Smt Saroj Gul Shahani, Pune V. DCIT CEN CIRCLE-2(2), PUNE, Pune

ITA 162/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9820 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-10-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 07-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Assessee Lawyers: S N DOSHI
• Keywords: Unexplained cash credit; Gift; Search and seizure; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER, AND SHRI R.S.PADVEKAR, JUDICIAL MEMBER. ITA.NO.162 TO 168/PN/2011 (ASSTT. YEAR : 2000-01 TO 2006-07) SAROJ GUL SHAHANI, 6, SHEETAL MAHAVIR PARK, ITI ROAD, AUNDH, PUNE 411007. PAN: AAVPS8099L .. APPELLANT VS. DCIT, CENTRAL CIRCLE-2(2), PUNE. .. RESPONDENT ASSESSEE BY : SHRI S.N.DOSHI DEPARTMENT BY : SHRI MUKESH VERMA DATE OF HEARING : 08.10.2012 DATE OF PRONOUNCEMENT : 27.11.2012 ORDER PER R.S.PADVEKAR, JM : THIS BATCH OF SEVEN APPEALS ARE FILED BY THE ASSES SEE PERTAIN TO THE A.YS. 2000-01 TO 2006-07 AND THESE APPEALS ARE ARISING OUT OF THE ASSESSMENTS FRAMED IN CONSEQUENCE OF THE SEARCH AND SEIZURE ACTION U/S.132(1) AGAINST THE ASSESSEE ON 28.07.200 5. ITA.NO.162/PN/2011 (A.Y. 2000-01) 2. THE FIRST ISSUE IS REGARDING THE ADDITION OF RS. 3,27,500/- THAT REPRESENTED THE OPENING CASH BALANCE AS ON 01.04.19 99. IN THE ASSESSMENT ORDER THERE IS NOT MUCH DISCUSSION OF TH E FACTS ON THIS ISSUE BUT THE LD. CIT(A) HAS DISCUSSED THE FACTS IN DETAIL. THERE WAS A SEARCH AND SEIZURE ACTION AGAINST THE ASSESSE E U/S.132(1) OF THE ACT ON 28.07.2005. IN CONSEQUENCE OF THE SEARC H ACTION, ASSESSEE WAS ISSUED NOTICES U/S.153A OF THE ACT. T HE ASSESSEE FILED THE RETURN OF INCOME DECLARING INCOME OF RS.75,080/ -. AS OBSERVED 2 BY THE ASSESSING OFFICER, THE ASSESSEES ONLY SOURC E OF INCOME IS INCOME FROM OTHER SOURCES. AS PER THE BALANCE SHEE T FILED BY THE ASSESSEE, THE ASSESSEE HAS SHOWN OPENING BALANCE IN RESPECT OF CASH IN HAND AS ON 01.04.1999 AT RS.3,27,500/-. TH E ASSESSING OFFICER ASKED THE ASSESSEE TO PROVE THE SOURCE OF T HE SAID CASH IN HAND. THE ASSESSING OFFICER MADE THE ADDITION OF R S.3,27,500/- BY OBSERVING THAT THE ASSESSEE DID NOT FILE ANY DETAIL S AND HENCE, THE OPENING CASH BALANCE DECLARED BY THE ASSESSEE AS ON 01.04.1999 WAS TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF TH E ACT. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT (A). BEFORE THE LD. CIT(A) ASSESSEE FILED ADDITIONAL EVIDENCE. THE LD. CIT(A) PASSED THE ORDER U/S.250(4) OF THE ACT AND ASKED THE ASSES SING OFFICER TO FILE HIS OBJECTIONS. ON THE ADMISSION OF THE ADDIT IONAL EVIDENCE NO OBJECTION WAS RAISED BY THE ASSESSING OFFICER. 3. IN RESPECT OF THE ADDITION OF RS.3,27,500/-, THE ASSESSEE STATED THAT THE OPENING CASH BALANCE OF RS.3,27,500/- REPR ESENTS THE CASH PAID BY HER SON. SHE ALSO FILED AFFIDAVIT OF HER S ON NAMELY MR.NAVIN SHAHANI. THE PART OF THE AFFIDAVIT IS REPRODUCED B Y THE LD. CIT(A) IN HIS ORDER ON PAGE NO.4. IN THE SAID AFFIDAVIT IT I S STATED THAT HER SON ON HIS COMPLETION OF EDUCATION IN INDUSTRIAL ELECTR ONICS, HE WAS WORKING AS MARKETING EXECUTIVE IN LAGOS (NIGERIA) D URING 1994 TO 1997 AND THEREAFTER UPTO SEPTEMBER, 2001 HE WORKED WITH EXIM SECURITIES AND INVESTMENTS LTD., DAR-E-SALAAM (TANZ ANIA). HE GOT TOTAL EMOLUMENTS OF 9,600 US DOLLARS IN NIGERIA AND 12,000 US DOLLARS IN TANZANIA PER ANNUM. ON HIS VISIT TO IND IA HE USED TO ENCASH THE DOLLARS INTO INDIAN CURRENCY. HE HAD KE PT SOME DEPOSITS IN ORIENTAL BANK OF COMMERCE, MUMBAI, IN N RE ACCOUNT. HE FURTHER STATED IN AFFIDAVIT THAT SOME AMOUNTS HE USED TO LEAVE WITH HIS PARENTS FOR THEIR MAINTENANCE. HE GAVE YE AR-WISE DETAILS OF HIS VISITS TO INDIA AND HAS AFFIRMED THE AMOUNTS HE HAS PAID TO HIS PARENTS AS A GIFT OUT OF NATURAL LOVE AND AFFECTION , ETC. IN SUM AND SUBSTANCE THE ASSESSEE JUSTIFIED THE OPENING CASH B ALANCE SHOWN IN THE BALANCE SHEET FILED BEFORE THE ASSESSING OFFICE R ON 01.04.1999. THE LD. CIT(A) ASKED THE ASSESSEE TO FILE FOLLOWING 3 DOCUMENTS/DETAILS (1) COPIES OF CONTRACTS OF HER SO N WITH EMPLOYERS IN TANZANIA AND NIGERIA; (2) DETAILS OF BANK ACCOUN T MAINTAINED BY HER SON FROM 1994 TILL F.Y. 2001-02 AND ALSO TO GIV E DETAILS OF WITHDRAWALS WHICH WERE USED FOR GIVING THE GIFTS TO HIS PARENTS; (3) IN CASE HER SON WAS BRINGING FOREIGN CURRENCIES TO INDIA, COPY OF DECLARATIONS GIVEN TO THE COMPETENT AUTHORITIES IN CASE OF AMOUNTS EXCEEDING THE PRESCRIBED LIMIT FOR WHICH DECLARATIO N WAS NOT REQUIRED. ALSO TO GIVE COPIES OF CERTIFICATES IN R ESPECT OF AUTHENTICITY; (4) DETAILS WITH NAME AND ADDRESS OF AUTHORISED FOREIGN EXCHANGE CHANGERS WITH WHOM US DOLLARS WERE CONVERTED INTO INDIAN RUPEES. ASSESSEE FILED THE PHOTOCOPIES OF RESIDENTIAL PERMIT GRANTED UNDER IMMIGRATION REGULATION ACT, 19 63, TO HES SON MR.NAVIN SHAHANI AS WELL AS COPY OF RESIDENTIAL PER MIT CLASS-B ISSUED TO HER SON BY THE TANZANIAN AUTHORITIES. 3.1. THE ASSESSEE EXPLAINED HER INABILITY TO FILE T HE COPIES OF THE LETTERS OF APPOINTMENT GIVEN TO HER SON BY THE EMPL OYERS IN NIGERIA AND TANZANIA. HOWEVER, THE ASSESSEE FILED AFFIDAVI T OF MR.NAVIN SHAHANI IN RESPECT OF THE TERMS OF HIS EMPLOYMENT. THE ASSESSEE ALSO STATED THAT HER SON MR.NAVIN SHAHANI DID HAVE THE NRI BANK ACCOUNT WITH ORIENTAL BANK OF COMMERCE AT MUMBAI RI GHT FROM 1996 TO 2001-02, BUT THEY COULD NOT GET THE RELEVAN T BANK STATEMENTS AS IT WAS THE OLD RECORD. SHE ALSO STAT ED BEFORE THE LD. CIT(A) THAT MR.NAVIN SHAHANI USED TO BRING US DOLLA RS WITHIN THE PRESCRIBED LIMIT AND THEREFORE THERE WAS NO QUESTIO N OF MAKING ANY DECLARATION TO THE CUSTOMS AND CURRENCY DECLARATION FORM ON HIS ARRIVAL INTO INDIA. THOSE FOREIGN CURRENCIES WERE CONVERTED INTO INDIAN RUPEES FROM DIFFERENT AUTHORISED FOREIGN EXC HANGE CHANGERS BUT NO RECORD IS MAINTAINED AS THE TRANSACTIONS WER E OLD. THE LD. CIT(A) WAS NOT IMPRESSED WITH THE EXPLANATION OF TH E ASSESSEE. IN FACT LD. CIT(A) JUSTIFIED THE ACTION OF THE ASSESSI NG OFFICER FOR MAKING THE SAID ADDITION. WHILE CONFIRMING THE ADD ITION LD. CIT(A) CONSIDERED DIFFERENT CASH TRANSACTIONS SUBSEQUENT T O 01.04.1999. THE LD. CIT(A) REJECTED THE EXPLANATION OF THE ASSE SSEE FOR NON- DISCLOSURE OF THE FACTS BEFORE THE ASSESSING OFFICE R EVEN THOUGH THE 4 ASSESSING OFFICER MADE THE SPECIFIC QUERIES. SO TH E ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE RECORD. THE LD. COUNSEL ARGUES THAT AD MITTEDLY THE ASSESSEE HAS NO SOURCE OF INCOME. THE ASSESSEE FIL ED THE SUBSTANTIAL PROOF IN THE FORM OF RESIDENTIAL PERMIT AS WELL AS AFFIDAVIT. INITIALLY IT WAS DENIED BY THE AUTHORIT IES BELOW THAT IN FACT HER SON WAS NOT WORKING AS DECLARED. HE SUBMITS TH AT THE LD. CIT(A) CONSIDERED THE TRANSACTIONS WHICH ARE AFTER 01.04.1999 AND THERE IS A TOTAL PREJUDICE AGAINST THE ASSESSEE. W E HAVE ALSO HEARD THE LD. DR. 5. WE FIND THAT THE ASSESSEE DID NOT FILE THE REQUI RED EVIDENCE BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSM ENT PROCEEDINGS FOR REASONS BEST KNOWN TO HER. SHE FILED THE EVIDE NCE BEFORE THE LD. CIT(A) WHICH WAS ALSO ADMITTED. THE ASSESSEE FILED THE BALANCE SHEET IN WHICH SHE DECLARED THE CASH IN HAND AS ON 01.04.1999 AT RS.3,27,500/-. NOW THE SHORT CONTROVERSY IS WHETHE R EVIDENCE FILED BY THE ASSESSEE IS SUFFICIENT TO DISCHARGE HER FROM REQUIREMENTS AS CONTEMPLATED U/S.68 OF THE ACT. THE ASSESSEE FILED THE WORK PERMITS GRANTED BY TANZANIAN AUTHORITIES WELL AS NI GERIAN AUTHORITIES TO HER SON MR. NAVIN SHAHANI. THE SAID RESIDENTIAL PERMITS SUPPORT THE CASE OF THE ASSESSEE THAT ASSES SEES SON WAS WORKING IN THOSE COUNTRIES FROM 1996 TO 2001-02. A S CONTENDED BY THE ASSESSEE, HER SON WAS MAINTAINING THE NRI ACCOU NT WITH ORIENTAL BANK OF COMMERCE RIGHT FROM 1996 BUT THE R EQUIRED RECORD COULD NOT BE PRODUCED. WE FURTHER FIND THAT ASSESS EES SON MR.NAVIN SHAHANI HAS FILED AN AFFIDAVIT, A COPY OF WHICH IS PLACED ON RECORD. IN THE SAID AFFIDAVIT MR.NAVIN SHAHANI HAS EXPLAINED HOW HE HAS GONE TO NIGERIA AS WELL AS TO TANZANIA I N CONNECTION WITH HIS EMPLOYMENT FROM AUGUST 1994 TO JUNE 1997 A ND JULY 1997 TO SEPTEMBER 2001 RESPECTIVELY. ON THE PERUSA L OF THE COPY OF THE RESIDENTIAL PERMIT IT IS SEEN THAT RESIDENTIAL PERMIT IS ISSUED ON 06.06.1994 BY THE IMMIGRATION AUTHORITIES OF NIGERI A. SAME WAY 5 ASSESSEE ALSO FILED COPIES OF RESIDENTIAL PERMIT (P AGE 3 OF PAPER BOOK) WHICH IS DATED 20.07.1995. ON PERUSAL OF THE SAID COPY IT IS ALSO SEEN THAT HIS WIFE MRS.SHIRIN SHAHANI IS ALSO ALLOWED TO STAY WITH HIM. IN OUR OPINION LD. CIT(A) HAS GONE TOO T ECHNICAL. IF THERE IS SUFFICIENT EVIDENCE TO SHOW THE SOURCE, NO ADDIT ION IS DESIRED. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A ) ON THIS ISSUE AND DELETE THE ADDITION AND ALLOW THE GROUND NO.1. 6. THE GROUNDS NO.2 AND 3 ARE IN RESPECT OF ADDITIO N OF RS.2,35,000/-. IT IS CASH DEPOSITED IN THE BANK ON 19.12.1999 AND RS.60,000/- WHICH REPRESENTED THE ACQUISITION OF TH E FIXED DEPOSIT ON 05.07.1999. IN FACT THESE TWO GROUNDS ARE RELAT ED TO GROUND NO.1. AS WE HAVE HELD THAT THE ASSESSEE HAS EXPLAI NED THE SOURCE OF CASH AS ON 01.04.1999 TO THE EXTENT OF RS.3,27,5 00/-, THE AMOUNT DEPOSITED IN THE BANK ON 19.12.1999 AS WELL AS THE FIXED DEPOSIT ON 05.07.1999 AT RS.60,000/- ARE OUT OF THE SAID CASH ONLY. THERE IS NO SEPARATE ADDITION MADE ON THIS ISSUE. HENCE, BOTH THE GROUNDS BECOME ACADEMIC AND ACCORDINGLY DISPOSED OF F. 7. THE NEXT ISSUE IS ADDITION BY ESTIMATING ANNUAL LETTING VALUE (ALV) AT RS.10,00,000/- OF HER FLAT SITUATED AT LAK ESIDE VIEW, CHANDIWALI, MUMBAI. THE ASSESSEE ACQUIRED FLAT NO. 1004 AT LAKESIDE VIEW, RAHEJA VIHAR, CHANDIWALI, MUMBAI, ON 15.09.1999. THIS PARTICULAR ADDITION IS MADE BY THE LD. CIT(A) AND IT IS NOT ARISING OUT OF THE ASSESSMENT ORDER. THE LD. CIT(A ) HAS OBSERVED THAT THE ASSESSEE HAS NOT SHOWN ANY INCOME FROM THE SAID PROPERTY IN THE A.Y. 2000-01 TO A.Y. 2005-06. LD. CIT(A) GA VE THE ENHANCEMENT NOTICE TO THE ASSESSEE WHY THE ANNUAL L ETTING VALUE SHOULD NOT BE WORKED OUT U/S.23 OF THE ACT. THE AS SESSEE FILED THE REPLY WHICH IS REPRODUCED IN THE CIT(A)S ORDER. T HE ASSESSEE TOOK THE CONTENTION THAT THE SAID FLAT IS SELF OCCUPIED HOUSE AND HENCE, THE ANNUAL LETTING VALUE WOULD BE NIL AS PER THE PR OVISIONS OF SECTION 23(A)(I). SHE FURTHER CONTENDED THAT NO BE NEFIT OF WHATSOEVER NATURE IS DERIVED FROM THE SAID PROPERTY , THAT IS THE ONLY RESIDENTIAL HOUSE THAT THE ASSESSEE OWNED AND FINAL LY THE SAME 6 CANNOT BE ACTUALLY OCCUPIED BY HER FOR THE REASON O F THE FACT THAT OWING TO HER HUSBANDS EMPLOYMENT AT PUNE SHE HAD T O RESIDE IN PUNE IN A FLAT NOT BELONGING TO HER AND SIMULTANEOU SLY SHE WAS ALSO OCCUPYING THE FLAT AT MUMBAI BEING SELF OCCUPIED. IN SUM AND SUBSTANCE SHE RESISTED THE ACTION OF THE LD. CIT(A) BY TAKING THE STAND THAT IT WAS SELF OCCUPIED PROPERTY. THE LD. CIT(A) REJECTED THE EXPLANATION OF THE ASSESSEE AND ON THE BASIS OF THE INVESTMENT COST OF FLAT, DIRECTED THE ASSESSING OFFICER TO TAKE THE ANNUAL LETTING VALUE OF THE SAID PROPERTY AT RS.1,00,000/- FOR THE PERIOD RELEVANT FOR THE A.YS. 2000-01 TO 2005-06 AND COMPUTE THE IN COME FROM HOUSE PROPERTY BY TAKING THIS ANNUAL LETTING VALUE OF THE FLAT AT RS.1,00,000/- AND ALSO TO ALLOW THE ADMISSIBLE DEDU CTION. HE FURTHER DIRECTED THE ASSESSING OFFICER THAT IN THE A.Y. 2000-01 THE FLAT WAS IN POSSESSION OF THE ASSESSEE FOR 6 MONTHS ONLY, THAT IS ACQUIRED ON 15.09.1999, THE ANNUAL LETTING VALUE FO R A.Y. 2000-01 WILL BE RS.50,000/-. SO FAR AS THE A.Y. 2006-07 IS CONCERNED, THE ASSESSEE HAS SHOWN THE RENT AT RS.1,77,5000/- AND A SSESSING OFFICER WAS DIRECTED TO TAKE THE ENTIRE RENT FOR TH AT YEAR. 8. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . THE LD. COUNSEL REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). HE SUBMITS THAT ASSESSEE WAS STAYING IN PUNE AS HER HU SBAND WAS WORKING. BUT HER FLAT IN MUMBAI WAS SELF OCCUPIED. ADMITTEDLY THIS IS A SEARCH CASE AND NOTHING WAS FOUND DURING THE C OURSE OF SEARCH TO SHOW THAT THE SAID PROPERTY WAS LET OUT BY THE A SSESSEE. THE ASSESSEE HERSELF DECLARED THE RENT FROM THE SAID FL AT IN THE A.Y. 2006-07. THE NEXT QUESTION IS WHETHER THE SAID FLA T CAN BE TREATED AS SELF OCCUPIED? NOW WE HAVE TO ELABORATE THE CONC EPT OF SELF OCCUPANCY. AS STATED BY THE ASSESSEE IT IS THE ONL Y RESIDENTIAL HOUSE OWNED BY HER. SHE IS STAYING IN PUNE WITH HE R HUSBAND AS HE WAS WORKING THERE AND OCCASIONALLY VISITS HER FL AT IN MUMBAI. SELF OCCUPANCY DOES NOT MEAN THAT IT SHOULD BE OCCU PIED BY THE PERSON FOR 365 DAYS. EVEN IF DURING THE VACATIONS/ HOLIDAYS PERSON IS USING THE SAID FLAT FOR HIS RESIDENCE, OTHERWISE THERE IS NO OTHER INTENTION TO LET OUT, THEN THE SAME IS TO BE TREATE D AS USED FOR SELF 7 OCCUPANCY FOR RESIDENCE. ASSESSEE HAS LET OUT THAT FLAT IN A.Y. 2006-07 ONLY. WE, THEREFORE, HOLD THAT THE SAID FL AT IS TO BE TREATED FOR THE PURPOSE OF THE RESIDENCE OF THE ASSESSEE ON LY AND NO ANNUAL LETTING VALUE CAN BE WORKED OUT AS PER THE PROVISIO NS OF SECTION 23(2)(B) OF THE ACT AS THE ASSESSEE WAS STAYING IN PUNE AS HER HUSBAND WAS WORKING IN PUNE. WE, THEREFORE, DELETE THE ADDITION MADE BY THE LD. CIT(A) IN THE A.Y. 2000-01 AND THE RESPECTIVE GROUNDS ARE ALLOWED. ITA.NO.163/PN/2011 A.Y. 2001-02 9. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.2,00,000/- O VERLOOKING THE FACT THAT IT REPRESENTED THE GIFT RECEIVED FROM HER SON ON 22.12.2000 DULY SUPPORTED BY HIS AFFIDAVIT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.70,000/- HOL DING THAT THE SAME IS UNEXPLAINED CASH DEPOSIT MADE FOR ACQUIRING THE FIXED DEPOSIT IN COSMOS BANK, OVERLOOKING THE EXPLANATION THAT IT REPRESENT THE CASH BALANCE HELD BY HER AND SUPPORTE D BY THE CASH FLOW STATEMENT FILED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN ESTIMATING THE ANNUAL LETTING VALUE AT RS. 1,00,000/- OF HER ONLY SELF OCCUPIED FLAT SITUATED AT LAKE SIDE V IEW, CHANDIWALI, MUMBAI AND THE EXPLANATION GIVEN BY THE APPELLANT IN THAT BEHALF. 10. WE HAVE HEARD THE PARTIES. SO FAR AS THE GROUN DS NO.1 AND 2 ARE CONCERNED, THESE ADDITIONS STAND EXPLAINED AS P ER THE FINDINGS OF THE LD. CIT(A) TO PATCH OUT THESE INVESTMENTS TH E ASSESSEE HAS DECLARED RS.3,27,500/- AS OPENING CASH IN HAND AS O N 01.04.1999. LD. CIT(A) HAS DISCUSSED THIS ISSUE IN A.Y. 2001-02 IN PARA 8.5. THE ASSESSING OFFICER HAS OBSERVED THAT IT WAS NOTI CED THAT THE ASSESSEE HAS SHOWN ADDITION TO THE CAPITAL AT RS.2, 04,648/-. THE ASSESSING OFFICER SOUGHT THE EXPLANATION OF THE ASS ESSEE. THE ASSESSEE STATED THAT THE SAID ADDITION IS FROM THE SOURCE OF INVESTMENT MATURED BEFORE 31.03.1999 WHICH MAINLY I NCLUDES REALISATION OF (1) FIXED DEPOSIT WITH ICICI BANK (2 ) FIXED DEPOSIT WITH 8 ORIENTAL BANK OF COMMERCE AND (3) MEP 1992 REALISAT ION. THE ASSESSING OFFICER MADE THE ADDITION OF RS.2,04,648/ -. THE LD. CIT(A) HAS DISCUSSED THIS ISSUE IN PARAS NOS.8.5 TO 9.3. THE ASSESSEE CONTENDED THAT HER SON GAVE RS.2,00,000/- ON HIS VISIT TO INDIA WHICH HAS BEEN CONFIRMED BY HIM IN SWORN AFFI DAVIT SUBMITTED. THE LD. CIT(A) REFERRED TO HIS ORDER FO R THE A.Y. 2000-01 AND WITHOUT ANY FURTHER DISCUSSION, HE CONFIRMED TH E ADDITION TO THE EXTENT OF RS.1,80,000/- WHICH WAS IN RESPECT OF CASH DEPOSITS. THE LD. CIT(A) ALSO DIRECTED THAT AS IT IS CLAIMED THAT THE ASSESSEE HAS RECEIVED RS.2,00,000/- IN ADDITION TO RS.1,80,0 00/-, FURTHER ADDITION OF RS.20,000/- SHOULD BE MADE TO THE INCOM E OF THE INCOME OF THE ASSESSEE TREATING THE SAME AS UNEXPLA INED INCOME. 10.1. SO FAR AS THE ADDITION OF RS.75,000/- WHICH WAS IN RESPECT OF THE FIXED DEPOSIT ACQUIRED ON 24.06.2000 , THE ASSESSEE STATED THAT THE SAID FIXED DEPOSIT WAS KEPT WITH TH E COSMOS BANK ON 24.06.2000 BY MAKING THE PAYMENT IN CASH IN RESP ECT OF SOURCE OF CASH WHICH WAS USED TO ACQUIRE THE SAID FIXED DE POSIT SHE STATED THAT SHE AND HER HUSBAND RECEIVED THE GIFT OF RS.60 ,000/- ON 25.02.2001 ON THE OCCASION OF HER 60 TH BIRTHDAY. SUBSEQUENTLY SHE STATED THAT THE DEPOSIT WAS TO THE EXTENT OF RS.70, 000/- AND NOT RS.75,000/- AND SAID DEPOSIT WAS MADE OUT OF AVAILA BLE CASH. AS THE OPENING CASH AS ON 01.04.2000 WAS RS.3,11,500/- , SHE PLEADED FOR NOT MAKING THE ADDITION. THE CIT(A) MADE ADDITION TO THE EXTENT OF RS.70,000/-. SO THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE US. 11. WE HAVE HEARD THE PARTIES. WE FIND THAT THERE IS A CONTRADICTION IN THE STATEMENT OF THE ASSESSEE. AS STATED BY HER SHE RECEIVED THE ALLEGED GIFTS OF RS.50,000/- ON 24.02. 2001. EVEN THE ALLEGED CASH WAS RECEIVED FROM HER SON ON 25.12.200 0. HOWEVER, THE FIXED DEPOSIT WAS MADE ON 24.06.2000. THERE IS NO CONSISTENCY IN THE EXPLANATION OF THE ASSESSEE. AT THE SAME TI ME WE FIND THAT WHILE CONFIRMING THE ADDITION OF RS.3,27,5000/- IN RESPECT OF CASH IN HAND ON 01.04.1999, THE LD. CIT(A) HAS ALSO CONS IDERED THE 9 ACQUISITION OF THE FIXED DEPOSIT IN THE COSMOS BANK BY CASH DEPOSIT OF RS.75,000/-. WE, THEREFORE, GIVE THE BENEFIT OF THE SAID EXPLAINED CASH AND DELETE THE ADDITION. IN THE RESULT, GROUN DS NOS.1 AND 2 ARE ALLOWED. 12. SO FAR AS GROUND NO.3 IS CONCERNED, IT IS IN RE SPECT OF ESTIMATING THE ANNUAL LETTING VALUE OF THE FLAT IN CHANDIWALI, MUMBAI. FOR THE REASONS DISCUSSED IN A.Y. 2000-01, WE ALLOW GROUND NO.3 AND DELETE THE ADDITION. ITA.NO.164/PN/2011 A.Y. 2002-03 13. THE ASSESSEE HAS TAKEN THE FOLLOWING TWO GROUND S: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.2,40,000/- D ISREGARDING THE FACT THAT IT REPRESENTED THE GIFT RECEIVED FROM HER SON ON 11.08.2001 DULY SUPPORTED WITH THE AFFIDAVIT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN ESTIMATING THE ANNUAL LETTING VALUE AT RS. 1,00,000/- OF HER ONLY SELF OCCUPIED FLAT SITUATED AT LAKE SIDE V IEW, CHANDIWALI, MUMBAI AND THE EXPLANATION GIVEN BY THE APPELLANT IN THAT BEHALF. 14. THE FIRST ISSUE IS THE ADDITION OF RS.2,40,000/ -. IN THE A.Y. 2001-02, THE ASSESSING OFFICER MADE THE ADDITION OF RS.9,15,485/-. THE ASSESSEE CONTENDED THAT THE AMOUNT OF RS.2,40,0 00/- IS THE GIFT GIVEN BY HER SON BUT THE SAID EXPLANATION WAS NOT A CCEPTED BY THE LD. CIT(A). THE OPERATIVE PART OF THE ORDER OF THE LD. CIT(A) IS AS UNDER: 8.6. THE ISSUE RELATING TO THE OPENING CASH AS ON 1 /4/1999 AND VARIOUS CASH DEPOSITS HAVE BEEN DISCUSSED IN DE TAIL IN PARAS 8.6 TO 8.12 OF THE APPEAL ORDER OF APPEAL FOR A.Y. 2000-01. IN VIEW OF THE DISCUSSION IN THAT PARA, THE ADDITIO N ON ACCOUNT OF CASH OF RS.2,10,000/- IS TO BE CONFIRMED EVEN OTHER WISE. 8.7. THE APPELLANT HAS SHOWN RECEIPT OF RS.2,40,000 /- AS GIFT FROM HER SON ON 11/08/2001. AS DISCUSSED IN DETAIL IN PARA 8.6 TO 8.12 OF APPEAL ORDER FOR A.Y. 2000-01 CASH G IFTS FROM THE SON AND FRIENDS/RELATIVES ARE NOT GENUINE GIFTS. T HEREFORE, THE AMOUNTS OF CASH GIFT FROM SON AND FRIENDS/RELATIVES HAVE TO BE 10 TREATED AS INCOME OF THE APPELLANT FROM UNEXPLAINED SOURCES. OUT OF THE TOTAL AMOUNT OF GIFT OF RS.2,40,000/-, R S.2,10,000/- HAS ALREADY BEEN CONSIDERED AS INCOME FROM UNEXPLAI NED SOURCES IN PARA 8.4. THEREFORE, A FURTHER ADDITION OF RS.30,000- (RS.2,40,000 RS.2,10,000) SHOULD BE MADE TO THE I NCOME OF THE APPELLANT AS HER INCOME FROM UNEXPLAINED SOURCE S. THE AO IS DIRECTED TO ADD THIS INCOME TO THE INCOME OF THE APPELLANT. 15. WE HAVE HEARD THE PARTIES. THE LD. CIT(A) HAS REFERRED TO THE ADDITION CONFIRMED IN THE A.Y. 2000-01 IN RESPECT O F THE OPENING CASH BALANCE DECLARED BY THE ASSESSEE ON 01.04.1999 WHICH HAS BEEN DELETED BY US. WE HAVE ALREADY ACCEPTED THE G ENUINENESS OF THE AMOUNT RECEIVED BY THE ASSESSEE FROM HER SON. MOREOVER, LD. CIT(A) HAS PLACED HIS HEAVY RELIANCE ON THE REA SONS FOR CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER IN THE A.Y. 2000-01 IN RESPECT OF THE OPENING CASH BALANCE DECL ARED AS ON 01.04.1999. WE, THEREFORE, FOLLOWING OUR REASONS F OR THE A.Y. 2000- 01 HOLD THAT THERE IS NO JUSTIFICATION TO MAKE THE ADDITION TO THE EXTENT OF RS.2,40,000/- AS SAME IS OUT OF AMOUNT RE CEIVED FROM HER SON. 16. SO FAR AS THE GROUND NO.2 IS CONCERNED, IT IS I N RESPECT OF ANNUAL LETTING VALUE OF THE FLAT AT CHANDIWALI, MUM BAI. FOR THE REASONS GIVEN IN THE A.Y. 2000-01, WE ALLOW THE GRO UND NO.2 AND DELETE THE ADDITION OF RS.1,00,000/-. ITA.NO.165/PN/2011 A.Y. 2003-04 17. IN THIS APPEAL, THE ASSESSEE HAS TAKEN THE FOLL OWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.36,000/-. DI SREGARDING THE FACT THAT IT REPRESENTED THE GIFTS RECEIVED FRO M HER FRIENDS & RELATIVES DULY SUPPORTED BY THE JOINT AFFIDAVIT OF THE APPELLANT AND HER HUSBAND SHRI G.K.SHAHANI. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN ESTIMATING THE ANNUAL LETTING VALUE AT RS. 1,00,000/- OF HER ONLY SELF OCCUPIED FLAT SITUATED AT LAKE SIDE V IEW, CHANDIWALI, MUMBAI AND THE EXPLANATION GIVEN BY THE ASSESSEE IN THAT BEHALF. 11 18. THE FIRST ISSUE IS REGARDING THE ADDITION OF RS .36,000/-. ASSESSING OFFICER MADE TOTAL ADDITION OF RS.4,36,94 0/- THAT WAS IN RESPECT OF ADDITION MADE TO THE CAPITAL ACCOUNT OF THE ASSESSEE. THE ASSESSEE STATED THAT THE ADDITION TO THE CAPITAL AC COUNT IS FROM THE SOURCES OF INVESTMENT WHICH WERE MATURED BEFORE 31. 03.1999 OUT OF THE FIXED DEPOSIT KEPT WITH ICICI BANK, FIXED DEPOS IT WITH ORIENTAL BANK OF COMMERCE AND MEP 1992. THE ASSESSEE CHALLE NGED THE ADDITION BEFORE THE LD. CIT(A). SAVE RS.36,000/-, BALANCE ADDITION WAS DELETED. THE ASSESSEE CONTENDED THAT THE SAID CASH IS PAID FROM HER SON, FRIENDS AND RELATIVES WHO GAVE THE CA SH GIFTS ON VARIOUS OCCASIONS. 19. WE HAVE HEARD THE PARTIES. WE FIND THAT LD. CI T(A) DELETED THE ADDITION TO THE EXTENT OF RS.3,87,814/- AND SUSTAIN ED THE ADDITION OF RS.36,000/- WHICH WAS THE CASH DEPOSITED BY THE ASSESSEE. WE FIND THAT THIS AMOUNT HAS ALREADY BEEN CONSIDERED B Y THE LD. CIT(A) WHILE CONFIRMING THE OPENING CASH BALANCE OF RS.3,2 7,500/- AS ON 01.04.1999 (PAGE NO.16 OF THE ORDER OF THE LD. CIT( A) FOR A.Y. 2000- 01). WE HAVE ALREADY DELETED THE SAID ADDITION GIV ING RELIEF TO THE ASSESSEE. THE AMOUNT OF RS.36,000/- IS PART OF RS. 3,27,500/-. WE THEREFORE FIND NO JUSTIFICATION TO SUSTAIN THE ADDI TION OF RS.36,000/-. WE ACCORDINGLY DELETE THE SAME. 20. SO FAR AS GROUND NO.2 IS CONCERNED, IT IS IN RE SPECT OF THE ESTIMATION OF ANNUAL LETTING VALUE OF THE ASSESSEE S FLAT IN CHANDIWALI, MUMBAI. THE IDENTICAL ADDITION IS ALSO MADE IN THE PRECEDING YEARS FROM A.Y. 2000-01 ONWARDS AND WE HA VE DELETED THE SAME TREATING THE SAID FLAT AS OWN RESIDENCE OF THE ASSESSEE. FOLLOWING OUR REASONING IN THE ASSESSEES APPEAL IN A.Y. 2000-01, IN THIS YEAR ALSO WE DELETE THE ADDITION. ACCORDINGLY , GROUND NO.2 IS ALLOWED. 12 ITA.NO.166 & 167/PN/2011 A.Y. 2004-05 & 2005-06 21. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN ESTIMATING THE ANNUAL LETTING VALUE AT RS. 1,00,000/- OF HER ONLY SELF OCCUPIED FLAT SITUATED AT LAKE SIDE V IEW, CHANDIWALI, MUMBAI AND THE EXPLANATION GIVEN BY THE ASSESSEE IN THAT BEHALF. 22. THE ONLY ISSUE IS WHETHER THE LD. CIT(A) WAS JU STIFIED IN ESTIMATING THE ANNUAL LETTING VALUE OF THE CHANDIWA LI FLAT IN MUMBAI AT RS.1,00,000/-. THIS ISSUE HAS ALREADY BE EN DECIDED BY US IN THE ASSESSEES APPEAL FOR A.Y. 2000-01. FOLL OWING OUR REASONS, WE DELETE THE ADDITION IN BOTH THE ASSESSM ENT YEARS. ITA.NO.168/PN/2011 A.Y. 2006-07 23. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLO WING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.3,58,709/- H AVING ACCEPTED THE DEPOSITS OF RS.6,86,291/- MADE IN THE BANKS AS SATISFACTORILY EXPLAINED AND HAS ERRED IN ASSUMING THE TOTAL DEPOSIT AT RS.10,00,000/- OVERLOOKING THE FACT THAT IT REPRESENTS THE INCOME ESTIMATED BY THE ASSESSING OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN TOTALLING THE VARIOUS DEPOSITS MADE IN THE BANKS AS LISTED IN PARA 8.2 AT RS.6,41,291/- IN PLACE OF COR RECT TOTAL OF RS.6,86,291/- AND CONSIDERING THIS CORRECTED AMOUNT BUT WITHOUT PREJUDICE TO GROUND NO.1 THE ADDITION COULD HAVE BEEN OF RS.10,00,000/- (-) RS.6,86,291/- - 3,13,709/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN CONFIRMING THE ESTIMATION OF INCOME OF RS. 10,00,000/- MADE BY THE ASSESSING OFFICER WHICH HAS BEEN PROVED TO BE TOTALLY BASELESS AND INCORRECT AND WITHOUT PREJUDIC E TO THE GROUND NO.1 ABOVE THE DEPOSIT OF RS.6,86,291/- FOUN D TO BE EXPLAINED SATISFACTORILY AND THAT ITSELF BEING THE TOTAL DEPOSITS MADE IN THE BANK THE UNEXPLAINED DEPOSIT STANDS AT RS.NIL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE CIT(A) HAS ERRED IN NOT ACCEPTING THE DETAIL SUBMISSION ALONGW ITH THE CORRECT COMPUTATION OF TOTAL INCOME FILED BEFORE HI M WHEREBY ASSESSABLE INCOME IS DECLARED AT RS.1,02,179/- AND AS THAT IS COVERED IN THE TOTAL DEPOSIT OF RS.6,86,291/- IN TH E BANK ACCOUNTS OF THE APPELLANT AS WELL AS IN THE BANK AC COUNT OF 13 MR.G.K.SHAHANI (HUSBAND OF THE APPELLANT) THERE IS NO FURTHER SCOPE OF MAKING ANY ADDITION TO THE SAID AGREED INC OME OF RS.1,02,179/- SUBJECT TO DEDUCTION U/S.24 WITH RESP ECT TO THE RENTAL INCOME INCLUDED IN RS.1,02,179/-. 24. WE HAVE HEARD THE PARTIES. AS OBSERVED BY THE ASSESSING OFFICER, THE ASSESSEE DID NOT COOPERATE NOR FILED A NY RETURN OF INCOME. HE ESTIMATED THE TOTAL INCOME OF THE ASSES SEE AT RS.10,00,000/- CONSIDERING THE DEPOSITS OF RS.8,17, 076/- IN THE ORIENTAL BANK OF COMMERCE ACCOUNT NO.18390 IN POWAI , MUMBAI, AND RS.54,675/- IN THE JOINT ACCOUNT NO.18380 IN TH E SAME BANK. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE LD. CIT(A). BEFORE LD. CIT(A) THE ASSESSEE FILED THE DETAILS AN D THE REMAND REPORT OF THE ASSESSING OFFICER WAS CALLED FOR. I N THE REMAND REPORT THE ASSESSING OFFICER ACCEPTED THE CORRECT E NTRIES TO THE EXTENT OF RS.6,41,291/- (CORRECT FIGURE RS.6,86,291 /-). THE RELEVANT PART OF THE REMAND REPORT IS REPRODUCED IN PARA NO. 8.2 OF THE LD. CIT(A) ORDER. LD. CIT(A), THEREFORE, ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF RS.6,41,291/- AND GAVE RE LIEF TO THAT EXTENT AND BALANCE ADDITION WAS CONFIRMED. 25. WE FIND THAT IN THE ASSESSMENT ORDER THE ASSESS ING OFFICER HAS MERELY MENTIONED THE DEPOSITS IN THE ORIENTAL BANK OF COMMERCE AND HAS NOT GIVEN ANY DETAILS. WE FURTHER FIND THA T IN THE REMAND REPORT THE ASSESSING OFFICER ACCEPTED THE EXPLANATI ON OF THE ASSESSEE TO THE EXTENT OF RS.6,41,291/- (CORRECT F IGURE RS.6,86,291). THE LD. COUNSEL ARGUES THAT ALL THE ENTRIES WERE EXPLAINED AS THESE WERE THE BANK ENTRIES BUT ONLY P ART OF THE SAME WERE ACCEPTED. HE ALSO VEHEMENTLY ASSAILED THE ORD ER OF THE LD. CIT(A) FOR LACK OF PROPER REASONING. WE ALSO FIND THAT THE LD. CIT(A) SHOULD HAVE GIVEN THE REASONING FOR CONFIRMING THE BALANCE ADDITION WHEN ADMITTEDLY THE ASSESSING OFFICER HAS OPPOSED T HE ASSESSMENT ORDER MERELY EX PARTE ON THE ESTIMATION. IT IS WEL L SETTLED PRINCIPLE OF TAXATION THAT NO PERSON SHOULD BE BROUGHT TO TAX ON THE SURMISES AND PRESUMPTIONS. IN OUR OPINION, THE ORDER OF THE LD. CIT(A) LACKS PROPER REASONING. WE FURTHER FIND THAT AS PER THE EXPLANATION OF THE 14 ASSESSEE, MOST OF THE ENTRIES ARE IN RESPECT OF THE INTEREST, RENT, DIVIDEND, MATURITY OF THE FIXED DEPOSITS, TRANSFER FROM ONE BANK TO ANOTHER BANK, ETC. ADMITTEDLY THE ASSESSEE HAS NO OTHER SOURCE OF INCOME. IN THESE CIRCUMSTANCES, THE ADDITION SUSTA INED BY THE LD. CIT(A) IS TOTALLY UNCALLED FOR. WE ACCORDINGLY DEL ETE THE ENTIRE ADDITION AND ALLOW THE GROUNDS TAKEN BY THE ASSESSE E. 26. THE ASSESSEE HAS RAISED ADDITIONAL GROUNDS IN A LL THE APPEALS. THE LD. COUNSEL SUBMITS THAT AS PER THE INSTRUCTION OF THE ASSESSEE, THE ADDITIONAL GROUNDS RAISED CHALLENGING THE LEGAL ITY AND VALIDITY OF THE ASSESSMENT ORDERS ARE NOT PRESSED. AS ADDITION AL GROUNDS IN ALL THE APPEALS ARE NOT PRESSED, THE SAME ARE NOT CONSI DERED FOR ADMISSION NOR FOR ADJUDICATION AND NO FINDING IS RE QUIRED TO BE GIVEN. 27. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 27 TH DAY OF NOVEMBER, 2012. SD/- SD/- ( G.S.PANNU ) ( R.S.PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 27 TH NOVEMBER, 2012 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DCIT, CENTRAL CIRCLE-2(2), PUNE. 3. THE CIT(A), CENTRAL, PUNE. 4. THE CIT, CENTRAL, PUNE. 5. THE DR A BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.