UPMA R GOYAL, MUMBAI V. ITO WD 16(1)(4), MUMBAI

ITA 5786/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3977 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 25-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 18-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CAPT PRADEEP ARYA
• Keywords: Onus to prove
• Section: 143(3); 234B; 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' F ' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 5786 /MUM/201 2 (ASSESSMENT YEAR: 2008 - 09 ) SMT. UPMA R. GOYAL VS. INCOME TAX OFFICER - 16(1)(4 ) 6/36, 5 TH FLOOR, BMC BLDG. KESHAVRAO KHADYE MARG HAJIALI, MUMBAI 400034 MUMBAI PAN - AGGPG9498L APPELLANT RESPONDENT ASSESSEE BY: NONE REVENUE BY: CAPT. PRADEEP ARYA DATE OF HEARING: 0 6 .04 .2016 DATE OF PRONOUNCEMENT: 13 .0 4 .2016 O R D E R PER JASON P. BOAZ, A.M . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 27 , MUMBAI DATED 26 . 06.2012 FOR A.Y. 2008 - 09 . 2 . THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: - 2.1 THE ASSESSEE FILED HER RETURN OF INCOME ON 30.07.2008 DECLARING TOTAL INCOME OF ` 1,25,658/ - . THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') AND THE CASE SUBSEQUENTLY WAS TAKEN UP FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 20.12.2010 WHEREIN THE INCOME WAS DETERMINED AT ` 31,08,960/ - ; IN VIEW OF THE ADDITION OF ` 29,83,310/ - AS UNDISCLOSED INCOME ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE ASSESSEES UNDISCLOSED BANK ACCOUNT WITH SHAMRAO VITHAL CO - OPERATIVE BANK. ON APPEAL, THE LEARNED CIT(A) DISMISSED THE ASSESSEES APPEAL VIDE THE IMPUGNED ORDER DATED 26.06.2012. ITA 5786/MUM/2012 SMT. UPMA R. GOYAL 2 3 . AGGRIEVED BY THE ORDER OF THE CIT(A) - 27, MUMBAI DATED 26.06.2012 FOR A.Y. 2008 - 09, THE ASSESSEE HAS PREFERRED THIS APPEAL RAISING THE FOLLOWING GROUNDS: - 1) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 27, MUMBAI FAILED TO APPRECIATE THAT THE INCOME TAX OFFICER HAS WRONGLY ADDED A SUM OF RS.29,83,310/ - ON ACCOUNT OF UNDISCLOSED INCOME U/S 68 OF I T ACT, 1961. 2) THE LEARNED ASSESSING OFFICER HAS WRONGLY CHARGED INTEREST UNDER SECTION 234B OF THE INCOME TAX ACT, 1961. 3) YOUR APPELLANT RESERVES THE RIGHT TO ADD, AMEND DELETE OR ALTER ANY OR ALL THE ABOVE GROUND OF APPEAL EACH OF WHICH WITHOUT PRE JUDICE TO THE ORDER. 4 . AFTER VARIOUS OPPORTUNITIES WERE AFFORDED TO THE ASSESSEE, NONE APPEARED ON BEHALF OF THE ASSESSEE. ON THOSE DATES WHEN THE BENCH DID NOT FUNCTION, THE CASE WAS ADJOURNED THROUGH THE NOTICE BOARD. EVEN TODAY, I.E. 07.04.2016, WHEN THE CASE WAS CALLED, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE, BUT THE LEARNED D.R. WAS PRESENT AND READY FOR REVENUE. IN THE ABOVE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THIS APPEAL AND THEREFORE PRO CEED TO DISPOSE OFF THIS APPEAL WITH THE ASSISTANCE OF THE LEARNED D.R. FOR REVENUE AND THE MATERIAL ON RECORD. 5 . GROUND NO. 1: ADDITION OF ` 29,83,310/ - AS UNDISCLOSED INCOME 5.1 IN THIS GROUND, THE ASSESSEE CONTENDS THAT THE ASSESSING OFFICER (AO) HAD WRONGLY MADE AN ADDITION OF ` 29,83,310/ - ON ACCOUNT OF UNDISCLOSED INCOME. 5.2.1 WE HAVE HEARD THE LEARNED D.R. FOR REVENUE IN THE MATTER AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS PUT FORTH BY THE ASSESSEE, AT PARA 4 OF THE IMPUGNED ORDER HAS DISMISSED THE GROUNDS RAISED BY THE ASSESSEE HOLDING AS UNDER: - 4. I HAVE CAREFULLY CONSIDERED THE CONTENTS OF THE ASSESSMENT ORDER AND APPELLANTS SUBMISSIONS MADE BEFORE ME. APPELLANT HAS PLACED ON RECORD A COPY OF THE SALE DEED EXECUTED ON 22.1.2009 IN ITA 5786/MUM/2012 SMT. UPMA R. GOYAL 3 RESPECT OF SHOP NO. 1 ON GROUND FLOOR OF EMMANUEL APARTMENT. AS PER THE SALE DEED, THE SAID PROPERTY WAS SOLD BY ON E MR. BACHHULAL GALA TO M/S. EL - TRONICA INDIA LTD FOR A CONSIDERATION OF RS.5 LAKH ON AS IS WHERE IS BASIS SUBJECT TO THE OCCUPANCY OF MR. RAVINDRA GOYAL HUSBAND OF THE APPELLANT. THE AFORESAID SALE DEED DOES NO REFER TO ANY MONEY PAID EITHER TO THE APPELL ANT OR HER HUSBAND MR RAVINDRA GOYAL IN THIS BACKGROUND, I AM UNABLE TO UNDERSTAND AS TO HOW THE SUBMISSIONS MADE BY THE APPELLANT DISCUSSED ABOVE AND THE AFORESAID SALE DEED WOULD EXPLAIN THE SOURCE OF CASH DEPOSIT. APPELLANT HAS NO RELATION WHATSOEVER WI TH THE SAID PROPERTY. IN MY CONSIDERED OPINION, THE SUBMISSIONS MADE BY THE AR ARE TOTALLY IRRELEVANT TO THE ISSUE ON HAND. SECONDLY, APPELLANT ALSO FAILED TO PROVE OWNERSHIP OF ANY OTHER PROPERTY AGAINST WHICH ADVANCE WAS RECEIVED. THE FACT REMAINS THAT A PPELLANT CLAIMS TO HAVE RECEIVED THE CASH FROM M/S. SHREE GAS DISTRIBUTORS AND THE SAID PARTY FAILED TO RESPOND TO THE NOTICES ISSUED BY THE AO U/S. 133(6) OF THE ACT IN OTHER WORDS, THE APPELLANT FAILED TO SUBSTANTIATE THE SOURCE OF CASH DEPOSIT AS REQUIR ED UNDER LAW. FOR THE PURPOSE OF SEC. 68 OF THE ACT, THE APPELLANT HAS THE ONUS TO PROVE THE TRANSACTION TO THE SATISFACTION OF THE A.O. THAT THE EXISTENCE OF THE CREDITOR, THE CREDITWORTHINESS OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACTION ARE TO BE PROPERLY EXPLAINED. IN THE PRESENT CIRCUMSTANCES, NONE OF THE CONDITIONS ARE FULFILLED AND THE APPELLANT FAILED TO DISCHARGE THE ONUS CAST ON HER. EVEN FOR A MOMENT APPELLANT'S EXPLANATION IS TAKEN AT ITS FACE VALUE, AS RIGHTLY POINTED BY THE AO, IT IS HARD TO BELIEVE THAT THE SAME PERSON APPROACHES THE APPELLANT FOR PURCHASE OF PROPERTY ON SEVERAL OCCASIONS AND THE PROPOSED DEAL GETS CANCELLED TIME AND AGAIN AND THE ADVANCE MONEY WAS RECEIVED IN CASH AND WAS RETURNED BY CHEQUE. EVEN IF IT IS CONSIDERED THAT THE CASH HAS SOME RELATION TO THE PROPERTY IN OCCUPATION BY HER HUSBAND, IT IS NOT OUT OF PLACE TO NOTE THAT THE SAID PROPERTY ITSELF WAS SOLD FOR A TOTAL CONSIDERATION OF RS.5 LAKH WHEREAS THE APPELLANT WAS IN RECEIPT OF RS.22 LAKH AS ADVANCE FOR NO GOOD REASON. FURTHER, THERE IS NO CONSISTENCY IN THE APPELLANTS SUBMISSION DATED 13.2.2012 AND 21.2.2012 AS TO THE ADVANCE AMOUNT RECEIVED AGAINST THE PROPERTY. IN MY CONSIDERED OPINION, APPELLANT HAS FAILED TO FURNISH ANY WORTHWHILE EXPLANATION AS TO THE SOURCE OF CASH DEPOSITED IN THE BANK. IN VIEW OF THE ABOVE, I DO NOT HAVE ANY OPTION BUT TO CONFIRM THE ADDITION MADE BY THE A.O. APPELLANT FAILS ON THIS GROUND. 5.2.2 AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LEARNED D.R. AND THE FINDINGS OF THE LEA RNED CIT(A) IN THE IMPUGNED ORDER (SUPRA), WE FIND THAT THE ASSESSEE HAS BEEN UNABLE TO BRING ON RECORD MATERIAL EVIDENCE TO CONTROVERT THE FINDINGS OF THE AUTHORITIES BELOW IN RESPECT OF THE SOURCE OF THE CA SH DEPOSITS IN HER UNDISCLOSED BANK ACCOUNT WITH ITA 5786/MUM/2012 SMT. UPMA R. GOYAL 4 SHAMRAO VITHAL CO - OPERATIVE BANK AND THE TRANSACTIONS THEREIN. IN THIS FACTUAL MATRIX OF THE CASE, WE DO NOT FIND ANY REASON TO DEVIATE FROM OR INTERFERE WITH THE FINDINGS AS RECORDED BY THE LEARNED CIT(A) (SUPRA) AND ACCORDINGLY CONFIRM THE SAME. CONSEQU ENTLY, THE ASSESSEES GROUND RAISED AT S.NO. 1 IS DISMISSED. 6 . GROUND NO. 2: CHARING OF INTEREST UNDER SECTION 234B OF THE ACT 6.1 IN THIS GROUND THE ASSESSEE DENIES ITSELF LIABLE TO BE CHARGED INTEREST UNDER SECTION 234B OF THE ACT IN THE YEAR UNDER CONSIDE RATION. THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY AND THE AO HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION HAS BEEN UPHELD BY THE HON'BLE APEX COURT IN THE CASE OF ANJUM H. GHASWALA IN 252 ITR 1 AND WE THEREFORE UPHOLD THE ACTION OF THE A O IN CHARGING THE ASSESSEE INTEREST UNDER SECTION 234B OF THE ACT. THE AO IS, HOWEVER, DIRECTED TO RECOMPUTE THE INTE REST CHARGEABLE UNDER SECTION 2 34B OF THE ACT, IF ANY, WHILE GIVING EFFECT TO THIS ORDER. 7 . GROUND NO. 3 BEING GENERAL IN NATURE, NO ADJUDICA TION IS CALLED FOR THEREON AND IT IS ACCORDINGLY DISMISSED AS INFRUCTUOUS. 8 IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2008 - 09 IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH APRIL , 2016 . SD/ - SD/ - ( SANDEEP GOSAIN ) ( JASON P. BOAZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 13 TH APRIL , 2016 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 27 , MUMBAI 4 . THE CIT - 16 , MUMBAI 5 . THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR N.P.