MALTI K SINGH, MUMBAI V. ITO 19(3)(3), MUMBAI

ITA 2522/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3823 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 05-04-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 15-04-2014
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAV
• Keywords: Search and seizure; Opportunity of being heard
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 2522 /MUM/ 2014 (ASSESSMENT YEAR 2004 - 05 ) MALTI K. SINGH 701, SAI PRASHAD CHS LTD. NEAR EPF BUILDING SERVICE ROAD BANDRA WEST MUM BAI - 400 050 VS. ITO 19(3)(3) MUMBAI. ( APPELLANT ) ( RESPONDENT ) PAN NO. BTUPS2948K ASSESSEE BY SHRI DARSHAN GANDHI DEPARTMENT BY SHRI VISHWAS JADHAV DATE OF HEARING 5 .4 . 201 6 DATE OF PRONOUNCEMENT 6.5 . 201 6 O R D E R PER B.R. BASKARAN, A M : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24.2.2014 PASSED BY LEARNED CIT(A) - 18, MUMBAI AND IT RELATES TO A.Y. 2004 - 05. 2. AT THE TIME OF HEARING LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSESSEE DID NOT PRESS GROUND S N UMBERED AS 1,2 & 5 . A CCORDINGLY THEY ARE DISMISSED AS NOT PRESSED. 3. FACTS RELATING TO THE CASE ARE STATED IN BRIEF. THE ASSESSEE IS A WIFE OF EX - MINISTER OF MAHARASHTRA. CONSEQUENT TO THE RECE IPT OF A TAX EVASION PETITION ON THE HUSBAND OF THE ASSESS EE, THE REVENUE CARRIED ON ENQUIRY AND INVESTIGATION . IT WAS NOTICED THAT THE ASSESSEE IS ALSO INVOLVED IN THE INVESTMENT S SHOWN IN THE PETITION. ACCORDINGLY ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS REOPENED BY ISSUING NOTICE U/S. 148 OF THE ACT. THE ASSESSING OFFICER MADE VARIOUS TYPES OF ADDITIONS IN THE REOPENED ASSESSMENT . THE ASSESSEE DID NOT GET ANY RELIEF IN THE APPEAL FILED BEFORE LEARNED CIT(A), HENCE THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. MALTI K. SINGH 2 4. GROUND NO. 3 AS WELL AS GROUND NO. 8 R ELATE TO THE ADDITION MADE U/S. 68 OF THE ACT. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS MADE CASH DEPOSIT S IN THE BANK ACCOUNT. THE AO WAS N OT SATISFIED WITH THE EXPLANATION S GIVEN BY THE ASSESSEE WITH REGARD TO THE SOURCES OF THE DEPOSITS AND HENCE HE ASSESSED A SUM OF RS. 1,50,000/ - AND RS. 3,00,000/ - AS INCOME OF THE ASSESSEE U/S. 68 OF THE ACT, THE SAME WAS ALSO CONFIRMED BY LEARNED CIT(A). 5. LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD WITHDRAWN F UNDS FROM THE BANK ACCOUNTS THROUGH ONE OF THE EMPLOYEES AND HENCE NAME OF THE CONCERNED EMPLOYEE WAS RECORDED BY THE BANK AGAINST THE WITHDRAWAL S . HE SUBMITTED THAT THOSE WITHDRAWALS WERE USED TO MAKE THE DEPOSITS SUBSEQUENTLY. HOWEVER, THE ASSESSING OF FICER HAS TAKEN THE VIEW THAT THE ASSESSEE HAS GIVEN THE FUNDS TO THE EMPLOYEE AND HENCE THE SAME WILL NOT BE AVAILABLE WITH THE ASSESSEE FOR MAKING SUBSEQUENT DEPOSITS. LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS. 1,50,000/ - WITHOUT APPRECIATING THE FACT IN THE CORRECT WAY. WITH REGARD TO THE ADDITION OF RS. 3,00,000/ - LEARNED AR SUBMITTED THAT THE SAME REPRESENTS MONEY RECEIVED BACK FROM A PERSON TO WHOM ADVANCE WAS GIVEN IN THE EARLIER YEARS FOR PURCHASE OF PROPERTY. LEAR NED AR, IN THE ALTERNATIVE SUBMITTED THAT THE AMOUNT WITHDRAWN FROM THE BANK ACCOUNT PRIOR TO THE DATE OF DEPOSIT OF RS. 3,00,000/ - WOULD ALSO EXPLAIN THE SOURCES OF DEPOSITS. 6. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS NOT GIV EN ANY MATERIAL TO SUPPORT THESE CONTENTIONS. WHEN THESE CONTENTIONS PUT BEFORE LEARNED AR, HE SUBMITTED THAT THE ASSESSEE WOULD BE IN A POSITION TO EXPLAIN THE F ACTUAL ASPEC TS WITH NECESSARY EVIDENCE S, IF ONE MORE OPPORTUNITY IS GIVEN. 7. WE HAVE HEARD T HE PARTIES ON THIS ISSUE. IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE PROVIDED WITH ONE MORE OPPORTUNITY TO EXPLAIN THE FACTS TO THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE ORDER OF LEARNED CIT(A) PASSED IN RESPECT OF AD DITION OF RS. 1.5 LAKHS AND RS. 3 LAKHS MALTI K. SINGH 3 AND RESTORE BOTH THE ISSUES TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO REEXAMINE THE ISSUES AFRESH BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO FURN ISH NECESSARY EVIDENCE S IN SUPPORT OF HER CONTENTIONS. 8. NEXT ISSUE RELATES TO THE ADDITION OF RS. 11,000/ - RELATING TO THE ADVANCE GIVEN BY THE ASSESSEE. THE ASSESSING OFFICER ADDED THE SAME ON THE GROUND THAT THE ASSESSEE DID NOT EXPLAIN SOURCE FOR GIV ING RS. 11,000/ - AS ADVANCE AND LEARNED CIT(A) ALSO CONFIRMED THE SAME. CONSIDERING THE STATUS OF THE ASSESSEE AND THE SMALLNESS OF THE AMOUNT, WE DO NOT FIND ANY MERIT IN THE ADDITION AND ACCORDINGLY DELETE THE SAME. 9. THE NEXT ISSUE RELATES TO THE ADDITION OF RS.5,05,214/ - RELATING TO THE VALUE OF EXCESS GOLD DECLARED BY THE ASSESSEE. THE ASSESSEE HAD DECLARED GOLD OF 1330 GRAMS BEFORE THE RETURNING OFFICER IN THE AFFIDAVIT FILED. THE ASSESSEE EXPLAINED THAT THE SAME WAS RECEIVED BY WAY OF SHRIDHAN FROM HER PARENTS AT THE TIME OF HER MARRIAGE ABOUT 40 YEARS BACK. SINCE NO EVIDENCE WAS FURNISHED TO SUPPORT THIS SUBMISSION AND SINCE THE ASSESSEE HAS ALSO NOT FILED WEALTH TAX RETURNS, THE AO GAVE CREDIT OF 500 GRAMS AND ASSESSED THE VALUE OF B ALANCE QUANTITY OF GOLD ESTIMATED AT RS.5,05,214/ - AS INCOME OF THE ASSESSEE. THE LD CIT(A) ALSO, BY PLACING RELIANCE ON A CBDT CIRCULAR, CONFIRMED THE ADDITION. 10. WE HEARD THE PARTIES ON THIS ISSUE. THE CBDT CIRCULAR RELIED UPON BY THE TAX AUTHOR ITIES PERTAINS TO THE SEIZURE OF UNACCOUNTED GOLD AT THE TIME OF SEARCH. IT DOES NOT DEAL ABOUT THE MANNER OF ASSESSMENT OF THE UNACCOUNTED GOLD FOUND AT THE TIME OF SEIZURE. THE PRESENT CASE IS NOT A SEARCH AND SEIZURE CASE AND HENCE, WE ARE OF THE VIEW THAT THE TAX AUTHORITIES ARE NOT JUSTIFIED IN PLACING RELIANCE ON THE SAID CIRCULAR OF CBDT, WHICH WAS ISSUED IN THE CONTEXT OF SEARCH AND SEIZURE PROCEEDINGS. 11. HOWEVER, WE NOTICE THAT THE ASSESSEE COULD NOT SUBSTANTIATE HER CLAIM OF RECEIPT OF JE WELLERIES AS SHRIDHAN AT THE TIME OF HER MARRIAGE. THE ASSESSEE MALTI K. SINGH 4 HAS FAILED TO SUBSTANTIATE THE STATUS OF HER PARENTS AND THEIR CAPACITY IN SUPPORT OF HER CONTENTIONS. AT THE SAME TIME, IT IS ALSO A FACT THAT JEWELLERIES ARE GIVEN AS SHRIDHAN AT THE TIME OF MARRIAGE AND ALSO DURING FESTIVALS. CONSIDERING THE STATUS OF THE ASSESSEE AND HER HUSBAND, WE ARE OF THE VIEW THAT THE CREDIT OF 500 GRAMS GIVEN BY THE AO IS ON THE LOWER SIDE. ACCORDINGLY, IN ORDER TO PUT THIS ISSUE AT REST, WE DIRECT THE AO TO GIVE CREDIT FOR 1000 GRAMS AND ASSESS THE BALANCE QUANTITY OF GOLD AS UNEXPLAINED INCOME OF THE ASSESSEE. THE ORDER OF LD CIT(A) ON THIS ISSUE STANDS MODIFIED ACCORDINGLY. 12. THE NEXT ISSUE RELATES TO THE ADDITION OF RS.1,20,000/ - PERTAINING TO UNEXPLAI NED INVESTMENT IN LAND. AT THE TIME OF HEARING, THE LD A.R SUBMITTED THAT THE ASSESSEES SON HAS DECLARED THIS INVESTMENT IN HIS RETURN OF INCOME. HENCE, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO FOR FRESH EXAMINATION. 13. THE LAST ISSUE PERTAINS TO THE ADDITION OF AGRICULTURAL INCOME OF RS.69,000/ - AS INCOME OF THE ASSESSEE. SINCE THE ASSESSEE HAS FAIL ED TO FURNISH AN EVIDENCE IN SUPPORT OF THE CLAIM OF AGRICULTURAL INCOME, THE AO ASSESSED THE SAME AS INCOME OF THE ASSESSEE AND LD CIT(A) ALSO CONFIRMED THE SAME. BEFORE US ALSO, THE ASSESSEE HAS FAILED TO FURNISH ANY EVIDENCE TO SUPPORT HER CLAIM. ACCO RDINGLY, WE UPHOLD THE ORDER OF LD CIT(A) ON THIS ISSUE. 14. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 6 . 5 .2016 . SD/ - SD/ - (AMARJIT SINGH ) ( B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 6 / 5 /20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT MALTI K. SINGH 5 5. DR, ITAT, MUMBAI 6. GU ARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS