DR( MRS.) BAISHALI BHATTACHARYA, NAVI MUMBAI V. ITO 11(2)(2), MUMBAI

ITA 1901/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83470 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: RAMANLAL P SHETH
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 1901/MUM/2013 ( / ASSESSMENT YEAR: 2008-09) BAISHALI BHATTACHARYA H-6, 01, SAMTA HSG. SOC. SECTOR NO. 4, SANPADA, NAVI MUMBAI-400 705 / VS. ITO-11 (2) (2), ROOM NO. 443, AAYKAR BHAVAN, MARINE LINES, MUMBAI-400 020 ./ ./PAN/GIR NO. AGFPV 4886 J ( /APPELLANT ) : ( !' / RESPONDENT ) # $ / APPELLANT BY : SHRI RAMANLAL P. SHETH !' # $ / RESPONDENT BY : SHRI VIVEK BATRA % &'( # )* / DATE OF HEARING : 05.08.2014 DATE OF ORDER : 20.08.2014 + / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-3, MUMBAI (CIT(A) FOR SHO RT) DATED 12.11.2012, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2008-09 VIDE ORDER DATED 24.12.2010. 2. THE BACKGROUND FACTS OF THE CASE ARE THAT CASH D EPOSITS IN THE SUM OF RS.11,21,800/- DURING THE RELEVANT PREVIOUS YEAR WE RE OBSERVED IN THE ASSESSEES BANK 2 ITA NO. 1901/MUM/2013 (A.Y. 2008-09) BAISHALI BHATTACHARYA VS. ITO ACCOUNT WITH SARAWAT CO-OPERATIVE BANK LTD. (SCBL) (SB PUB/40209). THE ASSESSEE, A PRACTICING PHYSICIAN, PLEADED THAT HER PROFESSION AL RECEIPTS ARE CREDITED TO HER SEPARATE BANK ACCOUNT (WITH INDIAN OVERSEAS BANK A/C. NO. 1660) AND THAT THE MONEY DEPOSITED IN HER SCBL ACCOUNT BELONGS TO HER HUSBAND (SHRI TA PAN BHATTACHARYA) AND HER FATHER (SHRI ARUN SANTOSHKUMAR CHATTERJEE), WAS FOUND NOT SATISFACTORY BY THE ASSESSING OFFICER (A.O.) IN-AS-MUCH AS THE CASH WITHDRAWALS F ROM THEIR RESPECTIVE BANK ACCOUNTS WERE NOT FOUND TO HAVE A NEXUS WITH THE CASH DEPOSI TED IN THE ASSESSEES BANK ACCOUNT, SO THAT THE AMOUNTS CAME TO BE ADDED U/S.69A OF THE AC T. THE ASSESSEE BEING UNABLE TO IMPROVE HER CASE BEFORE THE LD. CIT(A), THE SAME ST OOD CONFIRMED IN FIRST APPEAL. 3.1 BEFORE US, IT WAS EXPLAINED, AS BEFORE THE AUTH ORITIES BELOW, THAT THE ASSESSEE WANTED TO ENTER INTO AN ARRANGEMENT FOR MANAGEMENT OF A HOSPITAL LOCATED CLOSE TO HER CLINIC. THE SAID HOSPITAL BEING BUILT BY A TRUST, I T REQUIRED HER TO FORM A TRUST IN-AS-MUCH AS IT WAS NOT INCLINED TO ENTER INTO ANY ARRANGEMEN T WITH AN INDIVIDUAL. FURTHER, THE ASSSESSEE WAS REQUIRED TO DEPOSIT RS.60 LACS WITH T HE TRUST FOR THE PURPOSE BY THE LATTER. IN VIEW OF THE SHORTAGE OF THE FUNDS, THE ASSESSEE REQUESTED HER FATHER AND OTHER CLOSE RELATIVES, WHO CONTRIBUTED THE SAME, DEPOSITING CAS H IN HER BANK ACCOUNT. THE MONEY, THUS, DOES NOT BELONG TO HER, AND COULD NOT BE ASSE SSED AS HER INCOME. 3.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON TH E OTHER HAND, WOULD RELY ON THE ORDERS OF THE AUTHORITIES BELOW. MERELY STATING THA T THE MONEY DID NOT BELONG TO HER BUT SOURCED FROM ANOTHER, WOULD NOT OPERATE TO DISCHARG E THE ONUS ON THE ASSESSEE; THE STATED RELATIVES HAVING NOT EVEN AS MUCH AS CONFIRMED CONT RIBUTING THE FUNDS ASCRIBED TO THEM BY THE ASSESSEE. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE REVENUES CASE, ON THE BASIS OF THE MATERIAL O N RECORD; THE ASSESSEE HAVING NOT SUBMITTED EVEN AS MUCH AS THE CONFIRMATIONS FROM TH E PERSONS CLAIMING TO HAVE DEPOSITED THE MONEY IN HER BANK ACCOUNT, IS UNEXCEPTIONAL. TH E ONUS TO ESTABLISH THE SOURCE OF THE SUM/S DEPOSITED IN HER BANK ACCOUNT IS CLEARLY ON T HE ASSESSEE; THE INITIAL ONUS ON THE 3 ITA NO. 1901/MUM/2013 (A.Y. 2008-09) BAISHALI BHATTACHARYA VS. ITO REVENUE HAVING BEEN DISCHARGED ON IT FINDING SUMS D EPOSITED IN HER BANK ACCOUNT. THE PRINCIPLE OF COMMON LAW JURISPRUDENCE, AS ENSHRINED U/S.110 OF THE INDIAN EVIDENCE ACT WOULD SQUARELY APPLY, EVEN AS EXPLAINED BY THE APEX COURT IN CHUHARMAL VS. CIT [1988] 172 ITR 250 (SC). IN FACT, THE CONFIRMATION IS ONLY A PRIMARY DOCUMENT AND WOULD ITSELF NOT BIND THE A.O., SO THAT THE SOURCE HAS TO BE EST ABLISHED. THE ASSESSEES EXPLANATION FURTHER CLARIFIES HER TO BE THE BENEFICIARY OF THE SUM/S. THE MANNER AND AVENUE/S OF UTILIZATION OF FUNDS WOULD ALSO BE A RELEVANT FACTO R . AS SUCH, THOUGH, AS AFORE-STATED, WE DO NOT FIND THE ORDERS BY THE AUTHORITIES BELOW AS INFIRM, WE DO OBSERVE THAT THERE HAS BEEN A LACK OF PROPER REPRESENTATION FOR AND ON BEH ALF OF THE ASSESSEE BEFORE THEM. THE FACTS WOULD NEED TO BE DETERMINED. HAS THE TRUST, W HICH ADMITTEDLY WAS REQUIRED TO BE FORMED BY THE ASSESSEE FOR THE PURPOSE, FORMED, AND WHEN? WHY WAS THE MONEY, WHERE SO, TO BE DEPOSITED WITH THE SAID TRUST? WHAT IS T HE SOURCE OF THE CASH ASCRIBED TO THE ASSESSEES HUSBAND, FATHER AND OTHER RELATIVES? WHY HAVE THEY NOT AS MUCH AS CONFIRMED THE SAME? WHY WAS THE CASH, IF WITHDRAWN FOR THE PU RPOSE OF DEPOSIT IN THE ASSESSEES BANK ACCOUNT, WITHDRAWN EARLIER, AND WHICH IS OBSER VED IN CERTAIN INSTANCES TO BE BY AS MUCH AS A FEW MONTHS? WHY HAVE, IN FACT; THE MONEY BEING OSTENSIBLY PAID BY WITHDRAWING FROM ACCOUNTED SOURCES, NOT PAID THROUG H THE BANKING CHANNEL, PARTICULARLY AS THE FUNDS WERE TO BE FINALLY TRANSMITTED TO THE ASSESSEES BANK ACCOUNT, AND EVEN PAID BY HER THROUGH THE BANKING CHANNEL? THESE, AND SUCH LIKE QUESTIONS, ARISING FROM THE ASSESSEES EXPLANATION, WOULD HAVE TO BE SUITABLY A DDRESSED; THE PRIME PURPOSE OF THE EXAMINATION BEING TO SATISFACTORILY EXPLAIN THE SOU RCE OF THE FUNDS DEPOSITED IN THE ASSESSEES BANK ACCOUNT, THE ONUS FOR WHICH IS ON H ER. IT IS NOT NECESSARY, HOWEVER, WE MAY CLARIFY, THAT THERE HAS TO BE AT ALL TIMES A VE RY CLOSE AND IMMEDIATE PROXIMITY IN TIME BETWEEN THE CASH WITHDRAWN AND THAT DEPOSITED, SO T HAT A HOLISTIC VIEW IN THE MATTER IS TO BE ADOPTED. UNDER THE CIRCUMSTANCES, THEREFORE, TOWARD FAIRNESS OF PROCEDURE, WE, IN THE INTEREST OF JUSTICE AS WELL AS PROPER DETERMINATION AND, THUS, DECISION, RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE ONE LAST OPPORTUNITY TO EXPLAIN ITS CASE 4 ITA NO. 1901/MUM/2013 (A.Y. 2008-09) BAISHALI BHATTACHARYA VS. ITO BEFORE THE A.O., I.E., ENABLE IT TO SATISFACTORILY DISCHARGE THE BURDEN OF PROOF ON IT IN TERMS OF SECTION 69A OF THE ACT. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ,-). &/0,) # 1# 234 5 6 ' 7 ) # ) 89 ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 05, 20 14 AT THE CONCLUSION OF THE HEARING. SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER % ( MUMBAI; :& DATED : 20.08.2014 '.&../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. % ;) ( ) / THE CIT(A) 4. % ;) / CIT - CONCERNED 5. >'?@ !)&A/ , * A/- , % ( / DR, ITAT, MUMBAI 6. @B0 C( / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , % ( / ITAT, MUMBAI