MR.MAHESH C. PITHAWALLA, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 21(3), MUMBAI

ITA 6086/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9285 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 03-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHI RAMA KARTIKEYANLD
• Assessee Lawyers: CHETAN KARIA LD
• Section: 143(3)

Judgement Text

ITA NO.6086/MUM/2017 MR. MAHESH C.PITHAWALLA ASSESSMENT YEAR :2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.6086/MUM/2017 ( / ASSESSMENT YEAR:2012-13) MR. MAHESH C. PITHAWALLA 15, ABDUL COURT, 5 TH FLOOR 1161, S.S. MARG OFF CADELL ROAD, DADAR MUMBAI-400 028. / VS. A CIT - 21 (2) 1 ST FLOOR, PIRAMAL CHAMBER LALBAUG MUMBAI-400 012. ./ ./PAN/GIR NO. AAAPP-8879-L ( ! /APPELLANT ) : ( '#! / RESPONDENT ) APPELLANT BY : CHETAN KARIA- LD. AR RESPONDENT BY : ABHI RAMA KARTIKEYAN - LD.DR / DATE OF HEARING : 18/03/2019 / DATE OF PRONOUNCEMENT : 03/04/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2012-13 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-33, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-33/RG.21/227/2016 DATED 14/06/2017 QUA CONFIRMATION OF CERTAIN ADDITION OF RS.16.50 LACS O N ACCOUNT OF CASH DEPOSIT. ITA NO.6086/MUM/2017 MR. MAHESH C.PITHAWALLA ASSESSMENT YEAR :2012-13 2 2. THE REGISTRY HAS NOTED A DELAY OF 22 DAYS IN FIL ING THE PRESENT APPEAL, THE CONDONATION OF WHICH HAS BEEN SOUGHT BY THE ASSESSEE ON THE STRENGTH OF AN AFFIDAVIT DATED 28/09/2017. THE DELAY HAS BEEN ATTRIBUTED TO THE FACT THAT THE ASSESSEE WAS OUT OF INDIA FOR BUSINESS PURPOSES WHICH LED TO DELAY IN HANDING OVER THE IMP UGNED ORDER TO THE CONCERNED CHARTERED ACCOUNTANT. KEEPING IN VIEW THE QUANTUM OF DELAY, THE SAME IS CONDONED AND WE PROCEED TO DISPOSE-OFF THE APPEAL AS ARGUED BEFORE US. 3.1 FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT BUT NOT ORDINARILY RESIDENT INDIVIDUAL WAS ASSESSED FOR IMPUGNED AY U/S 143(3) WHEREIN THE INCOME OF THE ASSESSEE WAS DETER MINED AT RS.177.12 LACS AFTER CERTAIN ADDITIONS AS AGAINST R ETURNED INCOME OF RS.109.38 LACS FILED BY THE ASSESSEE ON 30/08/2012. THE ADDITION OF RS.16.50 LACS REPRESENTING CASH DEPOSIT IN ASSESSEES BANK ACCOUNT IS THE SOLE SUBJECT MATTER OF PRESENT APPEAL BEFORE US . 3.2 DURING ASSESSMENT PROCEEDINGS, IT TRANSPIRED TH AT THE ASSESSEE DEPOSITED CASH OF RS.16.50 LACS IN ONE OF HIS BANK ACCOUNTS HELD WITH BANK OF BARODA, SURAT BRANCH. ACCORDINGLY, THE ASSESSEE WAS ASKED TO SUBSTANTIATE THE SOURCE THEREOF. THE ASSESSEE PLACE D ON RECORD CASH SUMMARY FOR THE YEAR AND SUBMITTED THAT CASH WAS DEPOSITED OUT OF EARLIER WITHDRAWALS MADE BY THE ASSESSEE. THE SUMMA RY OF CASH IN HAND SUBMITTED BY ASSESSEE HAS ALREADY BEEN REPRODUCED I N THE QUANTUM ASSESSMENT ORDER. HOWEVER, NOT CONVINCED, LD. AO OP INED THAT THE ASSESSEE WAS MAINTAINING HIGH OPENING AS WELL AS CL OSING CASH BALANCE WHICH WAS IMPROBABLE. FURTHER, HE ASSESSEE WAS HAVI NG EXCESS CASH IN HAND AND THEREFORE, THERE WAS NO NEED TO WITHDRAW T HE CASH. THE LD. AO ITA NO.6086/MUM/2017 MR. MAHESH C.PITHAWALLA ASSESSMENT YEAR :2012-13 3 ALSO DOUBTED THE OPENING CASH BALANCE REFLECTED BY THE ASSESSEE. ANOTHER PERTINENT OBSERVATION WAS THE FACT THAT ALL THE CASH WERE DEPOSITED DURING THE PERIOD 03/12/2011 TO 23/03/201 2 WHEREAS THE ASSESSEE WAS HAVING CASH BALANCE OF MORE THAN RS.40 LACS AS ON 04/10/2011 AND FURTHER ALL THE MONEY WAS DEPOSITED IN SURAT BRANCH AS AGAINST ALL THE WITHDRAWALS WHICH WERE MADE FROM PRABHADEVI MUMBAI BRANCH . IT WAS ALSO NOTED THAT CASH WAS DEPOSITED ONLY AF TER SALE OF CERTAIN PROPERTY BY THE ASSESSEE DURING IMPUGNED AY . FINALLY, THE AFORESAID DEPOSIT OF RS.16.50 LACS WAS ADDED TO THE INCOME OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE AGITATED THE SAME WITHOU T ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 14/06/2 017 WHEREIN THE MATTER WAS CONCLUDED AGAINST THE ASSESSEE BY OBSERV ING THAT THERE WAS NO JUSTIFIABLE REASON FOR THE ASSESSEE TO KEEP HUGE CASH WITH HIMSELF WHICH WAS FREQUENTLY DEPOSITED AND WITHDRAWN AT REG ULAR INTERVALS. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. THE PRIME ARGUMENT OF LD. AUTHORIZED REPRESENTAT IVE FOR ASSESSEE, SHRI CHETAN KARIA, REVOLVE AROUND THE FACT THAT CASH DEPOSITS WERE SUBSTANTIATED BY THE CASH SUMMARY AND THE ADDITIONS HAVE BEEN MADE MERELY ON THE BASIS OF DOUBTS, CONJECTURES & S URMISES. PER CONTRA, LD. DR SUBMITTED THAT THE PERTINENT OBSERVA TIONS AS MADE BY LOWER AUTHORITIES COULD NOT BE CONTROVERTED BY LD. AR. 6. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING CASH SUMMARY AS PLACED ON PAGE NOS. 3 & 4 OF THE PAPER-BOOK. IT IS UNDISPUTED POSITION THAT THE CASH HAS BEEN DEPOSITED DURING THE PERIOD 03/12/2011 TO 23/0 3/2012. AS AGAINST ITA NO.6086/MUM/2017 MR. MAHESH C.PITHAWALLA ASSESSMENT YEAR :2012-13 4 THIS, THE ASSESSEE HAS CASH BALANCE OF RS.28.13 LAC S AS ON 30.11.2011. WE FIND THAT AFTER EXCLUDING THE OPENING CASH BALAN CE OF RS.5 LACS WHICH HAS BEEN DOUBTED BY LD.AO, THE REMAINING CASH IN HAND I.E. RS.23.13 LACS WAS QUITE SUFFICIENT TO MAKE THE AFOR ESAID DEPOSITS AND THIS WOULD DISPEL ONE OF THE DOUBTS RAISED BY LD.AO . SO FAR AS THE FACT THAT DEPOSITS HAVE BEEN MADE AFTER SALE OF PROPERTY , IS CONCERNED, WE FIND THAT THERE IS NO MATERIAL ON RECORD TO ESTABLI SH THAT THE ASSESSEE HAS RECEIVED ANY MONEY OVER AND ABOVE THE REFLECTED SAL E CONSIDERATION AND THEREFORE, THERE WAS NO JUSTIFICATION TO MAKE THE A DDITION ON THAT BASIS. FURTHER, IT WAS FOR THE ASSESSEE TO MANAGE ITS OWN CASH INFLOWS AND OUTFLOWS AND THERE WAS NO ILLEGALITY IN MAKING FREQ UENT CASH DEPOSITS AND WITHDRAWALS. IN OUR OPINION, WHEN THE CASH SUMMARY WAS SUBMITTED BY THE ASSESSEE WHEREIN THE SOURCE OF THE CASH DEPOSIT S WAS SUBSTANTIATED, THE ONUS SHIFTED UPON REVENUE TO BRI NG ON RECORD ADVERSE MATERIAL TO ESTABLISH THAT THE CASH WAS UTILIZED EL SEWHERE. IT IS TRITE LAW THAT ADDITIONS COULD NOT BE MADE MERELY ON THE BASI S OF PROBABILITIES, DOUBTS, CONJECTURE OR SURMISES. THEREFORE, THE IMPU GNED ADDITION, IN OUR CONSIDERED OPINION, WOULD HAVE NO LEG TO STAND. WE ORDER SO. 7. ACCORDINGLY, THE APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD APRIL, 2019. SD/- SD/- (MAHAVIR SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 03/04/2019 SR.PS, JAISY VARGHESE !'#$ # / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT ITA NO.6086/MUM/2017 MR. MAHESH C.PITHAWALLA ASSESSMENT YEAR :2012-13 5 2. '#! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. +, '%- , - , / DR, ITAT, MUMBAI 6. ,./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.