SWAPNA R. SAWANT, MUMBAI V. ITO 18(2)(2), MUMBAI

ITA 4194/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8853 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2014
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 4194 /MUM/20 14 (ASSESSMENT YEAR 20 09 - 10 ) MS. SWAPNA R. SAWANT 606, 6 TH FLOOR SHIVAM CHS LTD. NIKAMWADI BHAVANI SHANKAR ROAD DADAR, MU MBAI - 400 028. VS. ITO 18(2)(2) 1 ST FLOOR PIRAMAL CHAMBERS LALBAUG MUMBAI - 400 012. ( APPELLANT ) ( RESPONDENT ) PAN NO . ACNPS3695Q ASSESSEE BY SHRI KIRIT SANGHVI DEPARTMENT BY S HRI AKHILENDRA YADAV DATE OF HEARING 25 .1 . 201 7 DATE OF PRONOUNCEM ENT 25 . 1 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19.3.2014 PASSED BY THE LEARNED CIT(A) - 29, MUMBAI AND IT RELATES TO A.Y. 2009 - 10. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN PARTIALLY CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER TOWARDS UNEXPLAINED DEPOSIT MADE INTO THE BANK ACCOUNT. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER RECEIVED AIR INFORMATION TO THE EFFE CT THAT THE ASSESSEE HAS DEPOSITED A SUM OF ` 19,80,600/ - IN AGGREGATE IN THE SAVINGS BANK ACCOUNT MAINTAINED WITH M/S. SARAWAT COOPERATIVE BANK. THE ASSESSING OFFICER ASSESSED THE ENTIRE AMOUNT OF DEPOSIT S AS UNEXPLAINED MONEY U/S. 69A O F THE ACT. MS. SWAPNA R. SAWANT 2 4. I N THE APPELLATE PROCEEDINGS, THE LEARNED CIT(A) ACCEPTED THE SOURCES TO THE EXTENT OF ` 11,25,000/ - AND ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO SUSTAIN THE ADDITION TO THE EXTENT OF ` 8,55,600/ - . STILL AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL B EFORE US. 5. LEARNED AR APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS EXPLAINED SOU RCES OF DEPOSITS TO BE THE WITHDRAWALS MADE ON EARLIER OCCASION S TO THE TUNE OF ` 4,05,600/ - AND ALSO THE OPENING CASH BALANCE OF ` 4,50,000/ - . LEARNED AR SUBM ITTED THAT HE IS ACCEPTING THE ADDITION SUSTAINED BY THE LEARNED CIT(A) TO THE EXTENT OF ` 4,05, 6 00/ - . HE SUBMITTED THAT THE ASSESSEE SHOULD BE GIVEN CREDIT FOR OPENING BALANCE OF ` 4,50,000/ - FOR THE REASON THAT THE ASSESSEE HAS ENTERED AN AGREEMENT FOR SALE OF PROPERTY ON 18.10.2007 AND AS PER THE AGREEMENT , THE ASSESSEE HAS RECEIVED ` 7,00,000/ - BY WAY OF CASH AND ` 6,00,000/ - BY WAY OF CHEQUE. THE O PENING BALANCE OF ` 4.5 LAKHS WAS KEPT OUT OF THE SALE ADVANCE OF ` 7,00,000/ - RECEIVED BY WAY OF CASH. 6. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAD MADE SIMILAR CLAIM BEFORE THE LEARNED CIT(A) BUT THE LEARNED CIT(A) REJECTED THE SAME ON THE REASON THAT THERE IS A GAP OF ABOUT TEN MONTHS BETWEEN THE DATE OF RECEIPT OF ADVANCE MONEY AND YEAR END DATE. 7. WE HAVE NOTICED THAT THE ASSESSEE HAS ENGAGED IN THE BUSINESS OF RUNNING COACHING CLASSES. IN THE BOOKS OF ACCOUNT MAINTAINED BY HER, THE IMPUGNED S AVINGS BANK ACCOUNT WAS NOT ACCOUNT ED , MEANING THEREBY THE ASSESSE E HAS MAINTAINED THIS BANK ACCOUNT IN RESPECT OF HER PERSONAL TRANSACTIONS . HENCE DEPOSITS MADE INTO BANK ACCOUNTS DID NOT FIND PLACE IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. WE NOTICED THAT THE ASSESSEE HAS EXPLAINED SOURCES OF DEPOSITS MADE I NTO BANK ACCOUNT TO BE WITHDRAWALS MADE ON EARLIER OCCASION S AND THE SAME HAS BEEN ACCEPTED BY THE LEARNED CIT(A) PARTIALLY . HOWEVER, THE CLAIM OF OPENING CASH BALANCE OF ` 4.5 LAKHS WAS NOT ACCEPTED , ONLY FOR THE REASON THAT THERE IS A TIME GAP OF TEN MO NTHS BETWEEN THE DATE OF RECEIPT OF SALE ADVANCE AGAINST SALE OF THE PROPERTY MS. SWAPNA R. SAWANT 3 YEAR END DATE. THE FACT THAT THE ASSESSEE ENTERED INTO A SALE AGREEMENT FOR SALE OF PROPERTY AND THE FA CT THAT THE ASSESSEE RECEIVED CASH OF ` 7 LAKHS AS ADVANCE ARE NOT DISPUT E D BY THE TAX AUTHORITIES. THE ASSESSEE HAS ALSO PLACED A COPY OF SALE AGREEMENT IN THE PAPER BOOK. AGAINST THE RECEIPT OF CASH OF ` 7 LAKHS RECEIVED AS ADVANCE , THE ASSESSEE IS CLAIMING CREDIT FOR ` 4.50 LAKHS ONLY. CONSIDERING THE ACTIVITY CARRIED OUT BY THE ASSESSEE AND CONSIDERING HER STATUS, WE ARE OF THE VIEW THAT THERE IS NO REASON TO SUSPECT THE CLAIM OF AVAILABILITY OF OPENING CASH BALANCE OF ` 4.50 LAKHS , MORE PARTICULARLY WHEN THERE IS NO MATERIAL AVAILABLE ON RECORD TO SHOW THAT THE ASSESSEE HAS SPENT AWAY THE ENTIRE ADVANCE AMOUNT OF ` 7 LAKHS RECEIVED BY HER. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE GIVEN CREDIT FOR ` 4.50 LAKHS. ACCORDINGLY, WE MODIFY THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO GIVE CREDIT FOR FURTHER AMOUNT OF ` 4.50 LAKHS OVER AND ABOVE RELIEF GIVEN BY THE LEARNED CIT(A). 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. OR DER HAS BE EN PRONOUNCED IN THE COURT ON 25 . 1 .201 7. SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 25 / 1 / 20 1 7 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) PS ITAT, MUMBAI