated 30.09.1985 and 01.04.1986. In the Gift-deed dated 25.01.2006 in clause-L the assessee has taken a stand that the document had been misplaced and lost and could not traced after diligent search. Further during the remand proceeding the assessee’s AR stated that original agreements are with M/s Satellite Gazebo Developers Pvt. Ltd. With whom, the assessee made a collaboration agreement and again during the remand proceeding the assessee submitted that the AR of the assessee submitted letter dated 25.11.2013 wherein the assessee has contended that letter to the Bank was written but the Bank are unable to give the records which are more than 20 years old.