PRAVIN HIMMATLAL DOSHI, MUMBAI V. DCIT CEN CI R- 9, MUMBAI

ITA 5043/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4986 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-09-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 27-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C TRIPURA SUNDARI
• Assessee Lawyers: MAHESH O RAJORA
• Keywords: Search and seizure; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI R AJENDRA SINGH , A M TA NO. 5043 / MUM / 20 1 1 ( ASSESSMENT YEAR : 200 9 - 10 ) SHRI PRAVIN H IMMATLAL DOSHI, ACME GHAR, 19 K.D.ROAD, BEHIND RASRAJ RESTAURANT, VILE PARLE (WEST), MUMBAI - 400 056 VS. DCIT, CIR - 9, MUMBAI - 20 PAN/GIR NO. : A ACPD 7087 N ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI VIJAY MEHTA & SHRI MAHESH O. RAJORA /REVENUE BY : MS . C. TRIPURA SUNDARI DATE OF HEARING : 5 TH S E PTEMBER , 201 3 DATE OF PRONOUNCEMENT : 13 TH SEPTEMBER , 2013 O R D E R P ER SHRI R.K.G UPTA, JM : THE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE ORDER OF LEARNED CIT(A) , MUMBAI FOR ASSESSMENT YEAR 2009 - 10. 2 . THE ONLY ISSUE INV OLVED IN THE APPEAL OF THE ASSESSEE IS AGAINST CONFIRMING AN ADDITION OF RS.2,00,000/ - UNDER SECTION 69A OF THE ACT. 3 . THE FACTS GIVING RISE TO THE APPEAL OF THE ASSESSEE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DIRECTOR IN VARIOUS COMPANIES OF ACME GROUP AND PARTNER IN VARIOUS FIRMS WHICH WERE ENGAGED IN THE BUSINESS OF BUILDER & DEVELOPERS. DURING THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 2008 - 09, THE ASSESSEE OFFERED INCOME UNDER THE HEAD SALARIES FROM M/S. ACME SHELTERS PVT. LTD., INCOME UND ER THE HEAD HOUSE PROPERTY , INCOME UNDER THE HEAD BUSINESS & PROFESSION I TA NO. 5043 /1 1 2 AND INCOME FROM OTHER SOURCES. THERE WAS A SEARCH AND SEIZURE ACTION CONDUCTED AT THE RESIDENCE OF THE ASSESSEE, RESIDENCE OF ASSESSEES SON SHRI MUNISH P. DOSHI AND OTHER PREMISES OCC UPIED BY ACME GROUP CONCERNS AND THEIR DIRECTORS AND RELATED PERSONS ON 24 - 7 - 2008. DURING THE COURSE OF THE SEARCH AND SEIZURE PROCEEDINGS AT THE RESIDENCE OF THE ASSESSEE AT 102, ASHA KIRAN, VILLE PARLE (W), MUMBAI - 400 056, CASH OF RS. 4,29,690/ - WAS FOUND AS PER ANNEXURE - 4 OF PANCHANAMA DATED 24 - 7 - 2008, OUT OF WHICH UNEXPLAINED CASH OF RS. 3,50,000/ - WAS SEIZED AS PER ANNEXURE - C OF THE PANCHANAMA DATED 24 - 7 - 2008. . THE ASSESSEES STATEMENT WAS RECORDED UNDER SECTION 132(4) OF THE ACT ON 25 - 7 - 2008. AS PER THE QUESTION NO.7 OF THE STATEMENT RECORDED, THE ASSESSEE WAS REQUIRED TO EXPLAIN THE CASH FOUND FROM HIS RESIDENCE AT RS. 4,29,690/ - . THE ASSESSEE CONFIRMED THE CASH FOUND FROM HIS PREMISES AND IT WAS STATED THAT THE SAME BELONGS TO HIM AND HIS FAMILY MEMBERS . IT WAS ALSO STATED THAT AT PRESENT I.E. THE TIME OF STATEMENT RECORDED, HE HAS NO DOCUMENTARY EVIDENCE FOR THE SAME. AS STATED ABOVE, THE SEARCH WAS CONDUCTED AT THE RESIDENCE OF HIS SON, SHRI RAJESH P. DOSHI, WHOSE STATEMENT WAS ALSO RECORDED. HE WAS AS KED TO EXPLAIN THE SOURCE FOUND FROM HIS PREMISES, WHO STATED THAT HE HAD CASH IN HAND BETWEEN RS. 10,000/ - TO RS. 1 LAKH. THE CASH WAS FOUND FROM HIS RESIDENCE AT RS. 80,500/ - . IT WAS SUBMITTED BY HIM THAT THIS CASH WAS ACCOUNTED FOR WHICH IS RECORDED IN THE BOOKS OF ACCOUNTS. HE ALSO STATED THAT HIS MONTHLY WITHDRAWAL FOR HOUSEHOLD EXPENDITURE WAS BETWEEN RS. 50,000/ - TO RS. 70,000/ - . DURING THE ASSESSMENT I TA NO. 5043 /1 1 3 PROCEEDING, IT WAS EXPLAINED THAT CASH OF RS. 35,990/ - BELONGS TO HIM, CASH OF RS. 1,26,000/ - BELONGS TO HI S WIFE SMT. NEELA P. DOSHI AND A CASH OF RS.77,040/ - BELONGS TO HIS SON SHRI RAJESH P. DOSHI AND IN REGARD TO RS.2 LAKHS IT WAS STATED THAT THE SAME BELONGS TO ANOTHER SON SHRI MUNISH P. DOSHI. THE AO ACCEPTED ASSESSEES EXPLANATION TO THE EXTENT OF CASH O F RS. 35,990/ - BELONGS TO THE ASSESSEE, RS. 1,26,000/ - BELONGS TO HIS WIFE AND RS. 77,040/ - BELONGS TO HIS SON SHRI RAJESH P. DOSHI, HOWEVER, EXPLANATION IN REGARD TO REMAINING AMOUNT OF RS. 2 LAKHS, WHICH BELONGS TO HIS ANOTHER SON, SHRI MUNISH P. DOSHI, WAS NOT ACCEPTED AS THE ASSESSEE COULD NOT LEAD ANY SUPPORTING EVIDENCE. IT WAS ALSO NOTED BY THE AO THAT SHRI MUNISH P. DOSHI, WHO IS MAJOR SON, LIVING INDEPENDENTLY IN SEPARATE HOUSE AT 112, AKSHAY GIRI KUNJ, ANDHERI (W) , MUMBAI. IT WAS ALSO OBSERVED BY THE AO IN HIS ORDER THAT THE STATEMENT OF HIS SON WAS ALSO RECORDED ON THE SAME DATE I.E. ON 24 - 7 - 2008/25 - 7 - 2008, HOWEVER, HE DID NOT MENTION THAT HIS MONEY WAS LYING WITH HIS FATHER. HE ALSO OBSERVED THAT IN THE RESIDENCE OF SHRI MUNISH P. DOSHI, ONLY A SUM O F RS. 80,500/ - WAS FOUND AS ACCUMULATION OF SAVINGS FROM THE MONTHLY WITHDRAWALS MADE BY HIM HIS ACCOUNT WHICH WAS ACCOUNTED IN HIS BOOKS OF ACCOUNTS IN PERSONAL CAPACITY. THEREFORE, HE MADE AN ADDITION OF RS. 2 LAKHS UNDER SECTION 69A IN THE HANDS OF THE AS SESSEE. 4 . D URING THE APPELLATE PROCEEDING BEFORE THE CIT(A), SAME CONTENTIONS WERE REITERATED. HOWEVER, LEARNED CIT(A) WAS NOT SATISFIED I TA NO. 5043 /1 1 4 WITH THE EXPLANATION. ACCORDINGLY, HE ALSO CONFIRMED THE ACTION OF THE AO. NOW, THE ASSESSEE IS IN APPEAL HERE BEFO RE THE TRIBUNAL. 5 . THE CONTENTIONS RAISED BEFORE THE LOWER AUTHORITIES HAVE BEEN REITERATED BY THE ASSESSEE HERE BEFORE THE TRIBUNAL. IT WAS STATED THAT SHRI MUNISH P. DOSHI IS INDEPENDENTLY ASSESSED TO TAX AS HE IS FILING REGULAR RETURN OF INCOME AND THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION HAS BEEN COMPLETED UNDER SECTION 143(3) AND NO ADDITION HAS BEEN MADE. THE CASH IN THE HANDS OF SHRI MUNISH P. DOSHI, SON OF THE ASSESSEE, WAS RS. 3,83,553/ - . ATTENTION OF THE BENCH WAS DRAWN ON PAGE 26 OF TH E PAPER BOOK, WHERE COPY OF CASH BOOK IS PLACED. AS ON 18 - 7 - 2008, CASH IN HAND WAS RS. 3,83,553/ - AND THE SEARCH WAS CONDUCTED ON 24 - 7 - 2008. THEREFORE, SUFFICIENT CASH WAS AVAILABLE WITH THE ASSESSEE, WHICH COVERS THE AMOUNT OF RS. 2 LAKHS AS WELL AS RS. 80,0 00/ - FOUND FROM THE PREMISES OF THE ASSESSEE AND HIS SON, RESPECTIVELY. COPY OF THE ASSESSMENT PASSED UNDER SECTION 143(3) IN THE CASE OF MUNISH P. DOSHI IS PLACED ON RECORD AT PAGE 30. IT WAS FURTHER STATED THAT DURING THE COURSE OF STATEMENT RECORDED OF ASSESSEE, IT WAS ADMITTED THAT CASH OF RS. 4 ,29,000/ - FOUND DURING THE COURSE OF SEARCH WAS BELONG TO HIM AND HIS FAMILY MEMBERS, HOWEVER, AS THE DETAILS WERE NOT AVAILABLE AT THAT POINT OF TIME, THEREFORE, IT WAS STATED THAT AT PRESENT, HE IS NOT ABLE TO P RODUCE ANY EVIDENCE. LATER ON, CASE WAS FIXED FOR COMPLETION OF THE ASSESSMENT, WHERE ALL THESE FACTS WERE EXPLAINED. ACCORDINGLY, IT WAS REQUESTED THAT THIS IS NOT A CASE OF ADDITION IN THE HANDS OF THE ASSESSEE AS THE AMOUNT OF RS. 2 LAKHS IS I TA NO. 5043 /1 1 5 WELL EXPLAIN ED AND THE SUPPORTING EVIDENCE WERE ALSO GIVEN AT THE TIME OF ASSESSMENT PROCEEDINGS, COPIES OF WHICH ARE PLACED ON THE RECORD. 6 . ON THE OTHER HAND, LEARNED DR FIRSTLY, PLACED RELIANCE ON THE ORDER OF AO & CIT(A) . IT WAS FURTHER STATED THAT THOUGH THE S ON OF THE ASSESSEE WAS LIVING SEPARATELY IN HIS HOUSE, HOWEVER, DURING THE SEARCH HAS NOT STATED ABOUT THE AMOUNT OF RS. 2 LAKHS. THEREFORE, THE AO AND CIT(A) WERE CORRECT IN MAKING THE ADDITION AND CONFIRMING T HE SAME IN THE HANDS OF THE ASSESSEE. 7. IN R EPLY, IT WAS STATED BY THE LEARNED AR THAT NO SUCH QUESTION WAS ASKED BY THE SEARCH PARTY FROM SHRI MUNISH P. DOSHI, WHO WAS PRESENT. IT WAS ALSO STATED THAT SINCE THE ASSESSEE WAS NOT WELL, THEREFORE, THE STATEMENT OF THE ASSESSEE RECORDED WAS SIGNED BY H IS SON. ATTENTION OF THE BENCH WAS DRAWN AT PAGE 19, WHEREIN IN THE LAST PAGE, THE STATEMENT OF SHRI MUNISH P. DOSHI IS PLACED. THEREFORE, IT CANNOT BE SAID THAT HIS FATHER HAS NOT STATED THAT THE AMOUNT OF CASH FOUND FROM THE PREMISES OF THE ASSESSEE WAS NOT BELONGED TO HIS AND HIS FAMILY MEMBERS. 8 . WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE DESERVES TO SUCCEED ON THE ISSUE INVOLVED. WE H AVE GONE THROUGH THE COPIES OF STATEMENT RECORDED DURING THE SEARCH PROCEEDING AND FOUND THAT THE ASSESSEE HAS CATEGORICALLY STATED THAT THE AMOUNT OF RS. 4 LAKHS OR ODD FOUND DURING THE COURSE OF I TA NO. 5043 /1 1 6 SEARCH IN THE PREMISES OF THE ASSESSEE WAS BELONGING TO HIM AND HIS FAMILY MEMBERS. AS PER CASH BOOK OF THE SON OF THE ASSESSEE, COPY OF WHICH IS PLACED AT PAGE 26, THE CASH IN HAND AS ON 18 - 7 - 2008 WAS OF RS. 3,83,553/ - AND T HE SEARCH WAS CONDUCTED ON 24 - 7 - 2008. FROM THIS FACT IT IS CLEARLY SEEN THAT THE AMOUNT FOUN D AT THE PREMISES OF THE ASSESSEE AND AT THE PREMISES OF HIS SON SHRI MUNISH P. DOSHI WAS LESS THAN CASH IN HAND AS PER BOOKS OF ACCOUNTS AS RS. 2 LAKHS WHICH WAS BELONGING TO HIS SON OF THE ASSESSEE AND RS. 80,000/ - WAS FOUND FROM THE PREMISES OF THE SON OF THE ASSESSEE. THE ASSESSMENT IN REGARD TO SON OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) AND BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE HAVE BEEN ACCEPTED. IT IS ALSO A MATTER OF FACT THAT NO QUESTION WAS ASKED FROM THE SON OF THE ASSESSEE THAT T HE AMOUNT OF RS. 2 LAKHS FOUND FROM THE PREMISES OF THE ASSESSEE WAS BELONGING TO HIM OR NOT, NEITHER ANY OTHER QUESTION WAS PUT THAT ANY OTHER CASH IN HAND IS ALSO AVAILABLE WITH THE ASSESSEE OR NOT, WHICH WAS LYING WITH OTHER PERSON, LIKE HIS FATHER I.E. THE ASSESSEE. THEREFORE, IT CANNOT BE SAID THAT THE EXPLANATION FILED DURING THE ASSESSMENT PROCEEDING WAS NOT ACCEPTABLE. FROM THE ASSESSMENT ORDER OF THE ASSESSEE, NO WHERE IT INFERS THAT AO ASKED ANY CONFIRMATION EVEN FROM THE SON OF THE ASSESSEE. THE A SSESSEE HAS CATEGORICALLY STATED THAT DURING THE COURSE OF SEARCH, A CASH OF RS. 4 LAKHS OR ODD BELONGING TO HIM AND HIS FAMILY MEMBERS WAS FOUND. SHRI MUNISH P. DOSHI IS THE SON OF THE ASSESSEE, THEREFORE, IT CANNOT BE SAID THAT HE IS NOT A FAMILY MEMBER O F THE ASSESSEE, THOUGH HE IS LIVING I TA NO. 5043 /1 1 7 SEPARATELY. IT IS ALSO A MATTER OF FACT THAT THE AMOUNT OF RS. 77,040/ - , WHICH RELATES TO ANOTHER SON OF THE ASSESSEE I.E. SHRI RAJESH P. DOSHI, HAS BEEN ACCEPTED, THOUGH MR. RAJESH P. DOSHI IS ALSO LIVING SEPARATELY AS STATED BY LEARNED AR DURING THE APPELLATE PROCEEDING. FROM ALL THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE ENTIRE CASH FOUND DURING THE COURSE OF SEARCH FROM THE PREMISES OF THE ASSESSEE IS EXPLAINED. ACCORDINGLY, WE DELETE THE A DDITION OF RS. 2,00,000/ - . 9 . RESULTANTLY , APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF SEPT . 201 3 . SD/ - ( ) ( R AJENDRA SINGH ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 13 / 09 / 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE C I T(A) , MUMBAI . 4. / C I T 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( /ASSTT. REGISTRAR) / ITAT, MUMBAI