MOHAMMED NAEEM MADNI PALLA, MUMBAI V. ITO 17(3)(3),

ITA 2203/MUM/2014

• Counselvise Citation: 220319914 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 28-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-04-2014
• Court: TRIBUNAL
• Department Lawyers: JAVED AKHTAR
• Assessee Lawyers: BHUPENDRA SHAH

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI . . , BEFORE SHRI R.C.SHARMA , ACCOUNTANT MEMBER ./ ITA NO. 2203 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 09 - 10 ) MOHAMMED NAEEM MADNI PALLA , SEWREE CROSS ROAD, OPP. MARUTI TEMPLE, MUMBAI - 400015 VS. ITO, 17(3)(3), MUMBAI ./ ./ PAN/GIR NO. : A A EPP 6274 H ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI BHUPENDRA SHAH /REVENUE BY : SHRI JAVED AKHTAR / DATE OF HEARING : 29 /0 7 / 2015 / DATE OF PRONOUNCEMENT 11/09 /2015 / O R D E R TH IS IS AN APPEAL FILE D BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), DATED 9 - 1 - 2014 FOR THE ASSESSMENT YEAR 2009 - 10, IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE ACT. 2. IN THIS APPEAL, ASSESSEE IS AGGRIEVED FOR ADDITION OF RS.10,18,000/ - IN RESPECT OF AMOUNT OF DEPOSIT INTO SAVINGS BANK ACCOUNT. 3. IN THE ASSESSMENT ORDER THE AO OBSERVED THAT AS PER THE AIR INFORMATION, THE ASSESSEE HAD DEPOSITED AN AMOUNT OF RS.10,18,000/ - IN CASH IN HIS SB ACCOUNT NO.10277 MAINTAINED WITH ANDHRA BANK, NANPURA BRANCH, SURAT. THE AO ASKED T HE ASSESSEE TO EXPLAIN THE SOURCES OF THE ABOVE CASH DEPOSITS. IN RESPONSE TO THE SAME IT WAS STATED BY THE ASSESSEE THAT THE CASH DEPOSITED PERTAINS TO HIS WIFE, WHO IS THE JOINT ITA NO. 22 03 /1 4 2 HOLDER OF THE ABOVE ACCOUNT AND THE SOURCE OF THE CASH MIGHT HAVE BEEN THE C ASH SAVED BY HER FROM IN LAWS AND PAST SAVING OF THE ASSESSEE. HOWEVER, THE ASSESSEE DID NOT FURNISH DOCUMENTARY EVIDENCE IN SUPPORT OF THE ABOVE ARGUMENTS. THEREFORE, THE AO ADDED ENTIRE AMOUNT IN HIS INCOME. 4. BY THE IMPUGNED ORDER THE CIT(A) CONFIRMED THE ACTION OF THE AO AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL . 5. IT WAS CONTENDED BY LD. AR THAT THE ASSESSEE AND HIS FAMILY ALL ARE A FISHERMAN , AND FISHING IS THEIR ANCESTRAL BUSINESS. THE NATURE OF BUSINESS IS SUCH THAT THE FISHERMAN COMMUNITY DEALS IN CASH. THE SAID TRADITIONAL SYSTEM IS ALSO ACCEPTED SYSTEM. SECONDLY THE FAMILY IS MUSLIM FAMILY AND THE WOMEN ARE WITH MANY RESTRICTIONS, SO THEY ALWAYS DEPENDENT UPON HUSBAND AND MATERNAL SIDE MALE MEMBERS. THUS, THE CASH AMOU NT KEPT WITH BROTHERS BY THE ASSESSEE WIFE IS QUITE OBVIOUS. IN SUPPORT OF THE SAME THE ASSESSEE ENCLOSED HIS AFFIDAVIT AND HIS WIFE TO SUBSTANTIATE THE GENUINENESS. 6 . LD. AR ALSO INVITED OUR ATTENTION TO THE AMOUNT AND JEWELLERY DECLARED IN AMNESTY SCHE ME. HE CONTENDED THAT ASSESSEE AND HIS FAMILY BELONGS TO FISHERMAN ONLY AND IN THE FISHING BUSINESS SINCE DECADES, AND BEING BA RRED BY RELIGION THEY AVOID GIVING MONEY ON INTEREST BASIS. THEIR HABIT IS TO INVEST IN GOLD AND KEEP THE CASH WITH THEM , OR DEPO SIT IN THEIR BANK ACCOUNT. 7. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF LOWER AUTHORITIES. ITA NO. 22 03 /1 4 3 8. I HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT ASSESSEE AND HIS FAMILY ARE FISHERMEN, DOING THE SAME BUSINESS SINCE LONG BACK. THE RE TURN OF INCOME WAS FILED AT RS. 1,37,840/ - , WHICH WAS TAKEN IN SCRUTINY ON THE BASIS OF INFORMATION FROM THE BANK REGARDING DEPOSIT OF CASH IN THE SAVINGS BANK ACCOUNT. THE ASSESSEE HAS TRIED TO EXPLAIN THE DEPOSIT OUT OF PAST SAVINGS. THE DEPOSIT WAS ALSO , BY THE WIFE WHO WAS JOINT HOLDER OF THE ACCOUNT , OUT OF THE FUNDS RECEIVED FROM HER PARENTS. I HAVE ALSO VERIFIED THE GOLD AND DIAMOND DECLARED BY HIM IN THE AMNESTY SCHEME, SO AS TO JUDGE HIS CAPACITY TO SAVE THE MONEY SO DEPOSITED. THE ASSESSEE HAS ALSO FILED AFFIDAVIT BY HIS WIFE REGARDING DEPOSIT OF MONEY IN THE BANK ACCOUNT OUT OF THE MONEY RECEIVED FROM THE PARENTS AND BROTHERS, MONEY RECEIVED ON SALE OF JEWELLERY ETC. EVEN THOUGH THE ASSESSEE COULD NOT EXPLAIN THE DEPOSIT BY DOCUMENTARY EVIDENCE, HO WEVER, KEEPING IN VIEW THE NATURE OF BUSINESS BEING CARRIED ON BY HIM SINCE LAST SO MANY YEARS , VIS - - VIS INCOME EARNED FROM IT AND IN THE TOTALITY OF FACTS AND CIRCUMSTANCES, I DEEM IT PROPER TO ACCEPT RS. 5 LAKHS OUT OF THE PAST SAVINGS AND DEPOSIT BY HIS WIFE. I , THEREFORE, RESTRICT THE ADDITION TO THE EXTENT OF RS. 5,18,000/ - OUT OF TOTAL ADDITION OF RS. 10,18,000/ - . I DIRECT ACCORDINGLY. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 11/09 / 201 5 . SD/ - ( . . ) (R.C.SHARMA) / ACCOUNTANT MEMBER MUMBAI ; DATED 11/09 /201 5 . . /PKM , . / PS ITA NO. 22 03 /1 4 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/