LATA MARADIA, MUMBAI V. ITO -33(2)(1), MUMBAI

ITA 3748/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8134 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 29-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA LD
• Assessee Lawyers: JIGAR MEHTA LD
• Keywords: Gift
• Section: 68; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 3748/MUM/2018 ASSESSMENT YEAR: 2014-15 SMT. LATA MARADIA FLAT NO. 105, BLDG NO. 2, A WING, RNA N.G SOCIETY, PHASE I, THAKUR VILLAGE, KANDIVALI (E), MUMBAI 400 101. PAN: APPPM9292J VS. I.T.O., 33(2)(1), PRATYAKSHKAR BHAWAN, BKC, BANDRA (E), MUMBAI-400 051. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI JIGAR MEHTA, LD.AR RESPONDENT BY : SHRI CHAITNYA ANJARIA, LD.DR DATE OF HE ARING : 1 8 .07.2019 DATE OF PRONOUNCEMENT : 1 8 - 07 - 2019 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 09-03- 2018 PASSED BY LD CIT(A)-45, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2014-15. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.14.96 LAKHS AS UNEXPL AINED DEPOSITS MADE INTO THE BANK ACCOUNT. 2. THE FACTS RELATING TO THE ISSUE ARE DISCUSSE D IN BRIEF. THE AO NOTICED THAT THE ASSESSEE HAS MADE CASH DEPOSITS AGGREGATIN G TO RS.14.96 LAKHS IN HER SAVINGS BANK ACCOUNT AND ACCORDINGLY ASKED THE ASSESSEE TO EXPLAIN THE SOURCES THEREOF. THE ASSESSEE EXPLAINED THE SOURCE S AS UNDER:- (A) SALE VALUE OF JEWELLERY - 4,28,000 (B) WITHDRAWAL OF CASH FROM BANK - 1,00,000 [2] ITA NO.3748/MUM/2018 LATA MARADIA (C) OPENING CASH BALANCES - 3,00,000 (D) BALANCE IS OUT OF HER PIN MONEY. SINCE THE ASSESSEE DID NOT FURNISH ANY MATERIAL TO SUBSTANTIATE THE ABOVE SAID SUBMISSIONS, THE AO ADDED THE ABOVE SAID AMOUN T OF RS.14.96 LAKHS AS INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 3. BEFORE LD CIT(A), THE ASSESSEE SUBMITTED THAT SHE HAD SOLD A RESIDENTIAL FLAT FOR RS.37.00 LAKHS AND PURCHASED ANOTHER FLAT FOR RS.49.65 LAKHS. IN ORDER TO MEET THE COST OF NEW FLAT, SHE HAS SOLD JE WELLERY FOR RS.4,00,000/-, WHIXH WAS DEPOSITED INTO HER BANK ACCOUNT. IN SUPP ORT OF THE SAME, THE ASSESSEE SUBMITTED THAT SHE HAS TAKEN THE SALE CONS IDERATION OF FLAT AS RS.41.00 LAKHS (RS.37.00 (+) RS.4.00 LAKHS) AND ACC ORDINGLY COMPUTED CAPITAL GAINS. THE ASSESSEE FURTHER SUBMITTED THAT SHE HAD WITHDRAWN RS.1.00 LAKHS EARLIER FROM HER BANK ACCOUNT AND THE SAME WAS RE-DEPOSITED. SHE ALSO SUBMITTED THAT THERE ARE CASH WITHDRAWALS FROM THE BANK ACCOUNTS OF HER HUSBAND AND SON. SHE ALSO CLAIMED TO HAVE R ECEIVED GIFT OF RS.45,000/-. ACCORDINGLY SHE SUBMITTED THAT THE CA SH DEPOSIT TO THE TUNE OF RS.6,75,600/- STAND EXPLAINED. THE LD CIT(A) WAS N OT CONVINCED WITH HER EXPLANATIONS. SINCE THE ASSESSEE HAD DECLARED SALE CONSIDERATION OF FLAT AS RS.41.00 LAKHS AGAINST THE COLUMN SALE VALUE OF LA ND OR BUILDING OR BOTH, THE LD CIT(A) DID NOT ACCEPT THE CONTENTION THAT TH E SAME INCLUDES SALE VALUE OF JEWELLERY. REGARDING THE REMAINING CLAIMS , THE LD CIT(A) DID NOT ACCEPT THEM IN THE ABSENCE OF EVIDENCES. ACCORDINGL Y HE CONFIRMED THE ADDITION MADE BY THE AO. 4. THE LD A.R FURNISHED A COPY OF SALE AGREEME NT OF FLAT TO BUTTRESS HIS CONTENTION THAT THE SALE OF FLAT WAS ONLY RS.37.00 LAKHS AND HENCE THE REMAINING AMOUNT OF SALE CONSIDERATION OF RS.4.00 L AKHS RELATE TO SALE OF [3] ITA NO.3748/MUM/2018 LATA MARADIA JEWELLERY. WITH REGARD TO THE REMAINING CLAIMS, HE PLACED HIS RELIANCE ON THE BANK STATEMENTS. 5. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ASSESSEE HAS MADE ONLY ORAL SUBMISSIONS WITHOUT BRINGING ANY MATERIAL ON RECORD. 6. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. A PERUSAL OF SALE AGREEMENT RELATING TO SALE OF FLAT, I NOTICE T HAT THE SALE VALUE HAS BEEN MENTIONED THEREIN AS RS.37.00 LAKHS ONLY. IN THE R ETURN OF INCOME, THE ASSESSEE HAS, HOWEVER, DECLARED SALE CONSIDERATION AS RS.41.00 LAKHS. THOUGH THE ASSESSEE HAS NOT STATED THAT THE REMAINI NG AMOUNT OF RS.4.00 LAKHS REPRESENT SALE VALUE OF JEWELLERY IN THE RETU RN OF INCOME, YET THE FACT REMAINS THAT THE ASSESSEE HAS DECLARED EXCESS AMOUN T OF RS.4.00 LAKHS FOR CAPITAL GAINS PURPOSES AND CLAIMED DEDUCTION U/S 54 F AGAINST THE SAME. IT IS AN ADMITTED FACT THAT THE ASSESSEE COULD NOT FUR NISH ANY EVIDENCE TO SUBSTANTIATE HER CLAIM OF SALE OF JEWELLERY. HOWEV ER, IT IS QUITE COMMON TO GENERATE FUNDS BY SELLING JEWELLERY, WHEN HUGE INVE STMENTS IN PURCHASE OF FLAT IS MADE. HENCE, CONSIDERING THE HUMAN PROBABIL ITIES, I AM OF THE VIEW THAT THE ASSESSEE MAY BE GIVEN CREDIT OF RS.4.00 LA KHS, BEING SALE VALUE OF JEWELLERY, AGAINST THE BANK DEPOSITS. HOWEVER, I N OTICE THAT THE ASSESSEE APPEARS TO HAVE NOT FURNISHED THE COPY OF SALE AGRE EMENT BEFORE THE AO. HENCE FOR THE LIMITED PURPOSE OF VERIFYING THE SALE AGREEMENT FOR THE PURPOSE OF ESTABLISHING THAT THE SALE CONSIDERATION FOR SAL E OF FLAT WAS ONLY RS.37.00 LAKHS, I RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ASSESSING OFFICER, AFTER EXAMINING THE SALE AGREEMENT AND AFTER SATISFYING H IMSELF THAT THE ASSESSEE HAS DECLARED EXCESS AMOUNT OF RS.4.00 LAKHS AS THE SALE CONSIDERATION, MAY ALLOW CREDIT OF RS.4.00 LAKHS AS DISCUSSED ABOVE. [4] ITA NO.3748/MUM/2018 LATA MARADIA 7. WITH REGARD TO CLAIM OF RE-DEPOSIT OF MONEY WITHDRAWN EARLIER, WITHDRAWALS MADE FROM THE BANK ACCOUNTS OF HUSBAND & SON, RECEIPT OF GIFTS ETC., THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE T O SUBSTANTIATE THE SAID CLAIMS. SINCE THE WITHDRAWALS ARE OF SMALL AMOUNT, THE POSSIBILITY OF ACCUMULATING THEM AND RE-DEPOSITING THEM IS REMOTE AND ALSO AGAINST HUMAN PROBABILITIES. ACCORDINGLY, I AM OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN REJECTING THEM. 8. IN THE RESULT, THE APPEAL OF THE ASSESSE E IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED ON 18-07-2019 SD/- ( B.R. BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 18 TH JULY,2019 *PP/SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER (ASSISTANTREGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI [5] ITA NO.3748/MUM/2018 LATA MARADIA DATE INITIAL WHETHER DICTATION PAD ENCLOSED WITH THE FILE : NO 1. DRAFT DICTATED ON 19.07.2019 YES SR.PS 2. DRAFT PLACED BEFORE AUTHOR 19/7 MATTER TYPED P.P SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 19.07.2019 P.P JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 19/07 PP SR.PS 6. DATE OF PRONOUNCEMENT 18/7 SR.PS 7. FILE SENT TO THE BENCH CLERK 19/7 PP SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER