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TMI Blog2018 (4) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ical purposes. - I.T.A. No.1077/Mum/2016 - - - Dated:- 16-4-2018 - SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Revenue : Shri. Rajat Mittal , DR Assessee The Assessee : None ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the Revenue, being ITA No. 1077/Mum/2016 for assessment year 2010-11 is directed against the appellate order dated 25.11.2015 passed by learned Commissioner of Income-tax(Appeals)-10, Mumbai (hereinafter called the CIT(A) ), the appellate proceedings have arisen before learned CIT(A) against the assessment order dated 05-03-2013 passed by learned Assessing Office ( hereinafter called the AO ) u/s 143(3) of the Income-tax Act, 1961 (hereinafter called the Act ) for assessment year 2010-11. 2. The grounds of appeal raised by the Revenue in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under- 1(a). On the facts and in the circumstances of the case, the Ld.CIT(A) erred in holding that the sources of the investment made by the assessee towards purchase of four residential flats are fully substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,42/:775/- 34,42,775/- Total 1,37,71,100/- These four flats were shown by the assessee as closing work-in-progress instead of investments which was later corrected by the assessee by filing revised statement of account. The information was captured by the revenue from the AIR information wherein the date and value of transaction reported was 22/2/2010 of ₹ 1,26,02,500/- wherein four entries were in respect of 4 flats 30/12/2009 of ₹ 28,00,000/- each purchases and again 1/1/2010 of ₹ 1,26,02,500/- 4 entries in respect of 4 flats. These information captured from AIR was furnished by AO to the assessee. The assessee expressed its inability to reconcile the entries. The AO made enquiries from the Jt.-Sub-Registrar, Suburban Maharashtra, Bandra by issuing notice u/s. 133(6) dated 29-10-2002 from where the registration data was generated. The registrar submitted that the flat registration was entered on 01.01.2010 but when some discrepancy was noted in the stamp duty, the registration was cancelled on the same date. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 133(6) sent to the Builder Gurunanak Developers India P. Ltd. also returned unserved as the builder was absconding. The AO deputed inspector to find about details of the Builder but the inspector reported that there is no such builder at the given address. The AO called for the following information from the assessee as to the sources of the fund:- i) Copy of Return of Income, Computation of Income, P L A/c and Balance Sheet for A.Y. 2010-11 of Real Gold Homes Pvt. Ltd. ii) Copy of Return of Income, computation of income, P L A/c and Balance Sheet for A.Y.2010-11 of Astha Developers Pvt. Ltd. iii) Shareholding pattern of Akansha Homes Pvt. Ltd. and Real Gold Homes Pvt. Ltd. and Golden Homes Pvt. Ltd. iv) Copy of Return of Income, Computation of Income, P L A/c Balance Sheet for A.Y.2010-11 of Golden Homes Pvt. Ltd., your Sister concern. The assessee in reply submitted following details:- 1. Real Gold Home Mart Pvt. Ltd.: PAN: AAECR0836N Shareholding Patten a) Shri Rajesh H. Gothi 5,000/- shares of ₹ 10/~ each b) Shri Jayesh H.Gothi 5,000/-shares of ₹ 10/-each and also furnished copy of Balance Sheet and P L A/c for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the order sheet that the revenue has filed an appeal on 02.03.2016 and the Ld. CIT-A has passed appellate order on 25.11.2015 in form no. 36 and there is a delay of 38 days in filing this appeal while no condonation of delay application has been filed by Revenue. It is mentioned in form no. 36 that the appellate order passed by learned CIT(A) was received on 25.11.2015 rather the same was the date of the appellate order passed by learned CIT(A). However, in the authorisation memo signed by Ld. Shri. Sumant Sinha, Principal Commissioner of Income Tax-5, it is clearly mentioned that the appellate order of learned CIT(A) was received on 04-01-2016 and last date of filing appeal is 03-03-2016, which is reproduced here under:- Office of the Pr. COMMISSIONER OF INCOME TAX-5, Mumbai Room No, 559, Aayakar Bhavan, M. K. Road, Mumbai-400 020. Telephone No. : 022-22015670 No.Pr.CIT-5/HQ/Judl./CIT(A)/175/15-16_____________Date :- 29.02.2016 AUTHORISATION MEMO I hereby direct the Assessing Officer i.e. ITO - 5(1)(1), Mumbai to file an appeal to the Appellate Tribunal, Mumbai against the order dated 25.11.2015 passed by the CIT(A)-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 25.11.2015 which in-fact is the date of passing of the appellate order by learned CIT-A-10, Mumbai. These facts were brought to our notice by Ld. DR who submitted that there is no delay in filing of this appeal by Revenue. Thus keeping in view an inadvertent mistake in form no. 36, we are of the considered view that there is no delay in filing of this appeal by the Revenue with tribunal and we hold that the appeal was filed in time by Revenue with tribunal and the said appeal stood admitted. Now, we proceed to adjudicate this appeal on merits. The assessee had purchased four flats from Gurunanak Developers India P. Ltd., situated at Nebula Empress, CTS No. F/1533, 5th Road, Khar(W), Mumbai which comprised purchase cost of ₹ 1,12,00,000/- and stamp duty and registration cost of ₹ 25,71,100/-., detailed here under:- Sr.No. Flat No. Date of agreement Agreement Value Stamp Duty Regitn. Total 1 901 30.12.09 28,00,0007- 6,42,775/- 34,42,775/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., but the notices u/s. 133(6) issued to Builder returned un-served. The builder could not be traced despite inspector being deputed by learned AO. The assessee furnished additional evidences during appellate proceedings before learned CIT(A) and new address of the builder was furnished. It was incumbent on learned CIT(A) to have called for the information from the builder by issuing notices 133(6) or summons u/s 131 as to identify the reasons for such variations as the powers of learned CIT(A) is co-terminus with the powers of the AO. The AO also wanted to make further enquiries with respect to the persons who have given loan to the assessee and sources thereof from where these loans were given to assessee but the parties were not produced by the assessee and the AO made the additions on the ground that identity and genuineness could not be proved. The learned CIT-A accepted confirmations filed by the assessee without any verification while it was incumbent on him to have satisfied after making necessary verifications / enquiry itself that the assessee has not adopted circuitous route to channelize its own black money as the payments made to the assessee by lenders is preceded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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