RANI SINGH, MUMBAI V. DCIT 12(3), MUMBAI

ITA 2079/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4093 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 25-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Assessee Lawyers: MIHIR MANIVADEKAR
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI .. , ! ' #. . $.. % , & ', ' BEFORE SHRI R.S.SYAL, AM AND DR.S.T.M.PAVALAN, JM ITA NO.2079/MUM/2012 : ASST.YEAR 2008-2009 SMT.RANI SINGH PROP. M/S.GARHA TOURS & TRAVELS ELVE CHAMBERS, GREEN STREET FORT, MUMBAI 400 023. PAN : ABKPS4920L. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 12(3) MUMBAI. ( () / // / APPELLANT) % % % % / VS. ( +,()/ RESPONDENT) () - -- - . . . . / APPELLANT BY : SHRI MIHIR MANIVADEKAR +,() - . - . - . - . / RESPONDENT BY : SHRI D.K.SINHA % - /! / / / / DATE OF HEARING : 25.07.2013 012 - /! / DATE OF PRONOUNCEMENT : 31.07.2013 ' 3 ' 3 ' 3 ' 3 / / / / O R D E R PER R.S.SYAL (AM) : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 30.12.2011 IN RELATION TO THE ASSESSMENT YEAR 2008-2009. 2. THE FIRST GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF ` 16,49,000 BEING CASH DEPOSITED IN BANK ACCOUNT AS U NEXPLAINED CREDIT U/S 68 OF THE ACT. PURSUANT TO THE AIR INFOR MATION RECEIVED BY THE ASSESSING OFFICER, IT WAS OBSERVED THAT THE ASS ESSEE HAD DEPOSITED CASH AGGREGATING TO ` 16,49,000 INTO THE SAVING BANK ACCOUNT ITA NO.2079/MUM/2012. SMT.RANI SINGH. 2 MAINTAINED WITH IDBI BANK, INDORE. THE SAID INFORMA TION WAS CONFRONTED TO THE ASSESSEE. ON BEING CALLED UPON TO EXPLAIN THE SOURCE OF DEPOSIT, THE ASSESSEE REQUESTED FOR ADJOU RNMENT. IN THE ABSENCE OF ANY COMPLIANCE FROM THE SIDE OF THE ASSE SSEE, THE ASSESSING OFFICER MADE ADDITION OF ` 16.49 LAKH U/S 68 OF THE ACT. IT WAS STATED DURING THE COURSE OF FIRST APPELLATE PRO CEEDINGS THAT THE ASSESSEE HAD DEPOSITED CASH IN HER SAVING BANK ACCO UNT AND THE SOURCE OF CREDIT WAS FULLY EXPLAINED. IT WAS ALSO P UT FORTH THAT THE ASSESSEE WITHDREW CASH FROM BANK AT VARIOUS INTERVA LS WHICH WAS RE- DEPOSITED ALONG WITH THE CASH EMANATING FROM OPENIN G BALANCE AND FROM CERTAIN OTHER SOURCES. THE LEARNED CIT(A) NOTI CED THAT THERE WAS DIFFERENCE IN DATES OF WITHDRAWAL AND DEPOSITS. HE, THEREFORE, CHOSE TO CONFIRM THE ADDITION. 3. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED B EFORE US THAT THE ASSESSEE HAD SUFFICIENT SOURCES FOR DEPOSIT OF THE AMOUNT IN THE BANK ACCOUNT. REFERRING TO PAGE NO.1 OF THE PAPER B OOK, IT WAS CONTENDED THAT THE AMOUNT WAS DEPOSITED IN THE BANK OUT OF CASH IN HAND AVAILABLE WITH THE ASSESSEE AS ON 01.04.2007 A ND OUT OF CASH WITHDRAWN FROM IDBI BANK. THE LEARNED AR PLACED ON RECORD SOME CASH IN HAND BOOK FROM 01.04.2007 TO 31.03.2008 EXP LAINING THAT THERE ARE ENTRIES EXPLAINING THE AMOUNTS WITHDRAWN FROM CASH BOOK FOR DEPOSIT IN THE BANK ACCOUNT. ON A PERTINENT QUE RY, THE LEARNED AR COULD NOT POSITIVELY EXPLAIN AS TO WHETHER THE SO C ALLED CASH BOOK IN PERSONAL CAPACITY, COPY OF WHICH HAS BEEN PLACED ON PAGES FROM 2 TO ITA NO.2079/MUM/2012. SMT.RANI SINGH. 3 6 OF THE PAPER BOOK WAS BEFORE THE ASSESSING OFFICE R OR NOT. IN OUR CONSIDERED OPINION THE ENDS OF JUSTICE WOULD MEET A DEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTO RED TO THE FILE OF A.O. WE ORDER ACCORDINGLY AND DIRECT HIM TO VERIFY THE EXPLANATION NOW SOUGHT TO BE TENDERED BY THE ASSESSEE TOWARDS S OURCE OF DEPOSIT OF AMOUNT OF ` 16.49 LAKH IN AXIS BANK ACCOUNT AND THEN DECIDE AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. GROUND NO.2 IS AGAINST THE CONFIRMATION OF AD HOC DISALLOWANCE OF ` 1,41,861 AT THE RATE OF 10% OF `TELEPHONE EXPENSES , `CONVEYANCE EXPENSES, `MISCELLANEOUS EXPENSES AND `SALES PROMOTION EXPENSES. AS THE ASSESSEE COULD NOT FURN ISH NECESSARY VOUCHERS / JUSTIFICATION FOR THE EXPENSES INCURRED, THE A.O. MADE DISALLOWANCE AT 10% OF THIS EXPENSES, WHICH WAS CON FIRMED IN THE FIRST APPEAL. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS AMPLY BORNE OUT FROM THE RECORD THAT THE ASSESSEE DID NOT FURNISH EVIDENCE IN RELATION T O THE EXPENSES INCURRED FOR WHICH THE DISALLOWANCE HAS BEEN MADE A ND SUSTAINED AT THE RATE OF 10% OF EXPENSES. IN OUR CONSIDERED OPIN ION, THE LEARNED CIT(A) WAS JUSTIFIED IN SUSTAINING THE DISALLOWANCE AT THIS REASONABLE LEVEL OF 10%. THIS GROUND IS NOT ALLOWED. ITA NO.2079/MUM/2012. SMT.RANI SINGH. 4 6. 4 /5 6- 78 9 : :3 / - ;/ <= > IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED ON THIS 31 ST DAY OF JULY, 2013. ' 3 - 012 ?'%5 1 - @ SD/- SD/- (DR.S.T.M.PAVALAN) (R.S.SYAL) & ' & ' & ' & ' / JUDICIAL MEMBER ! ' ! ' ! ' ! ' / ACCOUNTANT MEMBER MUMBAI ; ?'% DATED : 31 ST JULY, 2013. DEVDAS* ' 3 - +&/:A B A2/ ' 3 - +&/:A B A2/ ' 3 - +&/:A B A2/ ' 3 - +&/:A B A2// COPY OF THE ORDER FORWARDED TO : 1. () / THE APPELLANT 2. +,() / THE RESPONDENT. 3. C () / THE CIT, THANE. 4. C / CIT(A) - 23 5. AF@ +&/&% , , / DR, ITAT, MUMBAI 6. @ G / GUARD FILE. ' 3% ' 3% ' 3% ' 3% / BY ORDER, ,A/ +&/ //TRUE COPY// 7 7 7 7/ // /< ; < ; < ; < ; ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI