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I.T.O., Ward-22(2)(2),Tower No.6, 4th Floor, Vashi Rly. Station Complex, NAVI MUMBAI Vs. Ms. Sarita B. Bansal, 206, Vasant Vihar Complex, Behind Basant Cinema, Chembur,MUMBAI-400 074
April, 10th 2013
                   MUMBAI BENCHES "E" MUMBAI

                           [^ .., Û.     / 
        BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER                             /AND

                                     ^ Û], ..

                     . / ITA                No. 7297/Mum/2011
                        [ [ /Assessment Year 2008-09

            I.T.O., Ward-22(2)(2),      Ms. Sarita B. Bansal,
            Tower No.6, 4th Floor,      206, Vasant Vihar Complex,
            Vashi Rly. Station          Behind Basant Cinema,
            Complex,                Vs. Chembur,
            NAVI MUMBAI                 MUMBAI-400 074.
                              PAN: AADPB 8555 C
              ( /Appellant)                (× / Respondent)

                      Revenue by               :        Shri P.K. Singh
                      Assessee by              :        Shri R.B. Popat

                  / Date of Hearing                             :       20-03-2013
             / Date of Pronouncement                            :       03-04-2013

                                    / O R D E R


        Following Grounds of Appeal have been filed by the Assessing Officer (AO)
against the order dt. 29-08-2011 of CIT(A)-33, Mumbai:

          1. On the facts and in the circumstances of the case and in law, the Ld. CIT (A)
          erred in deleting the addition of Rs. 28,20,000/- representing unexplained
          investment made during the year in immovable property.

          2. On the facts and in the circumstances of the case and in law, the Ld. CIT (A)
          failed to appreciate that the investment of Rs. 28,20,000/- made in property
          during the year is in addition to the investment made in earlier years, and that the
          returns of income of earlier years, and that the returns of income of earlier years
          and details of payment made in earlier years cannot be cited to derive support for
          the amount invested in property during the year.
                                             2                             ITA No. 7297/Mum/2011
                                                                               Ms. Sarita B. Bansal

           3. On the facts and in the circumstances of the case and in law, the Ld. CIT (A)
           failed to appreciate that the assessee had not furnished complete details about the
           sources of investments made in property in FY. 2007-08 as late as 31-12-2010,
           despite sufficient opportunities given, and the AO did not have sufficient time to
           verify these details.

           4. On the facts and in the circumstances of the case and in law, the Ld. CIT (A)
           gave the above relief relying on the concocted documents which were not
           available before the A.O. and thereby admitting fresh evidence in contravention
           to Rule 46A of the I.T. Rules.

           5. The appellant prays that the order of the CIT(A) on the above grounds be
           reversed and that of the Assessing Officer be restored.

           6. The appellant craves leave to amend or alter any ground or add a new
           ground which may be necessary.

2.       Assessee, an individual, filed her return of income on 31-03-2010 declaring
total income at Rs. 36,61,930/-. The said return was processed u/s. 143(1) of the
Income Tax Act, 1961 (Act). Subsequently, the case was selected for scrutiny and
assessment was finalised by the Assessing Officer (AO) u/s. 143(3) of the Act on
29-12-2010 determining total income at Rs. 65.78 Lakhs.

3.      During the assessment proceedings, AO found that the assessee had offered
Short Term Capital of Rs. 32,31,260/- on sale of immovable property. He directed the
assessee to produce the details of Shorter Term Capital Gains (STCG) along with
documentary evidences. On verification of the details submitted, it is found that the
assessee had sold the said property on 17-03-2008 for consideration of Rs.
62,21,000/-, that was purchased on 07-03-2008 for Rs. 28,20,000/- as per Agreement
of Sale. AO directed the assessee to produce the source of fund/income for
acquisition of property along with documentary evidence and copy of bank statement
showing payment made. As per the AO, assessee failed to produce such details. AO
held that the assessee had failed to establish the source of fund utilised for purchase of
property of Rs. 28,20,000/- and also failed to establish any documentary evidences in
support of her claim. He finally held that the investment made of Rs. 28,20,000/- by
the assessee was to be treated as un-explained investment made during the year.

4.      Assessee preferred an appeal before the First Appellate Authority (FAA).
After considering the fact made by the assessee, FAA held that return of income for
AYs. 2005-06, 2006-07 and 2007-08 were filed by the appellant, that the balance
sheet as on 31-03-2005 showed advances in the name of the Sabari Realtors of Rs.
10,00,000/-, that claim of the assessee was supported by bank accounts details filed by
the appellant during the appellate proceedings showing Cheque No. 144377 for Rs.
10,00,000/- paid to Sabari Realtors on 18-01-2005 by the appellant from her account
in Abhudaya Co-op. Bank, that Cheque No. 794228 for Rs. 10,00,000/- and Cheque
No. 794240 for Rs. 5,00,000/- had been paid on 09-03-2006 and 29-03-2006
respectively support the claim of the assessee that the balance sheet as on 03-03-2006
showed advances in the name of Sabari Realtors at Rs. 25,00,000/-, that the said
balance included Rs. 10,00,000/- payment made in AY. 2005-06 together with Rs.
15,00,000/- in AY. 2006-07, that Cheque No. 179620 for Rs. 4,00,000/- had been paid
on 19-07-2007, that investments made in the property at Rs. 28,20,000/- was duly
                                            3                           ITA No. 7297/Mum/2011
                                                                            Ms. Sarita B. Bansal

reflected in the respective assessment years and were available in the departmental
records i.e., return of income filed by the appellant. In this background, FAA deleted
the addition amounting to Rs. 28,20,000/- made by the AO as un-explained
investment u/s. 69 of the Act.

5.      Before us, Departmental Representative (DR) submitted that evidence
discussed by the FAA were admitted in violation of Rule 46A(3) of the I.T. Rules
1962 (Rules), that FAA did not call for Remand Report from the AO. Authorised
Representative (AR) supported the order of the FAA. He further submitted that
details about bank statement could not be filed by CA concerned. For want to time,
FAA had considered that fact.

5.1    In our opinion, after considering the said fact, FAA should have called for
Remand Report from the AO or should have invoked provisions of Rule 46A(4) of the
Rules. Therefore, in the interest of justice, we are remitting back the matter to the file
of the AO for fresh adjudication for limited purpose of verifying Bank Statement and
decided the issue on merits after affording a reasonable opportunity of hearing to the

   As a result, appeal filed by the AO stands Partly allowed.
    [-             .

   Order pronounced in the open court on 3rd April, 2013.
        Û   3rd April, 2013    

                Sd/-                                                Sd/-
  (..           / B.R. MITTAL)                            (Û] /    RAJENDRA)
Û  / JUDICIAL MEMBER                               / ACCOUNTANT MEMBER

/Mumbai,           /Date: 3rd April, 2013

    /Copy of                    the Order forwarded to :

       1. Appellant
       2. Respondent
       3. The concerned CIT (A)
       4. The concerned CIT
       5. DR "E" Bench, ITAT, Mumbai
       6. Guard File
         ×  //True Copy//

                                                              / BY ORDER,

                                                 /  Dy./Asst.
                                                  ,  / ITAT, Mumbai
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