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ACIT-28 (3) And DCIT-22 (3) Vashi, Navi Mumbai Versus Subhash V. Kanekar

2017 (12) TMI 353 - ITAT MUMBAI

Reopening of assessment - assessee taken entries of purchases from hawala dealers - Held that:- AO has reopened by issuing notice u/s 148 the earlier assessment made u/s 143(1). In ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd. (2007 (5) TMI 197 - SUPREME Court) the Hon’ble Supreme Court has held that intimation u/s 143(1)(a) in not an assessment. It held the notice issued u/s 148 as valid. In the instant case the AO had received specific information that the assessee had merely taken entries of .....

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s not mentioned in the assessment order the sort of market enquiry conducted by him. As the rate arrived at by the AO is based on conjectures, we delete the addition made by the AO as income from house property. - ITA No. 84/MUM/2017 And ITA No. 1748/MUM/2017 - Dated:- 31-10-2017 - SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) For The Revenue : Mr. B. Pruseth, CIT (DR) For The Assessee : Mr. Devendra Jain, AR ORDER PER N.K. PRADHAN, A.M. The captioned cross appeal .....

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e above delay. Having gone through the contents of the affidavit, we find that there was genuine difficulty on the part of the assessee to file the appeal in time. Therefore, we condone the delay of 54 days by the assessee to file the appeal. 2. The grounds of appeal filed by the Revenue read as under: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in restricting the addition of ₹ 1,54,42,911/- made by the AO u/s 69C of the Act of ₹ 23,16,437/- .....

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Officer without independent application of mind on the information received from DGIT(Investigation). 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in confirming the action of the Assessing Officer of completing the assessment u/s 143(3) without providing any opportunity of cross examination of the witnesses relied upon by the Assessing Officer and thus violating the law laid down by Honorable Supreme Court in the case of Kishanchand Chellaram v. C .....

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d by appellant, as one house for his residential purpose, as two different houses and thereby making an addition of ₹ 2,52,000/- under the head Income from House Property. 5. Without prejudice to Ground no 4, the Learned CIT(A) has erred in upholding the action of Assessing Officer in determining the annual value of Flat no. 606 in Kalyan Tower CHS at ₹ 3,60,000/- on the basis of some alleged market enquiry without providing the appellant any details or information or finding or basi .....

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a common issue. Briefly stated, the facts of the case are that the assessee filed his return of income for the AY 2010-11 on 23.09.2010 declaring total income of ₹ 63,45,610/-. The return of income was processed u/s 143(1). Thereafter, the AO received information from the Director General of Income Tax (Inv.), Mumbai that the assessee had merely taken entries of purchases from hawala dealers as reflected in the website of the Sales Tax Department, Government of Maharashtra. Therefore, the .....

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notices issued by the AO were returned unserved by the postal authorities. Therefore, the AO asked the assessee to produce the said parties along with their accounts for examination. However, the assessee failed to produce the above parties before the AO. The assessee also failed to file before the AO the evidence to establish genuineness of purchases made from the said parties. In view of the above, the AO made an addition of ₹ 1,54,42,911/- u/s 69C of the Act. 4. Aggrieved by the order .....

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t is stated by him that the assessee failed to file the evidence before the AO to prove the genuineness of transactions. Therefore, the Ld. DR submits that the Ld. CIT(A) should have confirmed the disallowance of ₹ 1,54,42,911/- made by AO instead of restricting it to 15%. 6. On the other hand, the Ld. counsel of the assessee submits that the details were filed before the AO. He files a copy of the submission dated 14.02.2014, 25.02.2014 and 01.03.2014 filed before the AO. The Ld. counsel .....

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AO has reopened by issuing notice u/s 148 the earlier assessment made u/s 143(1). In ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd. 291 ITR 500 (SC), the Hon ble Supreme Court has held that intimation u/s 143(1)(a) in not an assessment. It held the notice issued u/s 148 as valid. In the instant case the AO had received specific information that the assessee had merely taken entries of purchases from hawala dealers reflected in the website of the Sales Tax Department, Government of Maharashtra. I .....

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e failed to produce the above parties before the AO. We are of the considered view that the contentious issues in the instant case could be resolved by examining the above parties. It is the duty of the AO to enforce attendance of a witness if his evidence is material. At the same time the assessee must furnish the complete address of such person. A proper hearing must always include a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudici .....

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with it the right to examine witnesses and that includes equally the right to cross-examine witnesses. In ITO vs. M. Pirai Choodi (2012) 20 taxmann.com 733 (SC), the Hon'ble Supreme Court has held that Order of assessment passed without granting an opportunity to assessee to cross-examine, should not have been set aside by High Court; at most, High Court should have directed Assessing Officer to grant an opportunity to assessee to cross-examine concerned witness. The importance of cross-exam .....

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