MEENA VASWANI, MUMBAI V. ACIT 26(1), MUMBAI

ITA 1984/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7675 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 27-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 07-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: SNEHAL R SHAH
• Keywords: Additional evidence; Wrong claim; Benefit of exemption
• Section: 80C; 143(3); 133(6); 148

Judgement Text

H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.1983/ MUM/2015 ( / ASSESSMENT YEAR : 2009-10) ./ I.T.A. NO.1984/ MUM/2015 ( / ASSESSMENT YEAR : 2010-11) ./ I.T.A. NO.1985/ MUM/2015 ( / ASSESSMENT YEAR : 2011-12) MRS. MEENA VASWANI, 301, TROPICANA 7 BUNGLOW, NEAR NANANANI PARK, ANDHERI (W), MUMBAI 400 061. / V. ACIT 26(1), MUMBAI. ./ PAN : ACJPV8378B ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI SNEHAL R. SHAH, AR REVENUE BY : SHRI B.S. BIST, DR / DATE OF HEARING : 08-03-2017 / DATE OF PRONOUNCEMENT : 30-03-2017 / O R D E R PER BENCH THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THREE SEPARATE APPELLATE ORDERS ALL DATED 27 TH JANUARY, 2015 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)- 46, MUMBAI (HE REINAFTER CALLED THE CIT (A)) PERTAINING TO THE ASSESSMENT YEARS 2009- 10 TO 2011-12. SINCE ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 2 IDENTICAL ISSUES ARE INVOLVED IN ALL THREE APPEALS, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE COMMON GROUNDS OF APPEAL RAISED BY THE ASSES SEE IN ALL THESE APPEALS (ONLY DIFFERENCE IN AMOUNT) IN THE MEMO OF APPEALS FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- THE APPELLANT OBJECTS TO THE ORDER DATED 27/01/2015 P ASSED BY ADDITIONAL COMMISSIONER OF INCOME TAX - 26 (1), MUMB AI PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT Y EARS 2009-10 TO 2011-12 ON THE FOLLOWING AMONGST THE OTHER GROUNDS : 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN DISAL LOWING HRA EXEMPTION U/S L0(13A) AMOUNTING TO RS.2,21,640/- (FOR A.Y. 2009-10) RS. 2,52,000/- (FOR A.Y. 2010-11) & RS. 2,58,000/- (FOR A.Y. 2011-12) WITHOUT APPRECIATING THE FACTS OF THE CASE IN THE RIGH T PERSPECTIVE. 2. THE GROUND OF APPEAL IS WITHOUT PREJUDICE TO THE OTH ER. 3. FIRST, WE SHALL TAKE UP THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 1984/MUM/2015 FOR ASSESSMENT YEAR 2010-11A AS WE HA VE OBSERVED THAT AO WHILE MAKING DISALLOWANCE OF HOUSE RENT ALLOWANCE E XEMPTION U/S 10(13A) OF 1961 ACT FOR THE ASSESSMENT YEAR 2009-10 HAS RELIED UPON THE ASSESSMENT ORDER DATED 28-03-2013 PASSED BY AO U/S 143(3) OF 1 961 ACT FOR THE ASSESSMENT YEAR 2010-11, BASED UPON WHICH NOTICE DA TED 05-04-2013 U/S 148 OF 1961 ACT WAS ISSUED BY AO FOR REOPENING OF A SSESSMENT FOR ASSESSMENT YEAR 2009-10. 4. THE BRIEF FACTS OF THE CASE AS THEY WILL UNFOLD ARE IN A VERY NARROW COMPASS . THE ASSESSEE IS A CHARTERED ACCOUNTANT W ORKING AS SENIOR FINANCE AND ACCOUNTS EXECUTIVE WITH EAST INDIA HOTELS LIMIT ED. THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 143(2) OF 1961 ACT ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 3 OBSERVED THAT THE ASSESSEE IS STAYING IN HIS OWN HO USE IN MUMBAI AS THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80C OF THE ACT F OR HOUSING LOAN REPAYMENT . IT WAS ALSO OBSERVED BY THE AO THAT HOU SE RENT ALLOWANCE(HRA) OF RS. 2,52,040/- RECEIVED BY THE ASSESSEE FROM HER EMPLOYER WAS CLAIMED AS EXEMPT BY THE ASSESSEE AS PER PROVISIONS OF SECTION 10(13A) OF THE ACT. THE ASSESSEE WAS ASKED BY THE AO VIDE SCN DATED 14-02-2 013 AS TO WHY HRA CLAIMED AS EXEMPT SHOULD NOT BE ADDED TO INCOME OF THE ASSESSEE AND CONSEQUENTLY BROUGHT TO TAX UNDER THE PROVISIONS O F 1961 ACT. THE ASSESSEE SUBMITTED THAT SHE HAS PAID A RENT OF RS.31,500/- PER MONTH TO HER MOTHER IN CASH. THE A.O. OBSERVED THAT THE ASSESSEE HAS SHOWN HER R ESIDENTIAL ADDRESS AS 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, AN DHERI(W), MUMBAI( HEREINAFTER CALLED TROPICANA ) IN RETURN OF INCOM E FILED WITH REVENUE WHICH ADDRESS ALSO APPEARS IN THE RATION CARD AS WELL AS THE BANK ACCOUNT MAINTAINED WITH SARASWAT CO-OP. BANK, JUHU BRANCH. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS CLAIMED THIS PROPERTY AT TRO PICANA AS A SELF OCCUPIED PROPERTY(SOP) AND HAS ALSO CLAIMED LOSS FROM SELF O CCUPIED HOUSE PROPERTY BEING INTEREST ON HOUSING LOAN AMOUNTING TO RS.13,8 88/-. THUS IT WAS OBSERVED BY AO THAT ASSESSEE WAS CLAIMING LOSS FROM SELF OCCUPIED PROPERTY AND ALSO CLAIMING EXEMPTION U/S.10(13A) OF THE ACT. THE AO ASKED ASSESSEE TO FURNISH LEAVE AND LICENSE AGREEMENT WITH RESPECT TO PROPERTY CLAIMED TO BE TAKEN ON RENT, AND NEED OF HIRING A HOUSE PROPERTY WHEN ONE PROPERTY HAS BEEN CLAIMED AS SELF OCCUPIED BEING RESIDENTIAL FL AT SITUATED AT TROPICANA ITSELF. THE ASSESSEE SUBMITTED THAT ASSESSEE HAS A SELF OC CUPIED PROPERTY JOINTLY HELD WITH HER HUSBAND AT TROPICANA BUT SHE HAS T O LIVE IN HER MOTHER'S HOUSE AT A-3, GROUND FLOOR, NEHA APARTMENT, SEVEN B UNGLOWS, ANDHERI, ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 4 MUMBAI (HEREINAFTER CALLED NEHA APARTMENTS) AND PAY HER RENT FOR HER DAY TO DAY LIVING COST. THE ASSESSEE SUBMITTED THAT SHE HAS NO OPTION BUT TO LIVE WITH HER MOTHER AT NEHA APARTMENTS AS HER MOTHER IS A SICK AND SINGLE OLD LADY AND AT THE SAME TIME SHE HAS TO PAY HER RENT S O THAT NONE OF THE OTHER SIBLINGS RAISE ANY QUESTION ON HER STAYING AND HER LIVING IN A RENTED PROPERTY IS A PURELY FAMILY MATTER. IT WAS SUBMITTED THAT SI NCE THIS TRANSACTION IS BETWEEN MOTHER AND DAUGHTER, NO FORMAL AGREEMENT WA S EXECUTED. HOWEVER, RENT RECEIPTS WERE COLLECTED FOR INCOME TAX PURPOSE AS AN EVIDENCE OF PAYMENT OF RENT. THE ASSESSEE SUBMITTED THAT IT COMPLIED WI TH ALL THE REQUIREMENTS AS STIPULATED U/S 10(13A) OF 1961 ACT AND THERE IS NO VIOLATION BY THE ASSESSEE WHILE CLAIMING EXEMPTION U/S 10(13A) OF 1961 ACT. THE A.O. REJECTED THE CONTENTION OF THE ASSESSEE AN D HELD THAT THE ASSESSEE NEEDS TO PROVE THAT SHE HIRED AN ACCOMMODATION AND USED IT AND PAID THE RENT.THE CONTENTION OF THE ASSESSEE THAT PAYMENT OF RENT WAS A FAMILY AFFAIR AND NO LEAVE AND LICENSE AGREEMENT WAS ENTERED WAS REJECTED BY THE AO AS IT WAS OBSERVED BY THE AO THAT IF THE RENT IS PAID THE RELATION BETWEEN THE PARTIES WAS A CONTRACTUAL RELATION EVEN IF IT IS BE TWEEN FAMILY MEMBERS ALSO, AND IT NEEDS TO BE SUPPORTED BY DOCUMENTARY EVIDENC E TO PROVE THE SAME. IT WAS OBSERVED BY THE AO THAT IF THE RENT WAS PAID BY THE ASSESSEE TO HELP HER MOTHER WHO WAS OLD AND SICK TO MEET HER DAY TO DAY LIVING COST DOES NOT ENTITLE ASSESSEE TO CLAIM EXEMPTION OF HRA U/S 10(1 3A) OF 1961 ACT. THE A.O. DEPUTED WARD INSPECTOR TO MAKE AN ENQUIRY TO VERIFY CLAIM OF THE ASSESSEE THAT SHE IS LIVING WITH HER MOTHER AT NEH A APARTMENTS AND PAYING RENT TO HER MOTHER. THE INSPECTOR VISITED THE RESI DENTIAL PREMISES OF MOTHER OF THE ASSESSEE SMT. P.B. DORWANI, SITUATED AT A-3, GROUND FLOOR, NEHA APARTMENT, SEVEN BUNGLOWS, ANDHERI, MUMBAI AND SERV ED NOTICE U/S 133(6) OF THE ACT ON MOTHER OF THE ASSESSEE SMT. P.B.DORWA NI WHO WAS PRESENT AT THE SAID PREMISES. THE WARD INSPECTOR IN HIS REPOR T STATED THAT SMT. P.B. ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 5 DORWANI IS STAYING IN A ONE BHK RESIDENTIAL FLAT HA VING AN AREA OF 400 SQ. FT. AT NEHA APARTMENTS. THE WARD INSPECTOR REPORTED T HAT SMT P.B.DORWANI HAS THREE DAUGHTERS AND ONE OF THEM MS. VIMLA WHO IS UN MARRIED IS STAYING IN THE SAID FLAT AT NEHA APARTMENTS WITH SMT. P.B. D ORWANI AND ANOTHER DAUGHTER MS. MEENA VASWANI I.E. ASSESSEE IS STAYING AT TROPICANA WITH HER FAMILY CONSISTING OF HUSBAND AND DAUGHTER , WHILE T HE THIRD DAUGHTER MS KAMLA IS STAYING AT THANE. THE INSPECTOR ALSO VISIT ED PREMISES AT 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI (W), MUMBAI WHICH IS ONLY FIVE MINUTES WALKING DISTANCE FROM THE RESIDEN TIAL FLAT OF MRS. P B . DORWANI AND CONFIRMED THAT THE ASSESSEE MRS. MEENA D. VASWANI IS STAYING AT 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI(W), MUMBAI WHICH IS A 2 BHK FLAT FOR THE LAST MANY YEARS WITH HER HUSBAND AND HER DAUGHTER. THE AO OBSERVED THAT WARD INSPECTOR REPORT CLEARLY REVEALS THAT THE ASSESSEE IS STAYING AT TROPICANA AND NOT WITH HER MOTHER S MT P B DORWANI AT NEHA APARTMENTS AS CLAIMED BY THE ASSESSEE. THE AO ALSO OBSERVED THAT SECRETARIES AND WATCHMAN OF THESE TWO SOCIETIES ( W HERE TROPICANA AND NEHA APARTMENTS ARE SITUATED)ALSO CONFIRMED THAT THE ASSESSEE IS NOT STAYING WITH HER MOTHER BUT WITH HER HUSBAND AND ACCORDINGL Y THE AO CONCLUDED THAT THE RENT RECEIPT ISSUED BY MOTHER OF THE ASSES SEE ARE MERELY TO CLAIM THE BENEFIT OF EXEMPTION OF HRA RECEIVED U/S 10(13A) OF 1961 ACT. THE A.O. ALSO OBSERVED THAT THE ASSESSEES HAD HERS ELF SUBMITTED VIDE LETTER DATED 6 TH MARCH, 2013 THAT THE ASSESSEE IS A QUALIFIED CHART ERED ACCOUNTANT LIVING WITH HER HUSBAND, WHO IS ALSO A QUALIFIED CH ARTERED ACCOUNTANT AND A DAUGHTER (STUDENT) AND MOST OF THE HOUSEHOLD EXPENS ES WERE BEING TAKEN CARE OF BY THE HUSBAND OF THE ASSESSEE. .IT WAS ALSO SUB MITTED BY THE ASSESSEE THAT THERE ARE NOT MANY WITHDRAWALS FOR HOUSEHOLD EXPENS ES EXCEPT THE PAYMENT OF MOBILE BILLS BY CHEQUE. THE ASSESSEE ALSO COULD NOT PRODUCE MRS. P.B. ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 6 DORWANI FOR EXAMINATION BEFORE THE AO NOR MRS. DORW ANI FILED ANY DETAILS SUBSEQUENT TO SERVING OF NOTICE U/S. 133(6) OF THE ACT. THE A.O. AFTER VERIFICATIONS ,ALSO FOUND THAT MRS. P.B. DORWANI WA S NOT FILING ANY RETURN OF INCOME WITH REVENUE FOR LAST SIX ASSESSMENT YEARS. HOWEVER, ON 21-03-2013 THE ASSESSEE FILED A COPY OF THE RETURN OF INCOME F ILED WITH THE REVENUE BY MRS. P.B. DORWANI FOR ASSESSMENT YEAR 2011-12 AND T HE RETURN OF INCOME WAS FOUND TO BE FILED FOR THE FIRST TIME ON 21 ST MARCH, 2013 ITSELF WHICH SHOWS THAT RETURN OF INCOME WAS FILED BY MRS P B DORWANI WITH REVENUE ONLY BECAUSE THE VERIFICATION WAS BEING DONE BY THE AO REGARDING THE OFFERING OF THE RENT RECEIVED FROM ASSESSEE BY HER MOTHER MRS. P B DORWA NI AS INCOME IN THE HANDS OF MRS. P.B. DORWANI. THE A.O. OBSERVED THAT THE ASSESSEE'S MOTHER MRS. P.B. DORWANI RECEIVES PENSION FROM HER EMPLOYE R AND RENTAL INCOME IF RECEIVED HAS TO BE OFFERED FOR TAXATION BY HER. IT WAS OBSERVED THAT MRS. P.B. DORWANI HAD NOT FILED ANY RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DISCLOSING ANY INCOME FROM HOUSE PROPERTY TILL THIS ISSUE WAS RAISED DURING THE ASSESSMENT PROCEEDINGS ON 4 TH OCTOBER, 2012. IT WAS ALSO HELD BY THE AO THAT SMT. P B DORWANI LIVES IN HER ONE BED ROOM FLA T OF 400 SQUARE FEET ALONG WITH HER UNMARRIED DAUGHTER MS VIMLA AND NOT WITH T HE ASSESSEE.IT WAS ALSO HELD BY THE AO THAT THE ASSESSEE CANNOT CLAIM BOTH THE BENEFITS U/S 10(13A) AND 24(1) OF 1961 ACT. THE AO ALSO HELD THAT THERE IS NO LEAVE AND LICENSE AGREEMENT AND THERE IS NO PROOF OF STAY OF ASSESSEE WITH HER MOTHER, THUS, GENUINENESS OF PAYMENT OF RENT IS NOT ESTABLISHED B Y THE ASSESSEE. THE A.O. ACCORDINGLY CAME TO THE CONCLUSION THAT THE ASSESSE E IS NEITHER STAYING IN HER MOTHER'S FLAT, NOR PAYING ANY RENT TO HER AND THERE FORE THE ASSESSEES CLAIM OF EXEMPTION OF HRA U/S.10(13A) IS TOTALLY WRONG AND B OGUS AND ACCORDINGLY AO ADDED THE AMOUNT OF RS. 2,52,000/- TO THE TOTAL INC OME OF THE ASSESSEE WHICH WAS CLAIMED AS EXEMPT BY THE ASSESSEE U/S 10(13A) O F 1961 ACT, VIDE ASSESSMENT ORDER DATED 28-03-2013 PASSED BY THE AO U/S 143(3) OF 1961 ACT. ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 7 5. AGGRIEVED BY THE ASSESSMENT ORDER DATED 28-03-20 13 PASSED BY THE A.O. U/S 143(3) OF 1961 ACT , THE ASSESSEE FILED FIRST A PPEAL BEFORE THE LD. CIT(A). 6. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED TH AT THE ASSESSEE IS STAYING AT A-3, GROUND FLOOR, NEHA APARTMENT, SEVEN BUNGLOWS, ANDHERI, MUMBAI ON RENTAL BASIS BY PAYING MONTHLY RENT OF RS . 31,500/- TO HER MOTHER MRS P B DOWANI AS THE SAID APARTMENT IS OWNED BY AS SESSEES MOTHER MRS P B DORWANI. THE ASSESSEE SUBMITTED THAT SHE WAS PAY ING RENT ON REGULAR BASIS IN CASH TO HER MOTHER MRS P B DORWANI FOR REN TING OF HER MOTHERS FLAT AT NEHA APARTMENTS AND EXEMPTION OF HRA U/S 10(13 A) OF 1961 ACT WAS RIGHTLY CLAIMED. THE ASSESSEE SUBMITTED BEFORE LEAR NED CIT(A) THAT RENT RECEIPTS WERE DULY SUBMITTED IN ASSESSMENT PROCEEDI NGS BEFORE THE AO. THE ASSESSEE SUBMITTED THAT THE INFERENCE DRAWN BY THE INSPECTOR WAS INCORRECT DUE TO THE FOLLOWING GROUNDS:- 1. MS. VIMLA WHO IS UNMARRIED DOES NOT STAY WITH S MT. P. B. DORWANI SINCE SHE HAS HER OWN OWNERSHIP FLAT AT BHA YANDER. 2. SECONDLY, THE FACT THAT MRS. MEENA VASWANI IS ST AYING AT 30I-TROPICANA, IT IS CLARIFIED THAT THE APPELLANT A CTUALLY SHIFTED TO TROPICANA APT. IN A. Y. 2013-14 AND HENCE NO HRA WA S CLAIMED FOR THE A. Y. 2013-14 ONWARDS. 3. THE PAYMENT OF RENT TO MRS. DORWANI ACTUALLY PER TAINS TO A.Y. 2010-11 WHEREAS THE INSPECTOR VISITED ON 12.03 .2013. 4. THE STATEMENT OF THE WATCHMAN DOES NOT HOLD GROU ND, SINCE THE WATCHMAN KEEPS CHANGING ON A MONTHLY BASIS. 5. STATEMENT OF MR. GIRISH RAHEJA AND MR. GOVIND TH AWANI, IF ANY IN THE CAPACITY OF A SECRETARY, DESERVES TO BE CONDEMNED IN TOTALITY SINCE THE STATEMENT OF THE SECRETARY CANNO T BE TREATED AS 'EVIDENCE' ESPECIALLY SINCE HE IS NEITHER AUTHORIZE D TO KEEP CONSTANT WATCH ABOUT THE MOVEMENT OF ANY MEMBER RES IDING IN OR ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 8 MOVING OUT NOR HIS STATEMENT FOR PAST EVENTS CAN BE CONSIDERED AS 'EVIDENCE' BY ANY STRETCH OF IMAGINATION. 6. IT IS WORTH MENTIONING THAT EVEN THE INSPECTOR D ID NOT RECORD THE STATEMENT OF MRS. P.B. DORWANI ON HIS VI SIT ON 12.03.2013. THUS, THE ASSESSEE SUBMITTED THAT THE CONCLUSION DR AWN BY THE INSPECTOR IN HIS REPORT WAS PURELY ON SURMISES AND CONJECTURES A ND THAT NO ADVERSE INFERENCE COULD BE DRAWN AGAINST THE ASSESSEE WITHO UT ANY DOCUMENTARY EVIDENCE TO SUPPORT THE INSPECTOR REPORT. THE ASSE SSEE SUBMITTED THAT CONFIRMATIONS OBTAINED BY THE INSPECTOR FROM THE SE CRETARY OF THE SOCIETIES AND WATCHMAN CANNOT BE INFERRED AS CRUCIAL EVIDENCE BY ANY STRETCH OF IMAGINATION. THE ASSESSEE CONTENDED THAT THE RENT RECEIPTS ARE VALID DOCUMENTARY EVIDENCE FOR CLAIMING EXEMPTION OF HRA U/S 10(13A) OF 1961 ACT. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE REJECTED THE SAME AND OBSERVED THAT THE A.O. HAD CARRIED OUT DET AILED INQUIRIES TO ESTABLISH THAT THE CLAIM OF PAYMENT OF RENT BY THE ASSESSEE TO HER MOTHER WAS NOT FULLY ESTABLISHED. THE LD. CIT(A) OBSERVED THA T THE ASSESSEE HAS A BIGGER FLAT OWNED BY HER AT 301, TROPICANA, 7 BUNGALOW, N EAR NANA-NANI PARK, ANDHERI(W), MUMBAI IN WHICH THE ASSESSEE AND HER HU SBAND AND CHILDREN RESIDE AND NO PRESSING NEED IS SHOWN BY THE ASSESSE E AS TO WHY THE ASSESSEE STAYED WITH HER MOTHER IN A SMALL FLAT OF 400 SQUAR E FEET AT NEHA APARTMENTS WHILE LEAVING HER BIGGER FLAT AT 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI(W), MUMBAI WITH FAMILY, WHICH IS FIVE MINUTE WALKING DISTANCE AWAY. THE ASSESSEES CLAIM THAT MS. VIMLA WAS NOT STAYING WITH MRS. P.B. DORWANI AS SHE HAS OWN FLAT AT BHAYANDER AND ALSO T HE CLAIM THAT THE ASSESSEE SHIFTED BACK TO TROPICANA IN ASSESSMENT YEAR 2013-14 AND WAS STAYING WITH HER MOTHER WAS A SELF SERVING STATEMEN T WHICH ARE NOT SUPPORTED ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 9 BY ANY EVIDENCE ON RECORD. THE LEARNED CIT(A) ALSO GAVE CREDENCE TO INSPECTOR REPORT AND STATEMENT OF SECRETARIES AND WATCHMAN OF THE SOCIETY WHO HAD CONFIRMED THAT THE ASSESSEE WAS NOT STAYING WITH HE R MOTHER BUT WAS STAYING AT 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI(W), MUMBAI WITH HER HUSBAND AND DAUGHTER AND OBSERVED THAT THE SAID STATEMENTS COULD NOT BE REBUTTED BY THE ASSESSEE. HENCE, THE LD. CIT (A) REJECTED THE CONTENTION OF THE ASSESSEE AND HELD THAT THE ASSESSEE GROSSLY FAILED TO ESTABLISH THAT SHE WAS STAYING WITH HER MOTHER AND PAYING RENT TO HER MOTHER AND HENCE , AS SUCH LEARNED CIT(A) HELD THAT THE EXEMPTION OF HRA U/S 10(13A) OF THE ACT WAS RIGHTLY DENIED TO THE ASSESSEE BY THE AO, VIDE APPELLATE ORDERS DATED 27- 01-2015 PASSED BY LEARNED CIT(A). 7.AGGRIEVED BY THE APPELLATE ORDER DATED 27-01-2015 PASSED THE LD. CIT(A), THE ASSESSEE FILED SECOND APPEAL BEFORE THE TRIBUNA L. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS AN INDIVIDUAL BEING A CHARTERED ACCOUNTANT WORKING AS SENIOR FINANCE AND ACCOUNTS EXECUTIVE IN EAST INDIA HOTELS LTD. . THE ASSESSEE RECEIVED HRA WHICH WAS CLAIMED AS EXEMPT U/S 10(13A) OF THE ACT. THE ASSESSEE IS PAYING RENT TO HER MOTHER SMT. P B DORWANI OF RS. 31,500/- PER MONTH WHICH WAS PAID IN CASH AND MONTHLY RENT RECEIPTS WERE PRODUCE D BEFORE THE A.O. . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O . DOUBTED THE GENUINENESS OF RENT PAID BY THE ASSESSEE AND DEPUTED WARD INSP ECTOR FOR VERIFICATION AND THE WARD INSPECTOR SUBMITTED HIS REPORT ON 12 TH MARCH, 2013 WHEREIN WARD INSPECTOR STATED THAT THE ASSSESSE IS NOT STAYING A T PREMISES AT NEHA APARTMENTS WHICH IS OWNED BY MOTHER OF THE ASSESSE E AND RATHER THE ASSESSEE IS STAYING AT 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI(W), MUMBAI WITH HER HUSBAND AND DAUGHTER WH ICH RESIDENTIAL FLAT AT TROPICANA IS OWNED BY ASSESSEE JOINTLY WITH HER H USBAND . THE ENQUIRY HAS BEEN MADE BY WARD INSPECTOR FROM THE WATCHMAN AND S ECRETARIES OF THE ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 10 SOCIETIES WHO STATED THAT THE ASSESSEE IS STAYING A T 301, TROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI(W), MUMBAI A ND NOT AT RESIDENCE OWNED BY MOTHER MRS P B DOORWANI AT NEHA APARTMENT FOR WHICH RENT WAS PAID BY THE ASSESSEE. THE DISTANCE BETWEEN THE RESI DENCE OWNED BY THE ASSESSEE AT TROPICANA AND HER MOTHER RESIDENCE AT NEHA APARTMENTS IS ONLY FIVE MINUTE WALKING DISTANCE. IT IS SUBMITTED BY LEARNED COUNSEL FOR ASSESSEE THAT THE ASSESSEES MOTHER IS A OLD AND S ICK LADY. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT OTHER DAUGH TER OF SMT P B DORWANI I.E MS VIMLA IS STAYING AT BHAYANDER AND NOT WITH M OTHER OF THE ASSESSEE AT NEHA APARTMENT AS CONTENDED BY INSPECTOR IN HIS R EPORT. IT IS SUBMITTED THAT THE THIRD DAUGHTER OF MRS P B DORWANI NAMELY MS KAM LA STAYS AT THANE WHILE THE ASSESSEE STAYS WITH MRS P B DORWANI AT NEHA AP ARTMENTS FOR WHICH RENT OF RS. 31,500/- PER MONTH IS PAID BY THE ASSESSEE. IT IS SUBMITTED THAT RENT WAS PAID REGULARLY TO MRS P B DORWANI AGAINST WHICH RENT RECEIPTS WERE OBTAINED AND THE SAID RENT WAS PAID IN CASH. IT WAS SUBMITTED THAT THE AO TREATED RENT RECEIPTS AS SELF SERVING DOCUMENTS. IT WAS SUBMITTED THAT RENT PAID BY THE ASSESSEE WAS NOT TREATED AS GENUINE BY THE AUTHORITIES BELOW. THE LEARNED COUNSEL REITERATED THE SUBMISSIONS AS WERE MADE BEFORE LOWER AUTHORITIES. THE ASSESSEE ALSO FILED AFFIDAVIT EXE CUTED BY HER AS WELL SEPARATE AFFIDAVIT FILED BY HER MOTHER DECLARING THE WHOLE F ACTS ALONG WITH RENT RECEIPT WHICH WERE FILED ALONG WITH WRITTEN SUBMISSIONS WHI CH ARE PLACED IN FILE. THE ASSESSEE PRAYED FOR ALLOWABILITY OF CLAIM OF EXEMP TION OF HRA U/S 10(13A) OF 1961 ACT . 9. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT TH E ASSESSEE HAD CLAIMED DEDUCTION U/S 10(13A) OF 1961 ACT WHICH IS A WRONG CLAIM AS NO RENT WAS PAID BY THE ASSESSEE AND THE SAID ALLEGED RENT OF R S. 31,500/- PER MONTH BEING PAID TO MOTHER WAS SHOWN ONLY TO TAKE EXEMPTI ON OF HRA U/S 10(13A) OF 1961 ACT. THE A.O. HAD CONDUCTED DETAILED ENQUI RY BY DEPUTING THE WARD INSPECTOR WHO REPORTED THAT THE ASSESSEE IS STAYING WITH HER HUSBAND AND ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 11 DAUGHTER AT 301, TROPICANA, 7 BUNGALOW, NEAR NANA-N ANI PARK, ANDHERI(W), MUMBAI AND NOT WITH HER MOTHER AT NEHA APARTMENTS . NO PAYMENTS OF ALLEGED RENTS WERE MADE BY CHEQUE AND THE ALLEGED R ENT IS STATED TO BE PAID IN CASH. THE A.O. VERIFIED THE BANK STATEMENTS AND TH ERE WERE NO PAYMENTS BY CHEQUE OF RENT TO MOTHER OF THE ASSESSEE AS WELL DR AWINGS FROM BANK ARE MINIMAL AS ALSO ADMITTED BY THE ASSESSEE THAT HER H OUSEHOLD EXPENSES WERE MET BY HER HUSBAND AND ONLY PAYMENTS FOR MOBILE BIL LS WERE MADE FROM BANK ACCOUNT OF THE ASSESSEE. NO LEAVE AND LICENSE AGRE EMENT HAS BEEN PRODUCED BY THE ASSESSEE AND ONLY RENT RECEIPTS WERE SUBMITT ED. THERE IS NO INDEPENDENT EVIDENCE SUBMITTED BY THE ASSESSEE TO P ROVE OF BEING LIVING IN THE RESIDENTIAL APARTMENTS AT NEHA APARTMENT OWNED BY MOTHER OF THE ASSESSEE NAMELY MRS P B DORWANI FOR WHICH RENT IS BEING ALLE GEDLY PAID BY THE ASSESSEE. THE LD. D.R. SUBMITTED THAT NO INTIMATI ON HAS BEEN GIVEN TO THE SOCIETY OF NEHA APARTMENTS BY THE ASSESSEE ABOUT THE STAY OF THE ASSESSEE WITH HER MOTHER. ON VERIFICATION BY THE A.O., IT WA S REVEALED THAT MRS. P.B. DORWANI WAS NOT FILING ANY RETURN OF INCOME WITH RE VENUE FOR LAST SIX ASSESSMENT YEARS AND ONLY AFTER ENQUIRY WAS STARTED TO VERIFY GENUINENESS OF HRA EXEMPTION CLAIMED BY THE ASSESSEE ON 14-10-2012 , THE SAID MRS P B DORWANI I.E. MOTHER OF THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ONLY ON 21 ST MARCH, 2013. IT WAS SUBMITTED THAT THE AO VERIFIED RATION CARD, BANK STATEMENTS AND ALSO RETURN OF INC OME FILED BY THE ASSESSEE AND THE ASSESSEE IS SHOWING HER RESIDENCE AT 301, T ROPICANA, 7 BUNGALOW, NEAR NANA-NANI PARK, ANDHERI(W), MUMBAI IN THE AFOR E-STATED DOCUMENTS AND NOT AT NEHA APARTMENTS AS HER RESIDENCE. IT IS S UBMITTED BY LEARNED DR THAT THE ASSESSEE HAS CLAIMED EXEMPTION OF HRA U/S 10(13 A) OF 1961 ACT AND ALSO ASSESSEE HAS SHOWN APARTMENT AT 301, TROPICANA, 7 B UNGALOW, NEAR NANA- NANI PARK, ANDHERI(W), MUMBAI AS SELF OCCUPIED PROP ERTY AND DEDUCTION U/S 80C OF 1961 ACT WAS CLAIMED TOWARDS THE HOUSING LOA N REPAYMENT FOR LOAN BORROWED FOR PURCHASE OF RESIDENTIAL FLAT AT TROPI CANA. THE LEARNED DR SUBMITTED THAT RESIDENTIAL FLAT OWNED BY THE ASSESS EE AT TROPICANA IS A JOINT ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 12 PROPERTY WITH HER HUSBAND AND WAS DECLARED AS SELF OCCUPIED PROPERTY BY THE ASSESSEE AND BENEFIT OF INTEREST PAYMENTS WERE ALSO AVAILED BY THE ASSESSEE TO CLAIM LOSS UNDER THE HEAD INCOME FROM HOUSE PROPER TY. IT WAS SUBMITTED BY LEARNED DR THAT NO REPLY WAS FILED AGAINST THE I SSUE OF NOTICE U/S 133(6) OF THE ACT TO MRS P B DORWANI WHICH WAS DULY SERVED ON MRS P B DORWANI. THE ASSESSEE DID NOT PRODUCE HER MOTHER BEFORE THE AUTH ORITIES BELOW WAS THE CONTENTION OF LEARNED DR. . IT WAS SUBMITTED BY LEA RNED DR THAT WHEREAS NOW THE ASSESSEE HAS FILED BEFORE THE TRIBUNAL AN AFFI DAVIT EXECUTED BY MRS P B DORWANI WHICH IS TO BE REJECTED AS THE SAME IS FILE D FOR THE FIRST TIME BEFORE ITAT AFTER 4 YEARS. IT WAS SUBMITTED THAT THIS CONS TITUTE ADDITIONAL EVIDENCE WHICH SHOULD NOT BE ADMITTED BY TRIBUNAL. THE LEARN ED DR SUBMITTED THAT WARD INSPECTOR HAD MADE DETAILED ENQUIRY WITH SECRE TARIES AND WATCHMAN OF BOTH THE SOCIETIES WHICH CLEARLY REVEALS THAT THE A SSESSEE IS NOT STAYING WITH HER MOTHER AT NEHA APARTMENTS RATHER THE ASSESSEE IS STAYING IN HER OWN FLAT AT TROPICANA . IT IS ALSO SUBMITTED BY LEARNED D R THAT THE CONTENTION OF THE ASSESSEE THAT THE UNMARRIED DAUGHTER MS VIMLA IS ST AYING IN BHAYENDER AND NOT WITH HER MOTHER AT NEHA APARTMENTS IS NOT SU PPORTED BY ANY EVIDENCE ON RECORD . IT WAS SUBMITTED THAT RENT RECEIPTS ARE SELF SERVING DOCUMENTS AS BOTH THE ASSESSEE AND HER MOTHER TO WHOM RENT WAS P AID ARE CLOSELY RELATED TO EACH OTHER BEING DAUGHTER AND MOTHER. THE ASSESS EE IS A QUALIFIED CHARTERED ACCOUNTANT AND SHE WAS FULLY AWARE OF THE LEGAL REQUIREMENTS FOR AVAILING EXEMPTION OF HRA U/S 10(13A) OF 1961 ACT A ND ALSO THAT MOTHER OF THE ASSESSEE HAS PENSION INCOME AND IF RENT IS INCL UDED THEN SHE WILL HAVE INCOME EXCEEDING MINIMUM AMOUNT NOT CHARGEABLE TO T AX AND SHE WILL BE LIABLE TO FILE RETURN OF INCOME WITH REVENUE AND PA Y DUE TAXES WHICH WAS NOT DONE BY MOTHER OF THE ASSESSEE. IT WAS SUBMITTED TH AT NO SUCH RETURN OF INCOME WAS FILED BY SAID MRS P B DORWANI FOR THE LA ST SIX ASSESSMENT YEARS.THE LEARNED DR RELIED UPON ORDERS OF THE LEAR NED CIT(A). ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 13 10. IN THE REJOINDER, THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THERE IS NO BAR TO THE RENT BEING PAID IN CASH. THERE IS NO RE QUIREMENT IMPOSED BY LAW ON THE ASSESSEE TO INFORM SOCIETY OF NEHA APARTMEN TS THAT THE ASSESSEE IS STAYING WITH HER MOTHER AT HER MOTHERS FLAT AT NE HA APARTMENT. THE ASSESSEES MOTHER IS A SENIOR CITIZEN WHO IS DRAWIN G MEAGER PENSION OF RS. 8000 PER MONTH AND HER TAXABLE INCOME WILL BE LESS EVEN IF RENTAL INCOME IS INCLUDED.IT WAS SUBMITTED THAT THERE IS NO FINDING BY LOWER AUTHORITIES THAT INCOME OF MOTHER OF THE ASSESSEE EXCEEDED MINIMUM A MOUNT NOT CHARGEABLE TO TAX AND IS HAVING AN TAXABLE INCOME. WARD INSPE CTORS REPORT CANNOT BE RELIED UPON. IT WAS SUBMITTED THAT NO EVIDENCE WAS CALLED FOR BY THE AUTHORITIES BELOW TO PROVE THAT THE UNMARRIED DAUGH TER OF MRS P B DORWANI NAMELY MS. VIMLA STAYS AT BHAYANDER. 11. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSE D ALL THE MATERIALS PLACED ON RECORD. WE HAVE OBSERVED THAT THE ASSESS EE IS AN INDIVIDUAL BEING A QUALIFIED CHARTERED ACCOUNTANT WORKING WITH EAST IN DIA HOTELS LIMITED AS SENIOR FINANCE AND ACCOUNTS EXECUTIVE. THE ASSESSEE HUSBAND INCIDENTALLY IS ALSO QUALIFIED CHARTERED ACCOUNTANT. THE COUPLE HAD ONE DAUGHTER. THE ASSESSEE OWNED A 2BHK RESIDENTIAL FLAT AT TROPICAN A WHICH IS JOINTLY OWNED BY THE ASSESSEE WITH HER HUSBAND. THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80C OF 1961 ACT FOR REPAYMENT OF HOUSING LOAN AVAIL ED FOR PURCHASING RESIDENTIAL FLAT AT TROPICANA . THE ASSESSEE HAS ALSO CLAIMED THE SAID RESIDENTIAL FLAT AT TROPICANA AS SELF OCCUPIED RE SIDENTIAL PROPERTY AND INTEREST ON HOUSING LOAN AVAILED FOR PURCHASE OF SAID FLAT A T TROPICANA IS CLAIMED AS LOSS UNDER THE HEAD INCOME FROM HOUSE PROPERTY. TH E ASSESSEE HAS DECLARED THE SAID ADDRESS OF TROPICANA AS HER RESIDENTIAL ADDRESS WITH BANK, IN RATION CARD AS WELL IN RETURN OF INCOME FILED WITH REVENUE. THE ASSESSEE HAS ALSO ADMITTED DURING THE ASSESSMENT PROCEEDINGS THA T SHE IS LIVING WITH HER HUSBAND AND DAUGHTER WHICH IS EMANATING FROM THE AS SESSMENT ORDER OF THE AO. THE ASSESSEES MOTHER SMT. P B DORWANI OWNS A 1 BHK RESIDENTIAL FLAT OF ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 14 400 SQUARE FEET AT NEHA APARTMENTS WHICH IS JUST FIVE MINUTES WALKING DISTANCE FROM TROPICANA. SMT P B DORWANI HAS THRE E DAUGHTERS NAMELY ASSESSEE WHO IS MARRIED , MS KAMLA WHO IS STAYING A T THANE AND ONE UNMARRIED DAUGHTER MS VIMLA. THE ASSESSEE HAS RECE IVED HRA OF RS.2,52,000/- FROM HER EMPLOYER AS A PART OF HER R EMUNERATION WHICH WAS CLAIMED AS EXEMPT U/S 10(13A) OF THE ACT ON THE GRO UND THAT SHE HAD PAID RENT OF RS. 31,500/- PER MONTH TO HER MOTHER MRS. P B DORWANI TOWARDS RENTING OF HER RESIDENTIAL FLAT SITUATED AT NEHA A PARTMENTS , WHEREIN ASSESSEE HAS CLAIMED THAT SHE WAS STAYING WITH HER MOTHER AT NEHA APARTMENTS INSTEAD OF STAYING IN HER OWN FLAT AT TROPICANA W HICH IS ONLY FIVE MINUTE WALKING DISTANCE. IT IS ALSO OBSERVED THAT NO LEAV E AND LICENSE AGREEMENT WAS ENTERED INTO BY THE ASSESSEE WITH HER MOTHER FOR RE NTING OF NEHA APARTMENT. THE RENT RECEIPTS ISSUED BY MRS P B DORWANI WERE HO WEVER DULY PRODUCED BEFORE THE AUTHORITIES BELOW AND RENT WAS STATED TO BE PAID REGULARLY IN CASH. IT IS UNDISPUTED THAT NO CHEQUE HAS BEEN ISSUED BY THE ASSESSEE TO MRS P B DORWANI TOWARDS RENT. THE ASSESSEE ALSO COULD NOT P RODUCE ANY DOCUMENT SHOWING THE INTIMATION GIVEN BY HER TO THE SOCIETY OF NEHA APARTMENTS REGARDING HER STAY WITH HER MOTHER. IT IS ALSO AN UNDISPUTED POSITION THAT THE ASSESSEE COULD NOT PRODUCE PROOF OF CASH WITHDRAWAL S FROM HER BANK ACCOUNT TO SUBSTANTIATE THAT THE PAYMENT HAVE BEEN MADE BY HER TO HER MOTHER TOWARDS RENT WHICH WERE MADE OUT OF WITHDRAWALS BY HER FROM HER BANK ACCOUNT. THE ASSESSEE IN-FACT ADMITTED THAT HOUSEHO LD EXPENSES WERE MET BY HER HUSBAND AND WITHDRAWAL FROM HER BANK ACCOUNT IS MINIMUM AS CHEQUES WERE ISSUED ONLY FOR MOBILE BILL PAYMENTS. THE ASSE SSEE HAS PRODUCED THE RENT RECEIPT TO SUBSTANTIATE THAT THE RENT HAS BEEN PAID BY THE ASSESSEE. IT IS ALSO NOTICED THAT THE MOTHER OF THE ASSESSEE HAS NO T FILED RETURN OF INCOME WITH REVENUE DISCLOSING THE SAID RENTAL INCOME RECE IVED FROM THE ASSESSEE. NO RETURN OF INCOME HAS BEEN FILED BY THE MOTHER OF THE ASSESSEE SINCE LAST SIX ASSESSMENT YEARS. THE WARD INSPECTOR WAS DEPUTED B Y THE AO TO VERIFY THE CONTENTIONS OF THE ASSESSEE WHO HAS REPORTED THAT T HE ASSESSEE IS STAYING AT ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 15 TROPICANA AND NOT AT NEHA APARTMENTS . THE REPO RT WAS SUBMITTED BY INSPECTOR AFTER PERSONALLY VISITING BOTH THE RESIDE NTIAL FLATS AT TROPICANA AND NEHA APARTMENTS AND AFTER MAKING DUE ENQUIRIES FR OM SECRETARIES AND WATCHMAN OF THE TWO SOCIETIES OF TROPICANA AND NEHA APARTMENTS .IT WAS ALSO STATED BY THE INSPECTOR IN HIS REPORT THAT FLA T AT NEHA APARTMENT IS ONE BHK FLAT OF 400 SQUARE FEET WHEREIN MOTHER OF THE A SSESSEE NAMELY MRS P B DORWANI LIVES WITH HER UNMARRIED DAUGHTER MS VIMLA. NOTICES U/S 133(6) OF 1961 ACT WERE SERVED ON MOTHER OF THE ASSESSEE MRS P B DORWANI BUT NO REPLIES WERE SUBMITTED BY SAID MRS. P B DORWANI TO THE SAID NOTICE. THE ASSESSEE ALSO DID NOT PRODUCE SMT. P.B. DORWANI, MO THER OF THE ASSESSEE BEFORE THE AO. NO COGENT REASONS ARE BROUGHT ON RE CORD FOR NON-COMPLIANCE OF NOTICES U/S 133(6) OF 1961 ACT NOR ANY REASONS W ERE FORTHCOMING FOR NON PRODUCTION OF MRS P B DORWANI BEFORE THE AUTHORITIE S BELOW, MORE SO OPPORTUNITIES WERE ACCORDED TO THE ASSESSEE BY THE AO AND EVEN AT THE STAGE OF APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) TO S UBSTANTIATE ITS CLAIM. THE ASSESSEE HAS NOW FILED AFFIDAVIT OF HER MOTHER MRS P B DORWANI FOR THE FIRST TIME BEFORE THE TRIBUNAL STATING THAT THE ASSESSEE HAS PAID RENT OF RS. RS.31,500/- TO HER MOTHER DURING THE PREVIOUS YEAR RELEVANT ASSESSMENT YEAR AND RESIDENTIAL FLAT AT NEHA APARTMENT WAS TAKEN ON RENT BY THE ASSESSEE FROM HER MOTHER MRS. P B DORWANI . THE SAID AFFIDAV IT FILED BY THE ASSESSEE OF HER MOTHER AS WELL AN AFFIDAVIT OF HER ( BOTH PLACE D IN FILE ) CONSTITUTE ADDITIONAL EVIDENCES FOR WHICH NO APPLICATION HAS B EEN MADE BY THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCES AS CONTEMPLAT ED U/R 29 OF INCOME- TAX(APPELLATE TRIBUNAL) RULES, 1963 NOR ANY REASONS HAVE BEEN SPECIFIED FOR NON FURNISHING OF THE SAME BEFORE AUTHORITIES BELOW . HOWEVER, ON PERUSAL OF THE CONTENT OF THE TWO AFFIDAVITS IT IS SEEN THAT T HE REITERATION IS MADE OF THE CONTENTIONS OF THE ASSESSEE BEFORE LOWER AUTHORITIE S WHICH WERE ALREADY ON RECORD. THE ASSESSEE HAS ALSO SUBMITTED THAT INSPEC TOR REPORT WAS NOT PROVIDED TO THE ASSESSEE BY THE AO AND NO OPPORTUNI TY WAS GIVEN FOR CROSS EXAMINATION OF THE INCRIMINATING INFORMATION PROVID ED TO THE WARD INSPECTOR ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 16 BY THE SECRETARY AND WATCH MAN OF THE TWO SOCIETIES OF THE RESIDENTIAL APARTMENTS SITUATED AT TROPICANA AND NEHA APARTM ENTS. WE HAVE OBSERVED THAT THE ASSESSEE AS WELL HER HUSBAND BOTH ARE QUAL IFIED CHARTERED ACCOUNTANTS AND ARE WELL VERSED WITH THE LAW. THE ASSESSEE IS CONTEMPLATING PAYING RENT TO HER MOTHER FOR TAKING HER PREMISES O N RENT FOR HER RESIDENTIAL PURPOSES. THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE EXCEPT RENT RECEIPTS TO SUBSTANTIATE THAT THERE WAS ACTUAL HIRING OF PREMIS ES BY THE ASSESSEE FOR WHICH RENT IS PAID. THE RENT IS PAID IN CASH AGAINS T WHICH THERE ARE NO WITHDRAWAL OF CASH FROM BANK SHOWN BY THE ASSESSEE. THE ASSESSE HERSELF ADMITTED THAT THERE ARE MINIMAL WITHDRAWAL FROM HER BANK ACCOUNT AS HOUSEHOLD EXPENSES ARE INCURRED BY HER HUSBAND. THE ASSESSEE COULD NOT EXPLAIN AND RECONCILE SAID CASH PAYMENTS OF RENT WI TH KNOWN SOURCES OF CASH AS THE CASH WAS NOT WITHDRAWN FROM BANK. THIS RENT RECEIPT PREPARED BY HER MOTHER DOES NOT INSPIRE CONFIDENCE. THERE ARE NO OT HER EVIDENCES AVAILABLE WHICH RELATE TO THE PERIOD WHEN THE TRANSACTION OF HIRING OF THE PREMISES BY THE ASSESSEE IN THE NORMAL COURSE OF RENTING OF PRE MISES WAS PROGRESSING . THE EVIDENCES AT THE TIME OF TRANSACTIONS WHICH ARE NORMAL TO ARE RELEVANT AND COGENT EVIDENCE TO SUBSTANTIATE THE ASSESSEES CONTENTIONS. THESE FACTS ARE ESPECIALLY IN THE KNOWLEDGE OF THE ASSESSEE AND BURDEN IS ON THE ASSESSEE TO BRING OUT THESE EVIDENCES TO SUBSTANTIATE HER CO NTENTIONS THAT RENT PAID WAS GENUINE BUT SUCH EVIDENCES ARE NOT FORTHCOMING . THE ASSESSEE DID NOT COME FORWARD WITH ANY EVIDENCE TO SUBSTANTIATE ITS CONTENTIONS EXCEPT RENT RECEIPT WHICH IS NOT BACKED BY ANY KNOWN SOURCES OF CASH HELD BY THE ASSESSEE AS THERE WERE NO CASH WITHDRAWAL FROM BANK ACCOUNT OF THE ASSESSEE .SECTION 106 OF INDIAN EVIDENCE ACT, 1872 IS RELEVA NT WHICH STIPULATES AS UNDER: SECTION 106 IN THE INDIAN EVIDENCE ACT, 1872 106. BURDEN OF PROVING FACT ESPECIALLY WITHIN KNOWL EDGE.WHEN ANY FACT IS ESPECIALLY WITHIN THE KNOWLEDGE OF ANY PERSON, THE BURDEN OF P ROVING THAT FACT IS UPON HIM. ILLUSTRATIONS ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 17 (A) **** (B) A IS CHARGED WITH TRAVELLING ON A RAILWAY WITHOUT A TICKET. THE BURDEN OF PROVING THAT HE HAD A TICKET IS ON HIM. SECTION 6 OF INDIAN EVIDENCE ACT, 1872 IS ALSO REL EVANT IN THIS CONTEXT WHICH IS REPRODUCE HEREUNDER: SECTION 6 IN THE INDIAN EVIDENCE ACT, 1872 6. RELEVANCY OF FACTS FORMING PART OF SAME TRANSACT ION.FACTS WHICH, THOUGH NOT IN ISSUE, ARE SO CONNECTED WITH A FACT I N ISSUE AS TO FORM PART OF THE SAME TRANSACTION, ARE RELEVANT, WHETHER THEY OCCURRED AT THE SAME TIME AND PLACE OR AT DIFFERENT TIMES AND PLACE S. ILLUSTRATIONS (A) TO (C) **** (C) A SUES B FOR A LIBEL CONTAINED IN A LETTER FORMING PART OF A CORRESPONDENCE. LETTERS BETWEEN THE PARTIES RELATIN G TO THE SUBJECT OUT OF WHICH THE LIBEL AROSE, AND FORMING PART OF THE C ORRESPONDENCE IN WHICH IT IS CONTAINED, ARE RELEVANT FACTS, THOUGH T HEY DO NOT CONTAIN THE LIBEL ITSELF. (D) THE QUESTION IS, WHETHER CERTAIN GOODS ORDERED FRO M B WERE DELIVERED TO A. THE GOODS WERE DELIVERED TO SEVERAL INTERMEDIATE PERSONS SUCCESSIVELY. EACH DELIVERY IS A RELEVANT FACT. THE DOCTRINE OF RES GESTAE WILL SET IN. THE ASSESSE E COULD NOT PRODUCE ANY EVIDENCE ARISING IN THE NORMAL COURSE OF HAPPENING OF TRANSACTION OF HIRING OF PREMISES SUCH AS LEAVE AND LICENSE AGREEMENT, LETTE R TO SOCIETY INTIMATING ABOUT HER TENANCY, PAYMENT THROUGH BANK, CASH PAYME NTS BACKED WITH KNOWN SOURCES, ELECTRICITY BILL PAYMENTS THROUGH CH EQUE, WATER BILL PAYMENTS THROUGH CHEQUE , SOME CORRESPONDENCE COMING DURING THAT PERIOD OF ALLEGED TENANCY TO PROVE THAT TRANSACTION OF HIRING OF PREM ISES WAS GENUINE AND WAS HAPPENING DURING THE SAID PERIOD. IN-FACT WE HAVE O BSERVED THAT NO SUCH COGENT EVIDENCE HAS BEEN BROUGHT ON RECORD WHICH CO ULD SUBSTANTIATE THAT THE ASSESSEE HAD TAKEN THE SAID PREMISES ON RENT FR OM HER MOTHER AS NO EVIDENCE OF HER ACTUALLY STAYING AT THE SAID PREMIS ES WERE PRODUCED ON ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 18 RECORD. THE ASSESSEE WAS IN-FACT STAYING IN HER O WN FLAT AT TROPICANA WITH HER HUSBAND WHICH IS EMANATING FROM VARIOUS EVIDENC ES WHICH ARE ON RECORD SUCH AS RATION CARD, BANK STATEMENTS, RETURN OF INC OME FILED WITH REVENUE ETC WHICH IS ALSO IN CONSONANCE WITH NORMAL HUMAN CONDU CT OF INDIAN MARRIED WOMEN LIVING WITH HER HUSBAND AND DAUGHTER IN A RES IDENTIAL FLAT OWNED BY THE ASSESSEE JOINTLY WITH HUSBAND , THE ASSESSEE AL SO DID NOT BRING ANY COGENT EVIDENCE TO SUBSTANTIATE THAT SHE HAD TAKEN THE RES IDENTIAL FLAT AT NEHA APARTMENT ON RENT FROM HER MOTHER. THE MOTHER OF THE ASSESSEE HAS ALSO NOT FILED RETURN OF INCOME SINCE LAST SIX ASSESSMENT YE ARS AND SAID RENTAL INCOME WAS NOT BROUGHT TO TAX IN THE HANDS OF MOTHER OF TH E ASSESSEE . THE ASSESSEE COULD ALSO NOT ABLE TO BRING ON RECORD ANY COGENT E VIDENCE TO PROVE THAT HER UN-MARRIED SISTER MS VIMLA WAS LIVING AT BHAYANDER . EVEN ON TOUCHSTONE OF PREPONDERANCE OF HUMAN PROBABILITIES , IT IS QUITE IMPROBABLE THAT THE ASSESSEE WAS LIVING WITH HER MOTHER AT NEHA APARTM ENTS AND PAYING HER SUBSTANTIAL RENT OF RS. 31,500/- PER MONTH FOR A SM ALL FLAT OF 1 BHK OF 400 SQUARE FEET WHILE HER OWN HOUSE WAS AT JUST FIVE MI NUTE WALKING DISTANCE AT TROPICANA . IT IS ALSO IMPROBABLE THAT THE ASSESS EE BEING A MARRIED LADY WILL LEAVE HER HUSBAND AND DAUGHTER AND START LIVING WIT H MOTHER AT ANOTHER RESIDENTIAL FLAT WHICH IS JUST FIVE MINUTE WALKING DISTANCE AND PAY HUGE RENT PER MONTH. IT IS DIFFERENT MATTER THAT THE ASSESSEE MAY LOOK AFTER HER OLD AND SICK MOTHER BY FREQUENT VISITS BUT THIS THEORY OF R ENT AS SET OUT BY THE ASSESSEE DID NOT INSPIRE CONFIDENCE KEEPING IN VIEW MATERIAL PRODUCED BEFORE US. IT IS ALSO PROBABLE THAT THE ASSESSEE MAY CONT RIBUTE TOWARDS LOOKING AFTER HER OLD AND AILING MOTHER OUT OF SALARY BUT THE SAM E IS NOT SUFFICIENT TO CLAIM EXEMPTION U/S 10(13A) OF 1961 ACT. LOOKING INTO ALL THESE FACTUAL MATRIX OF THE CASE BEFORE US, WE ARE OF CONSIDERED VIEW THAT THE WHOLE ARRANGEMENT OF RENT PAYMENT BY THE ASSESSEE TO HER MOTHER IS A SHA M TRANSACTION WHICH WAS UNDERTAKEN BY THE ASSESSEE WITH THE SOLE INTENTION TO CLAIM EXEMPTION OF HRA U/S 10(13A) OF 1961 ACT IN ORDER TO REDUCE TAX LIAB ILITY AND HENCE IN OUR CONSIDERED VIEW, EXEMPTION U/S 10(13A) OF THE ACT C ANNOT BE ALLOWED TO THE ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 19 ASSESSEE AS THE PAYMENTS TOWARDS RENT ARE NOT GENUI NE PAYMENT . THE EVIDENCES ON RECORD ARE SPEAKING LOUDLY WHICH IS JU ST OPPOSITE TO WHAT THE ASSESSEE IS CONTENDING. EVEN IF WE ESCHEW REPORT OF INSPECTOR , THEN ALSO MATERIAL ON RECORD DO NOT INSPIRE CONFIDENCE THAT T HE TRANSACTION OF RENT WAS A GENUINE TRANSACTION AS DISCUSSED BY US IN DETAIL ABOVE. THE RIGHT OF CROSS EXAMINATION IS NOT ABSOLUTE. THE ASSESSEE HAS TO FI RST DISCHARGE ITS PRIMARY ONUS CAST UNDER LAW AND IF THE SAME STOOD DULY DISC HARGED WHICH IS NOT REBUTTED BY AUTHORITIES , BUT DESPITE THAT THEN ALS O THE AUTHORITIES PROCEED TO PUT ASSESSEE TO PREJUDICE SOLELY RELYING ON THE BA SIS OF INCRIMINATING STATEMENT RECORDED OF THIRD PARTY AT THE BACK OF TH E ASSESSEE, THEN CERTAINLY THE RIGHT TO CROSS EXAMINATION THE SAID THIRD PARTY WHOSE INCRIMINATING STATEMENT RECORDED AT THE BACK OF THE ASSESSEE IS R ELIED UPON BY AUTHORITIES TO PREJUDICE THE ASSESSEE WILL BECOME ABSOLUTE. BUT IN THE INSTANT CASE , PRIMARY ONUS CAST ON THE ASSESSEE ITSELF DID NOT STOOD DISC HARGED BY THE ASSESSEE AS DISCUSSED ABOVE. THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE RENT PAID BY THE ASSESSEE TO HER MOTHER MRS. P B DORWANI FOR ALLEGED RENTING OF NEHA APARTMENTS AND USAGE OF THE SAID PREMISES N EHA APARTMENTS BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE FIND NO INF IRMITY IN THE ORDER OF THE LD. CIT(A) AND WE CONFIRM THE SAME AND DISMISS THE APPEAL OF THE ASSESSEE. WE ORDER ACCORDINGLY. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO . 1984/MUM/2015 FOR ASSESSMENT YEAR 2010-11 IS DISMISSED. 13. OUR ABOVE DECISION IN ITA NO. 1984/MUM/2015 FOR ASSESSMENT YEAR 2010-11 SHALL APPLY MUTATIS MUTANDIS TO THE ASSESSE ES OTHER APPEALS IN ITA NO. 1983/MUM/2015 FOR ASSESSMENT YEAR 2009-10 AND I TA NO. 1985/MUM/2015 FOR ASSESSMENT YEAR 2011-12 WHEREIN THE FACTS ARE IDENTICAL. ITA NO. 1983/MUM/2015 TO ITA NO. 1985/MUM/2015 20 14. IN THE RESULT, APPEALS FILED BY THE ASSESSEE IN ITA NO. 1983/MUM/2015 TO 1985/MUM./2015 FOR ASSESSMENT YEARS 2009-10 TO 2 011-12 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH, 2017. # $% &' 30-03-2017 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 30-03-2017 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI