JYOTI S. AGARWAL, MUMBAI V. ITO WD 20(1)(3), MUMBAI

ITA 1981/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3757 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2015
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Assessee Lawyers: JYOTI S AGARWAL
• Section: 68; 69; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 1981 /MUM/ 20 1 5 (ASSESSMENT YEAR 200 6 - 0 7 ) MISS JYOTI S. AGARWAL 14, MEGHDOOT J.B. NAGAR NEAR JAIN TEMPLE ANDHERI EAST MUMBAI - 400 059. VS. ITO WARD 20(1)( 3) 6 TH FLOOR PIRAMAL CHAMBERS LALBAUG, PAREL MUMBAI - 400 012. ( APPELLANT ) ( RESPONDENT ) PAN NO . AGCPA6845K ASSESSEE BY MS. JYOTI S. AGARWAL DEPARTMENT BY SHRI A. RAMACHANDRAN DATE OF HEARING 3.8 . 201 6 DATE OF PRONOUNCEMENT 3. 8 . 201 6 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 9.1.2015 PASSED BY LEARNED CIT(A) - 36, MUMBAI AND IT RELATES TO A.Y. 2006 - 07. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN CONFIRMIN G THE ADDITION OF ` 20,29,800/ - MADE BY THE ASSESSING OFFICER U/S. 68 OF THE ACT. THE ASSESSEE IS APPEARED IN PERSON. 3 . I HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER REOPENED THE ASSESSMENT OF THE YEAR UNDER CONSIDERATION BY ISS UING NOTICE U/S. 148 OF THE ACT ON NOTICING THAT THE ASSESSEE HAD DEPOSITED CASH AGGREGATING TO ` 20,29,800/ - IN HER BANK ACCOUNT. BEFORE THE ASSESSING OFFICER , THE ASSESSEE SUBMITTED THAT THE SAID DEPOSITS WERE MADE BY HER ERSTWHILE EMPLOYER NAMED MR. BHA VESH K. VORA AND ACCORDINGLY PLEADED THAT THESE DEPOSITS DO NOT BELONG TO HER. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND ACCORDINGLY ASSESSED THE ABOVE SAID MISS JYOTI S. AGARWAL 2 AMOUNT OF ` 20,29,800/ - AS INCOME. BEFORE LEARNED CIT(A), TH E ASSESSEE DID NOT APPEAR AND HENCE LEARNED CIT(A), ON GOING THROUGH THE ASSESSMENT ORDER, DID NOT FIND ANY INFIRMITY IN IT AND ACCORDINGLY HE CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. THE ASSESSEE SUBMITTED THAT HER EMPLOYER HAD ACTUALLY OPERATED HER BANK ACCOUNT AND ALL THE DEPOSITS MADE THEREIN WERE IMMEDIATELY TRANSFERRED TO THE ACCOUNT OF THE EMPLOYER MR. BHAVESH K. VORA. SHE FURTHER SUBMITTED THAT THE EMPLOYER HAS NOT KEPT HIS WORDS WITH MANY PEOPLE AND HENCE MANY PEOPLE HAVE FILED CA SE S AGAINST MR. BHAVESH K. VORA. SHE FURTHER SUBMITTED THAT SHE HAS ALSO FILED A CASE AGAINST HIM IN A CHEQUE DISHONOUR MATTER AND CASE IS STILL PENDING BEFORE THE COURT. ACCORDINGLY SHE SUBMITTED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ASSESSING THE DEPOSITS MADE BY MR. BHAVESH K. VORA IN HER BANK ACCOUNT. ACCORDINGLY, SHE PLEADED THAT THE ADDITION MADE BY THE TAX AUTHORITIES MAY KINDLY BE DELETED. 5. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THA T THE DEPOSITS WERE FOUND IN THE BANK ACCOUNT OF THE ASSESSEE AND EXPLANATIONS FURNISHED BY HER WERE NOT SUBSTANTIATED WITH ANY EVIDENCE. ACCORDINGLY, HE SUBMITTED THAT LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE ASSESSMENT OF ` 20,29,800/ - MADE BY THE ASSESSING OFFICER. 6. FROM T HE RECORDS, I NOTICED THAT THE ASSESSEE HAS ALSO FILED A COMPLAINT AGAINST MR. BHAVESH K. VORA AND FURTHER THE ASSESSEE HAS ALS O FURNISHED COPIES OF CASES/COMPLAINTS FILED AGAINST MR. BHAVESH K. VORA BY HER AND OTHER PERSONS . T HE CLAIM OF THE ASSESSEE IS THAT THE CASH DEPOSIT S HA VE BEEN MADE BY MR. BHAVESH K. VORA IN HER BANK ACCOUNT AND THE DEPOSITS SO MADE HAVE BEEN TRANSFERRED TO THE ACCOUNT OF MR. BHAVESH K. VORA. I NOTICE THAT THE ASSESSEE HAS LEFT EMPLOYMENT WITH SHRI BHAVESH K VORA AND HENCE THERE WOULD BE DIFFICULTY IN PROVING THESE SUBMISSIONS, SINCE IT IS NATURAL THAT SHRI BHAVESH VORA WOULD NOT CO - OPERATE WITH THE ASSESSEE. MISS JYOTI S. AGARWAL 3 7. THE HON'BLE SUPREME COURT IN THE CASE OF P.K. NOORJAHAN (237 ITR 570) HAS EXPLAINED THE SCOPE OF PROVISIONS OF SECTION 69 AND HAS STATED THAT POWER VESTED WITH THE ASSESSING OFFICER U/S. 68 & 69 IS DISCRETIONARY IN NATURE AND THE ASSESSING OFFICER MAY ALSO CHOOSE NOT TO MAKE AN Y ADDITION CONSIDERING THE PECULIAR FACTS AVAILABLE IN A PARTICULAR CASE. IN MY VIEW DECISION REN DERED BY HON'BLE SUPREME COURT IN THE ABOVE SAID CASE CAN BE APPLIED TO THE FACTS PREVAILING IN THE INSTANT CASE. THE V ERY FACT THAT MANY PEOPLE HAVE LODGED THE COMPLAINT AGAINST MR. BHAVESH K. VORA INCLUDING THE ASSESSEE AND ALSO THE FACT THAT THE DEPOSIT S MADE INTO THE BANK ACCOUNT OF THE ASSESSEE HAVE BEEN TRANSFERRED TO THE ACCOUNT OF MR. BHAVESH K. VORA , IN MY VIEW, SHOW THAT THE RE MAY BE MERIT IN THE SUBMISSION OF THE ASSESSEE THAT THE DEPOSITS WERE NOT MADE BY HER. CONSIDERING THE PECULIAR FACTS PRE VAILING IN THE INSTANT CASE, I AM OF THE VIEW THAT THE EXPLANATIONS OF THE ASSESSEE MAY BE ACCEPTED. ACCORDINGLY, I SET ASIDE THE ORDER PASSED BY LEARNED CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THIS ADDITION. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 3. 8 .2016 SD / - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 3 / 8 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS