ASST CIT CC 43, MUMBAI V. WAIZE M ALI, MUMBAI

ITA 1343/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2317 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Bench Allotted: G
• Next Hearing Date: 14-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 27-02-2014
• Court: TRIBUNAL
• Assessee Lawyers: SHRI N R AGRAWAL
• Keywords: Unexplained cash credit; Unexplained investment
• Section: 147

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE HONBLE S/SHRI SAKTIJIT DEY (JM) , AND ASHWANI TANEJA (AM) ./I.T.A. NO.1343 AND 1344/MUM/2014 ( / ASSESSMENT YEAR:2005-06 & 2006-07) ASSTT.COMMISSIONER OF INCOME TAX, CC 43, ROOM NO.659, 6 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020 / VS. MR. WAIZE M ALI, KENNEDY HOUSE, 2 ND FLOOR, GOREGAONKAR ROAD, NANA CHOWK, MUMBAI ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN. :AIQPA6270N / APPELLANT BY SHRI VACHASPATI TRIPATHI /RESPONDENT BY SHRI SHRI N R AGRAWAL ! / DATE OF HEARING :14.10.2015 ! /DATE OF PRONOUNCEMENT:04. 12.2015 / O R D E R PER ASHWANI TANEJA, AM: THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER DATED 20.12.2013 PASSED BY THE LD.CIT( A)-37, MUMBAI, DECIDED AGAINST THE ASSESSMENT ORDER PASSED U/S 143 R.W.S. 147 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMEN T YEARS 2005- 06 & 2006-07. SINCE, THESE APPEALS ARE DIRECTED AG AINST ITA NO.1343 AND 1344/M/2014 2 THE SAME ASSESSEE, THESE APPEALS WERE HEARD TOGETHE R AND FOR THE SAKE OF CONVENIENCE DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. SINCE GROUNDS TAKEN BY THE REVENUE ARE COMMON IN BOTH THE APPEALS, FOR THE SAKE OF BREVITY, WE ARE REPRODUCING GROUNDS TAKEN BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06. 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITI ON MADE ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE IN RESPECT OF AMOUNTS DEPOSITED IN THE JOINT BANK ACCOUNT WITH MS CHANDBIBI ZAIDI; WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE IS A STUDENT STUDYING OUTSIDE INDIA, WITH NO INDEPENDENT SOURCE OF INCOME. 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITI ON MADE ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESS EE RESPECT OF AMOUNTS DEPOSITED IN THE JOINT BANK ACCO UNT, JOINTLY HELD WITH CHANDBIBI ZAIDI, BY INCORRECTLY INTERPRETING THE RE MAND REPORT OF THE ASSESSING OFFICER AND ARRIVING AT THE WRONG CONCLUSION THAT THERE ARE NO UNEXPLAINED CREDITS FOUND IN THE SAID JOINT BANK ACCOUNT' 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH ACTION WAS CONDUCTED U/S 132(1) OF THE INCOME TAX ACT, 1961 (THE ACT) IN THE PREMISES OF CHANDBIBI ZAIDI GROUP OF CASES ON 20.8.2009. DURI NG THE COURSE OF SEARCH, A BANK ACCOUNT IN THE JOINT NAME OF ASSESSE E AND CHANDBIBI ZAIDI WITH NOVA SCOTIA BANK, NARIMAN POINT BRANCH , MUMBAI WAS FOUND. THE ASSESSEE IS SON OF SISTER OF CHANDBIBI ZAIDI.AT THE TIME OF ITA NO.1343 AND 1344/M/2014 3 SEARCH, A DEPOSIT OF RS.53,32,113/- INCLUDING INTER EST IN FY-2004-05 WAS FOUND IN THE BANK ACCOUNT OF THE ASSESSEE. THI S AMOUNT WAS NOT OFFERED TO TAX. THEREFORE, THE CASE WAS REOPENE D U/S 147. THE ASSESSEE WAS ISSUED SHOW CAUSE NOTICE CALLING UPON HIM TO SHOW CAUSE AS TO WHY THESE DEPOSITS SHOULD NOT BE TREATE D AS UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. THE ASSESSEE REPLIED THE SAID NOTICE AND ALSO FILED DETAILS, THE AO WAS NOT SATISFIED AN D ADDED A SUM OF RS.20,85,614/- TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. AGGRIEVED BY THIS , THE ASSESSEE CONTESTED THE MATTER BEFORE THE LD. CIT(A). 4. BEFORE THE LD. CIT(A), THE ASSESSEE FILED DETAIL S AND CONTENDED THAT THE INTEREST IN THE BANK ACCOUNT, FOR WHICH TH E ADDITION HAS BEEN MADE, WERE MADE EITHER IN THE EARLIER YEARS OR THES E HAVE BEEN EXPLAINED WITH THE HELP OF DOCUMENTARY EVIDENCE. T HE LD. CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO. THE LD. CIT(A) CONSIDERED THE REMAND REPORT IN THE CASE OF MS CHANDBIBI ZAI DI AND AFTER CONSIDERING THE REMAND REPORT AND THE SUBMISSIONS OF THE ASSESSEE AND THE MATERIAL PLACED BY THE ASSESSEE, HE DELETED THE ADDITION MADE BY THE AO IN BOTH YEARS. BEING AGGRIEVED, TH E REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING BEFORE US, LD. AR SUBMITT ED THAT THE LD. CIT(A) HAD PASSED COMMON ORDER FOR THE THREE ASSES SMENT YEARS I.E. AYS 2005-06 TO 2007-08 AND THE APPEAL FILED BY THE DEPARTMENT FOR THE ASSESSMENT YEAR 2007-08 HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY DISMISSING THE APPEAL FILED BY THE REV ENUE. THE LD. ITA NO.1343 AND 1344/M/2014 4 COUNSEL FOR THE ASSESSEE PLACED A COPY OF ORDER PAS SED BY THE TRIBUNAL ASSESSEES OWN CASE FOR AY 2007-08 IN ITA NO.1345/MUM/2014 DATED 10.6.2015. IT WAS FURTHER S UBMITTED THAT THE LD. CIT(A) HAS CONSIDERED THE REMAND REPORT GIV EN IN THE CASE OF MS CHANDBIBI ZAIDI DATED 28.11.2013, WHEREIN THE AO HAD MENTIONED THAT THE REQUEST FOR VERIFICATION HAS BEEN MADE BY HIM WITH RESPECT TO THE CLAIM OF THE ASSESSEE ABOUT THE SOURCES OF D EPOSITS MADE IN THE BANK ACCOUNT AND NOTHING WRONG HAS BEEN REPORTE D BY THE AO IN THE REMAND REPORT. THE LD. CIT(A) HAS RIGHTLY CONSI DERED THE REMAND REPORT AND DELETED THE ADDITION. 6. ON THE OTHER HAND, THE LD. DR RELIED UPON THE AS SESSMENT ORDER. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, GONE T HROUGH THE ORDERS OF AUTHORITIES BELOW, CONSIDERED THE REMAND REPORT IN THE CASES OF ASSESSEE AS WELL AS MS CHANDBIBI ZAIDI AND ALSO THE OTHER MATERIAL PLACED BEFORE US DURING THE COURSE OF HEAR ING. WE FIND THAT THE LD. CIT(A) HAS DECIDED THE APPEALS OF ASSESSEE FOR THREE ASSESSMENT YEARS I.E. 2005-06 TO 2007-08 BY COMMON ORDER AND THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2007 -08 HAS ALREADY BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSE SSEE BY DISMISSING THE APPEAL OF THE REVENUE. WE FIND THAT THE ISSUE BEFORE US AND IN THE DECISION OF TRIBUNAL FOR AY 2007-08 ARE IDENTIC AL AND NOTHING CONTRARY TO THE FINDINGS OF THE TRIBUNAL OR LD. CIT (A) HAS BEEN PLACED BY THE LD. DR TO DEVIATE FROM THE FINDING OF THE LD . CIT(A) OR THE TRIBUNAL. ITA NO.1343 AND 1344/M/2014 5 8. FURTHER, WE FIND THAT THE REMAND REPORT DATED 28 .11.2013 IN THE CASE OF MS CHAMNDBIBI ZAIDI HAS ALSO BEEN CONSI DERED BY THE LD. CIT(A) WHILE DECIDING THE ISSUE IN FAVOUR OF THE AS SESSEE. ON PERUSAL OF THE REMAND REPORT, WE FIND THAT THE AO HAD MADE VERIFICATION OF ALL THE AMOUNTS FOR WHICH THE ADDITIONS WERE MADE BY HI M IN THE ASSESSMENT ORDER, AND NOTHING WRONG HAS BEEN REPORT ED BY THE AO IN HIS REMAND REPORT. IT WAS ALLEGED BY THE AO IN THE ASSESSMENT ORDER THAT THE IMPUGNED AMOUNTS FOR WHICH THE ADDIT ION HAD BEEN MADE IN THE HANDS OF THE ASSESSEE, ACTUALLY BELONGE D TO MS. CHANDBIBI ZAIDI. THUS, AS PER THE AOS OWN ASSERTI ON, THESE AMOUNTS DID NOT BELONG TO THE ASSESSEE. THUS, NO ADDITION D ESERVES TO BE MADE IN THE HANDS OF THE ASSESSEE, IN ANY CASE. TH US, VIEWED FROM ANY ANGLE AND KEEPING IN VIEW THE COMPLETE FACTS AN D CIRCUMSTANCES OF THE CASE AS WELL AS THE ORDER OF THE TRIBUNAL FO R THE ASSESSMENT YEAR 2007-08, WE FIND THAT THE ADDITION WAS WRONGLY MADE BY THE AO IN THE HANDS OF THE ASSESSEE AND THE SAME HAS RIGHT LY BEEN DELETED BY THE LD. CIT(A). THEREFORE, NO INTERFERENCE IS C ALLED FOR IN THE ORDER OF LD. CIT(A). GROUNDS RAISED BY THE REVENUE FOR BO TH THE YEARS ARE REJECTED. 9. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. PRONOUNCED ACCORDINGLY ON 4 TH DEC, 2015. $ % & '( ) 4 TH DEC, 2015 SD/- SD/- (SAKTIJIT DEY) (ASHWANI TANEJA) JUDICIAL MEMBER ACCO UNTANT MEMBER [ % MUMBAI: 4 TH DEC, 2015. ITA NO.1343 AND 1344/M/2014 6 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. - ( ) / THE CIT(A)- CONCERNED 4. - / CIT CONCERNED 5. ./ 0 , ! 0 , % / DR, ITAT, MUMBAI CONCERNED 6. 1 / GUARD FILE. ( / BY ORDER, (ASSTT. REGISTRAR) ! 0 , % /ITAT, MUMBAI