ITO 23(1)(3), MUMBAI V. MAMTA S. SHAH, MUMBAI

ITA 2587/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3012 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2587/MUM/2014 ASSESSMENT YEAR 2009-10 INCOME TAX OFFICER-25(1)(3), C-10, 1 ST FLOOR, ROOM NO.104, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 / VS. SMT. MAMTA S SHAH, FLAT NO.404, B-WING, KUKREJA COMPLEX, BUILDING NO.5, LBS MARG, BHANDUP(W), MUMBAI-400078 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AAACM4228M / REVENUE BY SHRI RANDHIR GUPTA !'# $ / ASSESSEE BY SHRI NISHIT GANDHI % & $ ' / DATE OF HEARING : 26/10/2015 & $ ' / DATE OF ORDER: 26/10/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 29/01/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, THE ONLY GROUND RAISED PERTAINS TO DELETING THE ADD ITION OF M/S MATA SECURITIES INDIA PVT. LTD. ITA NO.1096/MUM/2013 2 RS.21,87,036/-, BEING THE CASH DEPOSIT, MADE IN VAR IOUS BANK ACCOUNTS OF THE ASSESSEE. 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI VIJAY KUMAR SONI, ADVANCED HIS ARGUMENTS, WHICH ARE IDENT ICAL TO THE GROUND RAISED BY SUBMITTING THAT THE LD. COMMIS SIONER OF INCOME TAX (APPEALS), EVEN IGNORED THE REPORT OF TH E WARD INSPECTOR THAT THE ASSESSEE WAS NOT DOING ANY BUSIN ESS OF SAREES OR DRESS MATERIALS. ON THE OTHER HAND, SHRI DEVENDRA JAIN, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CO NCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY INVITING OUR AT TENTION TO VARIOUS PAGES OF THE PAPER BOOK BY SUBMITTING THAT THE PAYMENTS FOR PURCHASING THE MATERIAL WERE MADE THRO UGH CHEQUES, WHEREAS, THE SALE WAS MADE IN CASH BEING T HE PETTY CLIENTS AND THE SALE PROCEEDS WERE DEPOSITED IN THE BANK ACCOUNT. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A HOUSE-WIFE ENGAGED IN TH E SALE OF SAREES AND DRESS MATERIALS FOR THE LAST ABOUT TWELV E YEARS, REGULARLY FILING HER RETURNS AND ASSESSED TO TAX SI NCE A.Y. 1998-99. THE ASSESSEE IS CARRYING OUT HER BUSINESS FROM RESIDENTIAL PREMISES. THE ASSESSEE WAS HAVING HER B ANK ACCOUNTS IN DIFFERENT BANKS I.E. CANARA BANK, PUNJA B & SINDH BANK AND ICICI BANK, THE DETAILS OF WHICH WER E FURNISHED BY THE ASSESSEE FOR THE PERIOD 01/04/2008 TO 31/03/2009. THE CLAIM OF THE ASSESSEE IS THAT SHE W AS RECEIVING THE SALE PROCEEDS FROM SALE OF SAREES AND DRESS M/S MATA SECURITIES INDIA PVT. LTD. ITA NO.1096/MUM/2013 3 MATERIALS IN CASH FROM HER CUSTOMERS AND THE SAME A RE DEPOSITED IN THE ABOVE BANKS. THE ASSESSEE OPTED FO R COMPUTATION OF PROFIT AND GAINS OF RETAILS BUSINESS U/S 44AF AMOUNTING TO RS.1,60,691/- WHICH IS EQUAL TO 7.28% OF THE GROSS TURNOVER OF RS.22,06,665/-. THE STAND OF THE ASSESSING OFFICER/LD. DR IS THAT THE NATURE AND SOURCE OF THE CASH DEPOSIT WAS NOT EXPLAINED BY THE ASSESSEE. WE NOTE THAT THE WHOLE CASE OF THE ASSESSING OFFICER IS BASED ON PRE SUMPTION ONLY. WE NOTE FROM THE COMPUTATION FROM THE TOTAL I NCOME AND THE STATEMENT OF ACCOUNTS, FILED BY THE ASSESSE E , THE MAJORITY OF THE AMOUNTS FOR PURCHASE OF SAREES AND DRESS MATERIAL WERE MADE THROUGH CHEQUE (PAGES 9 TO 16 OF THE PAPER BOOK) AND SMALLER AMOUNTS OF CASH WAS DEPOSIT ED BY THE ASSESSEE IN THE RESPECTIVE BANK ACCOUNTS WHICH IS THE SALE PROCEEDS OF THE ASSESSEE, THUS, THE SOURCE OF CASH DEPOSITED HAS BEEN EXPLAINED. WE FURTHER NOTE THAT EVEN AS PER SECTION 44AF OF THE ACT, 5% IS REQUIRED UNDER T HE PROVISION, WHEREAS, THE ASSESSEE HAS PAID 7.28% OF THE GROSS TURNOVER. EVEN THE LD. ASSESSING OFFICER HAS NOT D OUBTED THAT THE ASSESSEE IS NOT DOING ANY BUSINESS IN SARE ES/DRESS MATERIALS. THE ASSESSEE HAS BEEN REGULARLY FILING ITS RETURN FROM SUCH BUSINESS, THUS, THE ADDITION WAS MADE BY THE ASSESSEE, MERELY ON PRESUMPTION. WE FIND NO INFIRM ITY IN THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. M/S MATA SECURITIES INDIA PVT. LTD. ITA NO.1096/MUM/2013 4 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 26/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ( DATED : 26/10/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI 5. 34 .$ ! , 0 *+' *! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. / BY ORDER, /3+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI.