WAIZE ALI, MUMBAI V. ACIT, CENTRAL CIRCLE-43, MUMBAI

ITA 3164/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2540 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Assessee Lawyers: AGARWAL
• Keywords: Set aside
• Section: 69B; 147; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NOS.3164 & 1439/M/2019 ASSESSMENT YEARS: 2008-09 & 2009-10 MR. WAIZE ALI KENNEDY HOUSE, 4 TH FLOOW, GOREGAONKAR ROAD, MUMBAI 400 007 PAN: AIQPA6270A VS. ACIT 2(1)(2), CENTRAL CIRCLE-43 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI 400020 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI AGARWAL, A.R. REVENUE BY : MS. SMITA VERMA, D.R. DATE OF HEARING : 02.03.2021 DATE OF PRONOUNCEMENT : 25.05.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST DIFFERENT ORDERS DATED 26.04.2019 & 30.01.2019 OF THE COMMISSIONER OF INCOME TAX (APPEA LS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEARS 2008-09 & 2009-10 RESPECTIVELY. 2. FIRST WE TAKE UP ITA NO.3164/M/2019 A.Y. 2008-09 . ITA NO.3164/M/2019 A.Y. 2008-09 3. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: GROUND NO. 1 LD CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,00,000/- U/S 69B FOR RECEIPT OF OF LOAN FROM MR. ASIF MULLA. MR. WAIZE ALI ITA NOS.3164 & 1439/M/2019 2 THE PAYMENT IS BY ACCOUNT PAYEE CHEQUE BY MR. ASIF MULLA, WHO IS REGULARLY ASSESSED WITH DEPARTMENT, HAS SHOWN THE LOAN ON ASS ET SIDE OF HIS BALANCE SHEET. ASSESSEE FILED CONFIRMATION FROM MR. ASIF MULLA, HI S BANK PASS BOOK, HIS BALANCE SHEET, LEDGER ACCOUNT OF ASSESSEE IN MR. ASIF MULLA 'S BOOKS ETC. GROUND NO. 2 THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE A DDITION OF RS.15,43,429/- BEING REDUMPTION OF TWO MUTUAL FUNDS INVESTED IN EARLIER YEARS AS UNDER. A). REDEMPTION OF RELIANCE FUND RS. 10,09,862/- PURCHASED ON 22/3/2006 (AY 2007/08) FOR RS.10,00,00 0/- BY CHEQUE & REDUMPTION ON 7/9/2007 (AY 2008/09) RS. 10,09,862/- B). REDEMPTION OF HDFC RS. 5,33,567/- PURCHASED ON 7/2/2007 (AY 2007/08) RS. 5 LACS BY CH EQUE & REDUMPTION ON 3/10/2007 (AY 2008/09) RS. 5,33,567/- C) IN AY 2003/04, WAIZE AH HAD RECEIVED RS.38,50,00 0/- BEING EDJUCATION AID FROM M/S MUMBAI MAZDOOR SABHA, ALONG WITH HIS RELATIVE M S RAVISH ZAIDI WHO ALSO RECEIVED RS. 33,50,000/-AS A EDJUCATION AID FROM M/ S MUMBAI MAZDOOR SABHA THESE BOTH THE ABOVE AMOUNTS TOTALLING RS. 72,00,00 0/- HAS BEEN DISCLOSED BY MS. CHANDBIBI AS HER INCOME & PAID FILL INCOME TAX WITH INTEREST. THE SAME FUND IS REGULARLY INVESTED IN DIFFERENT IN STRUMENTS EVERY YEAR & DEPARTMENT IS TAXING EVERY TIME AS & WHEN SUCH INST RUMENT IS ENCASHED EVERY YEAR THUS RESULTING IN DOUBLE/MULTIPLE TAXATION OF SAME AMOUNT. 4. THE ISSUE RAISED IN GROUND NO.1 IS AGAINST THE C ONFIRMATION OF ADDITION OF RS.1,00,000/- BY LD. CIT(A) AS MADE BY THE AO ON ACCOUNT OF LOAN RECEIVED FROM MR. ASIF MULLA UNDER SECTION 69B OF THE ACT AND THE ISSUE RAISED IN GROUND NO. 2 IS AGAINST THE CONFIRMATION OF RS. 15,43,429/- BY LD CIT(A) AS ADD ED BY THE AO ON THE BASIS OF CREDITS IN THE BANK ACCOUNT OF THE ASSESSEE JOINTLY HELD WITH MS. CHAND BIBI ZAIDI WITH NOVA SC OTIA BANK, NARIMAN POINT BRANCH, MUMBAI. 5. THE FACTS IN BRIEF ARE THAT A SEARCH ACTION UNDE R SECTION 132 OF THE ACT WAS CARRIED OUT IN CHAND BIBI ZAIDI GROUP OF CASES ON 20.08.09. DURING THE COURSE OF SEARCH A B ANK ACCOUNT IN THE JOINT NAME OF MR. WAIGE ALI, THE ASSESSEE, A ND MS. CHAND BIBI ZAIDI WITH NOVA SCOTIA BANK, NARIMAN POINT BRANCH, MR. WAIZE ALI ITA NOS.3164 & 1439/M/2019 3 MUMBAI IN WHICH THE DEPOSITS INCLUDING INTEREST OF RS.18,96,103/- WERE FOUND IN F.Y. 2007-08. ACCORDI NGLY, THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT ON 1 9.03.2013. THE AO DURING THE COURSE OF SCRUTINY PROCEEDINGS FO UND THAT THERE WERE SOME CREDITS IN THE SAID BANK OF THE ASS ESSEE WHICH COMPRISED OF RS.1,00,000/- RECEIVED FROM MR. ASIF M ULLA BY ACCOUNT PAYEE CHEQUE, RS.10,09,862/- AS REDEMPTION PROCEEDS FROM RELIANCE VISION FUND AND RS.5,33,567/- AS REDE MPTION PROCEEDS FROM HDFC TOP 200. THE AO, AFTER REJECTING THE EXPLANATION /REPLY OF THE ASSESSEE, ADDED UNDER SEC TION 69B OF THE ACT IN THE ASSESSMENT FRAMED UNDER SECTION 143( 3) READ WITH SECTION 147 OF THE ACT. 6. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) DIS MISSED THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE REPLY OF THE ASSESSEE AND UPHELD THE ORDER OF AO. PERTINENT TO STATE THA T ASSESSEE HAS FILED BEFORE THE LD. CIT(A) THE CONFIRMATION LETTER FROM SHRI SA MULLA, COPY OF ACKNOWLEDGMENT OF IT RETURN, PAN CAR D AND BALANCE SHEET OF THE LENDER ALONG WITH THE BANK STA TEMENT SHOWING THE REPAYMENT ON 23.11.2011. HOWEVER, LD. CIT(A) REJECTED ALL THESE EVIDENCES AND AFFIRMED THE ADDIT ION. SIMILARLY, ASSESSEE FILED THE EVIDENCES AS REGARDS THE REDEMPT ION PROCEEDS OF RELIANCE VISION FUND AND HDFC TOP 200 TO EXPLAIN THE OTHER CREDITS IN THE BANK ACCOUNT WHICH WERE MADE OUT OF MATURITY PROCEEDS OF THE INVESTMENTS MADE IN THE EARLIER YEA RS AND DULY SHOWN IN THE BALANCE SHEETS OF THE ASSESSEE IN THE RELEVANT ASSESSMENT YEARS . MR. WAIZE ALI ITA NOS.3164 & 1439/M/2019 4 7. THE LD. A.R. AT THE OUTSET SUBMITTED THAT THE IS SUE OF DEPOSIT IN THE JOINT BANK ACCOUNTS IS A RECURRING I SSUE AS THE SAME ADDITION IS BEING MADE YEAR AFTER YEAR ON THE BASIS OF CREDITS IN THE BANK ACCOUNT BY THE REVENUE BY IGNOR ING THE FACT THAT THE SAID PROCEEDS WERE OUT OF THE EARLIER MATU RITY PROCEEDS. THE LD. A.R. SUBMITTED THAT THE ISSUE HAS BEEN DECI DED IN ASSESSEES OWN CASE IN EARLIER THREE ASSESSMENT YEA RS IN ITA NO.1343 & 1344/M/2014 A.Y. 2005-06 & 2006-07 AND IT A NO.1345/M/2014 A.Y. 2007-08 WHEREIN VERY SAME ISSU E INVOLVING THE SAME FUNDS WERE DECIDED BY THE CO-ORD INATE BENCH OF THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. THE LD. A.R. THEREFORE PRAYED THAT FOLLOWING THE SAID DECISION OF THE CO-O RDINATE BENCH OF THE TRIBUNAL THE ADDITION AS MADE BY THE AO AND AS AFFIRMED BY LD. CIT(A) MAY KINDLY BE DELETED TO THE TUNE OF RS.15,43,429/- AS THE SAME WERE CREDITED IN THE BAN K UPON MATURITY OF RELIANCE MUTUAL FUND AND HDFC MUTUAL FU ND. THE LD AR SUBMITTED THAT RS.10,09,862/- WERE THE MATUR ITY PROCEEDS OF RELIANCE MUTUAL FUND WHICH WERE PURCHAS ED ON 22.03.2006 A.Y. 2007-08 FOR RS.10 LAKH BY CHEQUE AN D THE REDEMPTION PROCEEDS WERE CREDITED ON 07.09.2007. S IMILARLY, THE MAJORITY PROCEEDS OF MUTUAL FUND WITH HDFC FOR RS.5,63,567/- MATURED ON 03.10.2007 WAS PURCHASED ON 07.02.2007 FOR RS.5 LAKHS BY CHEQUE. SO FAR AS THE ADDITION OF RS.1 LAKH ON ACCOUNT OF LOAN RAISED FROM MR. ASIF M ULLA IS CONCERNED, THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAS FILED ALL THE NECESSARY EVIDENCES COMPRISING CONFIRMATION LET TER, PAN CARD, BALANCE SHEET, ITR AND BANK STATEMENT ALONG W ITH EVIDENCES OF REDEMPTION OF THE SAID LOAN AND THEREF ORE HAS DISCHARGED ITS ONUS OF PROVING IDENTITY AND CREDITW ORTHINESS OF MR. WAIZE ALI ITA NOS.3164 & 1439/M/2019 5 THE LENDER AND GENUINENESS OF THE TRANSACTIONS AND THEREFORE THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDI TION. FINALLY, THE LD. A.R. PRAYED THAT THE SAME MAY KINDLY BE DEL ETED. 8. THE LD. D.R., ON THE OTHER HAND, RELIED HEAVILY ON THE ORDER OF AUTHORITIES BELOW. HOWEVER, CANDIDLY, ACCEPTED THAT THE ISSUE IN GROUND NO 2 HAS BEEN ADJUDICATED IN A.Y. 2005-0 6, 2006-07 & 2007-08 AS STATED BY THE LD. A.R. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ISSUE RAIS ED IN GROUNDS NO.2 IS ABOUT THE CREDITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE WHICH WAS JOINTLY HELD BY THE ASSESSE E WITH CHAND BIBI TO THE TUNE OF RS.15,43,429/- . THE DEPOSITS W ERE ON ACCOUNT OF MATURITY PROCEEDS OF TWO MUTUAL FUNDS NA MELY RELIANCE VISION FUND OF RS.10,09,862/- WHICH WAS PU RCHASED ON 22.03.2006 FOR RS.10 LAKHS WHEREAS 2 ND HDFC MUTUAL FUND OF RS.5,33,567/- WAS PURCHASED ON 07.02.2007 FOR RS .5 LAKHS. WE NOTE THAT THESE WERE THE INVESTMENTS MADE BY THE ASSESSEE FROM YEAR TO YEAR AND WERE BEING REGULARLY SHOWN IN THE BALANCE SHEETS OF THE RESPECTIVE YEARS. BESIDES, WE NOTE T HAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE. WE NOTE THAT THIS ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE EARLI ER THREE YEARS IN ITA NO. ITA NO.1343 & 1344/M/2014 A.Y. 2005-06 & 2006- 07 AND ITA NO.1345/M/2014 A.Y. 2007-08. IN VIEW OF THESE FACTS, WE ARE INCLINED TO SET ASIDE THE ORDER OF LD . CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS.15,43,42 9/-.THE GROUND NO. 2 IS ALLOWED. MR. WAIZE ALI ITA NOS.3164 & 1439/M/2019 6 10. SO FAR AS THE CONFIRMATION OF ADDITION OF RS.1 LAKH IS CONCERNED BEING LOAN RAISED FROM MR. ASIF MULLA, WE NOTE THAT ASSESSEE HAS DISCHARGED ONUS BY FURNISHING ALL THE EVIDENCES AS STATED HEREINABOVE SUCH AS CONFIRMATION LETTER, PAN , PROOF OF PAYMENT THROUGH BANKING CHANNEL . IT AND ANNUAL ACC OUNTS OF THE ASSESSEE AND THE NONE OF THE AUTHORITIES HAVE D ONE ANY FURTHER VERIFICATION ON THE EVIDENCES FILED BY THE ASSESSEE. THEREFORE, THE ORDER OF LD. CIT(A) IS CAN NOT BE SU STAINED. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) O N THIS POINT ALSO AND DIRECT THE AO TO DELETE THE ADDITION OF RS .1 LAKH. THE GROUND NO. 1 IS ALSO ALLOWED. 11. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS ALLO WED. ITA NO.1439/M/2019 A.Y. 2009-10 12. THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDE NTICAL TO THE ONE AS DECIDED BY US IN GROUND NO. 1 IN ITA NO.31 64/M/2019 FOR A.Y. 2008-09. THEREFORE, OUR FINDING ON GROUND NO. 1 IN ITA NO.3164/M/2019 FOR A.Y. 2008-09 WOULD, MUTATIS MUTA NDIS, APPLY TO THIS APPEAL AS WELL. ACCORDINGLY THE APPEA L OF THE ASSESSEE IS ALLOWED. 13. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.05.2021. SD/- SD/- ( RAVISH SOOD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 25.05.2021. * KISHORE, SR. P.S. MR. WAIZE ALI ITA NOS.3164 & 1439/M/2019 7 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.