ASHWINKUMAR LILADHAR VAIDYA, Mumbai V. ITO (INT), WARD-4(3)(1), MUMBAI

ITA 1131/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6311 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 11-10-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 05-04-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH A. THAKURDESAI
• Keywords: Unexplained investment; Search and seizure
• Section: 234B; 144C; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “I” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA Nos. 1131, 1129, 1130/MUM/2023 Assessment Years: 2016-17 to 2018-19 Ashwinkumar Liladhar Vaidya, 68, Manor Road, Oldham OL4 5NB Lancashire, United Kingdom. Vs. ITO, Int. Tax Ward 4(3)(1), Mumbai. PAN No. AGHPV 7878 C Appellant Respondent Assessee by : Mr. Ashish A. Thakurdesai Revenue by : Mr. Anil Sant, Sr. DR Date of Hearing : 12/10/2023 Date of pronouncement : 19/10/2023 ORDER PER OM PRAKASH KANT, AM These appeals by the assessee are directed against three separate final assessment orders, each dated 23/01/2023, passed by the Income-tax Officer, International Taxation ward -4(3)(1), Mumbai (in short ‘the Ld. Assessing Officer’) for assessment years 2016-17 to 2018-19 respectively, pursuant to the respective directions issued by the Ld. Dispute Resolution Panel (Ld. DRP) on 28.12.2022, 29.12.2022 and 29.12.2022 respectively. In these appeals, common issues in dispute are involved and therefore same were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. 2. As identical grounds have been raised by the appeals, therefore, for brevity of appeal of the assessee for assessment year 2016 1. On the facts in circumstances of the case and in law the issue of notice under section 153C of the Income law. 2. On the facts in circumstances of the case and in law the impugned assessment order is bad in law as as the notice under section 153C of the Income Tax Act, 1961 has been issued without conclusive satisfaction, cogent material arriving satisfaction and relying only on incriminating materials obtained at search and seizure proceedings on third party without providing these Statements to the appellant and without giving an opportunity to the appellant to cross examine 3. On the facts in circumstances of the case and in law the learned Income Tax Officer erred in adding Rs.4,50,000/ Income Tax Act, 1961 completely ignoring source of funds available with the appellant. 4. On the facts in circumstances of the case and in law the learned Income Tax Officer erred in charging interest of Rs.86,940,/ Rs.1,18,930/ 2.1 Briefly stated facts of the case are that the assessee is a non resident Indian and currently settled in United citizen of UK. The assessee is having certain immovable properties in India and was showing rental income in the return of incom filed for relevant assessment years During the financial year corresponding to the assessment year 2018-19, the assessee namely ‘Decora Fortune of Rs.14,00,000/- as recorded in the registered sale agreement dated 04.01.2018. A sear Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. As identical grounds have been raised by the assessee in , therefore, for brevity, we are reproducing only the grounds of appeal of the assessee for assessment year 2016-17 as under: On the facts in circumstances of the case and in law the issue of notice under section 153C of the Income Tax Act, 1961 is bad in On the facts in circumstances of the case and in law the impugned assessment order is bad in law as as the notice under section 153C of the Income Tax Act, 1961 has been issued without conclusive satisfaction, cogent material and basis of arriving satisfaction and relying only on incriminating materials obtained at search and seizure proceedings on third party without providing these Statements to the appellant and without giving an opportunity to the appellant to cross examine the third party. On the facts in circumstances of the case and in law the learned Income Tax Officer erred in adding Rs.4,50,000/- Income Tax Act, 1961 completely ignoring source of funds available with the appellant. On the facts in circumstances of the case and in law the learned Income Tax Officer erred in charging interest of Rs.86,940,/ Rs.1,18,930/- u/s 234A and 234B respectively. Briefly stated facts of the case are that the assessee is a non resident Indian and currently settled in United Kingdom citizen of UK. The assessee is having certain immovable properties in India and was showing rental income in the return of incom filed for relevant assessment years from 2016-17 to 2018 During the financial year corresponding to the assessment year 19, the assessee enter into purchase of a flat in an apartment Decora Fortune’, at Rajkot ( Gujrat) for sale consider as recorded in the registered sale agreement dated 04.01.2018. A search was conducted at the premises Ashwinkumar Liladhar Vaidya 2 ITA Nos. 1129 to 1131/Mum/2023 were heard together and disposed off by way of this consolidated assessee in these we are reproducing only the grounds 17 as under: On the facts in circumstances of the case and in law the issue of Tax Act, 1961 is bad in On the facts in circumstances of the case and in law the impugned assessment order is bad in law as as the notice under section 153C of the Income Tax Act, 1961 has been issued and basis of arriving satisfaction and relying only on incriminating materials obtained at search and seizure proceedings on third party without providing these Statements to the appellant and without giving an the third party. On the facts in circumstances of the case and in law the learned us 69 of the Income Tax Act, 1961 completely ignoring source of funds On the facts in circumstances of the case and in law the learned Income Tax Officer erred in charging interest of Rs.86,940,/- and Briefly stated facts of the case are that the assessee is a non- Kingdom (UK) as citizen of UK. The assessee is having certain immovable properties in India and was showing rental income in the return of income 17 to 2018-19. During the financial year corresponding to the assessment year a flat in an apartment or sale consideration as recorded in the registered sale agreement ch was conducted at the premises of the developer of the said search a ‘pendrive’ was found and seized on developer namely ‘Shri Himanshu Raiyani of assessee, maintained in the said ledger account, the assessee had paid additional sum of Rs.10,87,600/- in cash to the developer. In view incriminating material belong information therein pertaining the searched person intimated to the Assessing Officer of the assessee, who after following the due procedure of the law is notice u/s 153C of the Act to the assessee for assessment year 2016-17 to 2-18-19. In response, the assessee filed return of income for all those three assessment years declaring the income which was declared in the original return of income The Assessing officer completed scrutiny of the return of income and issued a draft order u/s 144C r.w.s. 153C of the Act for all the three assessment years proposing addition of Rs.4,50,000/ assessment year 2016 18 and Rs.1,75,000/ filed objection before the Ld. DRP and the Ld. DRP after considering the submission of the assessee held the addition to the extent of Rs.4,12,000/- in assessment year 2016 assessment year 2017 2018-19. In view of the direction of the Ld. DRP, the Assessing Officer has passed impugned final assessment orders Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 said apartment and his associates. During the said was found and seized on an employee Shri Himanshu Raiyani’, in which ledger account maintained in ‘parallel books’ was found. According to the said ledger account, the assessee had paid additional sum of in cash to the developer. In view incriminating material belonging to the assessee and the information therein pertaining to assessee, the Assessing Officer of the searched person intimated to the Assessing Officer of the who after following the due procedure of the law is notice u/s 153C of the Act to the assessee for assessment year 19. In response, the assessee filed return of income for all those three assessment years declaring the income which was declared in the original return of income The Assessing officer completed scrutiny of the return of income draft order u/s 144C r.w.s. 153C of the Act for all the three assessment years proposing addition of Rs.4,50,000/ assessment year 2016-17, Rs.4,62,600/- in assessment ye 18 and Rs.1,75,000/- in assessment year 2018-19. The assessee filed objection before the Ld. DRP and the Ld. DRP after considering the submission of the assessee held the addition to the extent of in assessment year 2016-17; Rs.1,88,6 assessment year 2017-18 and Rs.1,75,000/- for assessment year 19. In view of the direction of the Ld. DRP, the Assessing Officer has passed impugned final assessment orders Ashwinkumar Liladhar Vaidya 3 ITA Nos. 1129 to 1131/Mum/2023 apartment and his associates. During the said employee of the which ledger account was found. According to the said ledger account, the assessee had paid additional sum of in cash to the developer. In view of the to the assessee and the he Assessing Officer of the searched person intimated to the Assessing Officer of the who after following the due procedure of the law issued notice u/s 153C of the Act to the assessee for assessment years 19. In response, the assessee filed return of income for all those three assessment years declaring the total income which was declared in the original return of income filed. The Assessing officer completed scrutiny of the return of income draft order u/s 144C r.w.s. 153C of the Act for all the three assessment years proposing addition of Rs.4,50,000/- in in assessment year 2017- 19. The assessee filed objection before the Ld. DRP and the Ld. DRP after considering the submission of the assessee held the addition to the extent of Rs.1,88,600/- for for assessment year 19. In view of the direction of the Ld. DRP, the Assessing Officer has passed impugned final assessment orders, against which assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. Before us, the Ld. Counsel containing pages 1 to 136 and submitted that in all the three assessment years, the Ld. DRP has mere balance of Rs.4,12,000/ contention in all three assessment years is whether there was opening cash in hand assessee. The Ld. Counsel page No. 2 showing the amount of Rs.4,12,000/ balance. Further, the Ld. Counsel of the assessee referred to Page No. 8 and 9 of the Paper Book and submitted that assessee had incurred cash expenses for additional work in the or furnishing for which assessee paid Rs.9,50,000/ ‘Shriram Enterprises him for stamp duty and registration charges incurred by him on behalf of the assessee. In support of opening cas Rs.4,12,000/- the Ld. Counsel balance sheet and capital account for assessment year prior to assessment year 2016 years assessee has withdrawn the money from its ba detail of which was filed and available on page 46 of the Ld. DRP. The Ld. Counsel also produced a summary of the said explanation Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 which assessee is in appeal before the Tribunal raising the grounds as reproduced above. Before us, the Ld. Counsel for the assessee filed a Paper Book containing pages 1 to 136 and submitted that in all the three assessment years, the Ld. DRP has merely rejected opening cash balance of Rs.4,12,000/- as on 31.03.2015. T contention in all three assessment years is whether there was opening cash in hand of Rs.4,12,000/- was available with the The Ld. Counsel for the assessee referred page No. 2 showing the amount of Rs.4,12,000/- as opening cash balance. Further, the Ld. Counsel of the assessee referred to Page No. 8 and 9 of the Paper Book and submitted that assessee had incurred cash expenses for additional work in the nature of interior or furnishing for which assessee paid Rs.9,50,000/ ’ and balance Rs.1,37,600/- was reimbursed to him for stamp duty and registration charges incurred by him on behalf of the assessee. In support of opening cas the Ld. Counsel for the assessee referred to the balance sheet and capital account for assessment year prior to assessment year 2016-17. The Ld. Counsel submitted that in earlier years assessee has withdrawn the money from its ba detail of which was filed and available on page 46 of the Ld. DRP. The Ld. Counsel also produced a summary of the said explanation Ashwinkumar Liladhar Vaidya 4 ITA Nos. 1129 to 1131/Mum/2023 which assessee is in appeal before the Tribunal raising the grounds the assessee filed a Paper Book containing pages 1 to 136 and submitted that in all the three ly rejected opening cash . Thus bone of contention in all three assessment years is whether there was was available with the the assessee referred to Paper Book as opening cash balance. Further, the Ld. Counsel of the assessee referred to Page No. 8 and 9 of the Paper Book and submitted that assessee had nature of interior or furnishing for which assessee paid Rs.9,50,000/- to M/s was reimbursed to him for stamp duty and registration charges incurred by him on behalf of the assessee. In support of opening cash balance of the assessee referred to the balance sheet and capital account for assessment year prior to 17. The Ld. Counsel submitted that in earlier years assessee has withdrawn the money from its bank account detail of which was filed and available on page 46 of the Ld. DRP. The Ld. Counsel also produced a summary of the said explanation of the cash balance as on 31.03.2015 amounting to Rs.4,12,000/ as under: Opening Balance as on 01 Add : Cash withdrawal during the year 2012 Closing Balance as on 31 Add : Cash withdrawal during the year 2013 Less: Cash deposited in bank during the year 2013 Closing balance as on 31 Add : Cash withdrawal during the year 2014 Less: Cash deposited in bank during the year 2014 Closing Balance as on 31 3.1 The Ld. Counsel submitted that the demonstrated separate withdrawal in respect of personal expenses as well as expenses for maintenance of the other let out properties and therefore, the cash balance which was withdrawn from time to time by the assessee during his visit assessee. He submitted that t M/s Shriram Enterprises is duly explained and hence no addition for unexplained investment is required to made in the hands of the assessee for assessment ye 19. 4. Per contra, the Ld. Departmental Representative (DR) submitted that there are no evidence in support of that the cash withdrawn in the assessment years 2012 with the assessee and therefore, upholding addition in unexplained investment. Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 of the cash balance as on 31.03.2015 amounting to Rs.4,12,000/ Particulars e as on 01-04-2012 25,000/ Add : Cash withdrawal during the year 2012-2013 1,67,000/~' Closing Balance as on 31-03-2013 1,92,000/ Add : Cash withdrawal during the year 2013-2014 85,000/ Less: Cash deposited in bank during the year 2013-2014 5,000/ Closing balance as on 31-03-2014 2,72,000/ Add : Cash withdrawal during the year 2014-2015 1,75,000/~ Less: Cash deposited in bank during the year 2014-2015 35,000/ Closing Balance as on 31-03-2015 4,12,000/ The Ld. Counsel submitted that the assessee has already demonstrated separate withdrawal in respect of personal expenses as well as expenses for maintenance of the other let out properties and therefore, the cash balance which was withdrawn from time to time by the assessee during his visit to India was available with the He submitted that the cash payment of Rs.10,87,600/ M/s Shriram Enterprises is duly explained and hence no addition for unexplained investment is required to made in the hands of the assessee for assessment year 2016-17 to assessment year 20181 Per contra, the Ld. Departmental Representative (DR) submitted that there are no evidence in support of that the cash withdrawn in the assessment years 2012-13 to 2015 with the assessee and therefore, the Ld. DRP justified in partly upholding addition in unexplained investment. Ashwinkumar Liladhar Vaidya 5 ITA Nos. 1129 to 1131/Mum/2023 of the cash balance as on 31.03.2015 amounting to Rs.4,12,000/- Amount (Rs.) 25,000/- 1,67,000/~' 1,92,000/- 85,000/- 5,000/- 2,72,000/- 1,75,000/~ 35,000/- 4,12,000/- assessee has already demonstrated separate withdrawal in respect of personal expenses as well as expenses for maintenance of the other let out properties and therefore, the cash balance which was withdrawn from time to was available with the he cash payment of Rs.10,87,600/- to M/s Shriram Enterprises is duly explained and hence no addition for unexplained investment is required to made in the hands of the 17 to assessment year 20181- Per contra, the Ld. Departmental Representative (DR) submitted that there are no evidence in support of that the cash 13 to 2015-16 was kept the Ld. DRP justified in partly 5. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. We find that the assessee is a non Rajkot. During the course of the search action at the premises of the developer of the flat ledger account of the assessee was found wherein along with cheque amount, cash payment of Rs.10,87,600/- was found. According to the Assessing Off money was paid for submitted that this amount was paid to the developer M/s Shriram Enterprises for carrying out extra/additional work of furnishing and for which separate agreement was made with the it is undisputed that said payment of Rs.10,87,600/ cash by the assessee. The only dispute which is left whe said cash payment was made unexplained sources. The assessee has explained the e by way of withdrawals from his bank account and sum of Rs.4,12,000/- as the opening cash balance as on 01.04.2015. The Ld. DRP has rejected the contention of availability of the opening cash balance in the hands of the assessee amounting to Rs.4,12,000/-. The details of the availability of the opening cash balance of Rs.4,12,000/ withdrawn from the different bank account. The Ld. DRP has rejected this contention observing as under: “6.6.6 Any prudent man woul cash withdrawn earlier is utilised. We may note here that the assessee has deposited an amount as small as Rs. 5,000/ Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. We find that the assessee is a non-resident Indian and purchased a flat in Rajkot. During the course of the search action at the premises of the developer of the flat ledger account of the assessee was found wherein along with cheque amount, cash payment of was found. According to the Assessing Off paid for construction of the flat whereas the assessee submitted that this amount was paid to the developer M/s Shriram Enterprises for carrying out extra/additional work of furnishing and for which separate agreement was made with the said entity. Thus it is undisputed that said payment of Rs.10,87,600/ cash by the assessee. The only dispute which is left whe said cash payment was made out of explained sources or unexplained sources. The assessee has explained the e by way of withdrawals from his bank account and sum of as the opening cash balance as on 01.04.2015. The Ld. DRP has rejected the contention of availability of the opening cash balance in the hands of the assessee amounting to . The details of the availability of the opening cash balance of Rs.4,12,000/- has been stated by the assessee as withdrawn from the different bank account. The Ld. DRP has rejected this contention observing as under: 6.6.6 Any prudent man would withdraw cash from the bank when the cash withdrawn earlier is utilised. We may note here that the assessee has deposited an amount as small as Rs. 5,000/- in his HSBC Bank Ashwinkumar Liladhar Vaidya 6 ITA Nos. 1129 to 1131/Mum/2023 We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. We find that chased a flat in Rajkot. During the course of the search action at the premises of the developer of the flat ledger account of the assessee was found wherein along with cheque amount, cash payment of was found. According to the Assessing Officer this construction of the flat whereas the assessee submitted that this amount was paid to the developer M/s Shriram Enterprises for carrying out extra/additional work of furnishing and said entity. Thus it is undisputed that said payment of Rs.10,87,600/- was made in cash by the assessee. The only dispute which is left whether the out of explained sources or unexplained sources. The assessee has explained the entire amount by way of withdrawals from his bank account and sum of as the opening cash balance as on 01.04.2015. The Ld. DRP has rejected the contention of availability of the opening cash balance in the hands of the assessee amounting to . The details of the availability of the opening cash has been stated by the assessee as withdrawn from the different bank account. The Ld. DRP has d withdraw cash from the bank when the cash withdrawn earlier is utilised. We may note here that the assessee in his HSBC Bank Account (NRO) on three different occasions, I.e. 11.01.2014, 15.09.2014 & 14.10.2014 besides depositing an amount of Rs. 25,000/ 07.05.2014 in the same bank In view of the aforesaid we are of the view that the accumulation of cash shown by the assessee at Rs. 4,12,000/- as on 31.05.2015 is unacceptable. 6.6.7 of Rs. 4,12,000/ explained as almost entire payment of Rs. 4,50,000/ of the year itself, is out aforesaid brought forward balance. 5.1 We do not agree with the finding of the Ld. DRP on this issue because once the money withdrawn from the bank account has been found to be verified support any corroborative evidence that cash against any expenditure. presumption, it cannot be held the money withdrawal by the bank and not saved. Unless it is proved otherwise the assessee has capital of Rs.4,12,000/ with the Revenue to hold that s incurred by the assessee merely for the reason that the assessee in subsequent years has deposited a small amount of Rs.5,000/ Rs.25,000/- also in the banks. The entire finding of the Ld. DRP is based on the presumptio documentary evidence and accordingly the Ld. DRP. Before us, the Ld. Counsel of the assessee has filed a detailed bank statement for the period from 2012 to 2015 and wherein relevant withdrawals h The Ld. Counsel also placed reliance on the decision of the Tribunal ITA No. 277 of 2017 in the case of Dinesh Goswami, Indore Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 Account (NRO) on three different occasions, I.e. 11.01.2014, 15.09.2014 014 besides depositing an amount of Rs. 25,000/ 07.05.2014 in the same bank In view of the aforesaid we are of the view that the accumulation of cash shown by the assessee at Rs. as on 31.05.2015 is unacceptable. 6.6.7 of Rs. 4,12,000/- during the AY 2016-17 can not be held to be explained as almost entire payment of Rs. 4,50,000/- in the beginning of the year itself, is out aforesaid brought forward balance.” We do not agree with the finding of the Ld. DRP on this issue money withdrawn from the bank account has been found to be verified, the Ld. DRP cannot support any corroborative evidence that he would have that cash against any expenditure. Only on the basis of the it cannot be held that assessee might have incurred the money withdrawal by the bank and not saved. Unless it is proved otherwise the assessee has explained source of the opening capital of Rs.4,12,000/- and there are no documentary evidence with the Revenue to hold that said cash was not accumulated and incurred by the assessee merely for the reason that the assessee in as deposited a small amount of Rs.5,000/ also in the banks. The entire finding of the Ld. DRP is based on the presumptions and assumptions and not any documentary evidence and accordingly, we reject the contention of the Ld. DRP. Before us, the Ld. Counsel of the assessee has filed a detailed bank statement for the period from 2012 to 2015 and withdrawals have been shown as self withdrawal. The Ld. Counsel also placed reliance on the decision of the Tribunal ITA No. 277 of 2017 in the case of Dinesh Goswami, Indore Ashwinkumar Liladhar Vaidya 7 ITA Nos. 1129 to 1131/Mum/2023 Account (NRO) on three different occasions, I.e. 11.01.2014, 15.09.2014 014 besides depositing an amount of Rs. 25,000/- on 07.05.2014 in the same bank In view of the aforesaid we are of the view that the accumulation of cash shown by the assessee at Rs. 17 can not be held to be in the beginning ” We do not agree with the finding of the Ld. DRP on this issue money withdrawn from the bank account has decide without would have incurred Only on the basis of the that assessee might have incurred the money withdrawal by the bank and not saved. Unless it is explained source of the opening and there are no documentary evidence aid cash was not accumulated and incurred by the assessee merely for the reason that the assessee in as deposited a small amount of Rs.5,000/- and also in the banks. The entire finding of the Ld. DRP is ns and assumptions and not any we reject the contention of the Ld. DRP. Before us, the Ld. Counsel of the assessee has filed a detailed bank statement for the period from 2012 to 2015 and been shown as self withdrawal. The Ld. Counsel also placed reliance on the decision of the Tribunal ITA No. 277 of 2017 in the case of Dinesh Goswami, Indore Bench, wherein it is held that it is the assessee who has decide himself whether to keep the m bank and the Assessing Officer cannot shift himself the assessee. 5.2 In view of the aforesaid discussion, the ground appeal of the assessee on the merit of the addition are allowed. The grounds challenging validity of the proceedings u/s 153C of the Act are therefore, rendered academic and same are not adjudicating upon. 6. In the result, all the three appeals of the assessee are allowed. Order pronounced in the open Court on Sd/ (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 19/10/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// Ashwinkumar Liladhar Vaidya ITA Nos. 1129 to 1131/Mum/2023 wherein it is held that it is the assessee who has decide himself whether to keep the money in the locker or deposit in the bank and the Assessing Officer cannot shift himself In view of the aforesaid discussion, the ground appeal of the assessee on the merit of the addition are allowed. The ounds challenging validity of the proceedings u/s 153C of the Act are therefore, rendered academic and same are not adjudicating In the result, all the three appeals of the assessee are allowed. nounced in the open Court on 19/10/2023. Sd/- KAVITHA RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Ashwinkumar Liladhar Vaidya 8 ITA Nos. 1129 to 1131/Mum/2023 wherein it is held that it is the assessee who has decide oney in the locker or deposit in the bank and the Assessing Officer cannot shift himself in position of In view of the aforesaid discussion, the grounds of all three appeal of the assessee on the merit of the addition are allowed. The ounds challenging validity of the proceedings u/s 153C of the Act are therefore, rendered academic and same are not adjudicating In the result, all the three appeals of the assessee are allowed. /10/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai