MR.HASMUKH D. PATEL, MUMBAI V. ITO WARD 1(5), KALYAN

ITA 5120/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4645 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Unexplained cash credit
• Section: 271(1)(c); 274; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 5120/MUM/2018 : A.Y : 2012 - 13 HASMUKH D. PATEL 194, SHAKTI SIZING BLDG., 1 ST FLOOR, COLLEGE ROAD, BHIWANDI 421302. PAN : ABOPP2462Q (APPELLANT) VS. IT O, - 19(2)(5), MUMBAI (RESPONDENT) APPELLANT BY : SHRI VIMAL PUNMIYA RESPONDENT BY : SHRI CHAITANYA ANJARIA DATE OF HEARING : 29/08/2019 DATE OF PRONOUNCEMENT : 25 /11/2019 O R D E R PER SHAMIM YAHYA , ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 03.05.2018 AND PERTAINS TO ASSESSMENT YEAR 2012 - 13. 2. THE GROUND OF APPEAL IS THAT THE LEARNED CIT(A) ERRED IN CONFIRMING AND TREATING RS.11,20,000/ - AS UNEXPLAINED CASH CREDITS IN VIEW OF SECTION 69A OF THE INCOME TAX ACT, 1961 AND THEREBY ERRED IN ADDING THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER IN THIS CASE MADE AN ADDITION OF RS.11,20,000/ - ON THE GROUND THAT THESE ARE CASH DEPOSITS IN ASSESSEES BANK ACCOUNT WITHOUT PROPER EXPLANATION. THE ASSESSEES EXPLANATION IN THIS REGARD 2 ITA NO. 5120/MUM/2018 HASMUKH D. PATEL WERE REJECTED BY THE ASSESSING OFFICER WITH OUT ANY EXAMINATION BY HOLDING THEM TO BE NOT CONVINCING. WE MAY GAINFULLY REFER TO THE ORDER OF THE ASSESSING OFFICER IN THIS REGARD AS UNDER : - 5. FROM I.T.S. DETAILS, IT IS SEEN THAT ASSESSEE HAS DEPOSITED CASH OF RS.11,20,000/ - IN STATE BANK OF INDI A, BHIWANDI BRANCH. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE SOURCES OF DEPOSIT OF RS.11,20,000/ - WAS ASKED TO WHICH ASSESSEE HAS FILED A LETTER DATED 12.03.2015 IN WHICH IT IS STATED AS UNDER : I HAV E BEEN RUNNING TWO FIRMS NAMELY : 1) M/S. ASHAPURA SIZERS 2) M/S. SUKHSAGAR BUILDERS AND DEVELOPERS (U/S 44AD) I AM RUNNING TWO DIFFERENT BUSINESS AND TAX IS PAID ON INCOME OF THE BOTH OF THEM. I ASSESSED TO INCOME TAX SINCE LAST 20 YEARS. SIR OLD CAS E IS PENDING WITH THE CESTAT I.E. TRIBUNAL OF THE EXCISE DEPARTMENT. T HE CASE HAS BEEN GOING ON FOR LAST 10 YEARS AND OUTCOME OF THE CASE IS QUITE UNCERTAIN. HOWEVER, I WAS OF THE VIEW THAT THE CASE WILL END IN OUR FAVOUR AND SO I HAD DECIDED TO GO FOR F URTHER LITIGATION. SO TO PROCEED FOR FURTHER STAGE OF APPEAL, I HAD TO PAY CERTAIN DEPOSIT TO THE GOVERNMENT FOR THE CASH WAS DEPOSITED IN MY S.B.I A/C AS SHOWN BY ME IN MY PERSONAL CASH ACCOUNT ADEQUATE CASH WAS AVAILABLE WITH ME. BESIDES I HAD WITHDRAW N CAPITAL FOR RS.4,00,000/ - FROM MY FIRM M/S. SUKH SAGAR DEVELOPERS. A COPY OF CASH BOOKS OF BOTH THE BUSINESS AND MY PERSONAL CASH IS PRODUCED HEREWITH. SIR, I HAD TO DO THIS ARRANGEMENT TO MEET AND CLEAR THE TAX DEPOSIT OF EXCISE DEPARTMENT OF RS.15 LA KHS. 06. THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT FULLY CONVINCING, I THEREFORE MAKE ADDITION OF RS.11,20,000/ - TO THE TOTAL INCOME U/S 69A OF THE INCOME TAX ACT 1961 BEING CASH DEPOSITED IN STATE BANK OF INDIA. AS THE ASSESSEE HAS CONCEALED/FURNIS HED IN ACCURATE PARTICULARS OF HIS INCOME, PENALTY PROCEEDINGS U/S 274 R.W.W 271(1)(C) OF THE INCOME TAX ACT 1961 IS INITIATED. 3. UPON ASSESSEES APPEAL , LEARNED CIT(A) CONFIRMED THE ADDITION. AGAINST THIS ORDER, ASSESSEE IS IN APPEAL BEFORE US. 3 ITA NO. 5120/MUM/2018 HASMUKH D. PATEL 4. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS DULY SUBMITTED THE SOURCE OF CASH BEFORE THE AUTHORITIES BELOW. HE SUBMITTED THE NECESSARY DETAILS IN THE PAPER BOOK BEFORE US. HIS SUBM ISSION IN THIS REGARD ARE AS UNDER: - SR. NO. NAME AMOUNT IN RS. REMARKS PAPER BOOK PG. NO. 1 M/S. SUKHSAGAR DEVELOPERS 4,00,000/ - OWN FIRM 45 2 UMIYA SHAKTI 60,000/ - RENT 2 3 ASHAPURA SIZERS 60,000/ - OWN FIRM 31 - 36/13 4 HASMUKH PATEL 1,50,000/ - SELF WITHDRAWAL SELF DEPOSIT 40/52 5 HASMUKH PATEL 5,00,000/ - PREVIOUS YEAR BALANCE 26 TOTAL 11,70,000/ - THUS, THE ASSESSEE UNDER SECTION 69A HAS EXPLAINED THE SOURCE OF CASH DEPOSITS AS ABOVE. THE ASSESSEE HAS BROUGHT ON RECORD EVIDENCE TO ESTABLISH HIS CLAIMS IN THE PAPER BOOK THAT THE DEPOSITS IN THE SBI BANK, WAS OUT OF RECEIPTS CONNECTED WITH HIS BUSINESS TRANSACTIONS, RENT INCOME, CASH WITHDRAWALS AND PREVIOUS YEAR BALANCES. REFERRING TO THE ABOVE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS DULY SUBMITTED THE DETAILS AND THE ASSESSING OFFICER HAS REJECTED THE SAME WITHOUT EXAMINATION BY HOLDING THEM TO BE UNCONVINCING. PER CONTRA , THE LEARNED DR RELIED UPON THE ORDERS OF AUTHORITIES BELOW. 4 ITA NO. 5120/MUM/2018 HASMUKH D. PATEL 5. UPON CAREFUL CONSIDERATION, WE FIN D THAT ASSESSEE HAS GIVEN THE SOURCE OF CASH DEPOSIT TO THE ASSESSING OFFICER. HE HAS EXPLAINED THAT THE AMOUNTS WERE SOURCED FROM CASH BOOK OF THE ASSESSEES TWO CONCERNS. THE ASSESSING OFFICER HAS FOUND THE SAME UNCONVINCING. THERE IS NOTHING ON RECOR D AS TO WHICH WAS THE ENTRY THE ASSESSING OFFICER FOUND TO BE UNCONVINCING. IN OUR CONSIDERED OPINION, THE DISMISSAL OF ASSESSEES EXPLANATION WITHOUT ANY DETAIL BY SURMISE AND CONJECTURE IS NOT PERMISSIBLE LAW. ACCORDINGLY, WE SET - ASIDE THE ORDERS OF TH E AUTHORITIES BELOW AND DELETE THE ADDITION. 6. IN THE RESULT, THE APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 T H NOVEMBER, 2019. SD/ - SD/ - (AMARJIT SINGH) JUDICIAL MEMBER (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI, DATE : 2 5 T H NOVEMBER, 2019 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, SMC BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI