HANUMAN H. BISHNOI, MUMBAI V. DCIT CEN CIR 2(4),

ITA 3114/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0228 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAVLD
• Assessee Lawyers: BHUPENDRA SHAH LD
• Section: 143(3); 142(1); 131; 132

Judgement Text

ITA NO. 3114/MUM/2017 HANUMAN H.BISHNOI ASSESSMENT YEARS-2013-14 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.3114/MUM/2017 ( / ASSESSMENT YEAR: 2013-14) HANUMAN H.BISHNOI C/O S.SAHU & CO. 103, PARAN KUTIR BUILDING 39/41 4 TH KUMBHARWADA, MUMBAI 400 004 / VS. DEPUTY COMMISSIONER OF INCOME TAX-CENTRAL CIRCLE 2(4) MUMBAI ./PAN : AITPH-4883-R ( /APPELLANT ) : ( ! / RESPONDENT ) ASSESSEE BY : BHUPENDRA SHAH, LD. AR REVENUE BY : RAJESH KUMAR YADAV, LD. DR / DATE OF HEARING : 26/11/2018 / DATE OF PRONOUNCEMENT : 05/12/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2013-14 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-48, MUMBAI [CIT(A)], APPEAL NO. CIT(A)-48/IT-130/DCCC-2(4)/2015-16 DATED 24/02/2017 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSMENT ITA NO. 3114/MUM/2017 HANUMAN H.BISHNOI ASSESSMENT YEARS-2013-14 2 FOR IMPUGNED AY WAS FRAMED BY LD. DEPUTY COMMISSION ER OF INCOME TAX, CENTRAL CIRCLE-2(4), MUMBAI [AO] IN SCRUTINY A SSESSMENT U/S 143(3) ON 19/03/2015 WHEREIN THE INCOME OF THE ASSESSEE WA S DETERMINED AT RS.42.83 LACS AFTER CERTAIN ADDITION OF RS.38 LACS AS AGAINST RETURNED INCOME OF RS.4.83 LACS FILED BY THE ASSESSEE. 2.1 THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS SUBJECTED TO SEARCH & SEIZURE OPERATIONS U/S 132 ON 08/11/2012 IN THE COU RSE OF SEARCH & SEIZURE ACTION IN THE CASE OF M/S GOLD SUKH SAFETY VAULTS LIMITED. THE AFORESAID ENTITY WAS ENGAGED IN THE BUSINESS OF PRO VIDING LOCKERS ON RENT. IT WAS FOUND THAT THE LOCKERS WERE BEING PROV IDED WITHOUT VERIFICATION OF KYC AND THE LOCKERS COULD BE OPERAT ED BY THREE MORE PERSONS INCORPORATING THEIR NAMES ON THE AGREEMENT. IT WAS OBSERVED THAT A NUMBER OF LOCKERS WERE GIVEN ON RENT TO HAWALA OPERATORS WHO WERE INVOLVED IN ILLEGAL TRANSFER OF CASH. 2.2 UPON VERIFICATION OF LOCKER NO. 93 HELD BY THE ASSESSEE JOINTLY WITH SHRI RAJURAM SONARAM SIYAK, CASH OF RS.38 LACS WAS FOUND IN THE SAID LOCKER. IN STATEMENT UNDER OATH U/S 132(4) ON 09/11 /2012, THE ASSESSEE ATTRIBUTED THE CASH OF RS.20 LACS AS BELONGING TO H IS FATHER, RS.5 LACS AS BELONGING TO HIS BROTHER-IN-LAW AND BALANCE RS.1 3 LACS AS BELONGING TO HIS WIFE. HOWEVER, IN THE SUBSEQUENT STATEMENT R ECORDED ON 26/11/2012, THE ASSESSEE SUBMITTED THAT EARLIER STA TEMENT WAS WRONG AND THE CASH OF RS.13 LACS BELONGED TO HIS FATHER SHRI HARIRAMJI , RS. 5 LACS BELONGED TO HIS BROTHER-IN-LAW SHRI RAJURAM SONARAM SIYAK , RS.10.50 LACS WAS HIS OWN SAVINGS, RS.2.50 LACS BEL ONGED TO HIS WIFE SMT. SHANTIDEVI AND THE BALANCE OF RS.7 LACS BELONGED TO HIS UNCLE SHRI SONARAMJI . HOWEVER, HE FAILED TO ADDUCE ANY PROOF OF SOURCE OF CASH OR ITA NO. 3114/MUM/2017 HANUMAN H.BISHNOI ASSESSMENT YEARS-2013-14 3 PROVIDE THE DETAILS THEREOF. IT WAS ALSO ADMITTED T HAT THE AMOUNT OF RS.38 LACS WAS NOT REFLECTED IN THE BOOKS OF ACCOUNTS. TH EREFORE, THE CASE OF RS.38 LACS WAS SEIZED. 2.3 SUBSEQUENTLY, THE RETURN OF INCOME WAS FILED AT RS.4.83 LACS ON 26/10/2013 WHICH WAS PICKED UP FOR SCRUTINY ASSESSM ENT AND NOTICES U/S 143(2) & 142(1) WERE ISSUED TO THE ASSESSEE. THE A SSESSEE REFLECTED COMMISSION FROM SALE OF SCRAP. ALTHOUGH THE ASSESSE E ATTEMPTED TO EXPLAIN THE SOURCE OF CASH AND PRODUCED ALL THE FOU R PERSONS ON 24/02/2015 AND THERE STATEMENT U/S 131 WAS ALSO REC ORDED WHEREIN THEY WERE ASKED TO GIVE DETAILS OF THEIR SOURCE OF INCOM E. AFTER DUE EXAMINATION, LD. AO CAME TO CONCLUSION THAT NONE OF THESE PERSONS HAD THE CAPACITY TO EARN THE AMOUNT OF MONEY CLAIMED TO BE GIVEN BY THEM TO THE ASSESSEE. ALTHOUGH THE ASSESSEE DEFENDED ITS ST AND VIDE REPLY DATED 13/03/2015, HOWEVER, NOT CONVINCED, LD. AO, A FTER DISCUSSING THE BACKGROUND OF ALL THE CONCERNED PERSONS, THEIR SOUR CE OF INCOME, DOCUMENTARY EVIDENCES ETC. CAME TO CONCLUSION THAT SEIZED AMOUNT OF RS.38 LACS WAS UNDISCLOSED INCOME OF THE ASSESSEE A ND THEREFORE, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE AGITATED THE SAME WITHOU T ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 24/02/2 017 WHEREIN LD. FIRST APPELLATE AUTHORITY CONCURRED WITH THE STAND OF LD. AO. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI BHUPENDRA SHAH DRAWING OUR ATTENTION TO THE DOCUMENTS PLACED IN TH E PAPER-BOOK REITERATED THE STAND TAKEN BEFORE LOWER AUTHORITIES WHICH HAS ITA NO. 3114/MUM/2017 HANUMAN H.BISHNOI ASSESSMENT YEARS-2013-14 4 BEEN CONTROVERTED BY LD. DR, WHO SUBMITTED THAT THE ASSESSEE MISERABLY FAILED TO PROVE THE SOURCE OF CASH FOUND IN THE LOCKER. 5.1 WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS AND PERUSED RELEVANT MATERIAL ON RECORD. UPON DUE CONSIDERATION , WE FIND THAT AN AMOUNT OF RS.38 LACS WAS FOUND TO HAVE BEEN LYING I N ONE OF THE LOCKER MAINTAINED BY THE ASSESSEE JOINTLY WITH HIS BROTHER -IN-LAW SHRI RAJURAM SONARAM SIYAK WITH A PRIVATE ENTITY NAMELY M/S GOLD SUKH SAFETY VAULTS LIMITED. THIS ENTITY WAS FOUND TO BE ALLOTTING THE LOCKERS O N RENT WITHOUT DUE VERIFICATION OF CUSTOMERS AND IT WAS OBSERVED T HAT THREE MORE PERSONS COULD OPERATE THE LOCKERS BY INCORPORATING THEIR NAMES IN THE AGREEMENT AND NO KYC DETAILS WERE SOUGHT FROM THESE ADDITIONAL OPERATORS OF THE LOCKERS. IT WAS ALSO OBSERVED THAT LOCKERS WERE RENTED TO HAWALA OPERATORS INVOLVED IN ILLEGAL TRANSFER OF CASH. 5.2 SO FAR AS THE STATEMENTS GIVEN BY THE ASSESSEE U/S 132(4) ON 09/11/2012 & 26/11/2012 IS CONCERNED, WE FIND THAT THE ASSESSEE HAS CHANGED HIS STAND AS TO SOURCE OF CASH IN THESE TWO STATEMENTS AND IN THE SUBSEQUENT STATEMENT, THE ASSESSEE CATEGORICALL Y ADMITTED THAT HE LIED ON OATH. IT IS ALSO AN UNDISPUTED FACT THAT TH E ASSESSEE HAS NOT ACCOUNTED FOR CASH STATED TO BE RECEIVED FROM OTHER PERSONS IN HIS BOOKS OF ACCOUNT. NO PLAUSIBLE REASON FOR CHANGE OF STAND IN THE TWO STATEMENTS HAS BEEN PLACED ON RECORD AND THEREFORE, NONE OF THE STATEMENTS GIVEN BY THE ASSESSEE COULD BE BELIEVED TO BE AUTHENTIC. 5.3 IT IS NOTED THAT CASH WAS FOUND IN THE POSSESSI ON OF THE ASSESSEE DURING SEARCH OPERATIONS AND A PRESUMPTION WAS DRAW N AGAINST THE ASSESSEE THAT THE CASH BELONGED TO HIM AND THE COMP LETE ONUS TO ITA NO. 3114/MUM/2017 HANUMAN H.BISHNOI ASSESSMENT YEARS-2013-14 5 SUBSTANTIATE THE SOURCE THEREOF WAS UPON ASSESSEE A ND THE SAME HAS REMAINED UNDISCHARGED. 5.4 THE ASSESSEE HAS PLACED ON RECORD CERTAIN DOCUM ENTARY EVIDENCES IN THE SHAPE OF FINANCIAL STATEMENTS, INC OME TAX RETURNS ETC. TO SUPPORT HIS SUBMISSIONS THAT THE SEIZED CASH BEL ONGED TO OTHER PERSONS, THE BARE PERUSAL OF THE SAME LEND FEEBLE C REDENCE TO THE ARGUMENTS OF THE LD. AR THAT THE SEIZED CASH DID NO T COMPLETELY BELONG TO THE ASSESSEE. 5.5 AFTER ANALYZING OVERALL FACTUAL MATRIX AND CIRC UMSTANCES, THE BENCH FORMED AN OPINION THAT THE MATTER DESERVES TO BE SE T ASIDE TO THE FILE OF LD. AO FOR RECONSIDERATION OF THESE DOCUMENTS AND R E-ADJUDICATE THE SAME AFTER AFFORDING REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. THE LD. AO IS DIRECTED TO RE-CONSIDER THE SE EVIDENCES IN THE LIGHT OF SUBMISSIONS MADE BEFORE US WITH A DIRECTIO N TO THE ASSESSEE TO SUBSTANTIATE THE SOURCE OF CASH FOUND IN THE LOCKER FAILING WHICH LD. AO SHALL BE AT LIBERTY TO RE-ADJUDICATE THE SAME ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD. 6. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH DECEMBER, 2018. SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 05/12/2018 SR.PS:-JAISY VARGHESE ITA NO. 3114/MUM/2017 HANUMAN H.BISHNOI ASSESSMENT YEARS-2013-14 6 ! / 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 FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.