Shabbir S. Rasool, Mumbai vs Assessee

सर्वश्री आय.सी.शभमव, रेखम सदस्म एवुं सश्र ु ी सष ु भम चमर्रम, न्ममयमक सदस्म BEFORE SHRI R.C.SHARMA, AM & MS. SUSHMA CHOWLA, JM आमकय अऩीर सं./ITA No.7623/Mum/2013 ( नििाारण वषा / Assessment Year :2008-09) Mr. Shabbir S.Rasool, Flat Vs. ITO, W ard-21(3)(2), No.501, Sheldon Apts. Mumbai Chandivali Farm Lane, Opp.

Lathia Rubber Co. Above HDFC Bank, Chandivali Village, Mumbai-400072

स्थममी रेखम सं ./ जीआइआय सं ./ PAN/GIR No. : AABPR 5606 G (अऩीरमथी /Appellant) .. (प्रत्मथी / Respondent)

यमजस्र् की ओर से /Revenue by : Shri Prakash G. Jhunjhunwala यनधमवरयती की ओर से /Assessee by : Shri Neil Philip सुनर्मई की तमयीख / Date of Hearing : 01/06/2015 घोषणम की तमयीख/Date of Pronouncement 10/06/2015

आदे श / O R D E R

PER R.C.SHARMA (A.M):

This is an appeal filed by the assessee against the order of

CIT(A)-32, Mumbai, dated 6-11-2013 for the assessment year 2008-09,

in the matter of order passed u/s.144 of the Act.

2. Rival contentions have been heard and record perused. From the

record we found that after taking the case into scrutiny the AO issued

notice u/s.143(2) & 142(1) of the Act, however, nobody appeared on

behalf of the assessee, therefore, the AO completed the assessment

u/s.144 of the Act, wherein addition was made u/s.69 in respect of

purchase of residential flat, on account of outstanding creditor on adhoc 2 ITA No.7623/13

basis, disallowance of purchase and disallowance of expenses on

estimated basis.

3. At the outset, it was brought to our notice by the ld. AR that

assessee was suffering from bad health and was in bed rest since

Nov.2010. It was also submitted that earlier Chartered Accountant also

could not attend the assessment proceedings due to illness of his

parents. An affidavit to support such contention was also placed on

record. Accordingly, it was prayed that assessee was not given due

opportunity and the AO has passed ex-parte order u/s.144. On the basis

of AIR information on sale of immovable property on 1-12-2007, the AO

has made addition u/s.69 of the Act. However, before the CIT(A), the

assessee filed evidence to the effect that assessee has not sold any flat

but on other hand assessee has purchased residential flat which was

duly disclosed in the balance sheet as on 31-3-2008. Copy of the

agreement with source of fund was also submitted which is as under :-

Date Particulars Ch.No.&Details Gross Total 12-09- The Mogaveera Bank Ch.No.636467 3,600,000 2012/09/2007 to g.h.p.ent.

08-12- Stamp, 2,24,210 2008/12/2007 Registration charges 07-12- The Mogaveera Bank Ch.No.668734 10,00,000 2007/12/2007 08-12- The Mogaveera Bank Ch.No.673811 2,63,000 2008/12/2007 07-01- GE Money Finance Bank Loan 26,51,000 2007/01/2008 Ltd.

The assessee has submitted loan sanctioning letter from GE Money Financial Ltd. of Rs.26,51,000/-. Bank statements have been provided as source of Rs.17,87,210/- being paid through banking channels. The same have been perused and verified. However, on perusal of the Bank statement, it is seen that prior to issue of cheque no.668734, there is cash deposit of Rs.1,03,000/- on the same date. Also on 08/12/2007, 3 ITA No.7623/13

prior to issue of cheque no.673811, there is cash deposit of Rs.2,75,000/- on the same date. The source of cash deposited in the bank has not been furnished by the assessee. Out of Rs.2,24,210/-, payment of Rs.1,93,360/- being stamp duty is reflected in the bank statement. However, the source of cash deposit of Rs.3,78,000/- is not explained as also that of Rs.30,850/- being registration charges."

4. After considering the remand report, the CIT(A) observed that in

the remand report, the AO found that the assessee had in fact purchased

a flat for Rs.44,38,210 and which was disclosed in the balance sheet

dated 31/03/2008. However, with respect to the sources for such

purchase, the AO has given finding that source of cash deposit of

Rs.378,000 has not been explained as also of Rs.30,850/- being the

registration charges. Accordingly same was sustained by CIT(A).

5. We have considered rival contentions and carefully gone through

the orders of authorities below and found that assessee did not get

proper opportunity to present his case. Moreover, documents furnished

before the CIT(A) was also not properly appreciated by the AO which

goes to the root of the issue. Non-appearance before the AO was

basically due to assessee's illness which is duly supported by the

affidavit placed on record, therefore, without going into merit of the

addition, we restore the matter back to the file of the AO for deciding

afresh. The assessee is directed to appear before the AO within a period

of 30 days from the date of receipt of the copy of this order. In case of

any failure on the part of the assessee to appear before the AO within

the stipulated period, the AO will be at liberty to pass order as per law.

We direct accordingly.

4 ITA No.7623/13

6. In the result, appeal of the assessee is allowed in part for statistical

purposes.

Order pronounced in the open court on this 10/06/2015.

Sd/- Sd/- (सष ु भम चमर्रम) (आय.सी.शभमव) (SUSHMA CHOWLA) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER भुंफई Mumbai; ददनमंक Dated 10/06/2015 प्र.कु.मभ/pkm, यन.स/ PS

आदे श की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to :

1. अऩीरमथी / The Appellant

2. प्रत्मथी / The Respondent.

3. आमकय आमुक्त(अऩीर) / The CIT(A), Mumbai.

4. आमकय आमक् ु त / CIT

5. वर्बमगीम प्रयतयनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai

6. गमर्व पमईर / Guard file.

सत्ममवऩत प्रयत //True Copy/ आदे शािसार/ BY ORDER,

उप/सहायक पुंजीकार (Asstt. Registrar) आयकर अपीऱीय अधिकरण, भुंफई / ITAT, Mumbai