URVI CHAUDHARY, MUMBAI V. ITO 11(3)(4), MUMBAI

ITA 2951/MUM/2014

• Counselvise Citation: 295119914 RSA 2014
• Duration Of Justice: 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PTG VS ITO MUMBAI
• Section: 143(3)

Judgement Text

, Q QQ Q INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & S HRI SANJAY GARG, JUDICIAL MEMBER /. ITA NO.2951/MUM/2014, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR-2009-10 MRS. URVI CHAUDHARY (NEE DR URVI TANNA),SHOP NO.10, CHINTAMANI BUILDING, S.V.P. ROAD, KANDIVALI (W), MUMBAI-400067 PAN:ABYPT5448G ! VS. ITO 11(3)(4), MUMBAI. ( $% / APPELLANT) ( &'$% / RESPONDENT) !() !() !() !() * * * * / ASSESSEE BY : SHRI NEELKANTH KHANDELWAL + * / REVENUE BY : SHRI JITENDRA ! ! ! ! + ++ + ), ), ), ), / DATE OF HEARING : 01 -01-2015 -.' + ), / DATE OF PRONOUNCEMENT : 09 -01-2015 ! ! ! ! , 1961 + ++ + 254(1) ) ) ) ) ) ) ) ) / / / / ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, A.M. ! : CHALLENGING THE ORDER DATED 26.02.2014 OF THE CIT(A )-2,MUMBAI,ASSESSEE HAS FILED FOLLOWING GROUNDS OF APPEAL: 1. THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, MUMB AI (HEREINAFTER REFERRED TO AS THE CIT(A)), ERRED IN UPHOLDING THE ACTION OF THE INCOME-TAX OFF ICER - 11 (3)(4), MUMBAI (HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER) IN MAKING AN ADDITION OF RS 5,99,120, ON ACCOUNT OF PROFESSIONAL FEES NOT ACCOUNTED FOR. THE APPELLANT CONTENDS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT NOT TO HAVE CONFIRMED THE IMPUGNED ADD ITION INASMUCH AS THE CIT(A), BEFORE CONFIRMING THE SAID ADDITION, HAS NOT APPRECIATED T HE FACTS IN ITS ENTIRETY. THE ADDITION THEREFORE, REQUIRES TO BE DELETED. 2. THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN CHARGING INTEREST OF RS 72,468 AND RS 62 UNDER SECTIONS 2348 AND 234C OF TH E ACT, RESPECTIVELY. THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER O UGHT NOT TO HAVE CHARGED INTEREST UNDER SECTIONS 2348 AND 234C INASMUCH AS - (A) THE ASSESSING OFFICER HAS NOT GIVEN AN OPPORTUN ITY TO THE APPELLANT BEFORE CHARGING THE SAID INTEREST AS REQUIRED BY THE PRINCIPLES OF NATU RE JUSTICE, (B) THE CHARGING OF INTEREST IS NOT IN ACCORDANCE W ITH LAW. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER OR AMEN D THE AFORESTATED GROUNDS OF APPEAL. 2 .ASSESSEE,A MEDICAL PRACTITIONER, FILED HER RETURN OF INCOME ON 24.09.2009 DECLARING TOTAL INCOME OF RS.4,44,560/-.THE ASSESSEE OFFICER (AO) COMPLETE D THE ASSESSMENT U/S 143(3) OF THE ACT ON 26.12.2011,DETERMINING HER INCOME AT RS. 13,03,680/ -. 3. DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THA T THE ASSESSEE HAD DEPOSITED RS. 19.30 LAKHS IN HER BANK ACCOUNT, THAT SHE HAD SHOWN PROFE SSIONAL INCOME OF RS. 13.3 LAKHS. BY HIS LETTER DATED 23.11.11,HE DIRECTED HER TO EXPLAIN AS TO WHY RS. 5.99 LAKHS OF CASH DEPOSIT WAS NOT ACCOUNTED IN COMPUTING THE TOTAL INCOME.THE ASSESSE E VIDE HER,LETTER DATED 07.12.2011,STATED THAT DIFFERENCE IN THE CASH DEPOSIT WAS ON ACCOUNT OF AG RICULTURAL INCOME RECEIVED DURING THE EARLIER ITA/2951/MUM/2014-AY.09-10/ MRS. URVI CHAUDHARY 2 YEAR WHICH WAS NOT DEPOSITED IN THE BANK.AS PER THE AO THE ASSESSEE DID NOT SUBMIT PROPER DOCUMENTARY EVIDENCE FOR THE VARIATION OF THE PROFE SSIONAL INCOME AND THE EXPLANATION FURNISHED BY HER WAS NOT SATISFACTORY.HE FURTHER OBSERVED THA T IN THE ACCOUNT OF UNION BANK SHE HAD DEPOSITED RS. 40,000/- EVERY WEEK FROM 04.04.2008 T O 25.10.2008, THAT SHE HAD FURTHER DEPOSITED CERTAIN AMOUNTS IN THE MONTH OF SEPTEMBER ALSO.THE AO FOUND THAT THE GROSS PROFESSIONAL RECEIPTS OF THE ASSESSEE HAD REDUCED FROM RS. 18.70 LAKHS LA ST YEAR TO RS. 13.30 LAKHS DURING THE YEAR UNDER APPEAL,THAT SHE HAD SHOWN TOTAL RECEIPT OF RS . 29.86 LAKHS, INCLUDING THE AGRICULTURAL INCOME OF RS. 9.95 LAKHS LAST YEAR.FINALLY,HE HELD THAT RS . 5.99 LAKHS CASH DEPOSITED WAS NOT ACCOUNTED FOR AND HAD TO BE TREATED AS THE PROFESSIONAL INCOM E FOR THE YEAR UNDER CONSIDERATION. 4. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).BEFORE HIM IT WAS STATED THAT ASSES SEE HAD RECEIVED RS. 6 LAKHS ON 29.03.2008 IN CASH REPRESENTING THE SALE PROCEED OF AGRICULTUR AL LAND,THAT THE SAID CASH WAS ACCOUNTED IN THE BOOKS OF ACCOUNTS,THAT THE OPENING CASH BALANCE AS ON 01.04.2008 WAS RS. 6.06 LAKHS, THAT SHE HAD FURNISHED THE DETAILS OF PURCHASER OF THE LAND ALONG WITH THE ADDRESS, PAN AND CONTACT TELEPHONE NUMBER, THAT THE DIFFERENCE BETWEEN THE C ASH DEPOSIT IN BANK ACCOUNT AND THE GROSS PROFESSIONAL RECEIPT DECLARED FOR THE RELEVANT PREV IOUS YEAR REPRESENTING THE CASH AVAILABLE WITH THE ASSESSEE WAS PROPERLY EXPLAINED. 5. AFTER CONSIDERING THE ASSESSMENT ORDER AND THE SUBM ISSION OF THE ASSESSEE, THE FAA HELD THAT THE ASSESSEE HAD SUBMITTED BEFORE THE AO THAT SALE PROCEEDS OF AGRICULTURAL LAND WERE DEPOSITED IN THE BANK ACCOUNT, THAT THE GROSS PROFESSIONAL RECEI PT DECLARED FOR THE RELEVANT PREVIOUS YEAR WERE FAR LOW AS AGAINST THE EARLIER YEAR, THAT THE REMIT TANCES OF CASH INTO BANK ACCOUNT WERE FOUND TO BE A SIMILAR PATTERN AS IN THE EARLIER YEARS, THAT THE CIRCUMSTANTIAL EVIDENCES INDICATED THAT THE ENTIRE REMITTANCES REPRESENTED PROFESSIONAL RECEIPTS,THAT THE PATTERN OF REMITTANCES INTO BANK ACCOUNT WAS SIMILAR IN THE PREVIOUS YEAR SALES IN THE PRECEDING PREVIOUS YEAR, THAT THE EXPLANATION OFFERED BY THE ASSESSEE DID NOT PASS THE TEST OF HUMAN PROBABI LITIES.REFERRING TO THE JUDGMENT OF SUMATI DAYAL(214 ITR 801),THE FAA UPHELD THE ADDITION OF R S. 5.99 LAKHS MADE BY THE AO. 6 .BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)STATED THAT THE ASSESSEE HAD SOLD AGRICULTURAL LAND DURING THE YEAR UNDER CONSIDERATION,THAT ALL THE PA PERS WERE SUBMITTED DURING THE ASSESSMENT PROCEEDINGS WITH REGARD TO THE SAID TRANSACTION,THA T CONFIRMATION FROM THE PURCHASER OF THE LAND WAS PRODUCED BEFORE THE AO,THAT THE OPENING BALANCE AS ON 01.04.2008 WAS NOT CONSIDERED BY THE AO/FAA, THAT THERE WAS NO VARIATION IN GROSS PROFES SIONAL RECEIPTS.HE REFERRED TO PAGE NO. 9, 40 AND 42 OF THE PAPER BOOK.DEPARTMENTAL REPRESENTATIV E (DR) SUPPORTED THE ORDER OF THE FAA. 7 .WE HAVE HEARD THE RIVAL SUBMISSION AND MATERIAL BE FORE US.WE FIND THAT THE AO HAD MADE THE ADDITION TO THE INCOME OF THE ASSESSEE,AS HE WAS OF THE OPINION THAT THERE WAS A VARIATION IN PROFESSIONAL INCOME OF THE ASSESSEE AS COMPARED TO INCOME OF THE LAST YEAR.WHAT THE BASIS OF ARRIVING AT THE SAID CONCLUSION HAS NOT BEEN EXPLAI NED BY HIM.THE ASSESSEE HAD CLAIMED THAT SHE HAD RECEIVED A SUM OF RS.6 LAKHS AS SALE PROCEEDS O F AGRICULTURAL LAND AND SAME WAS NOT DEPOSITED IN THE BANK ACCOUNT ON 29 TH MARCH,2008.IT WAS CLAIMED THAT LATER ON CASH WAS D EPOSITED IN THE BANK ACCOUNT AND THE OPENING CASH BALANCE FOR THE Y EAR UNDER APPEAL WAS SHOWN AT RS.6.06 LAKHS. AO AND FAA HAS HELD THAT DEPOSITING OF CASH IN THE SUBSEQUENT AY.IN BANK ACCOUNT SHOULD BE TREATED AS HER UNRECORDED PROFESSIONAL INCOME.IN OU R OPINION,THERE WAS NO EVIDENCE, WHATSOEVER, THAT THE ASSESSEE HAD NOT SHOWN CORRECT PROFESSIONA L INCOME.NOT DEPOSITING OF CASH OR DEPOSITING OF CASH IN THE BANK ACCOUNT IN THE MONTHS OF AUGUST AND SEPTEMBER 2008 IN ITSELF CANNOT BE A BASIS FOR MAKING ADDITION.IT COULD DEFINITELY BE A GOOD STARTING POINT OF INVESTIGATION. BUT,IN ITSELF IT IN NOT AN EVIDENCE THAT COULD BE USED TO HOLD TH AT SHE HAD UNACCOUNTED PROFESSIONAL INOME.WE FIND THAT THE FAA HAS DISCUSSED ABOUT CIRCUMSTANTIA L EVIDENCES,BUT HE HAS NOT MENTIONED THOSE ITA/2951/MUM/2014-AY.09-10/ MRS. URVI CHAUDHARY 3 EVIDENCES. ON THE OTHER HAND THE ASSESSEE HAS FURNI SHED THE DETAILS OF SALE OF LAND AND THE NAME OF THE PURCHASER ALONG WITH ALL THE NECESSARY DOCUMENT S.NEITHER THE AO NOR THE FAA HAS MADE ANY INQUIRY ABOUT THOSE DETAILS TO VERIFY THE GENUINENE SS OF THE CLAIM.WITHOUT REBUTTING THE SALE TRANSACTION OF LAND ONLY ON THE BASIS OF CASH DEPOS ITS IN BANK,ADDITION UPHELD BY THE FAA CANNOT BE ENDORSED.SECONDLY, THE ASSESSEE HAS ARGUED THAT THERE WAS NO DIFFERENCE IN THE GROSS OF PROFESSIONAL RECEIPTS FOR THE YEAR AS COMPARED TO L AST YEAR REMAINED UN-REBUTTED. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE,WE ARE REVERSIN G THE ORDER OF THE FAA AND DECIDE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. THE GROUND ABOUT CHARGING OF INTEREST IS CONSEQUENT IAL IN NATURE.WE ALLOW IT FOR STATISTICAL PURPOSES. AS A RESULT, A PPEAL FILED BY THE ASSESSEE STANDS ALLOWED 0)1 !() 2 3 + 4 + ) 5 6 . ORDER PRONOUNCED IN THE OPEN COURT ON 9TH JANUARY,2 015. / + -.' 7 8! 9 TUOJH TUOJH TUOJH TUOJH , ,, , 201 5 . + = SD/- SD/- ( / SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, 8! /DATE: 09.01.2015 SK / / / / + ++ + &)> &)> &)> &)> ?>') ?>') ?>') ?>') / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / $% 2. RESPONDENT / &'$% 3. THE CONCERNED CIT(A)/ @ A , 4. THE CONCERNED CIT / @ A 5. DR H BENCH, ITAT, MUMBAI / >B &)! ,P ,P,P ,P , . . . 6. GUARD FILE/ 0 '>) &) //TRUE COPY// /! / BY ORDER, C / 5 DY./ASST. REGISTRAR , /ITAT, MUMBAI