JASWANT KAUR SURI, MUMBAI V. INCOME TAX OFFICER-24(2)(2), MUMBAI

ITA 5091/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8352 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 28-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 5091 /MUM/ 2017 (ASSESSMENT YEAR 20 11 - 12 ) JASWANT KAUR SURI BUILDING NO. 36 GROUND FLOOR FOUR BUNGALOW ANDHERI WEST MUMBAI - 400 053. PAN : CPDPS5174M V S . IN COME TAX OFFICER - 24(2)(2) PIRAMAL CHAMBERS PAREL MUMBAI - 400 012. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI DEVENDRA JAIN DEPARTMENT BY MS. N. HEMALATHA DATE OF HEARING 6 .1 2 . 201 7 DATE OF PRONOUNCEMENT 6 . 12 . 201 7 O R D E R THE ASSESSE E HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 03 - 05 - 2017 PASSED BY LD CIT(A) - 36, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2011 - 12. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.14.00 LAKHS RELATING TO UN EXPLAINED CASH DEPOSITS MADE INTO THE BANK ACCOUNT OF THE ASSESSEE. 2. THE AO RECEIVED AIR INFORMATION TO THE EFFECT THAT THE ASSESSEE HAS DEPOSITED CASH AGGREGATING TO RS.14.00 LAKHS INTO HER BANK ACCOUNT DURING THE FINANCIAL YEAR RELEVANT TO AY 2011 - 12. ACCORDINGLY, THE AO ASSESSED THE ABOVE SAID AMOUNT OF RS.14.00 LAKHS U/S 69A OF THE ACT. BEFORE LD CIT(A), THE ASSESSEE SUBMITTED THAT SHE HAD WITHDRAWN CASH TO THE TUNE OF RS.14.00 LAKHS DURING THE IMMEDIATELY PRECEDING YEAR AND WAS KEEPING THE SAME WITH HER. THE SAID CASH BALANCE WAS CLAIMED TO HAVE BEEN DEPOSITED DURING THE YEAR UNDER CONSIDERATION ON VARIOUS DATES. THE LD CIT(A) WAS NOT SATISFIED WITH THE SAID EXPLANATIONS, AS THE ASSESSEE DID NOT HAVE ANY EVIDENCE TO SUPPORT HER JASWANT KAUR SURI 2 CONTENTIONS. A CCORDINGLY HE CONFIRMED THE ADDITION. AGGRIEVED THE ASSESSEE HAS FILED THIS APPEAL. 3. THE LD A.R SUBMITTED THAT THE ASSESSEE IS 85 YEARS OLD AND SHE HAS OPERATED THE BANK ACCOUNT THROUGH HER HUSBAND. SHE HAS WITHDRAWN FUNDS FROM HER BANK ACCOUNT IN THE IMMEDIATELY PRECEDING YEAR AND WAS KEEPING FUNDS WITH HER WITHOUT SPENDING THE SAME. THE SAID FUNDS WERE USED TO MAKE DEPOSITS DURING THE YEAR UNDER CONSIDERATION. WHEN ASKED ABOUT ANY EVIDENCE FOR THE ABOVE SAID SUBMISSIONS, THE LD A.R SUBMITTED THA T THE ASSESSEE CANNOT BE EXPECTED TO PROVE A NEGATIVE FACT. THE LD A.R PLACED RELIANCE ON THE DECISION RENDERED BY CHANDIGARH BENCH OF ITAT IN THE CASE OF SH. VIVEK JOLLY VS. THE DCIT (ITA NO.672/CHD/2012 DATED 29 - 11 - 2012) AND SUBMITTED THAT THE TRIBUNAL HAD ALLOWED IDENTICAL GROUND FOR IDENTICAL REASONS. 4. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ASSESSEE DID NOT FURNISH ANY MATERIAL TO SUPPORT HER CONTENTIONS. THE LD D.R FURTHER SUBMITTED THAT THE ASSESSEE DID NOT EXPLAIN THE PURPOSE FOR WHIC H WITHDRAWALS WERE MADE. THE LD D.R WAS ALSO POINTED OUT THAT THE WITHDRAWALS WERE MADE DURING AUGUST, 2009, WHERE AS THE DEPOSITS HAVE BEEN MADE IN THE MONTHS OF APRIL 2010 AND NOVEMBER 2010. 5. I HAVE HEARD THE PARTIES AND PERUSED THE RECORD. I NOTI CE THAT THE ASSESSEE HAS MADE IMPUGNED CASH DEPOSITS AS DETAILED BELOW: - DATE AMOUNT 26.04.2010 3,00,000 30 - 04 - 2010 1,00,000 10 - 06 - 2010 2,50,000 18.06.2010 2,00,000 06.07.2010 50,000 01 - 11 - 2010 4,00,000 17.11.2010 1, 00,000 -------------------- 14,00,000 ============ A PERUSAL OF BANK STATEMENT WOULD SHOW THAT THE ASSESSEE HAS WITHDRAWN A SUM OF RS.5.00 LAKHS ON 19 - 06 - 2010 AND ANOTHER SUM OF RS.5.00 LAKHS ON 01 - JASWANT KAUR SURI 3 11 - 2010. IN MY VI EW, BOTH THESE WITHDRAWALS COULD HAVE BEEN USED BY THE ASSESSEE TO MAKE THE LAST THREE DEPOSITS, VIZ., RS.50,000/ - , RS.4,00,000/ - AND RS.1,00,000/ - , SINCE THE TIME GAP BETWEEN THE WITHDRAWALS AND DEPOSITS IS VERY SHORT. ACCORDINGLY I AM OF THE VIEW THAT T HE LAST THREE DEPOSITS AGGREGATING TO RS.5.50 LAKHS CAN BE CONSIDERED TO HAVE BEEN EXPLAINED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE REMAINING AMOUNT OF DEPOSITS MADE FROM 26.4.2010 TO 18.6.2010 WERE CLAIMED TO HAVE BEEN MADE OUT OF CASH WIT HDRAWALS MADE IN THE PRECEDING FINANCIAL YEAR. HOWEVER, ADMITTEDLY, THERE IS NO EVIDENCE TO SUPPORT THE SAID CONTENTIONS. EVEN THOUGH THE ASSESSEE HAS PLACED RELIANCE ON CERTAIN CASE LAWS, IN MY VIEW, EVERY CASE WOULD TURN AROUND THE FACTS PREVAILING THE REIN. IN THE CASE OF SH. VIVEK JOLLY (SUPRA), THE ASSESSEE THEREIN HAS EXPLAINED THE PURPOSE OF WITHDRAWAL OF CASH, WHERE AS IN THE INSTANT CASE, THE PURPOSE OF WITHDRAWAL OF CASH AND HOLDING THE SAME IN HAND WERE NOT EXPLAINED. 7. AT THE SAME TIME, I T MAY NOT ALSO BE PROPER TO PRESUME THAT THE ENTIRE CASH WITHDRAWALS HAVE BEEN SPENT AWAY. ACCORDINGLY I AM OF THE VIEW THAT THE ASSESSEE MAY PARTLY BE GIVEN THE BENEFIT OF CREDIT OF CASH WITHDRAWALS OF RS.14.00 LAKHS MADE IN THE IMMEDIATELY PRECEDING YEA R. I AM OF THE VIEW THAT THIS ISSUE WOULD BE PUT AT REST, IF THE ASSESSEE IS GIVEN FURTHER CREDIT OF RS.5.50 LAKHS. I ORDER ACCORDINGLY. IN THE RESULT, THE ADDITION IS CONFIRMED TO THE EXTENT OF RS.3.00 LAKHS AND THE REMAINING ADDITION IS DIRECTED TO B E DELETED. THE ORDER PASSED BY LD CIT(A) WOULD STAND MODIFIED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 06 .1 2 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 06 / 1 2 / 20 1 7 JASWANT KAUR SURI 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSTT. REGISTRAR /SENIOR PS ) PS ITAT, MUMBAI