ITO 4(2)(4), MUMBAI V. GHANSHAM HEMDEV, MUMBAI

ITA 4197/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1769 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI T.R. SOOD, AM AND SHRI V.DURGA RAO, JM. I.T.A. NO. 4197/MUM/2009 ASSESSMENT YEAR : 2005-06 THE INCOME-TAX OFFICER-4(2)-4, ROOM NO. 647, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 VS. SHRI GHANASHAM HEMDEV, 701A, NIRANJAN, 99 MARINE DRIVE, MUMBAI 400 002. PAN: AAAPH 1668 B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJARSHI DWIVEDY RESPONDENT BY : SHRI VIMAL PUNMIYA O R D E R PER T.R. SOOD, AM: IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOWING TWO GROUNDS: 1. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD .CIT(A) ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINE D CASH CREDIT U/S.68 OF RS.2,64,000/- WITHOUT APPRECIATING THE FACT THAT THERE WERE NEITHER SUFFICIENT CASH WITHDRAWALS NOR ANY OUTSTANDING CASH CREDITS LOANS IN THE BALANCE SHEET AND ALSO THE ASSESSEE DID NOT HAVE ANY SOURCE OF INCOME IN CASH. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) OUGHT TO HAVE CONFIRMED THE ADDITION OF RS. 8 LACS U/S.69 OF THE I.T. AND CONSIDERING THE FACT THAT THE ASSESSEE WAS NOT ABLE TO PRODUCE CONCRETE EVIDENCE TO PROVE THAT INVESTMENT AS PER A IR IS SAME AS THAT WAS REFLECTED IN WIFES ACCOUNT AND ALSO SO URCE OF INVESTMENT REMAINED UNEXPLAINED THEREBY THE ASSESSE E HAD NOT DISCHARGED THE PRIMA FACIE ONUS OF PROVIDING THE SO URCE OF INVESTMENT. GROUND NO.1: 2. AFTER HEARING BOTH THE PARTIES WE FIND THAT DURI NG THE ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT ASSESSEE HAD DEPOSI TED A SUM OF RS.2,64,000/- IN HIS BANK ACCOUNT AT BANK OF BARODA. WHEN THE ASSES SEE WAS ASKED TO EXPLAIN THE SOURCE OF DEPOSIT, A COPY OF THE CASH BOOK WAS SUBM ITTED. THE ASSESSING OFFICER NOTED THAT SOURCE HAS NOT BEEN EXPLAINED. THEREFOR E, THIS AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE. 3. BEFORE THE CIT(A) IT WAS SUBMITTED THAT SOURCE O F INVESTMENT WAS ASKED ONLY ON 26.12.2007 I.E. ONE DAY BEFORE THE ASSESSME NT ORDER. INFORMATION REGARDING THE SOURCE WAS FILED ON 27.12.2007. ITA NO.4197/M/09 GHANSHYAM HEMDEV 2 4. THE ADDITION WAS DELETED BY PARA 1.3 BY THE CIT( A) WHICH READS AS UNDER: THE A.O. HAS OBSERVED THAT THE APPELLANT FURNISHED COPY OF CASH BOOK BEFORE HIM. APART FROM WRITING THAT HE HAS NO T BEEN ABLE TO EXPLAIN THE SOURCE OF THESE CASH DEPOSITS, THE A.O . HAS NOT GIVEN ANY REASON WHY THE EXPLANATION OF THE APPELLANT IS UNSATISFACTORY. AS MAY BE SEEN FROM THE ORDER OF THE A.O. QUOTED AB OVE, THE A.O. HAS MADE ADDITION WITHOUT ANY BASIS AND IS, THEREFO RE, LIABLE TO BE DELETED. THE APPELLANT GETS A RELIEF OF RS. 2,64,00 0/-. GROUND 1 IS ALLOWED. 5. BOTH THE PARTIES WERE HEARD. WE FIND THAT NEITH ER THE ASSESSING OFFICER NOR THE CIT(A) HAVE GIVEN DETAILED REASON FOR THEIR ORDERS. WE FURTHER FIND THAT IF THE INFORMATION REGARDING SOURCE OF DEPOSIT WAS FIL ED ON 27.12.2007, THEN ATLEAST THE CIT(A) COULD HAVE EXAMINED THE SAME. THEREFORE , KEEPING THE FACTS IN VIEW WE ARE OF THE VIEW THAT THE MATTER SHOULD GO BACK T O THE FILE OF THE A.O. FOR RE- EXAMINATION AFTER CONSIDERING THE INFORMATION REGAR DING SOURCE OF THE DEPOSIT. GROUND NO. 2: 6. AFTER HEARING BOTH THE PARTIES, WE FIND THAT FROM AIR INFORMATION, IT WAS NOTED THAT THE ASSESSEE HAD INVESTED A SUM OF RS.8, 00,000/- IN THE RESERVE BANK OF INDIA BONDS. WHEN THE ASSESSEE WAS ASKED TO FURN ISH INFORMATION AND SOURCE OF THIS INVESTMENT, IT WAS EXPLAINED THAT THE INVESTME NT WAS MADE BY THE WIFE OF THE ASSESSEE, MS. MEENA HEMDEV AND THE SAME WAS REFLECT ED IN HER BALANCE SHEET. THE ASSESSING OFFICER NOTED THAT THE INVESTMENT WAS REFLECTED IN THE BALANCE SHEET OF M/S. MONACO GEMS, A PROPRIETARY CONCERN OF MS. M EENA HEMDEV, THE WIFE OF THE ASSESSEE. HE HAS ALSO NOTED THAT THE INVESTMEN T WAS MADE THROUGH JOINT BANK ACCOUNT. HOWEVER, AO STILL MADE ADDITION BECAUSE A CCORDING TO THE AIR INFORMATION THE INVESTMENT WAS REFLECTED AGAINST T HE ASSESEES PERMANENT ACCOUNT NUMBER. 7. ON APPEAL, THE LEARNED CIT(A) DELETED THE ADDITI ON BY OBSERVING THAT THE ASSESSING OFFICER HAS HIMSELF ADMITTED THAT INVESTM ENT WAS REFLECTED IN THE BALANCE SHEET OF MS. MEENA HEMDEV IN HER PROPRIETAR Y CONCERN, M/S. MONACO GEMS. 8. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT SINCE THE INVESTMENT WAS REFLECTED AGAINST THE PERMANENT ACCOUNT NUMBER OF THE ASSESSEE, ASSESSEE WAS REQUIRED TO EXPLAIN. ITA NO.4197/M/09 GHANSHYAM HEMDEV 3 9. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS COMMON FOR THE PEOPLE TO MAKE INVESTMENTS IN THE JOINT NAMES AND IN THIS CASE ALSO INVESTMENT WAS MADE IN THE JOINT NAME. HE FU RTHER POINTED OUT FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER HIMS ELF HAS NOTED THAT THE PAYMENT WAS MADE FROM JOINT BANK ACCOUNT AND THE INVESTMEN T WAS REFLECTED IN THE BALANCE SHEET OF M/S. MONACO GEMS, PROPRIETARY CONC ERN OF ASSESSEES WIFE MS. HEENA HEMDEV. THUS, THE INVESTMENT IS CLEARLY EXPLA INED. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FI ND THAT THE INVESTMENT HAS BEEN CLEARLY EXPLAINED BY THE ASSESSEE AS THE A SSESSING OFFICER HAS HIMSELF ADMITTED THAT THE INVESTMENT IN THE ACCOUNTS WAS RE FLECTED IN THE BALANCE SHEET OF M/S. MONACO GEMS, WHICH IS A PROPRIETARY CONCERN OF HIS WIFE. THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE PAYMENT HAS BEEN MADE FROM JOINT BANK ACCOUNT. IT IS QUITE USUAL FOR SPOUSES TO MAKE INV ESTMENT IN JOINT NAMES AND THE SAME IS EXPLAINED IF BY ONE OF THEM EXPLAINS THE S OURCE THEN IT CANNOT BE SAID THAT IT HAS NOT BEEN EXPLAINED. THEREFORE, WE FIND NOTI NG WRONG WITH THE ORDER OF THE LEARNED CIT(A) AND CONFIRM THE SAME. 11. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF MAY, 2010. SD. SD. (V. DURGA RAO) (T. R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 28 TH MAY, 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT -IV, MUMBAI 4. THE CIT(A)-IV, MUMBAI 5. THE DR G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI ITA NO.4197/M/09 GHANSHYAM HEMDEV 4 ITA NO.4197/M/09 GHANSHYAM HEMDEV 5