RUMANA ABDUL KADAR KHAN, Doha, Qatar V. Income Tax Officer, Int. Tax. Ward - 3(1)(1), Mumbai, Mumbai

ITA 3431/MUM/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3821 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-02-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 26-09-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift; Source of fund; Set aside
• Section: 69; 144; 142(1); 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI SANDEEP SINGH KARHAIL, JM ITA No.3431/Mum/2023 (Assessment Year: 2017-18) Rumana Abdul Kadar Khan Room No.7, Patel Compound Chawl, Oshiwara Garden Road, Jogeshwari (W), Mumbai – 400 102 Vs. Income Tax Officer(IT) Ward – 3(1)(1), Room No.1630, 16 th Floor, Air India Bldg., Nariman Point, Mumbai – 400 021 (Appellant) (Respondent) PAN No. BUSPK5345R Assessee by : Shri Bharat Kumar, AR Revenue by : Smt. Mahita Nair, Sr. DR Date of hearing: 05-02-2024 Date of pronouncement : 19-02-2024 O R D E R PER PRASHANT MAHARISHI, AM: 1. This appeal [ITA No. 3431/Mum/20] is filed by Ms. Rumana Abdul Kadar Khan [Assessee / Appellant] against the Appellate order passed by the Commissioner of Income Tax (Appeals) 57, Mumbai [Ld. CIT(A)] dated 28.7.2023 for Assessment Year 2017-18, wherein the appeal filed by the Assessee against the Page | 2 ITA No. 3431/Mum/2023 Rumana Abdul Kadar Khan; A.Y. 2017-18 assessment order passed under section 144 of The Income-tax Act, 1961 (the Act) dated 9.12.2019 passed by the Income Tax Officer – 3(1)(1), Mumbai (Ld. AO) , was partly allowed. 2. The Assessee is aggrieved by the appellate order wherein the Ld. CIT(A) confirmed the addition under Section 69(A) of the Act of Rs.15 lakhs being cash deposited by the Assessee in her bank account. 3. The Assessee has raised the following grounds of appeal:- 1. On the facts and in the circumstances of the case, and also in law, the Ld. CIT(A) erred in confirming the addition u/s. 69A of the Act of Rs. 15,00,000/- made by the Ld. AO being cash deposited by the appellant in her bank account. Your appellant, therefore, prays that the aforesaid addition of Rs.15,00,000/- be deleted. 4. The brief facts show that the Assessee is an individual who was issued a notice under section 142(1) of the Act on 12.3.2018 after filing the return of income. Further notice under section 142(1) of the Act was issued on 24.6.2019 seeking information of the cash deposit of Rs.15 lakhs in account No.4243 with Axis Bank, Andheri West Branch, Mumbai. Axis Bank as per letter dated 23.7.2019 submitted the bank statement of the Assessee along with the copy of KYC form and account opening details. 5. The Ld. AO issued show cause notice to the Assessee for addition of Rs.15 lakhs under Section 69 of the Act. The Assessee submitted a reply on 18.9.2019. The Ld. AO raised further queries seeking about the details of cash. The Assessee did not respond and therefore it resulted into an assessment Page | 3 ITA No. 3431/Mum/2023 Rumana Abdul Kadar Khan; A.Y. 2017-18 order under section 144 of the Act on 9.12.2019 wherein the Ld. AO made the addition of Rs.15 lakhs under section 69A of the Act. 6. Assessee preferred appeal before the Ld. CIT(A) wherein it was submitted that i. Assessee is working with the Qatar Airways and used to visit India occasionally to meet her family. A copy of the passport was submitted to show that she has stayed in India only for 53 days during financial year. ii. Assessee used to transferr her salary to her Non- resident ordinary account with Axis Bank so as to make funds available for her mother and family expenses. iii. Her mother accessed the account also. iv. Assessee has withdrawn through her mother, cash of Rs.11,03,000/- and part of the amount was available with her mother which is deposited in the bank account and therefore there is no unaccounted income. v. With respect to the source of funds available with her mother, she stated that she was also running a small beauty parlour by the name of Mehek in Jogeshwari and is filing return of income regularly. vi. For last four years, she has offered income of Rs.12 lakhs in total. Page | 4 ITA No. 3431/Mum/2023 Rumana Abdul Kadar Khan; A.Y. 2017-18 vii. Several judicial precedents were relied upon. 7. The Ld. CIT (A) noted that Assessee is an employee of Qatar Airways. He noted that the total savings available with the Assessee out of withdrawal by mother and withdrawal from the bank account is Rs.15,88,000/- whereas the cash deposited in the bank account is Rs.15 lakhs is not acceptable for the reason that frequent cash withdrawal in small amount were made and there is no evidence of cash available with the mother of the Assessee. Therefore, the addition was confirmed. 8. The Assessee is aggrieved and has filed an appeal before us. The ld. AR filed a paper book containing 30 pages. It was shown that i. Assessee is an employee with Qatar Airways working as a Cabin Services Director. She stayed in India for only 53 days. ii. The date wise cash withdrawal made by the mother of the Assessee was also placed to show that the mother has withdrawn Rs.11, 03, 000, which is available with the Assessee for deposit in Axis bank. iii. He also submitted the income tax details of the mother of the Assessee to show that she is also earning and in her balance sheet, cash is available which is deposited in the bank account of the Assessee. iv. An affidavit of the mother was also provided to state that Rs.4,85,000/- deposited along with Rs.11,03,000/- is the source of cash deposit of Rs.15,88,000/-. Page | 5 ITA No. 3431/Mum/2023 Rumana Abdul Kadar Khan; A.Y. 2017-18 v. It was further stated that withdrawal was made from the bank account of the Assessee bearing No.1566 and deposit is made in bank account No.4243. vi. That in absence of any evidence that the cash withdrawn from one bank account of the Assessee has been utilised for any other purposes, the Assessee must be given credit of all such sum against cash deposited in another bank account of the Assessee. vii. That source of cash available with the mother was denied without looking at the income tax return filed by her mother. viii. That the Ld. AO does not appreciate the evidences produced before him and the Ld. CIT (A) brushed aside by confusing it with the sale and purchase of agricultural land. 9. The ld. DR supported the orders of the lower authorities. It was submitted that Assessee has failed to prove the source of Rs.15 lakhs deposited in her bank account and therefore the addition is correctly confirmed by the lower authorities. 10. We have carefully considered the rival contentions and perused the orders of the lower authorities. The facts show that the Assessee is working with Qatar Airways and earning salary in Qatar. She is having bank account with Axis bank where in on 22.11.2016, Rs.6 lakhs and Rs.9 lakhs were deposited in two trenches. The Assessee was asked to explain the source of the funds of cash deposited. Assessee came out with the explanation that from bank account No.6067 with Axis bank Page | 6 ITA No. 3431/Mum/2023 Rumana Abdul Kadar Khan; A.Y. 2017-18 Assessee withdrew the sum before depositing i.e. up to 24.10.2016, Rs.11,03,000/-. For the balance sum of Rs.4,85,000/- it was submitted that account no. 4243 as the nominee is her mother and who is also having her independent source of income and filing return of income regularly, has deposited Rs.4,85,000/-. Therefore, according to the Assessee the sum of Rs.15 lakhs deposited in cash is out (i) of the bank account disclosed cash withdrawal available with the Assessee out of the withdrawals (ii) as well as from the source of funds available with her mother. The Ld. AO in the assessment order does not discuss the above facts and did not examine that why withdrawal of cash, may be in small quantities, not available to the Assessee as the source of cash deposit when there is no evidence that above such small sum has been utilised by the Assessee for any other purposes. More so, when assessee submits that her mother from her own sources for meets household withdrawal, which is independently filing her return of income. In the case of the mother, she has already disclosed withdrawals in her capital account of Rs.7,55,000/- in the year ended on 31.3.2017 and Rs.2,04,000/- for the year ended on 31.3.2015. Her mother has also given an affidavit that she is also independently carrying her business. With respect to the sale and purchase of agricultural land, no such activity is recorded in the Balance Sheet of the mother of the Assessee. Therefore the Ld. AO should not have confused the above cash deposit in the bank account of the Assessee with purchase of agricultural land which is not the fact. The Ld. CIT (A) has also dismissed the evidence produced by the Assessee. He also gave the reason that if the mother of the Assessee is given Rs.4,85,000/- in her bank account there should have been Page | 7 ITA No. 3431/Mum/2023 Rumana Abdul Kadar Khan; A.Y. 2017-18 some gift deed from mother to the daughter. We did not find any justification for such reasoning that even if it is a gift, if at all, from mother to daughter, it also requires a gift deed. In view of this we set aside ground no. 1 of the appeal back to the file of the Ld. AO with directions to consider that how cash withdrawal from one bank account cannot be considered as source of deposit in another bank account of the Assessee in case of a non-resident Assessee who has come nearly for 53 days in India and her mother has independent source of income showing withdrawal. Ld AO may examine these facts, Assessee is directed to produce any other information to the ld AO which she wants to submit, then ld AO may decide it afresh. 11. Accordingly appeal filed by the Assessee is allowed for statistical purposes. 12. Accordingly, appeal of the Assessee is dismissed. Order pronounced in the open court on 19.02.2024. S S/- Sd/- (SANDEEP SINGH KARHAIL) Sd/- (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 19.02.2024 Mini Pawar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, py//Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai