I.T.O.19(3)(1), MUMBAI V. DEEJAY V. DAYAL, MUMBAI

ITA 2589/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100591 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 17-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: HARESH P SHAH
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI R.C . SHARMA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 2589 /MUM./ 2012 ( ASSESSMENT YEAR : 200 7 08 ) INCOME TAX OFFICER WARD 19(3)(1), PIRAMAL CHAMBERS LALBAUG, MUMBAI 400 012 .. APPELLANT V/S SHRI DEEJAY V. DAYAL 15 A, HILL ROAD, OPP. DAMIAN NEAR MEHBOOB STUDIO BANDRA (W), MUMBAI 400 050 PAN AGJPD9393C .... RESPONDENT ASSESSEE BY : SHRI HARESH P. SHAH REVENUE BY : SHRI LOVE KUMAR DATE OF HEARING 0 7 .0 5 .2015 DATE OF ORDER 07.05.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER TH E PRESENT APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 23 RD JANUARY 2012 , PASSED BY THE LEARNED COMMISSIO NER (APPEALS) 30 , MUMBAI , FOR THE ASSESSMENT YEAR 20 07 08 . THE GROUNDS RAISED BY THE REVENUE ARE AS FOLLOWS: 1. (1) ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.13,32,500/ - BEI NG CASH DEPOSITS IN THE SAVING BANK ACCOUNT AFTER HOLDING THAT THE ASSESSING SHRI DEEJAY V. DAYAL 2 OFFICER DID NOT MAKE ANY INQUIRIES FROM THE PURCHASE AND SALE PARTIES TO PROVE WHETHER THE SAME WERE GENUINE OR NOT WITHOUT APPRECIATING THAT : - (A) DURING THE COURSE OF ASSESSM ENT PROCEEDINGS THE ASSESSEE HAS FAILED TO FURNISH BASIC DETAILS SUCH AS PURCHASE PRICE AND SELLERS NAME & ADDRESS FROM WHOM HE CLAIMED TO HAVE DONE TRANSACTIONS, (B) THE VOUCHERS PRODUCED BY THE ASSESSEE DID NOT MENTION THE COMPLETE DETAILS OF SELLERS, (C) AND, THEREFORE, THE ASSESSEE FAILED TO DISCHARGE THE BURDEN OF PROOF AND NO ONUS LIE WITH THE ASSESSING OFFICER TO MAKE ENQUIRY WITH THE PARTIES WHOSE COMPLETE ADDRESS COULD NOT BE FURNISHED BY THE ASSESSEE. (2) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET SIDE AND THAT OF THE AO BE RESTORED. 2. FACTS IN BRIEF : IN THE PRESENT CASE, THE ASSESSEE IS STATED TO HAVE BEEN ENGAGED IN THE TRADING BUSINESS OF PURCHASING AND SALE OF OLD CARS AND THE IMPUGNED CASH DEPOSITED I N THE BANK ACCOUNT OF ` 13,32,500, WAS DERIVED OUT OF THE TRANSACTION OF PURCHASE AND SALE OF OLD CARS. THE ASSESSEE, BEFORE THE ASSESSING OFFICER, FURNISHED ALL THE DETAILS RELATING TO THE SAID TRANSACTIONS LIKE DATE OF DELIVERY OF CARS, MOTOR CAR REGISTR ATION NUMBERS, CAR MODAL, NAME AND ADDRESS OF THE CUSTOMERS TO WHOM THE CARS WERE SOLD. THE ASSESSEE ALSO SUBMITTED THAT DUE TO HEAVY RAIN IN THE YEAR 2007, MOST OF THE PAPERS / DOCUMENTS WERE DESTROYED. THE ASSESSING OFFICER, HOWEVER, HELD THAT THE ASSESS EE FAILED TO FURNISH THE SOURCES OF DEPOSIT OF THE IMPUGNED AMOUNT IN THE BANK ACCOUNT AND WHATEVER EXPLANATION FURNISHED BY THE ASSESSEE WAS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE . THE SHRI DEEJAY V. DAYAL 3 ASSESSING OFFICER HELD THAT THE ONUS CAST UPON THE ASSESSEE TO EXPL AIN THE SOURCES OF CASH DEPOSIT INTO THE BANK ACCOUNT HA D NOT BEEN DISCHARGED AND, HENCE, HE ADDED THE SAID IMPUGNED AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE. 3. THE ASSESSEE, BEING AGGRIEVED BY THE ORDER SO PASSED BY THE ASSESSING OFFICER, CARRIED THE MAT TER BEFORE THE FIRST APPELLATE AUTHORITY, WHEREIN THE LEARNED CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE WHILE OBSERVING AS FOLLOWS: 5. AFTER CAREFUL PERUSAL OF FACTS OF THE CASE, ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT, I AM OF THE VIEW THAT IN THE BUSINES S THE APPELLANT IT IS NECESSARY TO TAKE PAYMENT BEFORE THE CAR DOCUMENTS ARE HANDED OVER TO THE BUYER. THE APPELLANT HAS ALSO FURNISHED COMPLETE DETAILS OF PURCHASE AND SALE PARTIES ALONGWITH B ANK STATEMENT. THE CASH DEPOSITS IN THE BANK STATEME NT ARE CORELATED WITH THE SALE PROCEEDS OF THE CARS. THE A.O. HAS NOT MADE ANY ENQUIRIES F ROM THE PURCHASE AS WELL AS SALE PARTIES TO PROVE WHETHER THE TRANSACTI ONS ARE GENUINE OR NOT. MERELY BECAUSE SALE PROCEEDS ARE RECEIVED IN C ASH AND DEPOSITED IN BANK ACCOUNT DOES NOT LEAD TO THE CONCLUSION THAT THE CASH DEPOSITS ARE FROM UNDISCLOSED SOURCES. THEREFORE, THE A.O. IS DIRECTED TO DELETE THE ADDITION OF ` 13,32,500. THE GROUNDS OF APPEAL ARE ALLOWED. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBU NAL. 4. LEARNED DEPARTMENTAL REPRESENTATIVE, BEFORE US, HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. SHRI DEEJAY V. DAYAL 4 5. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, REITERATED THE SUBMISSIONS, AS WERE MADE BEFORE THE AUTHORITIES BELOW AND PRAYED FOR UPHOLDIN G THE ORDER OF THE LEARNED CIT(A). 6. AFTER CONSIDERING THE SUBMISSIONS OF THE RIVAL PARTIES AND ON A PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE LEARNED CIT(A) HAS PASSED A WELL REASONED ORDER AS NARRATED ABOVE. THE ASSESSEE HAS FURNISHED ALL THE DETAILS OF PURCHASE AND SALE OF OLD CARS ALONG WITH BANK STATEMENT AND DETAILS OF THE CUSTOMERS WHICH PROVES THE GENUINENESS OF THE SALE PROCEEDS OF CARS . THE ASSESSING OFFICER, HOWEVER, DID NOT MAKE ANY ENQUIRIES FROM THE CUSTOMERS OF SALE AND PUR CHASE OF CARS TO PROVE OTHERWISE. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT BROUGHT ANYTHING ON RECORD CONTRARY TO THE FINDINGS OF THE LEARNED CIT(A). WE, THEREFORE, SEE NO INFIRMITY IN THE IMPUGNED DECISION OF THE LEARNED CIT(A) WARRANTING INTERFERE NCE AT THE INSTANCE OF THE DEPARTMENT. AS SUCH, THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, REVENUE S APPEAL STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT O N THE 7 TH MAY 2015. SD/ - R.C. SHARMA ACCOUNTANT MEMBER SD/ - SANJAY GARG JUDICIAL MEMBER MUMBAI, DATED : 12.08.2018 SHRI DEEJAY V. DAYAL 5 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHU RY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI