ZARINA NOORALI GOVANI, NAVI MUMBAI V. ITO 19(3)(3), MUMBAI

ITA 2850/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2641 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: TAHABOOTWALA
• Keywords: Unexplained cash credit; Depreciation
• Section: 143(3); 68

Judgement Text

, , SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, SMC MUMBAI , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.2850/MUM/2015 ASSESSMENT YEAR: 2006-07 MRS. ZARINA NOORALI GOVANI FLAT NO. 1, HILL VIEW CHS 241, HILL ROAD, BANDRA (W) MUMBAI 400050 / VS. INCOME TAX OFFICER-19(3)(3) MUMBAI ( /ASSESSEE) ( / REVENUE) PAN. NO. AGBPG9171D ! ' #$ / DATE OF HEARING : 14/07/2016 ' #$ / DATE OF ORDER: 14/07/2016 / ASSESSEE BY SHRI TAHABOOTWALA / REVENUE BY SHRI RAJESH OJHA, JCIT ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 20/03/2015 OF LD. COMMISSIONER OF INCOME TAX, MUMBAI CONFIRMING PENALTY UNDER SECTION 271(1)(C) O F THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AMOUNTIN G TO RS.16,20,884/-. 2. DURING HEARING SHRI TAHABOOTWALA, APPEARED FOR T HE ASSESSEE AND CONTENDED THAT WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE ON QUANTUM ADDITION THE TRIBUNAL VIDE ORDER DATED 13 TH MAY, 2015 (ITA NOS. 7782 &7783 MUM/2011 REMANDED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR FRESH ADJUDICATION, THEREFORE, THE PENALTY MAY ALSO BE SENT TO THE FILE OF THE ASSESSING OFFICER. THE LEARNED D .R. SHRI RAJESH OJHA, DEFENDED THE IMPOSITION/CONFIRMATION O F THE PENALTY BUT HAD NO OBJECTION IF THE PENALTY APPEAL MAY BE SENT TO THE FILE OF THE ASSESSING OFFICER. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. I FIND THAT THE TRIBU NAL VIDE ORDER DATED 13 TH MAY, 2015 REMANDED THE QUANTUM ADDITION TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR FR ESH ADJUDICATION. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER FOR READY REFERENCE AND ANALYSIS: - THESE ARE THE APPEALS FILED BY ASSESSEE AGAINST TH E ORDER OF CIT(A)-30, MUMBAI DATED 2-9-2011, FOR THE ASSESSMENT YEARS 2005-06 & 2006-2007, IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) OF THE I.T. ACT. ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 3 2. IN THE ASSESSMENT YEAR 2005-06, THE AO OBSERVED THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF WHOLESA LE OF LADIES BOUTIQUE ITEMS AND GARMENTS AND ALSO DERIVES INCOME FROM OTHER SOURCES. DURING THE YEAR, ASSESSEE HAS SHOWN IN THEIR P&L A/C., SALES RS.7.83 LACS AND PURCHASES RS.4.99 LACS. AFTER CLAIMING EXPENSES SUCH AS SALARY, MISCELLANEOUS EXPENSES, CONVEYANCE, TELEPHONE AND DEPRECIATION, ASSESSEE HA S SHOWN NET PROFIT AT RS.48,856/-. THE AO FURTHER OBSERVED THAT ON PERUSAL OF STATEMENT OF BANK ACCOU NT NO.00510400010078 FOR THE PERIOD 01/04/2004 TO 31/03/2005 MAINTAINED BY THE ASSESSEE IN DEVELOPMENT CREDIT BANK, BANDRA BRANCH, IT IS SEEN THAT DURING THE RELEVANT PREVIOUS YEAR, THE ASSESSE E HAS DEPOSITED CASH OF RS.19,25,590/- AND DEPOSITED RS.5,87,5000/- THROUGH CHEQUES OR BY WAY OF TRANSFE R. FROM THE BANK STATEMENT FILED BY THE ASSESSEE, IT I S ALSO SEEN THAT THE PAYMENTS ARE MADE EITHER TO SILVERLINE MARKETING OR SILVERLINE. ASSESSEE WAS AS KED TO FURNISH THE NAME AND ADDRESSES OF SILVERLINE MARKETING OR SILVERLINE VIDE ORDER-SHEET NOTINGS DT.07/12/2007 AND ALSO ASKED TO EXPLAIN THE NATURE OF SUCH PAYMENT AND SHOW-CASE AS TO WHY THE DEPOSITS SHOULD NOT BE TREATED AS INCOME FROM UNEXPLAINED SOURCES AND ADDED BACK TO THE TOTAL INCOME AS PER THE IT ACT. HAVING NO RESPONSE FROM T HE ASSESSEE, INFORMATION HAVE BEEN CALLED FOR U/S.133( 6) FROM THE DCB BANK. DCB BANK VIDE THEIR LETTER GIVEN THE DETAILS OF SILVERLINE MARKETING HAVING ADDRESS AT SHOP NO.8/9, DUNHILL APTS., WARODA ROAD, BANDRA- WEST, MUM'BAI-50. ACCORDINGLY, SUMMONS U/S.131 OF THE IT ACT,1961 ISSUED TO SHRI HUSSAIN CHARCNIA, PROPRIETOR OF SILVERLINE MARKETING ON 20/12/2007 TO APPEAR ON 24/12/2007. IN RESPONSE TO THE SUMMONS U/S.131, NO ONE ATTENDED NEITHER ANY SUBMISSION WERE FILED. TO VERIFY WHETHER SHRI HUSSAIN CHARANIA IS FILING RETURN OR NOT, THE SAME IS ALSO CHECKED WITH THE AST OF COMPUTER SYSTEMS OF THE DEPARTMENT. FROM THE AST OF COMPUTER SYSTEM, IT IS SEEN THAT SHRI HUSSAI N JAMAL CHARANIA HAVING PAN: AAAPC 4923 C HAS NOT FILED RETURN FOR A.Y.2005-06. THE AO FURTHER OBSERV ED THAT THE ASSESSEE REGARDING THE NATURE OF BUSINESS, ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 4 EARLIER STATED THAT SHE IS ENGAGED IN THE BUSINESS OF WHOLESALE OF LADIES BOUTIQUE ITEMS SUPPLY, GARMENTS ETC. NOW, SUDDENLY SHE IS STATING THAT THE INCOME I S BY WAY OF COMMISSION INCOME. IF THE PRODUCT WERE PROCURED THROUGH SILVERILINE AND SOLD ON CASH BASIS THEN WHY THE PROCEEDS WERE DEPOSITED IN ASSESSEES ACCOUNT. IT HAS TO BE DEPOSITED IN SILVERLINE MARKE TING ACCOUNT. ASSESSEES CONTENTION THAT SHE RETAINS AN AMOUNT OF 5% TOWARDS SERVICE CHARGE IS NOT ACCEPTAB LE AS ASSESSEE HAS NOT SUBMITTED ANY DOCUMENTARY EVIDENCE FOR CLAIMING 5% COMMISSION. REGARDING THE BALANCE SALE OF RS.19,06,130/-, ASSESSEE IS STATING THAT THE SAME IS SOLD ON BEHALF OF SILVERLINE MARKE TING IS ALSO NOT ACCEPTABLE. SILVERLINE MARKETING HAS NO T FILED THEIR RETURN AND THE INCOME HAS NOT BEEN OFFE RED FOR TAXATION BY SILVERLINE MARKETING. WITH REGARD T O TRANSFER OF FUNDS TO M/S SILVERLINE MARKETING, THE AO OBSERVED THAT THE SAME ALSO REMAINED UNEXPLAINED AND THEREFORE THE CLAIM WITH REGARD TO PAYMENT/ALLOWANCE OF EXPENDITURE TO M/S SILVERLINE IS REJECTED. IN VIEW OF THE ABOVE DISCUSSION, THE AO M ADE AN ADDITION OF RS.25,13,090/- AS UNEXPLAINED MONEY U/S.69A. 3. SIMILARLY IN THE ASSESSMENT YEAR 2006-07 THE AO MADE ADDITION OF RS.27,86,639/- U/S.68 AND ON ACCOUNT OF SHORT TERM CAPITAL GAINS AT RS.16,07,157 /-. 4. IN APPEAL FILED BEFORE THE CIT(A), THE CIT(A) CA LLED FOR A REMAND REPORT FROM AO AND AFTER CONSIDERING T HE SAME, HELD AS UNDER :- 8. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT'S AR.. THE APPELLANT HA S NOT DISCLOSED HER STATED BUSINESS OF MARKETING OF HINDU STAN COCO COLA MARKETING ON COMMISSION BASIS THROUGH SILVERLINE MARKETING IN HER RETURN OF INCOME. IT WA S ONLY AFTER THE A.O., ENQUIRED ABOUT THE DEPOSITS IN HER BANK ACCOUNT THAT SHE REVEALED THESE TRANSACTIONS. NO CONFIRMATION/DOCUMENTARY EVIDENCE OF THESE TRANSACT IONS WERE FILED. M/S. SILVERLINE MARKETING DID NOT FILE ITS RETURN OF INCOME AND ITS PROPRIETOR DID NOT ATTEND THE PRO CEEDINGS IN RESPONSE TO THE SUMMONS ISSUED. SERVICE OF SUMMO NS AND PAN THEMSELVES DO NOT PROVE THAT THE TRANSACTIO NS ARE GENUINE. THE A.O., HAD GIVEN SUFFICIENT OPPORTUNITY TO' PROVE HER CLAIM TO FURNISH DETAILS/SUPPORTING EVIDE NCE ON ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 5 OR BEFORE 19.12.2007, BUT THE APPELLANT FILED HER R EPLY ON 27.12.2007 ON THE DATE OF COMPLETION OF ASSESSMENT. IN REMAND REPORT THE ASSESSING OFFICER SUBMITTED THAT IN THE NONE OF THE CASH MEMOS, FULL ADDRESS WERE GIVEN AND NONE OF THEM WAS SIGNED. THE APPELLANT HAD SUBMITTED THA T ALL THE SALES WERE IN CASH THEREFORE, 'NO ADDRESS WERE WRITTEN TO INVOICES BUT SHE HERSELF IS STATING THAT RS.26,0 00/- DEPOSITED IN HER BANK ACCOUNT IS FROM SUNDRY DEBTOR S. THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE DEPOSITS IN HER ACCOUNT AND THEREFORE, THE AO HAS RIGHTLY ADDED RS.25,13,090/- TO HER INCOME. THE APPELLANT'S REQUE ST FOR ASSESSING THE INCOME U/S.44AF OF THE ACT, CANNOT BE ACCEPTED SINCE SHE HAD NOT DISCLOSED THE FACTS FULL Y AND TRULY IN HER RETURN OF INCOME AS IS NOT ABLE TO EXP LAIN THE DEPOSITS IN HER BANK ACCOUNT TOO. IN VIEW OF THESE FACTS, THE ADDITION MADE BY THE A.O., IS ACCORDINGLY CONFI RMED. 5. SIMILARLY, IN THE ASSESSMENT YEAR 2006-07, THE CIT(A) HAS CALLED FOR A REMAND REPORT FROM THE AO A ND CONCLUDED A SUNDER:- 1.6 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLA NT. THE A.O. HAD ADDED RS.27,86,639/- U/S 68 AS UNEXPLAINED DEPOSITS IN BANK ACCOUNTS. IN HIS REMAN D REPORT THE A.O. HAS ACCEPTED DEPOSIT OF RS.2 LAKHS OUT OF PARTIAL ENCASHMENT OF FDR AND STATED THAT BALANCE AMOUNT IS UNEXPLAINED CREDIT. HOWEVER, THE APPELLAN T HAS ONLY GIVEN NARRATIONS WITHOUT GIVING CORRESPONDING DOCUMENTARY EVIDENCE/DETAILS. THE APPELLANT HAS CLA IMED TO HAVE DEPOSITED RS.6,45,000/- IN HER BANK ACCOUNT FROM CASH-IN-HAND BUT NO DETAILS ARE GIVEN REGARDING DAT E OF DEPOSIT AND AMOUNT OF DEPOSIT ALONGWITH COPY OF CAS H BOOK. THEREFORE, THE DEPOSITS AMOUNTING TO RS.25,86 ,639/- REMAIN UNEXPLAINED. THE ADDITION OF RS.25,86,639/- MADE BY THE A.O. IS CONFIRMED AND THE APPELLANT GETS REL IEF OF RS.2,00,000/-. THIS GROUND OF APPEAL IS PARTLY ALLO WED. 6. BY THE IMPUGNED ORDER THE CIT(A) AFTER CALLING T HE REMAND REPORT CONFIRMED THE ADDITION OF RS.16,07,157/- ON ACCOUNT OF SHORT TERM CAPITAL GAI NS EARNED BY THE ASSESSEE DURING THE YEAR AFTER HAVING THE FOLLOWING OBSERVATIONS :- 3.6 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT O RDER AND THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLA NT. THE COST OF SHOP IS SHOWN AT RS.7,60,623/- IN THE APPELLANT'S BALANCE SHEET AND LOAN IS SHOWN BY NIZA R GOVANI OF RS.4,00,000/-. BESIDES, THE APPELLANT HAS CLAIMED INTEREST OF RS.56,503/- FOR F.Y.2003-04, ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 6 RS.1,44,721/- IN F.Y. 2004-05 AND RS.1,36,679/- IN F.Y. 2005-06, WHICH IS NOT SHOWN TO BE RELATED TO THE PR OPERTY WHICH IS SOLD. EVEN LOAN OF NIZAR GOVANI IS SHOWN A T RS.3,00,0001-. NO DOCUMENTARY EVIDENCE IS FILED. TH E APPELLANT HAS FURNISHED COPIES OF REPAIRS AND RENEW ALS AS WELL AS BROKERAGE BUT THE PROOF AND SOURCE OF PAYME NT HAS NOT BEEN SUBMITTED. SIMILARLY, NO PROOF AS WELL AS SOURCE OF STAMP DUTY AND REGISTRATION IS FILED. THE AO IN HIS REMAND REPORT, HAS OBSERVED THAT THE SHOP SOLD IS DIFFEREN T FROM ASSET DECLARED IN BALANCE SHEET AND ENTIRE DEEMED CONSIDERATION SHOULD BE TAXED. HOWEVER, A PERUSAL O F BALANCE SHEET AS ON 31/03/2006 FILED DURING APPELLA NT PROCEEDINGS AND FORWARDED TO THE AO SHOWS ONLY FURN ITURE UNDER THE HEAD FIXED ASSETS . THEREFORE, THE ENTIRE DEEMED CONSIDERATION CANNOT BE TAXED. IN MY VIEW, T HE AO IN HIS ASSESSMENT ORDER HAS CORRECTLY WORKED OUT TH E LONG TERM CAPITAL GAINS OF RS.16,67,157/- THE ADDITIONS MADE BY THE AO ARE CONFIRMED AND THESE GROUNDS OF APPEAL ARE DISMISSED. 7. AGAINST THE ABOVE ORDER OF CIT(A), ASSESSEE IS I N FURTHER APPEAL BEFORE US. 8. WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS REMAND REPORT CALLED BY THE CIT(A). FROM TH E RECORD WE FOUND THAT IN THE ASSESSMENT YEAR 2005-06 THE ASSESSEE HAD FOUND TO BE DEPOSITED IN HER BANK ACCOUNT OF RS.19,25,590/- IN CASH AND RS.5,87,500/- THROUGH CHEQUES OR TRANSFER. PAYMENT WAS ALLEGED TO BE MADE TO SILVERLINE MARKETING. HOWEVER, THE ASSESSEE DID NOT PRODUCE ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE HER CLAIM OF PAYMENT MADE TO SILVERLINE MARKETING FOR PURCHASE OF MATERIAL. THE AO ISSUED SUMMONS U/S.131 TO THE PROPRIETOR OF SILVERL INE MARKETING BUT SHE DID NOT APPEAR. ACCORDINGLY, THE AO REJECTED THE CLAIM OF ASSESSEE FOR MAKING PAYMENT T O SILVERLINE MARKETING IN ABSENCE OF ANY PROOF AND ADDED RS.25,13,090/- (19,25,590 + 5,87,500/-) AS UNEXPLAINED MONEY U/S.69 OF THE IT ACT. 9. WE FOUND THAT BEFORE THE CIT(A) ASSESSEE HAS FURNISHED COPY OF INVOICES ISSUED BY HINDUSTAN COCO COLA MANUFACTURING COMPANY LTD. TO M/S SILVERLINE AND MRS ZARINA NOORALI GOVANI TO YASHIN SISTERS. HOWEVER, THE AO HAS REJECTED THE CASH MEMO ON THE PLEA THAT THEY WERE NOT SIGNED/AUTHENTICATED BY THE ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 7 RECIPIENT OF THE GOODS. IT WAS ALSO OBSERVED THAT N ONE OF THE INVOICES GIVES FULL ADDRESS OF THE RECIPIENT , LOCATION OF THE GOODS DELIVERED ETC. IN VIEW OF THE SE OBSERVATION, THE AO ALSO REJECTED ASSESSEES CONTENTION FOR COMPUTING PROFIT U/S.44AF. WE DO NOT FIND ANY JUSTIFICATION IN THE ACTION OF THE AO FOR REJECTING THE CASH MEMO MERELY ON THE PLEA THAT THE SE WERE NOT SIGNED/AUTHENTICATED BY THE RECIPIENT OF T HE GOODS. IN CASE OF RETAIL TRADE, THERE IS NO PRACTIC E OF GETTING THE SIGNATURE IN SALES BILLS. FURTHERMORE, IN CASE OF CASH SALES THERE IS NO NEED TO GIVE FULL DE TAILS OF THE BUYER AND THE RECIPIENT OF GOODS, INSOFAR AS ASSESSEE DELIVERS THE GOODS ONLY AFTER RECEIPT OF E NTIRE SALE CONSIDERATION. SINCE THE DEPOSIT IN BANK ACCOU NT WAS MUCH MORE THAN SALES SHOWN BY ASSESSEE, ONUS IS ON THE ASSESSEE TO SHOW THE SOURCE OF EXCESS MON EY DEPOSITED IN BANK ACCOUNT EITHER IN CASH OR THROUGH CHEQUES. IN THE INTEREST OF JUSTICE AND FAIRPLAY, W E RESTORE THE APPEAL FOR ASSESSMENT YEAR 2005-06 TO T HE FILE OF AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. IN THE ASSESSMENT YEAR 2006-07, THE ADDITION OF RS.27,86,639/- WAS MADE BY THE AO U/S.68 OF THE ACT BY OBSERVING THAT THERE WERE CASH DEPOSITS AND OTHE R DEPOSITS IN DIFFERENT BANK ACCOUNT A SUNDER :- SR. NO. BANK & A/C. NO. CASH DEPOSIT OTHER DEPOSITS TOTAL 1 DEVELOPMENT CREDIT BANK A/C. NO. 10078 6,54,000 27,25,139 33.70,139 2 SHAMARO VITHAL CO- OP BANK LTD. 1,36,700 7,25,000 8,61,700 3 DEVELOPMENT CREDIT BANK NO. 3087 53,800 1,78,900 2,32,890 TOTAL 44,64,729 THE DEPOSITS WERE STATED TO BE FROM SALE PROCEEDS O F SHOP, FORS, SUNDRY DEBTORS, CASH ON HAND, RECEIPTS FROM NIZAR GOVANI, NOORALI GOVANI, ROZINA , SILVERL INE MARKETING, DIVIDEND AND DEPOSITS BY WAY OF TRANSFER . HOWEVER, THE ASSESSEE DID NOT FILE ANY DOCUMENTARY ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 8 EVIDENCE EXCEPT FOR SALE AND PURCHASE OF SHOP. THE ASSESSEE FILED LOAN CONFIRMATION OF NIZAR GOVANI OF RS.5,81,541/- BUT THE ASSESSEE'S BALANCE SHEET AS WELL AS RETURN OF NIZAR GOVANI DOES NOT SHOW ANY SU CH LOAN. OUT OF RS.44,64,729/- RS.13 LAKHS WAS ALLEGED TO BE RECEIVED FROM SALE PROCEEDS AND RS.3,78,0901- BY WAY OF TRANSFER FROM ONE BANK TO ANOTHER. THE AO . ADDED BALANCE RS.27,86,639/- U/S 68 OF THE I.T.ACT. THE EXPLANATION FILED BY THE ASSESSEE IS AS UNDER : - DURING THE COURSE OF ASSESSMENT PROCEEDING OUR CLI ENT HAD FURNISHED LETTER DTD. 19. 11.2008 WHEREIN THE E NTIRE DETAILS OF INCOME COMPRISING OF CAPITAL GAINS AND B USINESS INCOME BEING INCOME FROM DISTRIBUTION OF HINDUSTAN COCO COLA MANUFACTURING COMPANY PRODUCTS RECEIVED BY OUR CLIENT THROUGH THEIR AGENT M/S. SILVERLINE MARKETIN G. THE ASSESSING OFFICER HAS WRONGLY STATED THAT THE DETAI LS WERE NOT FURNISHED AS THE ABOVE LETTER COMPRISING OF COMPUTATION OF INCOME, BALANCE SHEET, PROFIT & LOSS ACCOUNT ALONGWITH BANK STATEMENTS, XEROX COPIES OF SALE AND PURCHASE DOCUMENTS OF SHOP AND INVESTMENTS WERE FURNISHED. FURTHER, BANK SUMMARIES WERE ALSO FURNIS HED ALONGWITH LOAN CONFIRMATION OF MR. NIZAR GOVANI AND DETAILS OF MONTHWISE SALE AND PURCHASE WERE ALSO FURNISHED. 5) THE TOTAL AMOUNT OF INCOME TREATED AS UNEXPLAINE D CASH CREDIT U/S 68 AT RS.27,86,639/- HAS BEEN ACCEPTED B Y THE ASSESSING OFFICER AS PARTLY INCORRECT IN PARA 2 OF THE REMAND REPORT WHEREIN THE SUM OF RS. 2,00,000/-HAS BEEN ACCEPTED AS PROCEEDS OF PARTIAL ENCASHMENT OF FDR. IT WAS FURTHER SUBMITTED THAT THE SALE CONSIDERATIO N OF RS. 13,00,000/- IS RECEIVED IN RESPECT OF SALE OF S HOP IN DHEERAJ HERITAGE. THE CAPITAL GAINS IN RESPECT O F THE SAME IS REFLECTED AT RS. 277, 357/- IN THE COMPUTAT ION OF INCOME. FIXED DEPOSITS WITH DEVELOPMENT CREDIT BANK WAS ALLEGED TO BE ENCASHED AMOUNTING TO RS. 6,50,000/-. THE CONFIRMATION OF DEVELOPMENT CREDIT BANK WAS ALLEGED TO BE FILED BEFORE AO. FIXED DEPOS IT WITH BANK CO-OPERATIVE SOCIETY OF RS.2,00,000/- WAS ALLEGED TO BE ENCASHED OUT OF TOTAL FDR OF RS. 6,50,000/- MADE DURING THE YEAR. THE CONFIRMATION O F BANDRA CO-OPERATIVE CREDIT SOCIETY WAS ALLEGED TO B E FILED. SUNDRY DEBTORS OF RS.24,12,249/- WAS ALLEGED TO BE RECOVERED WHICH WERE REFLECTED AS OUTSTANDING ON 31.03.2005 AT RS. 25,155/-. IT WAS ALSO BROUGHT ON ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 9 RECORD THAT RS.51,500/- IS TRANSFERRED FROM SAVING ACCOUNT NO. 3087 WITH DEVELOPMENT CREDIT BANK, SUMMARY OF WHICH IS ENCLOSED ABOVE. RS.50,000/- IS RECEIVED FROM THE ESTATE OF HER LATE HUSBAND NOORAL I GOVANI WHO EXPIRED ON 31.12.1992. RS. 2,500/- IS RECEIVED FROM OUR CLIENT'S DAUGHTER ROZINA GOVANI WHOSE LOAN CONFIRMATION IS ENCLOSED HEREWITH. THE SUMMARY OF TRANSACTION OF SILVERLINE MARKETING IS ENCLOSED FROM WHICH IT CAN BE EVIDENCED THAT A SUM OF 2,75,000/- IS RECEIVED FROM THEM. 11. IT WAS FURTHER EXPLAINED THAT CREDIT IN THE BAN K ACCOUNT WAS ON ACCOUNT OF RS.119,900/- RECEIVED FRO M ASSESSEES SON NIZARALI GOVANI WHOSE LOAN CONFIRMATION WAS ALSO FILED. FURTHER A SUM OF RS.3.25,000/- WAS TRANSFERRED FROM SAVING ACCOUNT NO.10078 WITH DEVELOPMENT CREDIT BANK. RS.3,00,000/- IS RECEIVED FROM CLIENTS DAUGHTER ROZINA GOVANI WHOSE LOAN CONFIRMATION WAS ALSO ENCLOSED. HOWEVER, TO SUBSTANTIATE THE CLAIM OF VARIOUS DEPOSITS AND WITHDRAWALS THE ASSESSEE HAS NOT FILED ANY CASH-FLOW/FUND-FLOW STATEMENT. FROM T HE ORDERS OF LOWER AUTHORITIES IT IS NOT CLEAR THAT DOCUMENTARY EVIDENCES WITH RESPECT TO SOURCE OF FUN DS WERE FILED BEFORE THEM. 12. IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION M ADE DURING THE ASSESSMENT YEAR 2006-07 U/S.68 AS WELL AS ON ACCOUNT OF SHORT TERM CAPITAL GAINS IS ALSO RESTORED TO THE FILE THE AO FOR DECIDING AFRESH AFT ER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 13. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. I FIND THAT THE TRIBUNAL VIDE AFORESAID ORDER DA TED 13.04.2015 REMANDED THE QUANTUM ADDITION FOR FRESH ADJUDICATION TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, I AM OF THE VIEW THAT THE RESULTANT ADDITION WILL DEC IDE THE LEVIABILITY/NON-LEVIABILITY, AS THE CASE MAY BE, OF THE PENALTY ALSO. THEREFORE IN ALL FAIRNESS THE PENALTY APPEAL IS ALSO REMANDED BACK TO THE FILE OF THE LEARNED ASSES SING ITA NO.2850/MUM/2015 MRS. ZARINA NOORALI GOVANI 10 OFFICER FOR HIS FRESH CONSIDERATION IN ACCORDANCE W ITH LAW. THUS THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. D.R. AT THE CONCLUSION OF THE HEARI NG ON 14/07/2016. SD/- (JOGINDER SINGH) ! /JUDICIAL MEMBER ! MUMBAI; & DATED : 14/07/2016 AA? P.S / /. . . ' #$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. ()*+, / THE APPELLANT (RESPECTIVE ASSESSEE) 2. -.+, / THE RESPONDENT. 3. / / 0 ( ()* ) / THE CIT-19, MUMBAI. 4. / / 0 / CIT(A)-30, MUMBAI, 5. 23 - , / ()*# (4 , ! / DR, SMC BENCH, ITAT, MUMBAI 6. 5 6!* / GUARD FILE. / BY ORDER, .2) - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI