DEVEN JITENDRA SHAH, MUMBAI V. INCOME TAX OFFICER-25(2)(3), MUMBAI

ITA 4065/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1734 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: AKASH A KANADE
• Keywords: Unexplained cash credit; Set aside
• Section: 68

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) I.T.A. NO. 4065 /MUM/ 201 8 (ASSESSMENT YEAR 20 12 - 13 ) MR. DEVEN JITENDRA SHAH A - 5, SMIT BUILDING 99 AJMAL ROAD, VILE PAREL (EAST), MUMBAI - 400 057. PAN : ALHPS8210L V S . ITO 25(2)(3) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI AKASH A. KANADE DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE OF HEARING 10.6 . 201 9 DATE OF PRONOUNCEMENT 10 . 6 . 201 9 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(A) DATED 11.4.2018 AND PERTAINS TO A.Y. 2012 - 13. 2. THE I SSUE RAISED IS THAT LEARNED CIT(A) ERRED IN SUSTAINING ADDITION OF CASH DEPOSIT OF RS. 20,66,010/ - AS UNEXPLAINED CREDIT U/S. 68 OF THE I.T. ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER NOTED THAT THERE WERE CASH DEPOSIT OF RS. 20,66,010/ - IN THE HDFC BANK ACCOUNT OF THE ASSESSEE. ON AN INQUIRY IN THIS REGARD, ASSESSEE EXPLAINED THAT DEPOSIT WAS MADE OUT OF CASH WITHDRAWAL FROM THE BANK ITSELF AND OPENI NG BALANCE OF CASH. THIS PLEA WAS REJECTED BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE HAS NOT EXPLAINED REASON FOR FRE QUENT WITHDRAWALS AND DEPOSITS OF CASH IN THE BANK ACCOUNT. THE ASSESSING OFFICER ALSO OBSERVED THAT THE ASSESSEE HAS NOT L INKED WITHDRAWALS OF CASH AND OPENING BALANCE WITH THE DEPOSITS MADE IN THE BANK. HENCE, HE ADDED THE AFORESAID SUM AS UNEXPLAINED CREDIT U/S. 68 OF THE ACT. 2 4. UPON ASSESSEES APPEAL LEARNED CIT(A) SUSTAINED THE ADDITION. AGAINST THE ABOVE ORDER THE ASSE SSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I FIND THAT SOURCES OF CASH DEPOSIT OF RS. 20,66,010/ - IN HDFC BANK ACCOUNT HAS BEEN EXPLAINED BY THE ASSESSEE AS CASH WITHDRAWALS FROM THE BANK ITSELF AND OPEN ING BALANCE OF CASH. IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT THE AMOUNT SHOWN AS WITHDRAWALS FROM BANK AND OPENING BALANCE ARE NOT SUFFICIENT TO COVER THE DEPOSITS IN BANK. IT IS ALSO NOT THE CASE THAT THE ASSESSING OFFICER HAS DISCOVERED SOME OTH ER UTILIZATION OF CASH WITHDRAWALS. THE ASSESSING OFFICER HAS REJECTED THE ASSESSEES EXPLANATION ONLY ON THE GROUND THAT THE ASSESSEE HAS NOT GIVEN EXPLANATION FOR FREQUENT WITHDRAWAL AND DEPOSITS IN THE BANK. THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE ASSESSEE HAS NOT LINKED THE DEPOSITS WITH THE WITHDRAWALS. IN MY CONSIDERED OPINION REASONS ATTRIBUTED BY THE ASSESSING OFFICER FOR NOT ACCEPTING SOURCE OF CASH ARE PURELY BASED ON SURMISES AND CONJECTURE. IT IS SETTLED LAW FOR ADDI TION SOLELY BASED UP ON SUSPICION IS NOT AT ALL SUSTAINABLE. IN MY CONSIDERED OPINION THE ASSESSEE HAS SHOWN ADEQUATE SOURCE FOR DEPOSIT IN CASH . T HE SAME HAS NOT BEEN REBUTTED THE AUTHORITIES BELOW BY COGENT REASON ING . HENCE, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION. 6. IN THE RESULT, APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 10 . 6 . 201 9 . SD/ - (SH A MIM YAHYA ) ACCOUNTANT MEMBER MUMBAI ; DATED : 10 / 6 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 3 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI