REEMA N.KATARIYA, MUMBAI V. ACIT CEN CIR 9, MUMBAI

ITA 2146/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3155 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA VIJAY
• Assessee Lawyers: ISHWER RATHI
• Keywords: Unexplained investment
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER. ITA. NO. 2146/MUM/2014 (ASSESSMENT YEAR:2010-11) MRS. REEMA N. KATARIYA 503/C, MITTAL PARK, NANARDHAN MHATRE MARG, JUHU, MUMBAI 400049 APPELLANT VS. ACIT, CENTRAL CIRCLE 09, MUMBAI RESPONDENT PAN: AJLPK7833R /BY APPELLANT : SHRI ISHWER RATHI, A.R. /BY RESPONDENT :SHRI CHANDRA VIJAY, D.R. /DATE OF HEARING :24.09.2015 /DATE OF PRONOUNCEMENT : 30.09.2015 ITA NO.2146/MUM/14 A.Y.10-11 [MRS. REEMA N. KATARIY A VS. ACIT] PAGE 2 ORDER PER ASHWANI TANEJA, A.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-37, MUMBAI, DATED 11.02.2014 FOR A.Y. 2010-11 PASSED AGAINST TH E ASSESSMENT ORDER U/S.143(3) DATED 25.10.2012. 2. FOLLOWING GROUND IS RAISED BY THE ASSESSEE ALONG WITH THE APPEAL MEMO: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE TREATMENT GIVEN BY THE LEAR NED ASSESSING OFFICER TO THE CASH DEPOSIT OF RS.9,00,00 0/- IN BANK ACCOUNT AS UNEXPLAINED INVESTMENT U/S. 69 O F THE INCOME TAX ACT, 1961. 3. THE SOLITARY GROUND RAISED IN THIS APPEAL IS WIT H REGARD TO ADDITION MADE BY ASSESSING OFFICER U/S.69 BEING THE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT BY THE ASSESSEE FOR AN AGGREGATE AMOUNT OF RS.9LACS, DURING THE YEAR UNDER CONSIDERATION, ON THE GROUND THAT ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF THE SAME. 4. DURING THE COURSE OF HEARING, LD. COUNSEL HAS SU BMITTED THAT ASSESSEE HAS SUBMITTED CASH SUMMARY BEFORE THE ASSESSING OFFICER SHOWING THAT CASH WAS WITHDRAWN ON EARLIER OCCASIONS ITA NO.2146/MUM/14 A.Y.10-11 [MRS. REEMA N. KATARIY A VS. ACIT] PAGE 3 FROM THE BANK ACCOUNT AND OUT OF CASH BALANCE AVAIL ABLE WITH ASSESSEE. CASH WAS DEPOSITED BACK INTO THE BANK ACC OUNT. THERE WAS NOTHING WITH THE ASSESSING OFFICER TO CONTRADIC T THE STAND OF ASSESSEE, EXCEPT MAKING SURMISES AND CONJUNCTURES. THE ASSESSING OFFICER HAS DENIED THE BENEFIT OF TELESCO PING OF THE CASH DEPOSITED AGAINST CASH WITHDRAWN. THE ADDITION MAD E BY THE ASSESSING OFFICER, IS CONTRARY TO LAW AND FACTS. IN SUPPORT OF HIS CLAIM, RELIANCE HAS BEEN PLACED BY HIM ON THE JUDGM ENT OF ITO VS. PRAKASH CHAND (2006) 100 TTJ 639 (JABALPUR). O N THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE HAS RELIE D UPON THE ORDERS OF THE LOWER AUTHORITIES AND HAS SUBMITTED T HAT THERE WAS NO EVIDENCE WITH THE ASSESSEE TO PROVE THAT THE CAS H DEPOSITED WAS OUT OF CASH WITHDRAWN BY THE ASSESSEE FROM HER BANK ACCOUNT. 5. WE HAVE GONE THROUGH THE SUBMISSIONS MADE BY BOT H THE SIDES AS WELL AS MATERIAL PLACED BEFORE US IN THE F ORM OF PAPER BOOK. WE HAVE ANALYZED THE CASH FLOW STATEMENT PLA CED BY THE ASSESSEE IN THE PAPER BOOK. ON PERUSAL OF THIS CAS H FLOW STATEMENT, IT REVEALS THAT ASSESSEE HAS WITHDRAWN S UM OF RS.5 LACS EACH IN TWO INSTALLMENTS ON 25.05.2009, AGGREG ATING TO RS.10LACS. AS PER CASH SUMMARY, THIS CASH BALANCE WAS AVAILABLE WITH THE ASSESSEE TILL 14.02.2010, WHEN A SUM OF RS.9LACS WAS DEPOSITED INTO THE BANK ACCOUNT. THE ASSESSEE HAS CLAIMED THAT THIS AMOUNT IS DEPOSITED BY THE ASSESS EE INTO THE BANK ACCOUNT OUT OF ACCUMULATED CASH BALANCE (INCLU DING THE ITA NO.2146/MUM/14 A.Y.10-11 [MRS. REEMA N. KATARIY A VS. ACIT] PAGE 4 AMOUNT WITHDRAWN ON EARLIER OCCASION FOR AN AGGREGA TE AMOUNT OF RS.10LACS). HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE CLAIM OF ASSESSEE. BOTH THE LOWER AUTHORITIES HAVE DENIED THE BENEFIT OF CASH WITHDRAWN FROM THE BANK, ON THE GRO UND THAT ASSESSEE WAS NOT ABLE TO PROVE THE NEXUS BETWEEN CA SH WITHDRAWN AND THE CASH DEPOSITED. WE HAVE ANALYZED THESE FACTS CAREFULLY. IN OUR CONSIDERED OPINION, THE ASSESSEE HAS GIVEN COMPLETE SUMMARY OF HIS CASH TRANSACTIONS DONE BY H ER DURING THE YEAR, SHOWING THEREIN THAT CASH WITHDRAWN ON EA RLIER OCCASION WAS AVAILABLE WITH HER. UNDER THESE CIRCU MSTANCES, UNLESS THE REVENUE IS ABLE TO BRING ANYTHING CONTRA RY ON RECORD TO SHOW THAT THE CASH WITHDRAWN ON EARLIER OCCASION WAS UTILIZED ELSEWHERE BY THE ASSESSEE, THE REVENUE CANNOT REJEC T THE CLAIM OF THE ASSESSEE, THAT TOO ON THE BASIS OF SOME SURMISE S AND CONJUNCTURES THAT THE CASH WITHDRAWN EARLIER WOULD HAVE BEEN UTILIZED BY THE ASSESSEE SOMEWHERE ELSE. THIS ALLE GATION OF USER BY THE ASSESSEE SOMEWHERE ELSE, SHOULD BE SUPPORTED BY THE ASSESSING OFFICER WITH SOME EVIDENCES. THIS CASE C ANNOT BE DECIDED ON THE BASIS OF PRESUMPTION OF THE ASSESSIN G OFFICER, THAT TOO WITHOUT ANY BASIS, THAT THE CASH WITHDRAWN, ON EARLIER DATES, IN THE SAME FINANCIAL YEAR IS NOT AVAILABLE WITH TH E ASSESSEE FOR DEPOSITING THE SAME INTO BANK ACCOUNT. IN OUR CONS IDERED VIEW, ASSESSEE SHOULD BE GIVEN THE BENEFIT OF CASH AVAILA BLE WITH HIM ON ACCOUNT OF CASH WITHDRAWAL MADE ON EARLIER DATES , IN ABSENCE OF ANY CONTRARY MATERIAL. THEREFORE, IN OUR CONSID ERED VIEW, ADDITION MADE BY THE ASSESSING OFFICER, BEING ILLEG AL AND CONTRARY ITA NO.2146/MUM/14 A.Y.10-11 [MRS. REEMA N. KATARIY A VS. ACIT] PAGE 5 ON FACTS, DESERVES TO BE DELETED. THE SAME IS HERE BY DELETED. THE GROUND RAISED BY THE ASSESSEE IN ITS APPEAL IS ALLO WED. 6. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30TH DAY OF SEPTEMBER, 2015. SD/- SD/- (SHAILENDRA KUMAR YADAV) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: DATED 30/09/2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE !# / ASSESSEE $ %&%'( ) / CONCERNED CIT * )+ / CIT (A) ,-./00'(1 '( 12 %& / DR, ITAT, MUMBAI 3/4567 / GUARD FILE. BY ORDER / #8 1 9: ;% 1 '( 12 %&<