AYESHA MOSOIN KHAN, MUMBAI V. ITO 24(1)(1), MUMBAI

ITA 4258/MUM/2014

• Counselvise Citation: 425819914 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 13-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 147; 68; 148; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 4258 / MUM/ 201 4 ( ASSESSMENT YEAR : 200 4 - 0 5 ) MRS. AYESHA MOSIN KHAN 121, SHAYADRAI C.H.S., ADARSH NAGAR, OSHIWARA PARK, JOGESHWARI (W), MUMBAI - 400 1 0 2 .. APPELLANT V/S ITO - 24(1)(1) PRATYAKSH KAR BHAVAN, MUMBAI - .... RESPONDENT PAN AJXPK2160P APPELLANT BY : NONE REVENUE BY : SHRI G.N. MAKWANA DATE OF HEARING 13.07.2015 DATE OF ORDER 24.07.2015 O R D E R PER G .S. PANNU , A CCOUNTANT MEMBER THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE IMPUGNED APPEAL ORDER DATED 13 TH MARCH 2014 , PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 34 , MUMBAI, FOR THE ASSESSMENT YEAR 200 4 05 , WITH REF ERENCE TO THE ASSESSMENT ORDER DATED 22 ND DECEMBER 2010, PASSED IN TERMS OF SECTION 143(3) R/W SECTION 254 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT'). THE MRS. AYESHA MOSIN KHAN 2 GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED BELOW: - 'ADDITION ON ACCOUNT OF UNEXPLAINED CA SH CREDIT U/S.68 OF RS.6,27,960/ - . THE 'LEARNED ITO' ERRED IN MAKING ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 OF IT ACT 1961 OF RS.6,27,960/ - FOR CASH DEPOSITS MADE IN THE SB A/C NO.2892 WITH PUNJAB & MAHARASHTRA CO - OP BANK LTD. ADDITION WAS BASED PURELY ON ASSUMPTIONS AND SURMISES. THE LEARNED CIT(A) HAS ALSO ERRED IN APPRECIATING THE FACT AND CIRCUMSTANCES OF THE CASE AND DISALLOWED THE APPEAL BASED ON MISPERCEPTION OF FACTS OF THE CASE. THE APPELLANT THEREFORE AGGRIEVED YOUR HONOR T O PRESENT HER C A SE BEFORE YOUR GOOD SELF. RELIEF CLAIMED: THE LEARNED CIT(A) HAS ERRED IN APPRECIATING THE FACTS IN THE ABOVE MENTIONED DISALLOWANCES. RESIDUAL CLAUSE: THE APPELLANT PLEADS LEAVE TO ADD, ALTER OR AMEND ANY OR ALL OF THE GROUNDS OF APP EAL.' 2. IN THE FIRST ROUND OF LITIGATION, THE TRIBUNAL, VIDE APPEAL IN ITA NO.5184/MUM./2008, ORDER DATED 3 RD AUGUST 2009, HAS RESTORED THIS ISSUE OF ADDITION OF ` 6,27,960, TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO ADJUDICATION ON SUBMISSION OF FRESH EVIDENCE BY THE ASSESSEE WITH RESPECT TO THE SUM OF ` 6,27,960, DEPOSITED IN CASH IN THE BANK ACCOUNT. MRS. AYESHA MOSIN KHAN 3 3. THE ASSESSEE WAS ASKED TO EXPLAIN THE CASH DEPOSIT OF ` 6,27,960, IN HER S.B. ACCOUNT NO.2892 WITH PUNJAB & MAHARASHTRA CO - OPERATIVE BANK, B Y THE ASSESSING OFFICER. THE ASSESSEE IN THE SECOND ROUND OF LITIGATION HAS SUBMITTED THE BALANCE SHEET FOR THE YEAR UNDER CONSIDERATION AND HAS EXPLAINED THAT THE AMOUNT OF ` 6,27,960, WAS DEPOSITED OUT OF PAST SAVINGS. THE ASSESSEE WAS CALLED UPON TO SUB STANTIATE BY DOCUMENTARY EVIDENCE ABOUT THE GENUINENESS OF SOURCE OF THIS CASH DEPOSITS. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE FAILED TO SUBMIT THE SATISFACTORY DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE GENUINENESS OF THE SOURCE OF DEPOSIT OF ` 6 ,27,960, IN CASH IN THE BANK BY THE ASSESSEE AND, HENCE, THE ADDITION ON THIS ACCOUNT WAS AGAIN MADE BY THE ASSESSING OFFICER IN HIS ORDER DATED 22 ND DECEMBER 2010, PASSED UNDER SECTION 143(3) R/W SECTION 254 OF THE ACT. 4. BEING AGGRIEVED BY THE ORDER PASSED BY THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE FIRST APPELLATE AUTHORITY, WHEREIN, BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED THAT THE SAID DEPOSITS IN THE BANK ACCOUNT WERE MADE OUT OF PAST SAVINGS. THE ASSESSEE MADE F OLLOWING SUBMISSIONS: - 'THIS APPEAL IS FILED AGAINST THE ORDER DATED 22 ND DECEMBER 2012 PASSED BY OF INCOME TAX OFFICER U/S 143(3) R.W.S. 254 OF MRS. AYESHA MOSIN KHAN 4 INCOME TAX ACT 1961. IN THE ORIGINAL ASSESSMENT ORDER WHICH WAS COMPLETED U/S 143(3) OF INCOME TAX ACT ON 26 /12/2006 INCOME DETERMINED WAS RS. 8,06,320/ - . IN THE APPEAL AGAINST THIS ORDER THE LEARNED CIT(A) VIDE APPELLATE ORDER DATED 05/06/2008 HAD REDUCED THE ADDITION TO RS. 6,27,960/ - BEING UNEXPLAINED CASH DEPOSITS IN PUNJAB & MAHARASHTRA CO - OP BANK. THEREAF TER THE ASSESSEE FILED AN APPEAL BEFORE HONOURABLE ITAT. THE HONOURABLE ITAT VIDE ORDER NO. 5184/MUM/2008 DATED 07/08/2009 HAD RESTORED THIS ISSUE OF ADDITION OF RS. 6,27,960/ - TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO ENTERTAIN THE EVIDENCE NOW SOUGHT TO BE PRODUCED BY THE ASSESSEE IN REGARD TO SOURCE OF DEPOSITS IN THE BANK ACCOUNTS AND THE ISSUE RELATING TO THE ADDITION OF RS. 6,27,960/ - SHALL BE DECIDED AFRESH BY THE ASSESSING OFFICER IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN OTHER WORDS THE HONOURABLE ITAT HAD DIRECTED TO LOOK INTO THE ISSUE OF RS. 6,27,960/ - ONLY AND NOT TO ANY OTHER ISSUE. THE LEARNED INCOME TAX OFFICER HAS ISSUED NOTICES U/S.143(2) AND 142(1) OF THE INCOME TAX ACT 1961 AND ONCE AGAIN CONFIRMED THE ADDITION OF RS. 6,27,960/ - . AN AMOUNT OF RS.3,87,705/ - WAS ALSO ADDED AS THE DIFFERENCE OF OPENING BALANCE IN THE CAPITAL, ACCOUNT WHICH WAS CLEARLY BEYOND SCOPE OF THE DIRECTION GIVEN BY THE HONOURABLE ITAT. IF AT ALL RS. 3,87 ,705/ - WAS TO BE ADDED, A FRESH NOTICE U/S 148 SHOULD HAVE BEEN ISSUED BY THE LEARNED ASSESSING OFFICER AND PASSED AN ORDER U/S 147 OF THE INCOME TAX ACT 1961. IN SAHELI SYNTHETICS P. LIMITED V. COMMISSIONER OF INCOME TAX 2008 - TMI - 3007 (GUJARAT HIGH COUR T) IT WAS HELD THAT IT IS APPARENT THAT THE ASSESSING OFFICER WAS REQUIRED TO MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH THE DIRECTIONS GIVEN BY THE COMMISSIONER (APPEALS) AND COULD NOT HAVE TRAVELLED BEYOND THE SAME. THE HIGH COURT DISMISSED THE APPEAL FI LED BY THE REVENUE. KELLOGG INDIA PVT. LTD. VIS ASSTT. COMMISSIONER OF INCOME TAX ITA NO. 5778/MUM.2010 - ASSESSMENT YEAR 2003 - 04) IT WAS HELD THAT: IT IS SETTLED PROPOSITION OF LAW THAT THE APPELLATE TRIBUNAL UNDER SECTION 254(1) OF THE ACT, HAD NO POWE R TO TAKE BACK THE BENEFIT CONFERRED BY THE ASSESSING OFFICER OR ENHANCE THE MRS. AYESHA MOSIN KHAN 5 ASSESSMENT. ONCE THE MATTER HAS BEEN RESTORED BY THE TRIBUNAL, THE INCOME CANNOT BE ENHANCED FROM WHAT WAS DETERMINED AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS, WHICH WAS THE SUBJECT MATTER OF DISPUTE BEFORE THE TRIBUNAL. THIS PROPOSITION OF LAW HAS BEEN UPHELD BY THE HON'BLE SUPREME COURT IN HUKUMCHAND MILLS LTD. VIS CIT, [1966J 62 ITR 232 (SC). THE LEARNED ASSESSING OFFICER HAS NOT ACTED IN ACCORDANCE WITH INSTRUCTION GIVE N BY ITAT. IT WOULD RENDER HIS OFFICE GUILTY OF COMMITTING CONTEMPT OF TRIBUNAL WHICH IS LIABLE TO BE PROCEEDED AGAINST. THE LEARNED ITO HAS GONE BEYOND THE SCOPE OF HIS JURISDICTION AND HENCE THE ORDER PASSED IS BAD IN LAW. 5. THE LEARNED CIT(A) DISMI SSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT NO CONCRETE EVIDENCE HAS BEEN PRODUCED EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LEARNED CIT(A) REGARDING THE SOURCE OF GENUINENESS OF THE CASH DEPOSIT OF ` 6,27,960 IN THE BANK ACCOUNT. AGGRIEVE D BY THE AFORESAID ORDER PASSED BY THE LEARNED CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 6. BEFORE ME, THE APPEAL WAS FIXED ON 13 TH JULY 2015, WHEN NONE APPEARED ON BEHALF OF THE APPELLANT ASSESSEE DESPITE SERVICE OF NOTICE DATED 2 9 TH JUNE 2015, SENT BY RPAD. ATTENTION IS DRAWN TO RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, WHICH IS REPRODUCED BELOW: - '24. HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPELLANT. - WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO MRS. AYESHA MOSIN KHAN 6 WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER S ETTING ASIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND CONTENDED THAT THE ASSESSEE HAS FAILED TO PRODUCE DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE GENUINENESS OF SOURCE OF CASH OF ` 6,27,960, DEPOSITED IN THE BANK ACCOUNT BY THE ASSESSEE AND, HENCE, THE ADDITIONS MADE WERE RIGHTLY UPHELD BY THE LEARNED CIT(A). 8. I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RELEVANT MATER IAL ON RECORD. IT IS SEEN THAT THE ASSESSEE, DESPITE GIVEN SEVERAL OPPORTUNITIES IN THE SECOND ROUND OF LITIGATION, FAILED TO PRODUCE SATISFACTORY EXPLANATION REGARDING GENUINENESS OF SOURCE OF CASH DEPOSITS OF ` 6,27,960, IN HER BANK ACCOUNT. SINCE THE DE POSITS HAVE BEEN MADE BY ASSESSEE IN HER BANK ACCOUNT, THE PRIMARY ONUS UNDER SECTION 68 OF THE ACT, IS ON THE ASSESSEE TO SATISFACTORILY EXPLAIN NOT ONLY THE NATURE AND THE SOURCE BUT ALSO THE GENUINENESS OF THE CASH DEPOSITS. THE ASSESSEE HAS PRODUCED BA LANCE MRS. AYESHA MOSIN KHAN 7 SHEET AND BANK STATEMENTS BEFORE THE AUTHORITIES BELOW AND CLAIMED THAT SHE DEPOSITED ` 6,27,960, IN HER BANK ACCOUNT OUT OF HER PAST SAVINGS. THE SAID EXPLANATION HAS BEEN REJECTED ON THE GROUND THAT THE SAME IS NOT SUPPORTED BY ANY DOCUMENTARY EVID ENCE. IT IS QUITE EVIDENT THAT THE EXPLANATION RENDERED BY THE ASSESSEE IS MERELY A BLAND ASSERTION AND DOES NOT EVEN EXPLAIN THE SOURCES OF PAST SAVINGS. UNDER THESE CIRCUMSTANCES, IN MY CONSIDERED OPINION, THE INCOME TAX AUTHORITIES HAVE RIGHTLY CONCLUDE D THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN CAST UPON HER UNDER SECTION 68 OF THE ACT; THEREFORE, I DO NOT FIND ANY MERIT IN THE GROUNDS RAISED BY THE ASSESSEE AND DECLINE TO INTERFERE IN THE ORDER PASSED BY THE LEARNED CIT(A). CONSEQUENTLY, T HE ORDER PASSED BY THE LEARNED CIT(A) IS HEREBY AFFIRMED AND THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 8. IN THE RESULT, ASSESSEE'S APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT O N 24 TH JULY 2015. SD/ - G.S. PANNU ACCOUNT ANT MEMBER MUMBAI, DATED : 24/07/2015 MRS. AYESHA MOSIN KHAN 8 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI