MAYUR VALLABHJI PASAD, MUMBAI V. ITO 23(2)(4), MUMBAI

ITA 1803/MUM/2014

• Counselvise Citation: 180319914 RSA 2014
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL
• Keywords: Unexplained cash credit
• Section: 142(1); 68

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI ,!' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.1803/MUM/2014 ASSESSMENT YEAR: 2009-10 MR. MAYUR VALLABHJI PRASAD 10, ABHILASHA, J.N.ROAD, MULUND-(W), MUMBAI-400004 / VS. INCOME TAX OFFICER- (23)(2)(4), MUMBAI. / ASSESSEE / REVENUE P.A. NO. AAFPP7340D $%& / ASSESSEE BY NONE $%& / REVENUE BY SHRI A.K.DHONDIAL- DR / DATE OF HEARING 10/06/2015 & / DATE OF ORDER: 11/06/2015 &/ O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY IMPUGNED ORDER DATED 11/12/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED PERTAINS TO TREATING THE AMO UNT OF RS.10,44,600/- AS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AS BUSIN ESS INCOME WITHOUT APPRECIATING THE FACTS. ITA NO.1803/MUM/2014 MAYUR VALLABHJI PRASAD 2 2. AT THE TIME OF HEARING, NOBODY WAS PRESENT FOR THE ASSESSEE IN SPITE OF ISSUANCE OF RPAD NOTICE TO THE ASSESSEE. THE ASSESSEE DID NOT MOVE ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE ITS APPEAL, THEREFORE, I HAVE NO OPTION BUT TO PROCEED EX-PARTY, QUA THE ASSESSEE AND TEND TO DISPOSE OFF THIS APPEA L ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. DR, SHRI A.K. DHONDIAL, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. I HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE, DERIVES INCOME FROM P ROFIT AND GAINS FROM BUSINESS OR PROFESSION, DECLARED INCOME OF RS.3,63,979/- IN HIS RETURN FILED ON 30/07/2009, WH ICH WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, NOT ICE U/S 143(2) AND 142(1) OF THE ACT WERE SERVED UPON THE A SSESSEE TO WHICH THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TI ME TO TIME AND FILED VARIOUS DETAILS AS IS EVIDENT FROM P AGE 1 OF THE ASSESSMENT ORDER ITSELF. THE ASSESSING OFFICER FOUN D THAT THERE WAS CASH DEPOSIT AGGREGATING TO RS.10,44,600/ - IN THE ACCOUNT OF THE ASSESSEE MAINTAINED WITH SARSWATI COOPERATIVE BANK LTD. THE ASSESSEE WAS ASKED THE SOURCE OF SUCH DEPOSITS. IN REPLY, THE ASSESSEE EXPLAINED TH E SOURCE AS UNDER:- THE DRAWINGS ARE MADE IN CASH SOMETIMES DUE TO URG ENT REQUIREMENTS BY THE PARTNER AND FURTHER THE CASH AR E NORMALLY NOR WITHDRAWN FROM BANK BUT THEY ARE TAKEN FROM THE CAS H COLLECTION MADE BY THE PARTNERS. THE INTRODUCTION IS MADE BY C HEQUE SINCE THE ITA NO.1803/MUM/2014 MAYUR VALLABHJI PRASAD 3 ASSESSEE IS HAVING BANK BALANCE IN HIS ACCOUNT AND WHATEVER CASH IS RECEIVED FROM THE FIRM I.E. SAFE LIFE CHEMIST WHERE THE ASSESSEE IS PARTNER IS DEPOSITED INTO BANK ACCOUNT. THE ABOVE EXPLANATION OF THE ASSESSEE WAS FOUND TO BE CRYPTIC AND THUS ADDITION WAS MADE. I FIND THAT IN THE ASSESSMENT ORDER ITSELF AT LAST PARA OF PAGE-2, THE RE IS OBSERVATION BY THE LD. ASSESSING OFFICER WHICH IS R EPRODUCED HEREUNDER:- ON GOING THROUGH THE PROFIT AND LOSS ACCOUNT OF TH E ASSESSEE, IT IS SEEN THAT DURING THE YEAR HE HAS MA DE A WITHDRAWAL OF RS.8,85,000/-. HOWEVER, HE HAS NOT EXPLAINED THE UTILIZATION OF THE SAME DATE-WISE TO PROVE THAT THE ENTIRE WITHDRAWAL HAS GONE TO THE BANK IN THE FORM OF CASH .. FURTHER IT IS A COMMON KNOWLEDGE THAT A PERSON OF ASSESSEES STATURE WHO HAS BEEN RESIDING IN A FLAT AT A POSH SUBURB IN MUMBAI MAY NEED AT LEAST ABOUT RS.50 THOUSAND PER MONTH FOR HIS PERSONAL AND HOUSEHOLD EXPENSES. IF THAT AMOUNT IS ADJUSTED AGAINST THE T OTAL WITHDRAWAL THEN BALANCE LEFT OUT IS NOTHING . 2.2. IT SEEMS THAT THE ASSESSING OFFICER EVEN HAS NOT CONTROVERTED THE CLAIM OF THE ASSESSEE THAT THE AMO UNT OF RS.8,85,000/- WAS WITHDRAWN FROM THE BANK. IF THE ASSESSING OFFICER WAS APPREHENSIVE WITH RESPECT TO HOUSE HOLD EXPENSES, NOTHING PREVENTED HIM TO ASK THE ASS ESSEE TO EXPLAIN FOR HOUSEHOLD EXPENSES, THUS, THE ADDITION MERELY ON ITA NO.1803/MUM/2014 MAYUR VALLABHJI PRASAD 4 THE BASIS OF PRESUMPTION CANNOT SAID TO BE JUSTIFIE D. DEFINITELY, THE WITHDRAWALS ARE FAR EARLIER THAN TH E DATE OF ASSESSMENT ORDER, THEREFORE, IT IS NOT ALWAYS POSSI BLE TO KEEP REMEMBERING ALL THE FACTS MORE SPECIFICALLY WHEN TH E ASSESSEE DISCHARGED HIS ONUS. IT IS NOT THE CASE THAT NO EX PLANATION WAS FILED BY THE ASSESSEE. THE INTRODUCTION OF T HE CASH IS BY WAY OF CHEQUE AND THE ASSESSEE WAS HAVING A BANK BA LANCE IN ACCOUNT AND THE CASH WAS RECEIVED FROM THE FIRM I.E. SAFE LIFE CHEMIST, WHERE THE ASSESSEE IS A PARTNER. THE ASSESSEE ALSO FILED THE BANK STATEMENT, CAPITAL ACCOUNT AND STATEMENT OF ACCOUNT OF THE FIRM, WHERE SUCH WITHDRAWALS HAS BEEN REFLECTED, THUS, I AM SATISFIED WITH THE EXPLANATIO N OF THE ASSESSEE WHICH IS WITHIN THE FOUR CORNERS OF THE PR OVISIONS OF THE ACT. THE APPEAL OF THE ASSESSEE IS ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED DR AT THE CONCLUSION OF THE HEA RING ON 10 TH JUNE 2015. SD/- (JOGINDER SINGH) !' / JUDICIAL MEMBER MUMBAI; DATED : 11/06/2015 F{X~{T? P.S / ! &$)!*+,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI ITA NO.1803/MUM/2014 MAYUR VALLABHJI PRASAD 5 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI