MANISHA KOIRALA, MUMBAI V. ITO WD 11(1)(2), MUMBAI

ITA 4006/MUM/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1586 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 05-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Keywords: Unexplained expenditure
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SMT ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO 4006/MUM/2008 (ASSESSMENT YEAR: 2003-04) MANISHA KOIRALA, 1402, BEACHWOOD TOWERS, YARI ROAD, ANDHERI (W), MUMBAI -400 061 PAN: AAACM 6828 M VS INCOME TAX OFFICER WARD 11(1)(2) , AAYAKAR BHAVAN, MAHARSHI KARVE MARG, M K ROAD, MUMBAI -400 020 APPELLANT RESPONDENT APPELLANT BY: SHRI VIPUL JOSHI RESPONDENT BY: SHRI PITAMBAR DAS ORDER PER PRAMOD KUMAR 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CHALLENG ED CORRECTNESS OF CIT (A)S ORDER DATED 5TH DECEMBER 2007 FOR THE ASSESSMENT YE AR 2003-04. GRIEVANCE OF THE ASSESSEE IS THAT THE CIT (A) ERRED IN UPHOLDING ADD ITIONS OF RS 4,00,000 MADE BY THE ASSESSING OFFICER AS UNEXPLAINED EXPENDITURE U/S 69 C OF THE INCOME TAX ACT, 1961. 2. THE APPEAL IS TIME BARRED BY 31 DAYS, BUT THE AS SESSEE HAS MOVED A CONDONATION PETITION STANDING THAT THE DELAY WAS CA USED DUE TO THE FACT THAT SHE WAS TRAVELLING ABROAD AT THE RELEVANT POINT OF TIME. P HOTOSTAT COPIES OF HER PASSPORT ENTRIES, TO SUBSTANTIATE THE ABOVE CONTENTIONS, WER E ALSO FILED. HAVING PERUSED THE APPLICATION AND HAVING HEARD PARTIES ON THE SAME, W E ARE INCLINED TO CONDONE THE DELAY AND PROCEED TO TAKE UP THE MATTER ON THE MERI TS. 3. THE ASSESSEE BEFORE US IS A CINE ACTRESS AND ALS O A PRODUCER OF CINEMA FILMS. ON THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER NOTICED THAT THE CASH OF RS 4,75,000 WAS INTRODUCED IN HER PROPRIETA RY CONCERN M/S MOVING IMAGES ON 31.3.2003. THE EXPLANATION WAS SOUGHT FROM THE ASSE SSEE REGARDING SOURCE OF CASH MANISHA KOIRALA 2 OF RS 4,75,000/-. IT WAS EXPLAINED BY THE ASSESSEE THAT RS 75,000 WAS GIVEN OUT OF PERSONAL CASH IN HAND BALANCE, AND THE BALANCE AMOU NT WAS DRAWN FROM HER PERSONAL BANK ACCOUNT. IT WAS ALSO EXPLAINED THAT SINCE THE RE WAS SOME URGENT REQUIREMENT OF FUNDS BY M/S MOVING IMAGES, CASH WAS WITHDRAWN F ROM THE BANK ACCOUNT AND GIVEN TO THE SAID PROPRIETORSHIP CONCERN, INSTEAD O F MAKING A BANK TRANSFER. AS THE EVIDENCE OF WITHDRAWING MONEY FROM BANK WAS NOT FUR NISHED TO THE ASSESSING OFFICER, HE MADE AN ADDITION OF RS 4,00,000 ON ACCO UNT OF UNEXPLAINED EXPENDITURE U/S 69C. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A) BUT WITHOUT ANY SUCCESS. EVEN THOUGH CIT (A) NOTED THA T, IT IS SEEN THAT THERE WAS WITHDRAWAL OF MONEY FROM THE PERSONAL ACCOUNT OF TH E APPELLANT AND THE SAME WAS DEPOSITED IN M/S MOVING IMAGE, HE CONCLUDED THAT NEITHER THE ARGUMENT OF CONTRA ENTRY NOR THE ARGUMENT OF URGENCY OF CASH FUND IS S UBSTANTIATED BY THE APPELLANT. THE ADDITION OF RS 4,00,000, THEREFORE, DESERVES TO BE CONFIRMED. NOT SATISFIED WITH THE CONCLUSION SO ARRIVED AT BY THE CIT (A), THE AS SESSEE IS IN SECOND APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE A PPLICABLE LEGAL POSITION. 5. WE FIND THAT THE IMPUGNED ADDITION IS INDEED DEV OID OF ANY LEGALLY SUSTAINABLE MERITS. FIRST OF ALL, THERE IS NO UNEXPLAINED EXPE NDITURE AS IT IS ONLY A CASE OF TRANSFER OF FUNDS FROM ASSESSEES PERSONAL ACCOUNT TO HER CAPITAL ACCOUNT IN THE PROPRIETARY CONCERN. SECONDLY, NOTHING IS UNEXPLAI NED AS INTRODUCTION AS CAPITAL ACCOUNT IS DULY EXPLAINED BY CORRESPONDING WITHDRAW ALS FROM PERSONAL BANK ACCOUNT. WE HAVE ALSO NOTED THAT THE ASSESSING OFFICER HAD M ADE THE ADDITION AS EVIDENCE OF BANK WITHDRAWAL WAS NOT ON RECORD, BUT ONCE THIS EV IDENCE IS DULY FURNISHED TO THE CIT (A), THE VERY BASIS OF ADDITION DOES NOT SURVIV E ANY LONGER. THE COPIES OF BANK STATEMENTS ARE ALSO FILED BEFORE US, AND WE FIND TH AT INTRODUCTION OF CASH IN M/S MOVING IMAGES IS EXPLAINED BY CORRESPONDING BANK AC COUNT. MANISHA KOIRALA 3 6. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, WE DIRECT THE ASSESSING OFFICER TO DELETE IMPUGNED ADDITION OF RS 4,00,000 THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 7. IN THE RESULT, APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 27TH OCT OBER 2009. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 27TH OCTOBER 2009 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-V, MUMBAI. 4) THE CIT, MC-V, MUMBAI. 5) THE D.R. B BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI MANISHA KOIRALA 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 26.10.09 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 26.10.09 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER