URAAZ SANTOSH BAHL, MUMBAI V. DCIT CIR 12(3), MUMBAI

ITA 3281/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92975 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2013
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Assessee Lawyers: PRAKASH JOTWANI

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & MS. SUSHMA CHOWLA , J M ./ ITA NO. 3281 / MUM/20 1 3 ( / ASSESSMENT YEAR : 200 8 - 0 9 ) SHRI URAAZ SANTOSH BAHL, 808, MAKER CHAMBERS V, NARIMAN POINT, MUMBAI - 400021 VS. DCIT, CIRCLE - 12(3), MUMBAI ./ ./ PAN/GIR NO. : A DXPB 6337 R ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI PRAKASH JOTWANI /REVENUE BY : SHRI PAWAN KUMAR BEERLA / DATE OF HEARING : 10 /0 6 / 2015 / DATE OF PRONOUNCEMENT 26 /06 /2 015 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER CIT (A) - 23 , MUMBAI, DATED 1 - 2 - 2013 FOR THE ASSESSMENT YEAR 200 8 - 0 9 , IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE IT ACT . 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO CONFIRMING ADDITION OF RS. 11,69,000/ - DEPOSITED IN THE BANK ACCOUNT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. ON THE BASIS OF AIR INFORMATION PERTAINING TO CASH DEPOSIT OF RS. 11,69,000/ - INTO SAVING BANK ACCOUNT NO. 012 - 122487 MAINTAINED WITH HSBC, MUMBAI , THE ITA NO. 3281 /1 3 2 ASSESSEE WAS ASKED TO EXPLAIN SOURCE OF DEPOSIT. THE ASSESSEE SHOWED SOURCE OF DEPOSITS AS WITHDRAWAL FROM THE BANK ACCOUNT. HOWEVER, THE AO DID NOT BELIEVE THE OPENING CASH BALANCE NOR DEPOSIT OF CASH IN TH E BANK ACCOUNT ON THE PLEA THAT THERE IS NO DOCUMENTARY EVIDENCE TO PROVE THAT WITHDRAWALS OF CASH MADE IN LAST YEAR ARE AVAILABLE WITH HIM IN THE CURRENT ASSESSMENT YEAR. PRECISE OBSERVATION OF THE AO WAS AS UNDER: - IT IS FURTHER SEEN FROM THE CASH STAT EMENT FILED BY THE ASSESSEE THAT THE ASSESSEE HAS SHOWN 51 TRANSACTIONS OF CASH MADE ON 51 DIFFERENT DAYS. ON PERUSAL OF THIS STATEMENT IT IS CLEAR THAT THESE TRANSACTIONS ARE NOT PERTAINING TO A.Y.2008 - 09. THEY ARE ALL PERTAINING TO A.Y.2007 - 08 RELEVANT T O F.Y.2006 - 07. THEREFORE, THESE CASH TRANSACTIONS CANNOT BE NOW LINKED UP AND ATTRIBUTED TO DEPOSITS MADE DURING A.Y.2008 - 09 WHICH IS UNDER SCRUTINY. THE ASSESSEE HAS FAILED TO EXPLAIN AS TO HOW THE CASH WITHDRAWAL OF AY.2007 - 08 HAS REMAINED WITH HIM THROU GHOUT THE YEAR AND NOT SPENT AT ALL IN A.Y.2007 - 08 ITSELF. IN OTHER WORDS THE CONTENTION OF THE ASSESSEE THAT THE EARLIER WITHDRAWALS OF CASH MADE IN LAST YEAR ARE AVAILABLE WITH HIM IN THE CURRENT ASSESSMENT YEAR IS NOT JUSTIFIED BY ANY DOCUMENTARY PROOF OR CORROBORATIVE EVIDENCE. ACCORDINGLY, ADDITION WAS MADE AND THE SAME WAS CONFIRMED BY THE CIT(A), AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4 . LD. AR PLACED ON RECORD ORDER OF THE TRIBUNAL IN ASSESEES OWN CASE FOR THE ASSESSMENT YEAR 2006 - 07 DATED 25 - 2 - 2015, WHEREIN ADDITION WAS MADE BY AO ON ACCOUNT OF CASH DEPOSIT IN THE BANK ACCOUNT TO THE TUNE OF RS. 7,30,000/ - BY DISREGARDING THE OPENING CASH BALANCE IN ASSESSEES HANDS. THE ISSUE WAS DECIDED BY TRIBUNAL IN FAVOUR OF THE ASSESSEE. AS PER LD. AR THE OPENING BALANCE DURING THE YEAR AMOUNTING TO RS. 12,19,973/ - WAS OUT OF THE NET RESULT OF DEPOSITS AND WITHDRAWAL MADE IN THE EARLIER ASSESSMENT YEAR, WHICH HAS BEEN ARRIVED AFTER TAKING INTO ACCOUNT OPENING BALANCE OF RS. 7,30,000/ - IN THE YEAR PRECEDING TO THE EARLIER YEAR WHICH HAS BEEN ACCEPTED BY THE TRIBUNAL VIDE ITS ORDER DATED ITA NO. 3281 /1 3 3 25 - 2 - 2015. LD. AR INVITED OUR ATTENTION TO THE CASH STATEMENT FOR THE FINANCIAL YEAR 200 7 - 0 8 RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION FILED BEFORE T HE AO, WHICH IS PLACED AT PAGE 2 OF THE PAPER BOOK, ACCORDING TO WHICH ENTIRE DEPOSIT IN THE BANK ACCOUNT WAS OUT OF WITHDRAWAL FROM THE BANK ACCOUNT ITSELF. AS PER LD. AR EVEN AFTER DEPOSIT OF THE CASH WITHDRAWAL INTO THE BANK, THERE WAS CLOSING BALANCE O F RS. 1,79,711/ - . AS PER THE LD. AR IN VIEW OF AVAILABILITY OF THE CASH, OUT OF THE CASH WITHDRAWAL FROM THE BANK ACCOUNT, THE AO WAS NOT J USTIFIED IN MAKING THE ADDITION IN RESPECT OF VERY SAME CASH DEPOSITED IN THE BANK ACCOUNT. 5 . ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF LOWER AUTHORITIES. 6 . WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT AS PER CASH STATEMENT FOR THE PERIOD 1 - 4 - 2007 TO 31 - 3 - 2008 FILED BEFORE THE AO AND WHICH IS PL ACED AT PAGE 2 OF PAPER BOOK , THE ASSESSEE HAS DEPOSITED CASH ON DIFFERENT DATES IN THE BANK ACCOUNT AND ON EACH DATE OF DEPOSIT THERE WAS SUFFICIENT CASH BALANCE IN HIS HAND S . THE CASH IN HAND WAS OUT OF WITHDRAWAL FROM THE HSBC BANK ACCOUNT. NOWHERE THE AO HAS DOUBTED THE WITHDRAWAL OF CASH FROM THE BANK ACCOUNT. INSOFAR AS THE CASH WAS WITHDRAWN FROM THE BANK, THE AVAILABILITY OF SUFFICIENT CASH WITH THE ASSESSEE WAS PROVED WELL BEFORE THE DATE OF DEPOSIT . M ERELY BECAUSE THE CASH WAS DEPOSITED IN BANK A CCOUNT OUT OF THE CASH AVAILABLE WITH THE ASSESSEE AFTER A PERIOD OF ONE OR TWO MONTHS WILL NOT DISLODGE THE CLAIM OF THE ASSESSEE WITH FACT OF AVAILABILITY OF THE CASH WITH HIM AS ON DATE OF ITA NO. 3281 /1 3 4 DEPOSIT UNLESS THERE IS ANY MATERIAL BEFORE THE AO TO HOLD THAT AVAILABLE CASH HAS BEEN UTILIZED OTHERWISE . IT IS NOT THE CASE OF AO THAT CASH WITHDRAWN FROM BANK HAS BEEN USED OR SPENT BY ASSESSEE SOMEWHERE ELSE. UNDER THESE CIRCUMSTANCES THERE IS NO JUSTIFICATION ON THE PART OF AO TO DISBELIEVE THE AVAILABILITY OF CA SH WITHDRAWN FROM BANK. AT THE VERY SAME TIME WE FOUND THAT OUT OF VARIOUS WITHDRAWAL S , THE ASSESSEE HAS SHOWN HOUSEHOLD EXPENSES AT RS. 1 5 ,000/ - PER MONTH, WHICH APPEARS TO BE AT LOWER SIDE. CONSIDERING THE HOUSE HOLD WITHDRAWALS AT RS. 20,000/ - PER MONTH, WE RESTRICT THE ADDITION TO THE EXTENT OF RS. 60 ,000/ - OUT OF THE OVERALL CASH DEPOSITED IN THE BANK ACCOUNT, WHICH WAS ADDED BY THE AO AMOUNTING TO RS. 11,69,000/ - . THUS, WE CONFIRM THE ADDITION OF RS. 60,000/ - 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALL OWED IN PART. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 26 /06 / 201 5 . SD/ - SD/ - ( ) ( SUSHMA CHOWLA ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 26 /06 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6 . / GUARD FILE. //TRUE COPY/