SHAILESH VISHWANATH RAJE, MUMBAI V. ITO 25(2)(3), MUMBAI

ITA 3424/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1039 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHADR
• Assessee Lawyers: A C JHAVERI
• Section: 69

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.3424/MUM/2017 ASSESSMENT YEAR: 2010-11 SHAILESH VISHWANATH RAJE, 3/8, RSC 25, GREEN CASTLE, BUNGLOW GORAI-II, BORIVALI (WEST) MUMBAI-400076 / VS. INCOME TAX OFFICER-25(2)(3), BKC, BANDRA, MUMBAI-400076 / ASSESSEE / REVENUE P.A. NO. ADMPR0197G $ % & / ASSESSEE BY SHRI A.C. JHAVERI $ % & / REVENUE BY MS. N. HEMALATHA-DR / DATE OF HEARING 04/01/2018 & / DATE OF ORDER: 04/01/2018 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 09/03/2017 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, CONFIRMING THE ADDITION OF RS.17 LAKHS SHOWN AS OPE NING CASH BALANCE, REJECTING THE CONTENTION OF THE ASSES SEE AND CONSEQUENT ADDITION U/S 69A OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). ITA NO.3424/MUM/2017 SHAILESH VISHWANATH RAJE 2 2. DURING HEARING, SHRI A.C. JHAVERI, LD. COUNSEL FOR THE ASSESSEE, ADVANCED ARGUMENTS, WHICH IS IDENTICA L TO THE EXPLANATION TAKEN BEFORE THE FIRST APPELLATE AUTHOR ITY. THE CRUX OF THE ARGUMENT IS THAT THE IMPUGNED CASH DEPO SIT IS OUT OF THE OLD CASH KEPT AT HOME AND IT IS THE OPEN ING BALANCE APPEARING IN THE CASH BOOK. ON THE OTHER HA ND, THE LD. DR, MS. N. HEMALATHA, STRONGLY DEFENDED THE ADD ITION BY CONTENDING THAT RIGHT FROM ASSESSMENT STAGE AND TIL L THE STAGE OF THIS TRIBUNAL, THE ASSESSEE HAS NOT PRODUC ED ANY EVIDENCE EXPLAINING THE SOURCE OF CASH AND MERELY C LAIM HAS BEEN MADE. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FAC TS, IN BRIEF, ARE THAT AS PER AIR INFORMATION, THE ASSESSEE MADE CASH DEPOSIT OF RS.17 LAKH IN HIS SAVING BANK ACCOUNT MA INTAINED WITH AXIS BANK. THE ASSESSEE WAS ASKED TO EXPLAIN T HE SOURCE OF THE SAME AND WAS FURTHER ASKED WHETHER TH E CASH DEPOSITED IN THE BANK WAS DISCLOSED IN THE RETURN O F INCOME FILED EARLIER. THE ASSESSEE DID NOT PRODUCE ANY EVI DENCE BUT MERELY CLAIMED THAT THE IMPUGNED CASH DEPOSIT IS OU T OF WHOLE SAVING IN CASH AND WAS KEPT AT HOME. THE ASSE SSEE ITA NO.3424/MUM/2017 SHAILESH VISHWANATH RAJE 3 ALSO PRODUCED CASH BOOK WHEREIN THE OPENING BALANCE WAS SHOWN AT RS.17,02,559/-. THE LD. ASSESSING OFFICER EXAMINED THE RETURN OF THE ASSESSEE AND FOUND THAT THE ONLY SOURCE OF INCOME OF THE ASSESSEE IS SALARY, SHARE O F PROFIT FROM THE FIRM WHERE THE ASSESSEE IS A PARTNER. THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE THAT THE CASH WAS WITH DRAWN FROM HIS ACCOUNT OR FROM THE FIRM. IN THE ABSENCE O F ANY PLAUSIBLE EXPLANATION, THE LD. ASSESSING OFFICER MA DE THE ADDITION U/S 69A OF THE ACT. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TA X (APPEAL), IDENTICAL SUBMISSIONS WERE MADE AND ALSO FILED WRITTEN SUBMISSIONS. THE LD. ASSESSING OFFICER DULY EXAMINED THE PRAYER OF THE ASSESSEE AND AFFIRMED TH E ADDITION MADE BY THE ASSESSING OFFICER. BEFORE THIS TRIBUNAL ALSO, THE ASSESSEE TOOK IDENT ICAL PLEA BY CONTENDING THAT THE CASH BOOK FOR FINANCIAL YEAR 2008-09 AND 2009-10 CLEARLY REFLECTS THE ACCUMULATI ON OF CASH. HOWEVER, FACTS REMAINS THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE WITH THIS FACT TO SOURCE AND GENUINENESS OF SUCH CASH DEPOSIT. AS PER SECTION 69 A OF THE ACT, IF IN ANY FINANCIAL YEAR, THE ASSESSEE IS FOUN D TO BE ITA NO.3424/MUM/2017 SHAILESH VISHWANATH RAJE 4 OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLES, WHIHCH IS NOT RECORDED IN THE BOOKS AND T HE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OR IF OFFERED WHICH IS NOT FOUND TO BE SATISFACTORY BY THE ASSESSING OFFICER SUCH MAY BE D EEMED TO BE THE INCOME OF THE ASSESSEE. IN THE PRESENT APPEA L, THOUGH THE ASSESSEE HAS SHOWN THE MONEY IN HIS BOOKS BUT D ID NOT EXPLAIN THE SOURCE OF SUCH CASH DEPOSIT AND ITS GEN UINENESS. IN SUCH A SITUATION, I AM OF THE VIEW THAT MERE CLA IM IS NOT ENOUGH, THE ASSESSEE HAS TO ADDUCE EVIDENCE IN SUPP ORT OF SUCH CASH DEPOSIT/AVAILABILITY OF CASH AND SOURCE T HEREOF, CONSEQUENTLY, I HAVE NO OPTION BUT TO AFFIRM THE ST AND TAKEN IN THE IMPUGNED ORDER. APPEAL OF THE ASSESSEE IS, T HEREFORE, DISMISSED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 04/01/2018. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 04/01/2018 F{X~{T? P.S / ! ITA NO.3424/MUM/2017 SHAILESH VISHWANATH RAJE 5 & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * / THE CIT, MUMBAI. 4. ) ) * / CIT- , MUMBAI 5. +,- ' , ) '#$ ' / , / DR, ITAT, MUMBAI 6. -0 1$ / GUARD FILE. & / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI