SAMSON PERINCHERY PAUL, MUMBAI V. ACIT CEN CIR 8 & 19, MUMBAI

ITA 4631/MUM/2013

• Counselvise Citation: 463119914 RSA 2013
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard; Source of fund; Additional evidence; Reason to believe
• Section: 147; 68; 148; 143(3); 153A

Judgement Text

` E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI .. , ; BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA, J M ./ I.T.A. NO.7343 /MUM/2012 ( / ASSESSMENT YEAR : 2002-2003 ./ I.T.A. NO.4631 /MUM/2013 ( / ASSESSMENT YEAR : 2009-2010 SHRI SAMSON P. PAUL, PHANASWADI BUILDING, 91E, IST FLOOR, 16, KILOWADI, SITARAM PODAR MARG, MUMBAI 400 002. / VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 17 & 28, AAYAKAR BHAVAN, M.K. ROAD, NEW MARINE LINES, MUMBAI 20. . / PAN : ACWPPO166C ( # / APPELLANT ) .. ( $%# / RESPONDENT ) ASSESSEE BY SHRI RAJIV KHANDELWAL & SHRI NEELKANTH KHANDELWAL DEPARTMENT B Y : SHRI GIRIJADAYAL ) * / DATE OF HEARING : 10-10-2013 ) * / DATE OF PRONOUNCEMENT : 06-12-2013 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THESE TWO APPEALS FILED BY THE ASSESSEE AGAINST TWO SEPARATE ORDERS PASSED BY THE LD. CIT(A) -39, MUMBAI DATED 16-10-20 12 AND 14-02-2013 FOR ASSESSMENT YEARS 2002-03 & 2009-10 ARE HEARD TOGETH ER AND ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED ORDER. ITA 7343/M/12 & 4631/M/13 2 2. FIRST, WE SHALL TAKE UP THE APPEAL OF THE ASSESS EE FOR A.Y. 2002-03 BEING ITA NO. 7343/MUM/2012 WHEREIN HE HAS DISPUTED VARIO US ADDITIONS MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A). 3. THE RELEVANT FACTS OF THE CASE GIVING RISE TO TH IS APPEAL ARE THAT THE ASSESSEE CARRYING ON THE BUSINESS OF DEALING IN GAR MENTS AS COMMISSION AGENT, FILED HIS RETURN OF INCOME ORIGINALLY ON 8-8 -2002 DECLARING TOTAL INCOME OF RS. 88,780/-. THE SAID RETURN WAS ORIGINALLY ACC EPTED BY THE A.O. U/S 143(1) OF THE INCOME TAX ACT, 1961. SUBSEQUENTLY, T HE ASSESSMENT WAS REOPENED BY THE A.O. AND NOTICE U/S 148 OF THE ACT WAS ISSUED BY HIM TO THE ASSESSEE ON 26-03-2009 AFTER RECORDING THE FOLLOWIN G REASONS:- IN THIS CASE; THE SEARCH AND SEIZURE ACTION WAS CO NDUCTED ON 18.12.2008 WHICH WAS COMPLETED ON 19.01.2009. DURIN G THE COURSE OF SEARCH PROCEEDINGS THE ASSESSEES AUTHORIZED REPRES ENTATIVE HAS SUBMITTED ACCOUNTS IN TALLY TO THE DIRECTORATE OF I NVESTIGATION AS PER WHICH THE INCOME FOR A. Y. 2002-03 WORKS OUT TO RS. 58,82,186/-. COPY OF THE SAID P & L A/C EXTRACTED FROM THE ACCOUNTS I N TALLY HAS BEEN FORWARDED TO THIS OFFICE. VIDE LETTER NO. DDIT(INV. )-VILI(1)SAMSON P. PERINCHERY/2008-09 DATED 09.03.2009. I HAVE PERUSED THE P & L A/C OF THE ASSESSEE, VERIF IED THE CASE RECORDS AND FOUND THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR A. Y. 2002-03 ON 08-08-2002 DECLARING TOTAL INCOME OF RS. 88,7801-. THE SCRUTINY ASSESSMENT FOR A.Y. 2002-03 HAS NOT BEEN C OMPLETED U/S. 143(3) OF THE I. T. ACT, 1961. FURTHER, THE A.Y. 20 02-03 IS NOT COVERED UNDER THE PROVISIONS OF SECTION 153A OF THE ACR. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX TO THE EXTENT OF RS. 57,93,406/- HAS ESCAPED ASSESSMENT FOR THE A.Y. 2002-03 WITHIN THE MEANING OF SECTION 147 OF THE I. T. ACT. IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT , THE ASSESSEE FILED RETURN OF INCOME ON 27-04-2009 DECLARING TOTAL INCOME OF R S. 11,55,394/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE BREAK UP OF THE INCOME OF RS. 58,82,186/- DECLARED DURING THE COURSE OF SEARCH WA S GIVEN BY THE ASSESSEE AS UNDER:- ITA 7343/M/12 & 4631/M/13 3 PARTICULARS AMOUNT (RS) AMOUNT (RS.) INCOME SUBMITTED AS PER TALLY 58,82,186 LESS REFUND OF INVESTMENTS MADE IN PRABHUDAS LEELADHAR AND MOTILAL OSWAL 32,17,396 LESS: INCOME OF ANNAMMA PAUL (MOTHER) 13,11,295 LESS: INCOME OF SHIRLEY PAIL (SISTER) 1,98,101 INCOME DECLARED IN THE RETURN OF INCOME 11,55,394 WHEN THE ASSESSEE WAS CALLED UPON BY THE A.O. TO EX PLAIN THE AMOUNT OF RS. 32,17,396 CLAIMED TO BE RECEIVED AS REFUND OF INVES TMENTS MADE IN PRABHUDAS, IT WAS SUBMITTED BY THE ASSESSEE THAT TH E INVESTMENTS WERE MADE THROUGH PRABHUDAS LEELADHAR (STOCK BROKER) IN THE F INANCIAL YEAR 1998-99 WHICH WAS REFUNDED TO THE ASSESSEE AND RE-INVESTED IN MOTILAL OSWAL (STOCK BROKER) IN FINANCIAL YEAR 1999-2000. IT WAS CLAIME D THAT THE SAID AMOUNT WAS AGAIN REFUNDED TO THE ASSESSEE BY MOTILAL OSWAL IN FINANCIAL YEAR 2001-02. THIS EXPLANATION OF THE ASSESSEE REGARDING REFUND O F INVESTMENTS MADE EARLIER IN PRABHUDAS LEELADHAR (STOCK BROKER) WAS NOT FOUND ACCEPTABLE BY THE A.O. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE TO SHOW THE INVESTMENTS CLAIMED TO BE MADE IN THE EARL IER YEARS. HE, THEREFORE, TREATED THE AMOUNT OF RS. 32,17,396/- AS UNDISCLOSE D INCOME OF THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSES SEE. 4. AS REGARDS THE INCOME OF RS.13,11,295/- AND RS. 1,98,101/- CLAIMED TO BE BELONGING TO HIS MOTHER SMT. ANNAMMA PAUL AND SI STER SHIRLEY PAUL RESPECTIVELY, THE ASSESSEE FILED COPIES OF THEIR BA NK ACCOUNTS TO SUPPORT AND SUBSTANTIATE HIS STAND. THE DEPOSITS APPEARING IN T HE SAID ACCOUNTS WERE ALSO EXPLAINED BY THE ASSESSEE AS INTEREST, DIVIDEND, PE NSION AND RECEIPTS FROM RELATIVES STAYING ABROAD. AS REGARDS THE INTEREST, DIVIDEND AND PENSION CLAIMED TO BE RECEIVED BY SMT. ANNAMMA PAUL, THE A. O. ACCEPTED THE ITA 7343/M/12 & 4631/M/13 4 EXPLANATION OF THE ASSESSEE. AS REGARDS THE BALANCE AMOUNT OF RS. 12,84,026/-, HE HOWEVER DID NOT ACCEPT THE EXPLANAT ION OF THE ASSESSEE AS REGARDS THE DEPOSITS FOUND TO BE MADE IN THE ACCOUN T OF SMT. ANNAMMA PAUL AND SINCE THE SAID LADY WAS NOT ASSESSED TO TAX, HE TREATED THE SAID AMOUNT AS UNDISCLOSED INCOME OF THE ASSESSEE. ACCORDINGLY, ADDITION OF RS. 12,84,026/- WAS MADE BY THE A.O. TO THE TOTAL INCOM E OF THE ASSESSEE ON THIS COUNT. SIMILARLY, THE DEPOSITS FOUND TO BE MADE IN CASH IN THE BANK ACCOUNT OF ASSESSEES SISTER SHIRLY PAUL TO THE EXTENT OF R S. 1,98,000/- WAS HELD TO BE UNEXPLAINED BY THE A.O. AND TREATING THE SAME AS AS SESSEES UNDISCLOSED INCOME, ADDITION OF RS. 1,98,000/- WAS MADE BY HI M TO THE TOTAL INCOME OF THE ASSESSEE. IN THE CAPITAL ACCOUNT, OPENING BALAN CE OF RS. 10,03,686/- WAS SHOWN BY THE ASSESSEE AND SINCE NO BOOKS OF ACCOUNT WERE MAINTAINED BY THE ASSESSEE AND THERE WAS NO DOCUMENTARY EVIDENCE TO S UPPORT AND SUBSTANTIATE THE CLAIM OF THE ASSESSEE FOR THE OPENING BALANCE O F RS. 10,03,686/-, THE AMOUNT OF OPNING BALANCE OF RS. 10,03,686/- WAS ADD ED BY THE A.O. TO THE TOTAL INCOME OF THE ASSESSEE AS HIS UNDISCLOSED INC OME. IN HIS CAPITAL ACCOUNT, THE ASSESSEE HAD ALSO SHOWN CONTRIBUTION O F RS. 27,50,000/- AND RS. 2 LACS RECEIVED FROM HIS MOTHER SMT. ANNAMMA PA UL AND SISTER SHIRLEY PAUL RESPECTIVELY. AS THE SAID AMOUNTS WERE RECEIV ED BY THE ASSESSEE FROM THE BANK ACCOUNT OF SMT. ANNAMMA PAUL AND SHIRLEY P AUL AND THE DEPOSITS MADE IN THE SAID ACCOUNTS WERE TREATED BY HIM AS UN EXPLAINED, THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED OF CONTRIBUTION OF RS. 29,50,000/- FROM HIS MOTHER AND SISTER WAS NOT ACCEPTED BY THE A.O. SINC E THE ADDITION OF RS. 14,82,026/- WAS ALREADY MADE BY HIM TO THE TOTAL IN COME OF THE ASSESSEE ON ACCOUNT OF DEPOSITS FOUND TO BE MADE IN THE BANK AC COUNT OF SMT. ANNAMMA PAUL AND SHIRLEY PAUL TREATING THE SAME AS UNDISCLO SED INCOME OF THE ASSESSEE, THE BALANCE AMOUNT OF RS. 14,67,974/- WAS ALSO ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE TREATING THE SAME AS HIS UNDISCLOSED INCOME. ITA 7343/M/12 & 4631/M/13 5 5. THE VARIOUS ADDITIONS MADE BY THE A.O. TO HIS TO TAL INCOME WERE DISPUTED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(A) AND KEEPING IN VIEW THE ADDITIONAL EVIDENCE FILED BY THE ASSESS EE IN THE FORM OF CONFIRMATIONS FROM MOTILAL OSWAL ETC., WHICH WAS DU LY VERIFIED AND ACCEPTED BY THE A.O. IN THE REMAND REPORT, THE LD. CIT(A) HE LD THAT THE REFUND OF INVESTMENT OF RS. 32,17,396/- CLAIMED TO BE MADE BY THE ASSESSEE WAS DULY EXPLAINED/ESTABLISHED TO THE EXTENT OF RS. 30,01,04 9/-. ACCORDINGLY, THE ADDITION MADE ON THIS ISSUE BY THE A.O. WAS RESTRIC TED BY HIM TO RS. 2,16,347/-. THE OTHER ADDITIONS MADE BY THE A.O., HOWEVER, WERE CONFIRMED BY THE LD. CIT(A) MAINLY FOR THE SAME REASONS AS GI VEN BY THE A.O. IN THE ASSESSMENT ORDER. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FO LLOWING GROUNDS:- 1. ON THE ISSUE OF ADDITION OF RS.2,14.347/- (REFU ND OF INVESTMENT) ON THE FACTS AND IN LAW: 1.1] THE LEARNED CIT (A) ERRED IN CONFIRMING ADDITI ON OF RS.2,16,347/- BEING REFUND OF INVESTMENT, NOT APPRECIATING THE FA CT THAT THE SAME IS FULLY EXPLAINED AS THE SAME WAS RECEIVED FROM MOTHE R OF THE APPELLANT, WHOSE BANK ACCOUNT WAS ALSO SUBMITTED. 2. ON THE ISSUE, OF CASH DEPOSIT IN THE NAME OF MOT HER . ON THE FACTS AND IN LAW: 2.1] THE LEARNED CIT (A) HAS ERRED IN CONFIRMING TH E ADDITION OF RS.12,84,026/- ON ACCOUNT OF CASH DEPOSIT IN THE BA NK ACCOUNT OF THE MOTHER, NOT APPRECIATING THE FACT THAT THE APPELLAN T HAD NO CONTROL ON THE BANK ACCOUNT OF THE MOTHER. 2.2] THE LEARNED CIT (A) ERRED IN OBSERVING THAT SE CTION 68 CASTS BURDEN ON THE APPELLANT TO EXPLAIN THE DEPOSIT IN T HE BANK OF MOTHER WHERE HE HAS NO CONTROL OVER THE SAME. 3. ON THE ISSUE OF CASH DEPOSIT IN ACCOUNT OF THE S ISTER . ON THE FACTS AND IN LAW: 3.11 THE LEARNED CIT (A) HAS ERRED IN CONFIRMING TH E ADDITION OF RS. 1,98,000/- ON ACCOUNT OF CASH DEPOSIT IN THE BANK A CCOUNT OF THE SISTER, NOT APPRECIATING THE FACT THAT THE APPELLAN T HAD NO CONTROL ON THE BANK ACCOUNT OF THE MOTHER. 3.2] THE LEARNED CIT (A) ERRED IN OBSERVING THAT SE CTION 68 CASTS BURDEN ON THE APPELLANT TO EXPLAIN THE DEPOSIT IN T HE BANK OF SISTER WHERE HE HAS NO CONTROL OVER THE SAME. ITA 7343/M/12 & 4631/M/13 6 4. ON THE ISSUE OF OPENING CASH BALANCE ON THE FACTS AND IN LAW: 4.1 THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADD ITION OF RS.1O,03,686/- ON ACCOUNT OF THE OPENING BALANCE WI THOUT APPRECIATING THE FACT THAT THE SAME CAN NOT BE BROU GHT TO TAX DURING THE YEAR UNDER CONSIDERATION. 5. ON THE ISSUE OF CONTRIBUTION FROM RELATIVES: ON THE FACTS AND IN LAW:_ 5.1] THE LEARNED CIT(A) ERRED IN ADDITION OF RS. 14 ,67,974/- ON ACCOUNT OF CONTRIBUTION FROM MOTHER AND SISTER WITH OUT APPRECIATING THE FACT THAT THE INVESTMENT WAS MADE BY THE RESPEC TIVE RELATIVES FROM THEIR OWN BANK ACCOUNTS. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS REGARDS T HE ISSUE RAISED IN GROUND NO. 1 RELATING TO THE ADDITION OF RS. 32,17,396/- M ADE BY THE A.O. ON ACCOUNT OF REFUND OF INVESTMENTS WHICH HAS BEEN SUSTAINED B Y THE LD. CIT(A) TO THE EXTENT OF RS. 2,16,347/-, IT IS OBSERVED THAT THE C LAIM OF THE ASSESSEE OF HAVING RECEIVED THE REFUND OF INVESTMENT MADE IN TH E EARLIER YEAR WAS NOT ACCEPTED BY THE A.O. MAINLY DUE TO THE FAILURE OF T HE ASSESSEE TO PRODUCE ANY DOCUMENTARY EVIDENCE TO ESTABLISH THE INVESTMENTS M ADE IN THE EARLIER YEAR. BEFORE THE LD. CIT(A), THE ASSESSEE HOWEVER FILED S UCH EVIDENCE AND AFTER GETTING THE SAME VERIFIED BY THE A.O., WHO ACCEPTED IT IN THE REMAND REPORT, THE LD. CIT(A) HELD THAT THE CLAIM OF THE ASSESSEE ON THIS COUNT WAS DULY ESTABLISHED TO THE EXTENT OF RS. 30,01,049/-. HE A CCORDINGLY ALLOWED RELIEF TO THE ASSESSEE TO THAT EXTENT AND SUSTAINED THE ADDIT ION ONLY TO THE EXTENT OF RS. 2,16,347/-. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO OFFER ANY SATISFACTOR Y EXPLANATION IN RESPECT OF THIS AMOUNT OF RS. 2,16,347/- CLAIMED TO BE REFUND OF INVESTMENT BY THE ASSESSEE. IN OUR OPINION, THE LD. CIT(A) HAS ALREAD Y TAKEN A REASONABLE STAND ON THIS ISSUE GIVING SUBSTANTIAL RELIEF TO THE ASSE SSEE TO THE EXTENT HIS CLAIM FOR REFUND OF INVESTMENT WAS DULY ESTABLISHED ON EV IDENCE AND NO FURTHER RELIEF, IN OUR OPINION, IS WARRANTED ON THIS OSSUE IN THE ABSENCE OF ANY ITA 7343/M/12 & 4631/M/13 7 EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE TO EXPLA IN THE BALANCE AMOUNT OF RS. 2,16,347/- WHICH IS RIGHTLY TREATED BY THE LD. CIT(A) AS UNEXPLAINED. WE, THEREFORE, FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE AND UPHOLD THE SAME DI SMISSING GROUND NO. 1 OF ASSESSEES APPEAL. 7. AS REGARDS GROUND NO. 2 & 3 RELATING TO THE ADDI TIONS MADE BY THE A.O. TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF T HE DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNTS OF HIS MOTHER AND SISTER TREATING THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE, WE FIND MERIT I N THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE CREDITS IN THE BA NK ACCOUNTS OF SAID PERSONS, WHO ARE SEPARATE ENTITY, CANNOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE EVEN IF NO SATISFACTORY EXPLANATION IN RESPECT OF THE SAID CREDITS IS OFFERED UNLESS THE SAID ACCOUNTS ARE FOUND TO BE THE BENAMI ACCOUNTS OF THE ASSESSEE. IN THIS REGARD, IT IS OBSERVED THAT NO SU CH CASE WAS MADE OUT EVEN BY THE A.O. THAT THE BANK ACCOUNTS OF SMT. ANNAMMA PAUL AND SHIRLEY PAUL WERE THE BENAMI ACCOUNTS OF THE ASSESSEE. ON THE OT HER HAND, THE EXPLANATION OF THE ASSESSEE AS REGARDS SOME CREDITS IN THE SAID ACCOUNTS REPRESENTING INTEREST, DIVIDEND AND PENSION BELONGI NG TO THE SAID LADIES WAS ACCEPTED BY THE A.O. THEREBY ACCEPTING THAT THE SAI D BANK ACCOUNTS WERE BELONGING TO THE CONCERNED TWO LADIES. IN THESE CI RCUMSTANCES, WE ARE UNABLE TO UNDERSTAND HOW THE DEPOSITS MADE IN THE SAID BAN K ACCOUNT COULD BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE AND E VEN THE A.O. IN HIS ASSESSMENT ORDER HAS NOT GIVEN ANY SUCH BASIS/JUSTI FICATION TO TREAT THE DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNTS OF H IS MOTHER AND SISTER AS UNDISCLOSED INCOME OF THE ASSESSEE. WE, THEREFORE, DELETE THE ADDITION MADE BY THE A.O. ON THIS ISSUE AND ALLOW GROUND NO. 2 & 3 OF ASSESSEES APPEAL. 8. AS REGARDS THE ISSUE RAISED IN GROUND NO. 4 RELA TING TO THE ADDITION OF RS. 10,03,686/- MADE TO THE TOTAL INCOME OF THE ASS ESSEE ON ACCOUNT OF OPENING BALANCE CAPITAL ACCOUNT, IT IS OBSERVED THA T THE CLAIM OF THE ASSESSEE ITA 7343/M/12 & 4631/M/13 8 FOR OPENING BALANCE IN THE CAPITAL ACCOUNT OF THE A SSESSEE WAS NOT ACCEPTED BY THE A.O. IN THE ABSENCE OF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE. HOWEVER, THERE W AS NO BASIS OR JUSTIFICATION GIVEN BY THE A.O. FOR TREATING THE SA ID OPENING BALANCE AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE YEAR UND ER CONSIDERATION. AS RIGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESS EE, WHEN THE BALANCE OF RS. 10,03,686/- WAS APPEARING IN THE CAPITAL ACCOUNT OF THE ASSESSEE AS OPENING BALANCE AS ON 1-4-2001, THE ADDITION FOR THE SAME E VEN IF TREATED AS UNEXPLAINED, COULD BE MADE IN THE EARLIER YEAR AND NOT IN THE YEAR UNDER CONSIDERATION UNLESS IT IS ESTABLISHED THAT THE SAM E REPRESENTED INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. WE, THER EFORE, DELETE THE ADDITION MADE TO THE TOTAL INCOME OF THE ASSESSEE ON THIS IS SUE AND ALLOW GROUND NO. 4 OF ASSESSEES APPEAL. 9. AS REGARDS THE ISSUE RAISED IN GROUND NO. 5 RELA TING TO THE CONTRIBUTION RECEIVED BY THE ASSESSEE TO HIS CAPITAL ACCOUNT FRO M MOTHER AND SISTER WHICH IS TREATED AS UNEXPLAINED TO THE EXTENT OF RS. 14,6 7,974/-, IT IS OBSERVED THAT THE CONTRIBUTION WAS RECEIVED BY THE ASSESSEE THROU GH BANKING CHANNEL FROM THE BANK ACCOUNTS OF HIS MOTHER AND SISTER. THE DEP OSITS FOUND TO BE MADE IN THE SAID BANK ACCOUNTS WERE ALSO EXPLAINED BY THE A SSESSEE. THE A.O., HOWEVER, DID NOT ACCEPT THE SAID EXPLANATION AND MA DE THE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE TREATING THE CONTRIBUT ION RECEIVED FROM HIS MOTHER AND SISTER AS UNEXPLAINED. AS RIGHTLY CONTE NDED BY THE LD. COUNSEL FOR THE ASSESSEE, THE IMMEDIATE SOURCE OF CONTRIBUTION TO HIS CAPITAL ACCOUNT WAS EXPLAINED BY THE ASSESSEE AS THE AMOUNTS RECEIVED F ROM HIS MOTHER AND SISTER THROUGH BANKING CHANNEL. THE A.O., HOWEVER, TREATED THE SAID CONTRIBUTION AS UNEXPLAINED FOR THE REASON THAT THE ASSESSEE FAILED TO ESTABLISH THE SOURCE OF SOURCE WHICH, IN OUR OPINION, IS NOT PERMISSIBLE. M OREOVER, AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE MOTHER OF THE ASSESSEE HAD EXPIRED ON 26-6-2003 AND IT WAS THEREFORE IMPOSSIBLE FOR THE A SSESSEE OR ANYBODY TO ITA 7343/M/12 & 4631/M/13 9 EXPLAIN THE SOURCE OF FUNDS GIVEN TO THE ASSESSEE I N THE HANDS OF THE SAID LADY AFTER A PERIOD OF 7-8 YEARS FROM HER DEATH. WE, THE REFORE, HOLD THAT THE ADDITION MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON THIS ISSUE IS NOT SUSTAINABLE AND DELETING THE SAME, WE ALLOW GROUND NO. 5 OF ASSESSEES APPEAL. 10. NOW, WE SHALL TAKE UP THE APPEAL OF THE ASSESSE E FOR A.Y. 2009-10 BEING ITA NO. 4631/MUM/2013 WHICH IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)- 39, MUMBAI DATED 14-02-2013 WHEREBY HE CONFIRMED THE FO LLOWING ADDITIONS MADE BY THE A.O. :- A. EXPENDITURE ON FOREIGN TOUR - RS. 3,50,000/- B. HOUSEHOLD EXPENSES - RS. 70,000/- C. UNEXPLAINED MONEY - RS. 7,63,000/- D. ADDITION UNDER SECTION 69 - RS. 67,46,251/- ============= TOTAL - RS. 79,29,251/- 11. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE APPEAL FILED BY THE ASSESSEE CHALLENGING THE ADDITIONS BY THE A.O. WAS DISMISSED BY THE LD. CIT(A) BY HIS IMPUGNED ORDER PASSED EX PARTE FOR N ON-PROSECUTION HOLDING THAT THE CONDUCT OF THE ASSESSEE IN SEEKING THE ADJ USTMENT AGAIN AND AGAIN WAS SUFFICIENT TO SHOW THAT HE WAS NOT INTERESTED I N PROSECUTING THIS APPEAL. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, T HE ADJOURNMENTS WERE SOUGHT BY THE ASSESSEE FOR SUFFICIENT CAUSE AND THI S POSITION IS CLEAR FROM THE FACT THAT ON THE LAST DATE OF HEARING FIXED BEFORE THE LD. CIT(A) ON 13-2-2013, THE ADJOURNMENT WAS SOUGHT ON THE GROUND THAT THE W IFE OF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD TO UNDERGO A SUR GERY. MOREOVER, AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE IS VERY MUCH INTERESTED IN GETTING HIS APPEAL CHALLENGING THE AD DITIONS MADE BY THE A.O. TO BE DISPOSED OF ON MERIT AND HAS ALSO SHOWN HIS WILL INGNESS TO ARGUE THE ITA 7343/M/12 & 4631/M/13 10 MATTER ON MERIT BEFORE US. THE LD. D.R., HOWEVER, HAS CONTENDED THAT THE LD. CIT(A) HAVING NOT DECIDED THE APPEAL OF THE ASSESSE E ON MERIT, THE MATTER MAY BE REMITTED TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE ON MERIT. WE AGREE WITH THIS CONTENTION OF THE LD. D.R . ACCORDINGLY, THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE APPEAL OF THE ASSESSEE INVOLVING THE ISSUE OF ADDITIONS MADE BY THE A.O. O N MERIT AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. TH E ASSESSEE IS ALSO DIRECTED TO EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 12. IN THE RESULT, APPEAL OF THE ASSESSEE FOR A.Y. 2002-03 IS PARTLY ALLOWED AND APPEAL OF THE ASSESSEE FOR A.Y. 2009-10 IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH DECEMBER, 2013 . ) 0 1 06-12-2013 ) SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 1 DATED 06-12-2013. [ .../ RK , SR. PS ITA 7343/M/12 & 4631/M/13 11 ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. 4 () / THE CIT(A)39, MUMBAI. 4. 4 / CIT II, MUMBAI 5. $8 , * 8 , / DR, ITAT, MUMBAI E BENCH 6. / GUARD FILE. / BY ORDER, % $ //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI