YOGINIBEN BIPIN BAROT, MUMBAI V. DCIT 9(2), MUMBAI

ITA 1090/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2640 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 28-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H M WANARE
• Assessee Lawyers: R N GAMI
• Section: 143(3)

Judgement Text

, , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL G, BENC H MUMBAI BEFORE SHRI N.K.BILLAIYA, AM& SHRI SANJAY GARG, JM ./ ITA NO.1090/MUM/2013 ( / ASSESSMENT YEAR :2009-10) MRS. YOGINIBEN BIPIN BAROT, 1 ST FLOOR, YIGIKRUPA, 14, JAWAHARNAGAR, S.V.ROAD, GOREGAON (WEST), MUMBAI- 62 VS. DCIT-9(2), MUMBAI-400020 !' #$ ./ % ./PAN/GIR NO. : ( '& /APPELLANT ) .. ( '('& / RESPONDENT ) )* + ++ + , , , , # ## # /ASSESSEE BY : SHRI R.N.GAMI ! + ++ + , , , , # ## # /REVENUE BY : SHRI H.M.WANARE + *$ / DATE OF HEARING : 21/09/2015 -. + *$ /DATE OF PRONOUNCEMENT 30 /10/2015 /#0 /#0 /#0 /#0 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)]-20, MUMBAI, DATED 9-11-2012, FOR THE ASSESS MENT YEAR 2009-10. 2. THE ASSESSEE, IN THIS APPEAL, IS AGGRIEVED IN TH E ACTION OF THE CIT(A) IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER (HEREINAFTER REFERRED TO AS THE AO) OF RS.10,91,919/- ON ACCOUNT OF UNEXPLAINED INCOME. THE AO NOTED THAT THE ASSESSEE HAD NOT BEE N ABLE TO EXPLAIN THE SOURCE OF DEPOSITS MADE IN THE BANK ACCOUNT FRO M TIME TO TIME FOR THE PERIOD FROM 17.01.09 TO 18.03.09 TOTALING RS.10,91, 919/-. THE CONTENTION OF THE ASSESSEE, HOWEVER, HAS BEEN THAT SUCH DEPOSI TS WERE FROM ITA NO.1090/13 2 AGRICULTURE INCOME AND SURPLUS FROM CASH WITHDRAWN DURING THE YEAR FROM THE BANK. THE AO, HOWEVER, DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE AND MADE THE ABOVE ADDITION WHICH HAS BEEN FURTHER CONFIRMED BY THE LD. CIT(A). 3. AT THE OUTSET, LD. AR SUBMITTED THAT THIS ISSUE IS COVERED BY THE DECISION OF THE COORDINATE BENCH OF TRIBUNAL DATED 31-7-2015, PASSED IN ITA NO.1091/MUM/2013 IN THE CASE OF MR. BIPIN BORAT , WHO IS HUSBAND OF THE PRESENT ASSESSEE. 4. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL DATED 31- 7-2015 AND FOUND THAT THE FACTS AND ISSUE INVOLVED IN THE PRESENT APPEAL ARE SIMILAR TO CASE OF THE HUSBAND OF THE ASSESSEE AND THEREFORE ARE COVERED BY THE ABOVE DECISION OF THE TRIBUNAL, WHER EIN THE TRIBUNAL HELD AS UNDER :- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. OSTEN SIBLY, THE CLAIM OF THE ASSESSEE WAS THAT THE IMPUGNED CASH DE POSITS IN THE BANK ACCOUNT HAVE BEEN MADE OUT OF THE CASH AVA ILABLE WITH HIM. THE AFORESAID WAS SOUGHT TO BE SUBSTANTIATED O N THE BASIS OF CASH BOOK MAINTAINED FOR THE PERIOD UNDER CONSID ERATION I.E. 01.04.2008 TO 31.03.2009. A COPY OF THE SUCH CASH B OOK HAS ALSO BEEN PLACED IN THE PAPER BOOK FILED BEFORE US AT PAGES 3 TO 8. BY REFERRING TO THE SPECIFIC SOURCES, THE PLEA O F ASSESSEE WAS THAT CASH DEPOSITS IN BANK CAME OUT OF THE OPENING CASH BALANCE, AGRICULTURAL INCOME EARNED AND THE SURPLUS FROM CASH WITHDRAWN DURING THE YEAR FROM THE BANK, WHICH WAS AVAILABLE WITH THE ASSESSEE. WE FIND THAT THE EXPLANATION REN DERED BY THE ASSESSEE HAS BEEN MERELY DISBELIEVED AND IT IS NOT A CASE WHERE THE EXPLANATION HAS BEEN FOUND TO BE FALSE OR OTHER WISE UNTENABLE. IN FACT, ONE OF THE PRINCIPAL ARGUMENTS EMERGING FROM THE ORDERS OF THE AUTHORITIES BELOW IS WITH REGARD TO THE DOUBTFUL NATURE OF AGRICULTURAL INCOME DECLARED BY THE ASSES SEE OF RS. 4,75,689/-. IN THIS CONTEXT, THE LD. REPRESENTATIVE FOR THE ASSESSEE HAS REFERRED TO THE PAPER BOOK TO POINT OU T THAT ASSESSEE WAS POSSESSING ADEQUATE AGRICULTURAL LANDS AND HE HAS ALSO REFERRED TO THE RECEIPTS OF LAND REVENUE T AX PAID AS WELL ITA NO.1090/13 3 AS TRACTOR BILLS, FERTILIZERS BILLS AND SALE VOUCHE RS ETC TO SHOW THAT MONEY WAS SPENT ON AGRICULTURAL OPERATIONS AND THAT AGRICULTURAL PRODUCE WAS ALSO SOLD WHICH HAD RESULTED IN INCOME OF RS. 4,75,689/-. IN THIS CONTEXT, THE LD. REPRESENTATIVE REFERRED TO THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER U /S 143(3) OF THE ACT FOR ASSESSMENT YEARS 2006-07 AND 2008-09 , WHEREIN, THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE HA S BEEN ACCEPTED. COPIES OF SUCH ASSESSMENT ORDERS HAVE BEE N PLACED IN THE PAPER BOOK. A PERUSAL OF SUCH ASSESSMENT ORD ERS REVEAL THAT THE INCOME DECLARED BY THE ASSESSEE IN THE INS TANT YEAR IS ON A SIMILAR FOOTING. THE BOOKS OF ACCOUNT MAINTAIN ED BY THE ASSESSEE HAVE NOT BEEN REJECTED INASMUCH AS THE ASS ESSEE HAD PRODUCED HIS CASH BOOK IN SUPPORT OF THE AVAILABILI TY OF CASH ON VARIOUS DATES FOR MAKING THE IMPUGNED DEPOSITS IN T HE BANK. THERE IS NO ADVERSE FINDING IN THIS REGARD IN THE O RDERS OF AUTHORITIES BELOW. ANOTHER ASPECT OF THE MATTER IS THAT THE OPENING CASH BALANCE AS PER THE CASH BOOK CORRESPON DS TO THE BALANCE-SHEET AS ON 31.03.2008, WHICH WAS ANNEXED T O THE RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2008-09 AND THERE IS NO ADVERSE FINDING ON THIS ASPECT. THE AVAILABILITY OF THE OPENING CASH BALANCE IS PROVED AND WE FIND NO REASONS TO RE JECT THE SAME. 7. CONSIDERED IN THE AFORESAID LIGHT, IN THE ABSENC E OF ANY MATERIAL TO REBUT THE CASH POSITION SHOWN BY THE AS SESSEE ON THE BASIS OF ITS CASH BOOK FOR THE YEAR UNDER CONSIDERA TION, WE FIND THAT THE LOWER AUTHORITIES HAVE UNJUSTLY CONSIDERED THE IMPUGNED CASH DEPOSITS AS UNEXPLAINED. ACCORDINGLY, THE ORDE R OF CIT(A) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE IMPUGNED ADDITION. 8. IN THE RESULT, APPEAL OF THE ASSESSED IS ALLOWED . 5. AS THE FACTS AND CIRCUMSTANCES IN THIS APPEAL AR E SIMILAR TO THE CASE OF THE HUSBAND OF THE ASSESSEE, WHICH HAS BEEN DECI DED BY THE TRIBUNAL VIDE ORDER DATED 31-7-2015, RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS.10,91,919/- MADE ON ACCOUNT OF UNEXPLAINED INCOM E IN THE LIGHT OF THE DECISION RENDERED BY THIS TRIBUNAL IN THE ABOVE CAS E. ITA NO.1090/13 4 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30/10/20 15. SD/- SD/- (N.K.BILLAIYA ) (SANJAY GARG ) #$ /! #$ /! #$ /! #$ /! / ACCOUNTANT MEMBER /! /! /! /! / JUDICIAL MEMBER MUMBAI ; 1/ DATED 30/10/2015 '. .3 /PKM , . / PS /#0 /#0 /#0 /#0 + ++ + '*38 '*38 '*38 '*38 9#8 * 9#8 * 9#8 * 9#8 * / COPY OF THE ORDER FORWARDED TO : /#0 /#0 /#0 /#0 / BY ORDER, : :: : / ; ; ; ; ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. '& / THE APPELLANT 2. '('& / THE RESPONDENT. 3. <* ( ) / THE CIT(A), MUMBAI. 4. <* / CIT 5. 8=> '* , , / DR, ITAT, MUMBAI 6. >? @ / GUARD FILE. (8* '* //TRUE COPY//