SHAMSHERSHAH PATHAN, MUMBAI V. ACIT, CIRCLE-31(1), MUMBAI

ITA 467/MUM/2023

AI Insights

The case involves Shamshershah Pathan, a medical professional, who appealed against the order of the Commissioner of Income Tax (Appeals) which confirmed the addition of Rs.38,06,592 as unexplained cash credit under Section 68 of the Income Tax Act, 1961. The addition was initially made by the Assessing Officer after observing substantial cash deposits during the demonetization period, which were not satisfactorily explained by the Appellant. The Appellant argued that the cash deposits were from legitimate medical practice income, supported by audited books and patient receipts. However, the Commissioner upheld the Assessing Officer's decision, leading to this appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299419 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 19-04-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 15-02-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68; 143(3); 142(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER & SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER ITA NO. 467/MUM/2023 : A.Y : 2017-18 Shamshershah Pathan Flat No. 603, 6 th Floor, Markaz View, Next to Millat School, S.V. Road, Jogeshwari (W), Mumbai- 400102 PAN : B S NPP6 53 9D (Appellant) Vs . ACIT, Circle – 31(1), Mumbai. (Respondent) Appellant by : Shri Ashok Mehta Respondent by : Shri Anil Sant Date of Hearing : 20/04/2023 Date of Pronouncement : 08/05/2023 ORDER Per Narendra Choudhary, Judicial Member: This appeal has been preferred by the Assessee/Appellant herein against the order dated 10.01.2023 impugned herein passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi (in short ‘Ld. Commissioner’) under Section 250 of the Income Tax Act, 1961 (in short ‘the Act’) pertaining to Assessment Year 2017-18. 2 ITA No. 467/Mum/2023 Shamshershah Pathan 2. In the instant case, Appellant being an individual/medical professional running his hospital and by filling his return of income on 31.01.2018 for assessment year under consideration declared total income of Rs.44,62,940/-, which was selected for scrutiny through CASS and consequently, notices under Section 143(2) and 142(1) of the Act were issued and served upon the Appellant. As per the information, it was observed by the Assessing Officer that Appellant had deposited an amount of Rs.59,17,000/- in its bank account during the demonetization period, therefore, asked the Appellant to furnish the source of cash deposits. In response, the Appellant filed his reply qua cash deposits. The Assessing Officer by considering reply of the Appellant, treated the amount of Rs.38,06,592/- as unexplained cash credit under Section 68 of the Act and consequently added it to the Appellant’s income by passing the assessment order under Section 143(3) of the Act. 3. Being aggrieved, the Appellant preferred first appeal before the Ld. Commissioner and filed written submissions along with documents. For the sake of brevity, relevant part of the written submissions is reproduced herein below:- “In response to Assessment order passed the Assessee disagree with addition to income Rs. 38,06,592 u/s 68 of income tax act 1961 as the said assessment is erroneous due to double taxation of same income both under normal tax rate and concealment of income u/s 68. The assesses provides herewith complete receipt of proceed received, utilized for the purpose of business used for domestic purpose and surplus being deposited in bank account. The assessee prays for correct assessment of income and income tax liability. The assessee submits affidavit duly notarized giving effect to above said facts & figures. This is also supported by daily receipt received from the patient.” 4. Though the Ld. Commissioner considered the submissions filed by the Appellant, however, found no force in the same and consequently confirmed the addition of Rs.38,06,592/- by holding as under. 3 ITA No. 467/Mum/2023 Shamshershah Pathan The cash deposits made by the Appellant shows abnormal increase, which has been beautifully analyzed by the Assessing Officer by comparing the corresponding figures of financial years 2015-16 and 2016-17. The Appellant has not tried to explain this discrepancy noted either before the Assessing Officer or in the appellate proceedings. How can the cash deposits show an astronomical increase right after demonetization? Further, the Assessing Officer has already given full benefit of the “opening cash in hand and the inflated average monthly cash deposits” to the Appellant. 5. Being aggrieved with the impugned order, Appellant is in appeal before us. 6. We have heard the parties and perused the material available on record. The Appellant before us claimed that the Appellant at the stage of assessment proceedings was unable to submit the complete list of all receipts and hence the addition was made without considering the details of receipts, however, during the appellate proceedings he has duly submitted the list of patients with the amount/fee collected along with notarized Affidavit stating that the cash deposits during the period are from treating and diagnosing patients and the entire deposits were offered to taxation in the return of income. The Appellant further claimed that the Ld. Commissioner without considering the said documents dismissed the appeal of the Appellant by upholding the working of the Assessing Officer as correct and fair and failed to appreciate that detail in the form of complete list of patients with address proof was provided. The Appellant further claimed that the books of account of the Appellant are audited and no error was found by either of the authorities in the books of account of the Appellant and the authorities below neither rejected the books of account nor provided any evidence to show that cash sales/receipts is not the source for the cash deposited. At last, the Appellant claimed that the Ld. Commissioner failed to appreciate that the sales were made from April 2016 to October 2016 and the cash deposits also were made partly and the full cash deposits were not made in the bank. Further, the cash deposits made from April 2016 to October 2016 were substantially higher than the previous year 4 ITA No. 467/Mum/2023 Shamshershah Pathan indicating that there is an increase in sales. This increase in cash deposits was 26.41% higher than the previous year and, therefore, audited books of account cannot be disbelieved because there is a surge in cash deposits without pointing any defect in the submissions made. 7. On the contrary, the Ld. DR refuted the claim of the Appellant and supported the impugned order. 8. We have given thoughtful consideration to the peculiar facts and circumstances of the case. The Appellant before us also filed paper book containing 57 pages wherein serial nos. 3 to 5 pertains to list of patients submitted to the Ld. Commissioner, notarized Affidavit, statement of receipts, expenses and daily cash balance. The Appellant honestly conceded that he was unable to submit the complete list of all receipts at the stage of assessment proceedings, however, has submitted it during the appellate proceedings before the Ld. Commissioner. We observe that the Ld. Commissioner though acknowledged the written submissions and filing of documents alongwith notarized Affidavit before him, however nowhere it appears in the impugned order that the Ld. Commissioner has considered the same before coming to conclusion on the issue in dispute. Hence, considering the peculiar facts and circumstances that the documents submitted by the Appellant are relevant and essential for proper adjudication and just decision of the case, we are inclined to remand the instant case to the file of the Assessing Officer for decision afresh. Accordingly, the case is remanded to the file of the Assessing Officer and the Assessing Officer is directed to consider the documents referred to above as well as any other relevant document(s) which would be necessary for proper and real adjudication of the issue involved. 5 ITA No. 467/Mum/2023 Shamshershah Pathan We also direct the Appellant to cooperate and participate in the assessment proceedings and to file the relevant documents as filed before us as well as any other document(s) which would be necessary. 9. In the result, Appellant’s appeal stands allowed for statistical purposes. Order pronounced in the open court on 08 -May, 2023. Sd/- Sd/- (Om Prakash Kant) (Narender Kumar Choudhry) Accountant Member Judicial Member Mumbai, Date : 08-May, 2023 *SSL* Copy to : 1) The Applicant 2) The Respondent 3) The CIT concerned 4) The D.R, “G” Bench, Mumbai 5) Guard file By Order Dy./Asstt. Registrar I.T.A.T, Mumbai