YASMIN ALY MORANI, MUMBAI V. ASST CIT CEN CIR 15 & 16, MUMBAI

ITA 2837/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2060 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 10-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M D PANDYA
• Section: 153A; 68

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SANJAY ARORA , A M ./ I.T.A. NO. 2837/MUM/2014 ( / ASSES SMENT YEAR: 2008 - 09 ) YASMIN ALY MORANI GROUND FLOOR, ELDORA APARTMENTS, JUHU CHURCH ROAD, MUMBAI - 400 049 / VS. ASST. CIT, CENTRAL CIRCLE 15 & 16, AAYAKAR BHAVAN, 4 TH FLOOR, 101, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. ALBPM 2551 Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI M. D. PANDYA / RESPONDENT BY : SHRI RAJESH KUMAR / DATE OF HEARING : 03.12.2015 / DATE OF PR ONOUNCEMENT : 11 .12.2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 39 , MUMBAI (CIT(A) FOR SHORT) DATED 23.1.2014 , DISMISSING THE A SSESSEES AP PEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 VIDE ORDER DATED 26.12.2011. 2. THE APPEAL RAISES TWO GROUNDS, INCLUDING ONE BY WAY OF AN ADDITIONAL GROUND , WHICH RAISES A LEGAL ISSUE, FOR THE FIRST TIME THOUGH , AND IS ON THAT BASIS PLEADED FOR 2 ITA NO. 2837/MUM/2014 (A.Y. 2008 - 09) YASMIN ALY MORANI VS. ASST. CIT BEING ADMITTED IN - AS - MUCH AS THE FACT /S NECESSARILY FOR ITS ADJUDICATION ARE AVAILABLE ON RECORD. THE SAME SHALL BE TAKEN UP FIRST, EVEN AS THE RELEVANT FACTS WOULD REQUIRE STATEMEN T. 3. THERE WAS A SEARCH ACTION U/S.132 OF THE ACT BY THE REVENUE ON CINEYUG GROUP OF CASES ON 25.11.2009. THE ASSESSEE IS THE WIFE OF A DIRECTOR OF CINEYUG GROUP COMPANIES , MR. ALY MORANI. A DISCLOSURE OF RS.4 CRORES ON ACCOUNT OF JEWELLERY (INCLUDING TH AT SEIZED) , HOM E RENOVATION AND FURNISHING, TRAVELLING, LO DG ING AND OTHER EXPENSES, WAS MADE. OF THIS, A SUM OF RS.6,49,540/ - WAS DISCLOSED IN THE ASSESSEES HANDS, WHOSE CASE WAS COVERED U/S. 153A OF THE ACT. THE ADDITION UNDER REFERENCE PERTAINS TO CASH DEPOSIT S OF RS.3.50 LACS IN HER SAVING BANK ACCOUNT WITH CITI BANK, JUHU BRANCH, MUMBAI. PER THE ADDITIONAL GROUND, THE ASSESSEE IMPUGNS THE ASSESSMENT AS NOT VALID IN LAW IN - AS - MUCH AS NO INCRIMINATING MATERIAL WAS FOUND IN THE COURSE OF SEARCH. THE GROUN D IS LEGAL, WITH THE RELEVANT FACTS BEING ON RECORD. THE SAME IS ACCORDINGLY ADMITTED. THE SAME IS, HOWEVER, FOUND TO BE WITHOUT MERIT IN - AS - MUCH AS THE ASSESSEE HAS ITSELF DISCLOSED AN ADDITIONAL INCOME OF RS.6 . 50 LACS, REFERRED TO ABOVE, ON THE BASIS OF THE MATERIALS FOUND IN SEARCH. THE ASSESSMENT U/S. 153A, I.E., WHERE THE JURISDICTION STANDS VALIDLY ASSUMED, IS OF THE TOTAL INCOME. THE WORD INCRIMINATING I S NOT NECESSARILY REQUIRED TO B E IMPORTED, EVEN AS THE SAME IS OF W IDE IMPORT, SO THAT ANY MATER IAL THAT INCRIMINATES THE RETU RN AS ALREADY FILED WOULD QUALI F Y TO BE TERMED AS SUCH. FURTHER, AS PRESENTLY SEEN, THE ADDITION UNDER REFERENCE CAN BE SAID TO BE ONLY IN CONSEQUENCE OF SUCH MATERIALS FOUND IN SEARCH. 4. COMING , NEXT , TO THE MERITS OF TH E ADDITION MADE , T HE ASSESSEE, A HOUSE - WIFE, WITH NO REGULAR SOURCE OF INCOME, WAS FOUND TO HAVE DEPOSITED CASH IN THE SUM OF RS.3.50 LACS IN HER BANK ACCOUNT DURING THE YEAR, I.E., RS.3.24 LACS IN APRIL, 2007 AND RS.0.26 LACS IN MAY, 2007. THE ASSESSEE BE ING U NABLE TO FURNISH ANY EXPLANATION IN ITS RESPECT, THE SAME WAS BROUGHT TO TAX. IN APPEAL, THE ASSESSEE CLAIMING THE SO URCE TO BE 3 ITA NO. 2837/MUM/2014 (A.Y. 2008 - 09) YASMIN ALY MORANI VS. ASST. CIT HER CASH WITHDRAWAL FOR IMMEDIATELY PRECEDING YEAR, I.E., F.Y. 2006 - 07, WHICH WAS AT RS.6 LACS, THE LD. CIT(A) CALLED FOR T HE REMAND REPORT. PER THE SAME (DATED 02.1.2014), THE ASSESSEES CLAIMS STOOD REJECTED CONSIDERING THAT THE CASH - IN - HAND AS ON 31.3.2007, I.E., AS PER HER BALANCE - SHEET AS ON THAT DATE, WAS AT RS.41,474 / - ONLY . HOW COULD, THEN, THE SAME B E A SOURCE OF THE IMPUGNED CASH DEPOSIT OR EXPLA I N ED AS A SOURCE THEREOF. THE LD. CIT(A) , IN VIEW THEREOF, CONFIRMED THE ASSESSMENT, HOLDING AS UNDER: 6.2.2 A COPY OF THE REMAND REPORT OF THE A.O. HAD BEEN FURNISHED TO THE APPELLANT, AND THE CASE WAS POSTED TO 22.1.2014. NONE ATTENDED ON THE SAID DATE, NO REQUEST FOR ADJOURNMENT WAS RECEIVED. IN TH E ABSENCE OF ANY REPLY, DESPITE SERVICE OF NOTICE, IT HAS TO BE DEEMED THAT APPELLANT HAS NO EXPLANATION TO OFFER. THE A.O. HAS BROUGHT OUT THE CRUCIAL ASPECT THAT THE CLAIM OF T HE APPELLANT THAT CASH OUT OF THE WITHDRAWAL WAS AVAILABLE, IS NOT BORNE OUT BY THE FINANCIAL STATEMENTS OF THE APPELLANT. ALSO, THE A.O. HAS HIGHLIGHTED THE NON - VERIFIABLE NATURE OF THE EXPLANATION THAT THE CASH CREDITS IN THE BANK ACCOUNTS ARE THE RE - DEP OSITS OF EARLIER CASH WITHDRAWN. THE ADDITION IS TO BE CONFIRMED AND IT IS ACCORDINGLY HELD SO. THE SAID EXPLANATION LACKS SUBSTANTIATION. THE ADDITIONS MADE UNDER S. 68 IN A SUM OF RS.3,50,000/ - IS SUSTAINED. 6.3 GROUND 2 IS DISMISSED. 5. I HAVE H EARD THE PARTIES AS WELL AS PERUSED THE MATERIAL ON RECORD. THE ASSESSEES SOLE CASE BEFORE THE T RIBUNAL, MADE WITH REFERENCE TO THE BANK STATEMENTS FOR THE PRECEDING YEAR (PRODUCING A PART OF IT/PB PG. 4) WAS THAT THE CASH WITHDRAWAL DURING F.Y. 2006 - 07 WAS NOT EVENLY SPREAD, BEING CONCENTRATED IN THE LATER PART, BEING AT RS.1 LAC EACH DURING JANUARY AND FEBRUARY, 2007. THE REVENUES CASE, ON THE OTHER HAND, WAS THAT THE SAME CANNOT BE REGARDED AS AVAILABLE AS NOBODY WOULD WITHDRAW CASH , AND CONTINUE DOIN G SO, MERELY TO ACCUMULATE CASH - IN - HAND AND REDEPOSIT THE SAME. THE ASSESSEE HAD IN FACT HERSELF DISCLOSED CASH - IN - HAND AS ON 31.3.2007 AT RS.0.41 LACS. CLEARLY, NOTHING MUCH TURNS ON OR E MERGES FROM THE PATTERN OF WITHDRAWAL FOR F.Y. 2006 - 07. W HY SHOULD THE ASSESSEE WITHDRAW RS.2 LACS IN JANUARY AND FEBRUARY , 4 ITA NO. 2837/MUM/2014 (A.Y. 2008 - 09) YASMIN ALY MORANI VS. ASST. CIT WHEN IT HAD ALREADY WITHDRAWN RS.4 LACS EARLIER, OF WHICH ADMITTEDLY AT LEAS T RS.1.5 LACS WAS LYING WITH HER, I.E., EVEN ASSUMING THAT NO CASH STOOD CONSUMED FOR PERSONAL/HOUSEHOLD PURPOSES SINCE JA NUARY, 2007 (UP TO MARCH, 2007). SUBSEQUENT WITHDRAWAL ONLY IMPLIES UTILIZATION OR CONSUMPTION OF THE PR EVIOUS BALANCE. THE MONTH - WISE WITHDRAWAL (TABULATED AT PB PG. 5) IS , AT AN AVERAGE OF RS.50,000/ - P.M. , FAIRLY EVEN. THE BALANCE - SHEET AS ON 31.3.2007, ITSELF SHOWS CASH - IN - HAND AT RS.41,474/ - . FURTHER, CONSIDERING THAT THE ASSESSEE HAS NO REGULAR SOURCE OF INCOME, THE NORMAL INFERENCE WOULD BE OF THE WITHDRAWAL FOR HOUSEHOLD PURPOSES BEING FROM OTHER SOURCE, AS BY HER HUSBAND , THERE IS NO BASIS TO STAT E THAT THE SAID WITHDRAWAL WAS MADE IN EXCESS OF THE WITHDRAWAL REQUIRED. THIS IS ALSO SUPPORTED BY THE FACT THAT THE WITHDRAWAL FOR THE CURRENT YEAR (F.Y. 2007 - 08) IS AT RS.75,000/ - (REFER BALANCE - SHEET AT PB PGS.1 - 3). THE CASH WITHDRAWAL DURING THE MONTH S OF JANUARY AND FEBRUARY, 2007 ARE FROM THE PROCEEDS OF A CHEQUE (RS.6 LACS) CREDITED TO THE ASSESSEES BANK ACCOUNT ON 30.12.2006. UNDER THE CIRCUMSTANCES, THE REVENUES STAND OF THE SOURCE OF THE IMPUGNED CASH DEPOSIT S BEING NOT SATISFACTORILY EXPLAINE D MERITS BEING CONFIRMED. THE ADDITION IS ACCORDINGLY UPHELD. I DECIDE ACCORDINGLY. 6 . IN THE RESULT, THE ASSESSEES APPEAL IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON DECE MBER 11 , 201 5 SD/ - (S ANJAY ARORA) / A CCOUNTANT MEMBER MUMBAI ; DATED : 11 . 12 .201 5 . . ./ ROSHANI , SR. PS 5 ITA NO. 2837/MUM/2014 (A.Y. 2008 - 09) YASMIN ALY MORANI VS. ASST. CIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ ASSTT. REGISTRAR) , / ITAT, MUMBAI