VIMAN BHARPILANIA, MUMBAI V. ITO 14(2)(3), MUMBAI

ITA 439/MUM/2013

• Counselvise Citation: 43919914 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 15-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R K SHAHU
• Assessee Lawyers: PRAMOD KUMAR PARIDA; MRS SANJUKTA CHOWDHURY
• Keywords: Source of fund

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F, BENC H MUMBAI .. , ! '# $ %% , '# BEFORE SHRI R.C.SHARMA, AM & SANJAY GARG, JM ./ ITA NO.439/MUM/2013 ( & & & & ' ' ' ' / ASSESSMENT YEAR :2009-10) VIMAN BHARPILANIA, ROOM NO.3, DIVYA DARSHAN, 2 ND FLOOR, WADI, BHULESHWAR, MUMBAI-400 002 VS. ITO 14(2)(3), MUMBAI #( ! ./ $) ./ PAN/GIR NO. : AFMPB 4714 R ( (* / APPELLANT ) .. ( +,(* / RESPONDENT ) &-. / // / 0 0 0 0 /ASSESSEE BY : MR. PRAMOD KUMAR PARIDA & MRS. SANJUKTA CHOWDHURY $# / // / 0 0 0 0 /REVENUE BY : MR. R.K.SHAHU & / .1! / DATE OF HEARING : 5 TH JUNE, 2014 23' / .1! / DATE OF PRONOUNCEMENT : 13 TH JUNE, 2014 ' ' ' ' / O R D E R PER R.C.SHARMA (A.M.) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 9-10-2012, FOR THE ASSESSMENT YEAR 200 9-10, IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE I.T. ACT. 2 . IN THIS APPEAL ASSESSEE IS AGGRIEVED BY THE ADDIT ION OF RS.21,06,050/- MADE BY THE AO U/S.68 OF THE I.T. AC T AND ALSO FOR DISALLOWANCE ON RS.26,840/- OUT OF MOTOR CAR EXPENS ES. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUS ED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE JOB W ORK OF MANUFACTURING OF GOLD AND DIAMOND JEWELLERY. DURING THE COURSE OF SCRUTINY ITA NO.439/13 2 ASSESSMENT, THE AO OBSERVED THAT ASSESSEE HAD DEPOS ITED CASH IN VARIOUS BANK ACCOUNT, ASSESSEE WAS ASKED TO EXPLAI N THE SOURCE OF ABOVE CASH DEPOSIT. IN COMPLIANCE TO THE SAME, THE ASSESSEE HAS FURNISHED CASH-FLOW STATEMENT, WHEREIN HE HAD SHOWN WITHDRAWAL FROM DIFFERENT BANKS IN WHICH ASSESSEE WAS HAVING ACCOUN T AND UTILIZATION OF THE SAME FOR DEPOSITING IN OTHER BANK ACCOUNT. SINC E THE CASH WITHDRAWN FROM THE BANK WAS NOT DEPOSITED IMMEDIATE LY IN OTHER BANK ACCOUNT, THE AO DID NOT ACCEPT ASSESSEES CONTENTIO N REGARDING SOURCE OF FUND DEPOSITED IN THE BANK ACCOUNT, ACCORDINGLY, THE ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT. THE AO ALSO MADE DISALLOWANCE OF RS.26,640/- OUT OF MOTORCAR EXPENSE S ON THE PLEA OF PERSONAL USE. 4 . BY THE IMPUGNED ORDER THE CIT(A) CONFIRMED THE AC TION OF AO, AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FR OM THE RECORD THAT TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN DIFFE RENT BANK ACCOUNT, THE ASSESSEE HAS FURNISHED CASH-FLOW STATEMENT WHEREIN THE AVAILABILITY OF CASH WAS SHOWN EITHER ON ACCOUNT OF JOB WORK PROCEE DS OR WITHDRAWAL FROM OTHER BANK OR LOAN FROM CREDITORS. AS PER THE CASH-FLOW STATEMENT, WE FOUND THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS DEPOSITED CASH OF RS.15,70,000/- IN NKGSB COOPERATI VE BANK. TO EXPLAIN THE SAME ASSESSEE HAS FURNISHED COPIES OF T HREE BANK ACCOUNT HELD BY HIM ALONG WITH SUMMARY WITH NARRATIONS OF T RANSACTIONS OF ALL ITA NO.439/13 3 THE THREE BANK ACCOUNT. THE ENTRY OF CASH WITHDRAWA L FROM ONE BANK ACCOUNT AND DEPOSIT IN ANOTHER BANK ACCOUNT IS A CO NTRA ENTRY, WHICH WAS NOT ACCEPTED BY THE AO ON THE PLEA THAT THERE W AS A TIME GAP BETWEEN THE WITHDRAWAL OF CASH AND DEPOSIT AND THE ASSESSEE COULD NOT EXPLAIN THE REASON FOR HOLDING THE CASH IN THE INTERVENING PERIOD. THE AO ALSO OPINED THE IMPROBABILITY OF THIS CASH D EPOSITS IN NKGSB BANK BECAUSE OF THE TIME GAP AND DISTANCE OF APPROX IMATELY 40 KMS. 6. SO FAR AS WITHDRAWAL OF CASH FROM ONE BANK ACCOUNT AND DEPOSITED THE SAME IN ANOTHER BANK ACCOUNT CONCERNE D, WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE AO TO TREAT TH E SAME AS UNEXPLAINED, INSOFAR AS SOURCE OF WITHDRAWAL FROM A PARTICULAR B ANK ACCOUNT WAS NEITHER DECLINED NOR FOUND TO BE INGENUINE. HOWEVER , IT IS ALSO NOT THE CASE OF AO THAT CASH WITHDRAWN FROM BANK ACCOUNT WA S UTILIZED BY ASSESSEE SOMEWHERE ELSE. ONCE THE FACTUM OF WITHDRA WAL FROM DISCLOSED BANK ACCOUNT IS NOT IN DISPUTE NOR THE AV AILABILITY OF SUFFICIENT CASH BALANCE AS PER CASH BOOK ON THE DATE OF DEPOSI T IS NOT DISPUTED, MERE TIME GAP BETWEEN WITHDRAWAL AND DEPOSIT CANNOT BE MADE THE REASON TO TREAT SUCH DEPOSIT OUT OF UNDISCLOSED SOU RCES. HOWEVER, OUT OF THE VARIOUS CASH DEPOSIT, WE FOUND THAT ASSESSEE HAD SHOWN RECEIPT OF CASH LOAN OF RS.2,11,000/-, WHICH THE AO DID NOT ACCEPT. THE CONTENTION OF THE ASSESSEE WAS THAT CONFIRMATION OF ALL THE UNSECURED LOANS ALONG WITH LEDGER EXTRACTS WERE FURNISHED VID E LETTER DATED 1-12- 2011 AND THAT CONFIRMATION OF UNSECURED LOANS WERE AGAIN SUBMITTED TO THE APPELLATE AUTHORITY, WHO IN TURN HAD SENT THE S AME TO THE AO FOR ITA NO.439/13 4 COMMENTS. HOWEVER, THE AOS REMAND REPORT WAS SILEN T ON NON- SUBMISSION OF CONFIRMATIONS OF UNSECURED LOANS. WE FOUND THAT BY FILING LOAN CONFIRMATION LETTERS AND PAN NUMBER OF THE LOA N CREDITORS, ASSESSEE HAS TRIED TO ESTABLISH NOT ONLY IDENTITY B UT ALSO GENUINENESS OF THE LOAN CREDITORS WHICH HAS NOT BEEN PROPERLY A PPRECIATED BY THE AO. IN THE INTEREST OF JUSTICE AND FAIR-PLAY, WE RE STORE THE ADDITION OF RS.2,11,000/- BACK TO THE FILE OF THE AO FOR DECIDI NG AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. THE BALANCE ADDITI ON MADE BY THE AO WITH REGARD TO DEPOSIT OF CASH IN BANK ACCOUNT IS H EREBY DELETED. 7 . SO FAR AS DISALLOWANCE OF 15% OF MOTORCAR EXPENSE S IS CONCERNED ON ACCOUNT OF PERSONAL USE, WE DIRECT THE AO TO RESTRICT THE DISALLOWANCE TO 10% KEEPING IN VIEW THE NATURE OF A SSESSEES BUSINESS. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART . - .4 &-. / #5. / $. 67 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH JUNE,2014. ' / 23' ! 8 9'&4 13 TH JUNE,2014 3 / % SD/- SD/- ( $ %% ) (SANJAY GARG) ( . . ) (R.C.SHARMA) '# '# '# '# / JUDICIAL MEMBER ! ! ! ! '# '# '# '# / ACCOUNTANT MEMBER MUMBAI ; 9'& DATED 13 TH /06/2014 +. . /PKM , & . / PS ITA NO.439/13 5 ' ' ' ' / // / +.: +.: +.: +.: ; :'. ; :'. ; :'. ; :'. / COPY OF THE ORDER FORWARDED TO : ' & ' & ' & ' & / BY ORDER, < << < / 6 6 6 6 $ $ $ $ ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. (* / THE APPELLANT 2. +,(* / THE RESPONDENT. 3. = ( ) / THE CIT(A), MUMBAI. 4. = / CIT 5. :>% +.& , , / DR, ITAT, MUMBAI 6. %? / GUARD FILE. ,:. +. //TRUE COPY//