ALPA KHERAJ BHANUSHALI, MUMBAI V. ITO 18(1)(3), MUMBAI

ITA 3761/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9006 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BISTDR
• Assessee Lawyers: PARAS S SAVLA; KEERTHIGA SHARMA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 3761/MUM/2013 ASSESSMENT YEAR: 2008-09 MS. ALPA KHERAJ BHANUSHALI VS. ITO 18(1)(3) ROOM NO. 23, B.D. CHAWL, WORLI PIRAMAL CHAMBER S, LAL BAUG MUMBAI 400013 MUMBAI 400013 PAN NO. AAHPB0158P (APPELLANT) (RESPONDENT) ASSESSEE BY : MR. PARAS S SAVLA, & MS. KEERTHIGA SHARMA, AR REVENUE BY: MR. B.S. BIST,DR DATE OF HEARING : 10/0 1/2017 DATE OF PRONOUNCEMENT: 10/01/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR 2008-09. THE APPEAL IS DIRECTED AGAINST THE OR DER OF THE COMMISSIONER (APPEALS) 16, MUMBAI AND ARISES OUT OF THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (T HE ACT). 2. THE SOLE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDITION OF R S. 14,69,400/- MADE BY THE ASSESSING OFFICE (AO) U/S 68 OF THE ACT . 3. IN A NUTSHELL, THE FACTS ARE THAT DURING THE COU RSE OF ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO FILE DETA ILS IN RESPECT OF CASH DEPOSITS AS REPORTED IN THE AIR INFORMATION. I N RESPONSE TO IT, THE ASSESSEE FILED A COPY OF THE BANK STATEMENT OF ACCOUNT IN CENTURION BANK, JOINTLY HELD BY THE ASSESSEE WITH H ER MOTHER SMT. SHANTABEN KHERAJ. IT WAS CONTENDED THAT THE 1ST NAM E IN THE BANK ITA NO. 3761/MUM/2013 2 ACCOUNT WAS OF HER MOTHER AND TRANSACTIONS PERTAINE D TO HER MOTHER AND WERE ACCOUNTED FOR IN THE MOTHERS BOOKS OF ACC OUNT. THAT THE ASSESSEE DID NOT HAVE ANY BENEFICIAL INTEREST IN TH E SAID ACCOUNT. THE AO CAME TO A FINDING THAT THE ASSESSEE HAD NOT OFFE RED ANY EXPLANATION ABOUT THE NATURE AND SOURCE OF THE CASH DEPOSITS AND THE MERE FILING A COPY OF ACKNOWLEDGEMENT OF RETURN OF HER MOTHER WOULD NOT ESTABLISH THAT THE SAID TRANSACTIONS BELONG TO HER MOTHER AND WERE REFLECTED IN HER BOOKS OF ACCOUNTS. THEREFORE, THE AO TREATED THE AMOUNT OF RS. 14,69,400/- AS UNEXPLAINED CREDITS AN D ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEAR NED CIT(A). WE FIND THAT THE LEARNED CIT(A) HAS CONCLUDED THAT THE ACKNOWLEDGEMENT OF THE ASSESSEES MOTHERS RETURN OF INCOME SHOWS T OTAL INCOME OF RS. 1,38,351/- CLAIMING REFUND OF RS. 1,236/-. NO BALAN CE SHEET OR OTHER DOCUMENTS RELATING TO THE MOTHERS RETURN WERE FILE D EVEN TO INDICATE THAT THE BANK ACCOUNT HAS BEEN DISCLOSED IN THE MOT HERS RETURN, LET ALONE THE SOURCE OF DEPOSITS IN THE SAID BANK ACCOU NT. THE LEARNED CIT(A) HAS ALSO OBSERVED THAT THE BURDEN OF THE ASS ESSEE TO DISCHARGE THE ONUS OF EXPLAINING THE NATURE AND SOURCE OF DEP OSITS IN HER BANK ACCOUNT (EVEN IF IT IS JOINT ACCOUNT) REMAINS UNREB UTTED. THEREFORE, THE LEARNED CIT(A) DISMISSED THE APPEAL FILED BY TH E ASSESSEE. 5. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE S UBMITS THAT ALL THE DEPOSITS AND WITHDRAWALS PERTAIN TO THE MOTHER OF THE ASSESSEE AND THE NAME OF THE ASSESSEE IS INCLUDED AS JOINT A CCOUNT HOLDER ONLY FOR THE SAKE OF OPERATIONAL CONVENIENCE. IT IS STAT ED THAT THE AO SHOULD HAVE VERIFIED THE ABOVE FACTS FROM THE FIRST HOLDER OF THE BANK ACCOUNT BEFORE MAKING ADDITION OF RS. 14,69,400/- U/S 68 IN THE HANDS OF THE ASSESSEE. 6. THE LEARNED DR SUBMITS THAT THE ACKNOWLEDGEMENT OF THE RETURN OF INCOME OF THE ASSESSEES MOTHER SHOWS TOT AL INCOME AT RS. 1,38,351/- CLAIMING REFUND OF RS. 1,263/-. NO BALAN CE SHEET OR OTHER DOCUMENTS RELATING TO THE MOTHERS RETURN OF INCOME WERE FILED TO INDICATE THAT EVEN THE BANK ACCOUNT HAS BEEN DISCLO SED IN THE MOTHERS RETURN OF INCOME. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS THE CLAIM OF THE ASSESSEE THAT ALL THE DEPOSITS ITA NO. 3761/MUM/2013 3 AND WITHDRAWALS PERTAIN TO HER MOTHER AND THE NAME OF THE ASSESSEE IS INCLUDED AS JOINT ACCOUNT HOLDER ONLY FOR THE SA KE OF OPERATIONAL CONVENIENCE. WE FIND THAT NO BALANCE SHEET OR OTHER DOCUMENTS WERE FILED ALONG WITH THE RETURN OF INCOME OF THE ASSESS EES MOTHER TO INDICATE THAT THE SAID BANK ACCOUNT HAS BEEN DISCLO SED IN THE MOTHERS RETURN OF INCOME. THE HON'BLE SUPREME COURT HAS LAI D DOWN IN KALEKHAN MOHAMMED HANIF VS. CIT 50 ITR 1 (SC) THAT THE ONUS IS ON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF CA SH CREDITS, WHETHER THEY STAND IN THE ASSESSEES ACCOUNT OR IN THE ACCO UNT OF A THIRD PARTY. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE A.O. TO MAKE A FRESH ASSESSMENT AS PER THE PROVISIONS OF THE ACT AFTER GIVING REASONAB LE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECT ED TO FILE BEFORE THE AO RELEVANT DOCUMENTS EXPLAINING THE NATURE AND SOU RCE OF RS. 14,69,400/-. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/01/2017 SD/- SD/- (MAHAVIR SINGH) (N. K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBE R MUMBAI; DATED: 10/01/2017 BISWAJIT, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI