SANDEEP TATODE, NAVI MUMBAI V. DCIT CEN CIR 39, MUMBAI

ITA 2022/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79141 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-06-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHEN VYAS
• Assessee Lawyers: MATHURIA
• Section: 133(6); 131; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 2022/MUM/2013 (ASSESSMENT YEAR: 2006-07) SHRI SANDEEP TATODE D-88, ASWATHA CO-OP HSG. SOC. LTD., SECTOR-4, SANPADA NAVI MUMBAI-400 705. VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-39 138, AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. (APPELLANT) (RESPONDENT) P ERMANENT ACCOUNT N O. : AEUPT 6359 R ASSESSEE BY : SHRI M.S. MATHURIA REVENUE BY : SHRI KISHEN VYAS DATE OF HEARING : 18/06/2014 DATE OF PRONOUNCEMENT : 18/06/2014 O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE. IT IS DIRECTE D AGAINST THE ORDER OF CIT(A) DATED 22/01/2013 FOR THE ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER :- 1. ON THE FACTS AND IN LAW AS WELL AS IN THE CIRCU MSTANCES OF THE APPELLANTS CASE, THE LD. CIT(A) HAS ERRED IN N OT GIVING FULL RELIEF AGAINST ADDITIONS MADE BY AO ON THE ASSUMPTI ON OF LOW HOUSEHOLD EXPENSES ON THE BASIS OF SURMISE AND PRE SUMPTION IN IMPUGNED ASSESSMENT ORDER PASSED BY AO. 2. ON THE FACTS AND IN LAW, LD. CIT(A) HAS ERRED IN SUSTENANCE OF IMPUGNED ADDITIONS OF RS.56,073/- MADE BY AO WHI LE PASSING IMPUGNED ASSESSMENT ORDER FOR CREDITS IN BANK ACCOU NTS OF OTHER PERSONS. ITA NO.2022/M/13 AY:06-07 2 2. AT THE OUTSET IT WAS SUBMITTED BY THE LD AR THAT BOTH THE ISSUES RAISED ABOVE ARE COVERED BY EARLIER ORDER OF THE TR IBUNAL. REFERENCE WAS MADE TO THE ORDER DATED 24/08/2012 PASSED IN ITA NO.2976/MUM/2012 FOR THE ASSESSMENT YEAR 2003-04. THE ISSUE RAISED I N THE FIRST GROUND PERTAINS TO ADDITION MADE ON ACCOUNT OF LOW HOUSEHO LD EXPENSES. FOR THE YEAR UNDER CONSIDERATION THE FAMILY OF THE ASSESSEE HAS SHOWN TOTAL HOUSEHOLD EXPENSES OF RS.82,685/-. RS.50,000/- BY T HE MOTHER OF THE ASSESSEE AND RS.32,685/- BY THE ASSESSEE HIMSELF. AO BEING OF THE VIEW THAT THE EXPENDITURE SHOWN TO HAVE BEEN INCURRED FO R HOUSEHOLD ARE ON THE LOWER SIDE AND ADDED A SUM OF RS.2,70,000/- ON ACCOUNT OF LOW HOUSEHOLD EXPENSES. THE LD. CIT(A) HAS ESTIMATED TH E EXPENDITURE OF THE ASSESSEE AT RS.1,30,000/-. ASSESSEE IS AGGRIEVED BY SUSTAINED DISALLOWANCE AND HAS FILED AFOREMENTIONED GROUNDS. REFERRING TO THE ABOVE FACTS, IT WAS SUBMITTED BY THE LD. AR THAT FO R ASSESSMENT YEAR 2003-04 ALSO, SIMILAR ADDITION WAS MADE AND HOUSEHO LD EXPENSES OF THE ASSESSEE WERE ESTIMATED AT RS.1,80,000/- AND AFTER REDUCING HOUSEHOLD EXPENSES SHOWN, AN ADDITION OF RS.1,50,000/- WAS MA DE. LD. CIT(A) ESTIMATED HOUSEHOLD EXPENSES AT RS.1.00 LACS AND BA LANCE ADDITION WAS SUSTAINED. AGAINST SUSTAINED ADDITION, THE ASSESSEE FILED AN APPEAL. THE ADDITION HAS BEEN DELETED BY THE TRIBUNAL IN THE A FOREMENTIONED ORDER DATED 21/08/2012 WITH THE FOLLOWING OBSERVATIONS:- 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ON AND ALSO PERUSED THE MATERIAL ON RECORD. SO FAR AS THE ADDIT ION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS, IT IS SEEN THAT CIT(A ) AS WELL AS THE ASSESSING OFFICER HAS NOT DENIED THE FACT THAT THE ASSESSEE WAS A MINOR IN THE RELEVANT FINANCIAL YEAR AND HE BECAME MAJOR ONLY ON 28/03/2003. HE WAS STAYING WITH HIS MOTHER, WHO WA S MANAGING THE HOUSE BY PREPARING TIFFIN AND HOME MADE FOOD FO R THE VARIOUS PERSONS. THERE IS NO FURTHER MATERIAL OR INFORMATI ON ON RECORD THAT THE ASSESSEE IN THE RELEVANT FINANCIAL YEAR HA S INCURRED ANY EXPENDITURE WHICH HAS NOT BEEN DISCLOSED. IN ABSEN CE OF ANY MATERIAL ON RECORD, WE DO NOT FIND ANY REASON FOR ESTIMATING ANY KIND OF HOUSEHOLD WITHDRAWALS SPECIALLY, ON THE FAC TS STATED THAT SUMS AGGREGATING RS.31,000/- WAS SHOWN BY HIS MOTHE R AND ITA NO.2022/M/13 AY:06-07 3 HIMSELF FOR THE HOUSEHOLD EXPENSES. UNDER THE FAC TS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY REASO N TO SUSTAIN ANY KIND OF ADDITION ON ACCOUNT OF LOW HOUSEHOLD WI THDRAWALS AS CONFIRMED BY THE CIT(A) RS.1,00,000/-, THEREFORE, T HE SAME IS DIRECTED TO BE DELETED. IN THE RESULT, GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED. 2.1 THUS IT WAS PLEADED BY THE LD. AUTHORIZED REPRE SENTATIVE THAT THE SUSTAINED ADDITION SHOULD BE DELETED. 3. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDER PASSED BY THE LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND THE CONTENTIO NS HAVE BEEN CAREFULLY CONSIDERED. SINCE FACTS AND CIRCUMSTANCES ARE SIMILAR, RESPECTFULLY FOLLOWING THE AFOREMENTIONED ORDER OF CO-ORDINATE BENCH IN THE CASE OF THE ASSESSEE HIMSELF, WE DELETE THE ADD ITION AND GROUND NO.1 IS ALLOWED. 5. APROPOS GROUND NO.2 IT WAS SUBMITTED THAT THIS I SSUE IS ALSO COVERED BY THE AFOREMENTIONED DECISION OF THE TRIBU NAL WHERE SIMILAR ADDITION OF RS.17,126/- WAS RESTORED BACK TO AO. IT WAS SUBMITTED THAT THIS ADDITION MAY BE RESTORED BACK TO AO AS PER AFO REMENTIONED ORDER OF THE TRIBUNAL. REFERENCE WAS MADE TO PARA-6 OF THE S AID ORDER. HOWEVER, THE LD. DR RELIED ON THE ORDER PASSED BY THE LD. CI T(A). 6. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE BEEN CAREFULLY CONSIDERED. SIMILAR MATTER WAS RESTORED B ACK BY THE TRIBUNAL TO FILE OF AO IN ASSESSMENT YEAR 2003-04. RELEVANT OBS ERVATIONS OF THE TRIBUNAL IN PARA-6 OF THE SAID ORDER ARE REPRODUCED BELOW FOR THE SAKE OF COMPLETENESS. 6. NOW COMING TO THE ADDITION OF RS.17,126/- ON A CCOUNT OF UNEXPLAINED MONEY UNDER SECTION 69A IN THE BANK ACC OUNT, IT IS SEEN THAT THE ASSESSEE HAS DENIED HAVING ANY BANK ACCOUN T. IT IS SEEN THAT ITA NO.2022/M/13 AY:06-07 4 THE ASSESSEE HAS DENIED HAVING ANY BANK ACCOUNT IN THE RELEVANT ASSESSMENT YEAR. LEARNED AUTHORITIES HAVE SUSTAINE D THE ADDITION ON THE GROUND THAT THERE IS A PRESUMPTION UNDER SECTION 29 2C THAT IF ANY BOOKS OF ACCOUNT, DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THINGS IS/ARE FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF SEARCH UNDER SECTION 132 OR SURVEY UNDER SECTION 132A, THE SAME MAY BE PRESUMED TO BE BELONGING TO THE ASSESSE E. BEFORE THE AUTHORITIES BELOW, THE ASSESSEE MADE A SPECIFIC RE QUEST THAT ENQUIRY CAN BE DONE FROM THE RESPECTIVE BANK UNDER SECTION 131 OR 133(6) SO AS TO LOOK INTO THE FACTUM OF OWNERSHIP OF THE SAID BANK ACCOUNTS. IN OUR OPINION, THE AUTHORITIES BELOW SHOULD HAVE MADE SUC H, AN ENQUIRY WHEN THE ASSESSEE HAS CATEGORICALLY DENIED THE OWNERSHIP OF THE BANK ACCOUNT. IT IS TRUE THAT UNDER SECTION 292C ONUS IS UPON TH E ASSESSEE TO PROVE THAT ANY ASSET OR BOOKS OF ACCOUNTS ETC. FOUND FROM THE POSSESSION OF THE ASSESSEE, THE PRESUMPTION IS RAISED AGAINST THE ASS ESSEE. HOWEVER, THE ASSESSEE HAS CLEARLY STATED THAT THE BANK OFFICIALS HAVE REFUSED TO DIVULGE THE INFORMATION ABOUT THE CLIENTS. IN SUCH CIRCUMS TANCES, THE ASSESSING OFFICER SHOULD HAVE CARRIED OUT THE ENQUIRY FROM T HE SAID BANKS. THEREFORE, IN THE INTEREST OF JUSTICE WE FEEL THAT HIS ISSUE SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER , WHO WILL MAKE ENQUIRY FROM THE SAID BANK, SO AS TO ASCERTAIN WHETHER THE SAID ACCOUNTS BELONGS TO THE ASSESSEE OR NOT. THE ASSESSEE WILL ALSO BE GIVEN FULL OPPORTUNITY ON ANY INFORMATION RECEIVED FROM THE BA NK. IN THE RESULT, GROUND NO.2 IS SET ASIDE TO THE FILE OF THE ASSESS ING OFFICER AND IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. ACCORDINGLY, THE ISSUE RAISED IN GROUND NO.2 FOR TH IS YEAR IS ALSO RESTORED TO THE FILE OF AO WITH SIMILAR DIRECTIONS AND THIS GROUND IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS C ONSIDERED TO BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JUNE, 2014. SD/- SD/- (RAJENDRA) ACCOUNTANT MEMBER (I.P. BANSAL) JUDICIAL MEMBER MUMBAI, DATED: 18/06/2014. JV. ITA NO.2022/M/13 AY:06-07 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.