LATE JYOTI UMESH SHETTY, MUMBAI V. ITO WD 20(1)(3), MUMBAI

ITA 5505/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2653 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI KIRAN
• Assessee Lawyers: SANJAY SHAH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 5505/MUM/2014 (ASSESSMENT YEAR : 2008-09) LEGAL HEIR OF MRS. JYOTI UMESH SHETTY, 1301, SHREE SUMUKH HEIGHTS, ANAND NAGAR, NEAR HEERA PANA MALL, OSHIWARA, MUMBAI 400 012. PAN: AMQPS 6247M ... APPELLANT VS. THE INCOME TAX OFFICER, WARD 20(1)(3), PIRAMAL CHAMBERS, MUMBAI. .... RESPONDENT APPELLANT BY : SHRI SANJAY SHAH RESPONDENT BY : SHRI RAVI KIRAN DATE OF HEARING : 12/10/2015 DATE OF PRONOUNCEMENT : 30/10/2015 ORDER PER G.S. PANNU,AM: THE CAPTIONED APPEAL IS PREFERRED BY THE ASSES SEE AND IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 23/06/ 2014 OF CIT(A)-31, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2008-09, WHICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE ASSESSING OFFICE R DATED 30/12/2010 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961( I N SHORT THE ACT). 2. IN THIS APPEAL THE GRIEVANCE OF THE ASSESSEE IS AGAINST THE ACTION OF THE CIT(A) IN AFFIRMING THE ADDITION OF RS.3,45, 500/- OUT OF THE TOTAL ADDITION OF RS.4,42,000/-, MADE BY THE ASSESSING OF FICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. 2 ITA NO. 5505/MUM/2014 (ASSESSMENT YEAR : 2008-09) 3. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESS EE INDIVIDUAL WAS DERIVING INCOME FROM TUITIONS, ETC. AND FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION SHE FILED A RETURN OF INCOME DECLARIN G A TOTAL INCOME OF RS.2,43,500/-, WHICH WAS SUBJECT TO SCRUTINY ASSESS MENT. IN THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THER E WERE CASH DEPOSITS TO THE TUNE OF RS.12,00,600/- IN THE SAVIN G BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH BHARAT CO-OPERATIVE BANK LTD. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF SUCH DE POSITS. AFTER CONSIDERING THE EXPLANATION, THE ASSESSING OFFICER TREATED THE DEPOSITS TO THE EXTENT OF RS.7,64,000/- AS EXPLAINED AND THE BALANCE OF RS.4,42,000/- WAS TREATED AS UNEXPLAINED AND ADDED TO THE RETURNED INCOME. BEFORE THE CIT(A), ASSESSEE REITERATED HER SUBMISSIONS THAT THE DEPOSITS WERE OUT OF HER TUITION INCOME, TRANSF ER OF RS.1,60,000/- FROM HER HUSBANDS ACCOUNT AND THAT VARIOUS CASH WI THDRAWALS MADE DURING THE YEAR WERE SUBSEQUENTLY DEPOSITED IN THE BANK ACCOUNT. THE EXPLANATION FURNISHED BY THE ASSESSEE WAS PARTLY A CCEPTED BY THE CIT(A) IN AS MUCH AS HE DELETED THE ADDITION TO THE EXTENT OF RS.96,500/- AND RETAINED THE BALANCE ADDITION OF RS .3,45,500/-. AGAINST SUCH ADDITION, ASSESSEE IS IN FURTHER APPEAL BEFOR E THE TRIBUNAL. 4. BEFORE ME, LD. REPRESENTATIVE FOR THE ASSESSEE H AS MADE A PRELIMINARY SUBMISSION TO THE EFFECT THAT THE ASSES SING OFFICER AS WELL AS CIT(A) HAVE CONSIDERED THE CASH WITHDRAWALS AND CASH DEPOSIT ENTRIES IN THE BANK ACCOUNT ON A SELECTIVE BASIS. ACCORDIN G TO THE LD. REPRESENTATIVE FOR THE ASSESSEE, IF THE SUMMARY OF CASH DEPOSITS AND WITHDRAWALS OF THE ENTIRE YEAR ARE CONSIDERED THERE WOULD NOT REMAIN ANY UNEXPLAINED CASH DEPOSITS AND IN THIS CONTEXT H E HAS REFERRED TO THE DETAILS OF CASH SUMMARY PLACED AT PAGES 7 TO 8 OF T HE PAPER BOOK. IN 3 ITA NO. 5505/MUM/2014 (ASSESSMENT YEAR : 2008-09) PARTICULAR, IT HAS BEEN CONTENDED THAT CASH WITHDRA WAL OF RS. 2,00,000/- ON 10/09/2007, RS.1,30,000/- ON 11/9/2007, RS.42,0 00/- ON 19/9/2007, RS.1,00,000/- ON 5/10/2007 AND RS.95,000/- ON 11/10 /2007 HAVE NOT BEEN TAKEN INTO CONSIDERATION WHILE HOLDING THAT TH E DEPOSITS IN THE BANK ACCOUNT ARE UNEXPLAINED. APART THEREFROM, LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEES CLAIM THAT RS.1,60,000/- WAS RECEIVED FROM HER HUSBAND HAS BEEN UNJUSTLY REJ ECTED. IN SUPPORT, A CONFIRMATION FROM HER HUSBAND AND ALSO CASH SUMMA RY OF THE BANK ACCOUNT OF HER HUSBAND HAS ALSO BEEN PLACED IN T HE PAPER BOOK AT PAGES 9 TO 19 TO DEMONSTRATE THAT SUCH AMOUNT WAS AVAILABLE. 5. ON THE OTHERHAND, LD. DEPARTMENTAL REPRESENTATIV E APPEARING FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND OF THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE. 6. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. A PERUSAL OF THE MATERIAL ON RECORD CLEARLY ESTABLISHES A PRIMAR Y FALLACY IN THE APPROACH OF THE LOWER AUTHORITIES IN APPRAISING THE SOURCE OF THE CASH DEPOSITS IN THE BANK ACCOUNT. THE DATE-WISE SUMMA RY OF CASH WITHDRAWALS AND CASH DEPOSITS OF THE BANK ACCOUNT H AS BEEN PLACED BY THE ASSESSEE AT PAGES 7 TO 8 OF THE PAPER BOOK, WHI CH WAS VERY MUCH BEFORE THE CIT(A), WHO HAD CALLED FOR A REMAND REPO RT FROM THE ASSESSING OFFICER ALSO. THE AFORESAID SUMMARY CLEA RLY ESTABLISHES THAT THERE WAS NO SHORTFALL AT ANY STAGE TO JUSTIFY AN I NFERENCE THAT THE CASH DEPOSITS IN THE BANK ACCOUNT WAS OUT OF UNEXPLAINED SOURCES. MOREOVER, IN MY VIEW, THE AMOUNT OF RS.1,60,000/- C LAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM HER HUSBAND HAS ALSO BEEN UNFAIRLY 4 ITA NO. 5505/MUM/2014 (ASSESSMENT YEAR : 2008-09) REJECTED BY THE INCOME TAX AUTHORITIES. APART FROM FURNISHING A CONFIRMATION FROM HER HUSBAND, I.E MR. UMESH SHETT Y, ASSESSEE HAS ALSO FURNISHED A DATE-WISE CASH SUMMARY OF HER HUSB AND FOR THE RELEVANT PERIOD TO SHOW THE FLOW OF MONEY TO THE A SSESSEE. THE AFORESAID EXPLANATION OF THE ASSESSEE HAS BEEN MERE LY DISBELIEVED AND IT IS NOT A CASE WHERE SUCH EXPLANATION HAS BEEN FO UND TO BE UNTRUE. THEREFORE, CONSIDERING THE ENTIRETY OF FACTS AND C IRCUMSTANCES, IN MY VIEW, THERE IS NO JUSTIFICATION FOR SUSTAINING THE ADDITION OF RS.3,45,500/- AS UNEXPLAINED CASH DEPOSITS. AS A CONSEQUENCE, I SET-ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELET E THE ADDITION OF RS.3,45,500/-. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2015. SD/- (G.S. PANNU) ACCOUN TANT MEMBER MUMBAI, DATED 30/10/2015 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// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI VM , SR. PS