MOHAMMED ASGAR SHAIKH, MUMBAI V. ITO 24(2)-4, MUMBAI

ITA 1358/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48871 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 15-12-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 27-02-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Income from undisclosed sources; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI. BEFORE SHRI R.V.EASWAR, PRESIDENT AND SHRI T.R. SOOD, ACCOUNTANT MEMBER I.T.A. NO.1358/MUM/2009 (ASSESSMENT YEAR : 2005-06) MR. MOHAMMED ASGAR SHAIKH, 23/58, NCC MALAVANI COLONY GATE NO.7, MALAD(W), MUMBAI-400 064. PAN:ARCPS4059C VS. THE INCOME TAX OFFICER, WARD-24(2)(4), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. ANIL THAKRAR RESPONDENT BY : MR.V.V.SHASTRI, DR O R D E R PER R.V.EASWAR, PRESIDENT: THIS APPEAL BY THE ASSESSEE RELATES TO THE ASSESSMENT YEAR 2005-06. THE ASSESSE E IS AN INDIVIDUAL CARRYING ON JOB WORK FOR MANUFACTURERS O F READYMADE GARMENTS. THE APPEAL ARISES OUT OF THE ASSESSMENT M ADE UNDER SECTION 143(3) OF THE INCOME TAX ACT BY ORDER DATED 28.09.2007. 2. THE FIRST GROUND IS DIRECTED AGAINST THE ADDITIO N OF RS.2,46,000/- AS INCOME FROM UNDISCLOSED SOURCES. I N THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD TAKEN A LOAN OF RS.2,46 ,000/- FROM HIS BROTHER MR.MOHAMMED AKBAR SHAIKH ON THE FOLLOWI NG DATES:- DATE AMOUNT RS. 13.04.2004 2,00,000 16.07.2004 36,000 18.07.2004 10,000 AN AFFIDAVIT FROM THE BROTHER WAS FILED BEFORE THE ASSESSING OFFICER CONFIRMING THE LOAN. ON THE GROUND THAT THE COPY OF THE BANK ACCOUNT OR THE RETURN FILED BY THE ASSESSEES BROTHER OR ITA NO.1358/MUM/09 2 PROOF OF THE SOURCE OF INCOME OF THE BROTHER WAS NO T SUBMITTED BY THE ASSESSEE, THE ASSESSING OFFICER ADDED THE AF ORESAID AMOUNT AS THE ASSESSEES INCOME FROM UNDISCLOSED SO URCES. THE ADDITION HAVING BEEN CONFIRMED BY THE CIT(A) TH E ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. WE HAVE A CCORDINGLY CONSIDERED THE FACTS AND THE RIVAL CONTENTIONS. THE ASSESSEE HAS SUBMITTED HIS ACCOUNT IN BHARAT CO-OPERATIVE BANK L TD., MALAD. A PERUSAL THEREOF SHOWS THAT A SUM OF RS.2 LAKHS WA S RECEIVED BY CHEQUE NO.243831 ON 13.04.2004. THIS AMOUNT IS S TATED TO HAVE BEEN REPAID TO THE ASSESSEES BROTHER ON 9.5.2 004 BY CHEQUE NO.244527. THE REPAYMENT OF THE CHEQUE IS RE FLECTED IN THE BANK ACCOUNT OF THE ASSESSEES BROTHER ON THE S AME DAY. THE OTHER TWO AMOUNTS OF RS.36,000/- AND RS.10,000/ - ARE SEEN TO HAVE BEEN RECEIVED FROM THE ASSESSEES BROT HER BY CHEQUE ON 16.07.2004 AND 18.07.2004 AS PER THE ASSE SSEES BANK STATEMENT. THESE TWO CHEQUES ARE FOUND DEBITE D IN THE BANK ACCOUNT OF THE ASSESSEES BROTHER ON THE SAID DATES. THERE IS NO DOUBT THAT THE AMOUNTS OF RS.36,000/- AND RS. 10,000/- HAVE COME FROM THE ASSESSEES BROTHERS ACCOUNT. HO WEVER, AS REGARDS THE AMOUNT OF RS.2 LAKHS THOUGH THERE IS CO RROBORATION FOR THE RETURN OF THE AMOUNT BY THE ASSESSEE IN THE SENSE THAT THE SAME IS REFLECTED IN THE ASSESSEES BROTHERS B ANK ACCOUNT ON 9.5.2004, THE BANK ACCOUNT OF THE ASSESSEES BRO THER FOR THE PERIOD BEFORE 9.5.2004 HAS NOT BEEN PLACED BEFORE U S. THE AMOUNT HAS BEEN TAKEN BY THE ASSESSEE ON 13.04.2004 AND THE ASSESSEES BANK ACCOUNT MERELY SAYS THAT IT IS BY W AY OF CLEARING, BUT IT DOES NOT GIVE THE NAME OF THE PERS ON FROM WHOM THE CHEQUE WAS RECEIVED. WHILE THEREFORE DELETING T HE ADDITIONS OF RS.36,000/- AND RS.10,000/-, WE RESTORE THE ADDI TION OF RS.2,00,000/- FOR FRESH DECISION TO THE ASSESSING O FFICER AND IT WILL BE FOR THE ASSESSEE TO ADDUCE PROOF BEFORE THE ASSESSING OFFICER TO THE EFFECT THAT THE CHEQUE OF RS.2 LAKHS WAS RECEIVED BY HIM ON 13.04.2004 FROM HIS BROTHER. THE ASSESSI NG OFFICER ITA NO.1358/MUM/09 3 SHALL TAKE A FRESH DECISION IN ACCORDANCE WITH THE LAW AND AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF ADDU CING THE EVIDENCE. THE GROUND IS THUS PARTLY ALLOWED. 3. THE SECOND GROUND IS DIRECTED AGAINST THE ADDITI ON OF RS.7,19,400/- SAID TO HAVE BEEN RECEIVED BY THE ASS ESSEE TOWARDS COLLECTION ON ACCOUNT OF CONSTRUCTION OF A PLACE OF WORSHIP. IN THE COURSE OF THE ASSESSMENT PROCEEDING S THE ASSESSEE WOULD APPEAR TO HAVE CLAIMED THAT A SUM OF RS.7,19,400/- WHICH WAS DEPOSITED IN HIS SAVINGS BA NK ACCOUNT NO.101/1425 REPRESENTED FUNDS COLLECTED BY THE RESI DENTS OF HIS LOCALITY FOR CONSTRUCTION OF A PLACE OF WORSHIP. IN SUPPORT OF THE CLAIM, THE ASSESSEE FILED AFFIDAVITS FROM THE FOLLO WING PERSONS MENTIONING THE AMOUNT COLLECTED BY THEM:- I) MUSTAQ AHMED : RS.2,25,000 II) SYED AKHTAR : RS.2,00,000 III)MOHD. HALEEM : RS.1,62,000 IV)NAVEEDA BEGUM : RS.1,32,400 ON THE GROUND THAT THE ASSESSEE FAILED TO ADDUCE AN Y SUPPORTING EVIDENCE SUCH AS BILLS FOR MATERIALS USE D FOR THE CONSTRUCTION, PERMISSION FROM THE LOCAL AUTHORITIES , COPIES OF THE PLAN ETC. AND ALSO ON THE GROUND THAT THE ASSES SEE DID NOT SUBMIT ANY INFORMATION ABOUT THE CONSTITUTION OF A COMMITTEE FOR THE PURPOSE OF THE CONSTRUCTION, THE ASSESSING OFFICER HELD THAT THE ASSESSEES CLAIM CANNOT BE ACCEPTED. THE ASSESSING OFFICER ALSO NOTED THAT THERE WAS NO INFORMATION AS TO THE TOTAL DONATIONS COLLECTED, WHO WERE THE OTHER DONORS AND HOW THE SAME WAS UTILIZED FOR THE PURPOSE OF CONSTRUCTION, COPIES OF THE DONATION RECEIPTS WERE ALSO NOT PRODUCED. IN THE AB SENCE OF ANY EVIDENCE TO PROVE THE ABOVE, THE ASSESSING OFFICER ADDED THE AMOUNT OF RS.7,19,400/- AS THE ASSESSEES INCOME FR OM UNDISCLOSED SOURCES. ITA NO.1358/MUM/09 4 4. ON APPEAL THE CIT(A) NOTED THAT THE EXISTENCE OF THE SAVINGS BANK ACCOUNT WAS NOT DISCLOSED BY THE ASSES SEE IN THE RETURN AND EVEN WHEN HE WAS SPECIFICALLY ASKED TO E XPLAIN THE SOURCE OF THE CASH DEPOSITS, HE HAD STATED THAT THE RE WERE NO CASH DEPOSITS IN HIS CURRENT ACCOUNT. ACCORDING TO THE CIT(A), THE ASSESSEE THUS TRIED TO CONCEAL THE SAVINGS BANK ACCOUNT AND THE TRANSACTIONS MADE THROUGH THE SAME. THE CIT(A) FURTHER HELD THAT IN THE ABSENCE OF ANY EVIDENCE FOR CONSTR UCTION OF THE PLACE OF WORSHIP, PERMISSION OF THE COMPETENT AUTHO RITY ETC. THE ASSESSEES CLAIM CANNOT BE ACCEPTED. HE THUS CONFIR MED THE ADDITION. 5. THE ASSESSEE IS IN FURTHER APPEAL TO CONTEND THA T HE HAD FILED AFFIDAVITS FROM FOUR DONORS CONFIRMING THE DO NATIONS WHICH OUGHT TO HAVE BEEN ACCEPTED IN THE ABSENCE OF ANY O THER EVIDENCE CONTRA. WE ARE UNABLE TO ACCEPT THE CONTEN TION. NO DOUBT THE ASSESSEE DID FILE THE AFFIDAVITS FROM FOU R PERSONS FROM WHOM MONIES WERE ALLEGEDLY TAKEN FOR CONSTRUCTION O F THE PLACE OF WORSHIP, BUT THE ASSESSING OFFICER WAS WELL WITH IN HIS AUTHORITY TO ASK FOR THE FURTHER DETAILS, WHICH MAY GO TO SUPPORT THE AFFIDAVIT, REGARDING THE CONSTRUCTION, COPIES O F THE PLAN, DETAILS REGARDING THE COMMITTEE FORMED FOR SUPERVIS ING THE CONSTRUCTION ETC. THE ASSESSING OFFICER WAS ALSO QU ITE REASONABLE IN ASKING THE ASSESSEE TO SHOW COPIES OF THE DONATION RECEIPTS AND THE ASSESSEES ROLE IN THE CO NSTRUCTION. WE ARE UNABLE TO SAY THAT IN ASKING FOR THESE DETAI LS/EVIDENCE THE ASSESSING OFFICER WAS ACTING UNREASONABLY. IT W AS THE BURDEN OF THE ASSESSEE TO SUBMIT THE PROOF CALLED F OR BY THE ASSESSING OFFICER. IT IS NOT THE ASSESSEES CASE TH AT SUCH PROOF DID NOT EXIST AT ALL. HE THUS FAILED TO GIVE BASIC INFORMATION CALLED FOR BY THE ASSESSING OFFICER AND IN SUCH CIR CUMSTANCES, THE ASSESSING OFFICER WAS WELL WITHIN HIS POWERS IN NOT GOING ONLY BY THE AFFIDAVITS FILED BY THE ASSESSEE. WE AC CORDINGLY ITA NO.1358/MUM/09 5 CONFIRM THE DECISION OF THE INCOME-TAX AUTHORITIES AND UPHOLD THE ADDITION OF RS.7,19,400/-. THE GROUND IS DISMIS SED. 6. THE OTHER GROUNDS ARE GENERAL IN NATURE AND REQU IRE NO DECISION. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF MAY , 2011. SD/- ( T.R. SOOD ) SD/- ( R.V.EASWAR ) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DATED 25 TH MAY, 2011. SOMU COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-24, MUMBAI. 4. THE CIT(A)-XXIV, MUMBAI 5. THE DR B BENCH /TRUE COPY/ BY ORDE R ASSTT. REGISTRAR, I.T.A.T, MUMBAI