INCOME TAX OFFICER-21(3)(2), MUMBAI V. SALONI RAMANIK MARU, MUMBAI

ITA 6116/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6792 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 05-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Unexplained investment; Assessment record
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6116/M/2017 ASSESSMENT YEAR: 2013-14 INCOME TAX OFFICER 21(3(2), 2 ND FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012 VS. M/S. SALONI RAMANIK MARU, MARU NIKETAN, D.L. VAIDYA ROAD, DADAR (W), MUMBAI 400 028 PAN: AAAPM8349Q (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI BHUPENDRA SHAH, A.R. REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH, D. R. DATE OF HEARING : 15.04.2019 DATE OF PRONOUNCEMENT : 24.04.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 21.07.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: THE ASSESSEE RETURNED INCOME FROM HOUSE PROPERTY AT RS.6,36,772/- AND INCOME FROM OTHER SOURCES AT RS.27,035/-. THE ASSESSEE ALONG WI TH 9 OTHER FAMILY MEMBERS ACQUIRED PROPERTY OF RS.7,00,00,000/-. HER SHARE THEREIN WAS THEREFORE ASSESSED AT RS.70,00,000/-. THE INVESTMENT WAS CLAIMED TO HAVE BEEN' MADE FROM UNSECURED LOANS FROM FAMILY MEMBERS AND FAMILY CONCERNS, WHICH WERE ULTIMATELY TRACED TO THE FAMILY CONCERN M/S. SUVIDHA COMPLETE FAMILY SHOP. THE TOTAL OF THESE SO CALLED LOANS GRANTED BY M/S. SUVIDHA COMPLETE FAMILY SHOP TO THE ASSESSEE AND TO OTHER F AMILY MEMBERS AND FAMILY CONCERNS WERE WAY BEYOND ITS KNOWN SOURCES AND IT HAD UNEXPL AINED AND UNDISCLOSED DEPOSITS OF RS.28.86 CRORES. THE SO CALLED UNSECURED LOANS WERE ALSO NEVER REPAID BY THE ASSESSEE. HENCE INVESTMENT TO THE TUNE OF RS.69,94,500/- WERE HELD TO BE UNEXPLAINED INVESTMENT AND ADDED U/S 69 OF THE ACT. ITA NO.6116/M/2017 M/S. SALONI RAMANIK MARU 2 2. THE CIT(A) HELD THAT THE INVESTMENT WAS OUT OF LOAN FUNDS FROM FATHER AND FAMILY CONCERNS AND THEREFORE DELETED THE ADDITION WITHOUT APPRECIATING THE FACT THAT THE LOANS WERE NEVER REPAID BY THE ASSESSEE AND WERE IN FACT THE ASSESSEE S SHARE OF UNACCOUNTED MONIES FROM THE UNDISCLOSED DEPOSITS IN THE BANK AC COUNT OF M/S. SUVIDHA COMPLETE FAMILY SHOP. 3. THE DECISION OF THE C1T(A} IS NOT ACCEPTABLE ON THE GROUND THAT THE SO CALLED UNSECURED LOANS WERE IN FACT A ROUTE TO INVEST SHAR E OF UNACCOUNTED MONIES FROM THE FAMILY CONCERN M/S. SUVIDHA COMPLETE FAMILY SHOP. 3. THE COMMON ISSUE RAISED IN VARIOUS GROUNDS OF AP PEAL IS AGAINST THE DELETION OF ADDITION OF RS.69,94,500/- BY LD. CIT(A) AS MADE BY THE AO TOWARDS UNEXPLAINED INVESTMENTS U NDER SECTION 69 OF THE ACT. 4. THE FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO OBSERVED THAT THE ASSESSEE HAS PURCHASED ALONG WITH 8 OTHER OWNERS A COMMERCIAL PROPERTY WOR TH RS.7,00,00,000/- IN WHICH THE SHARE OF THE ASSESSEE WAS 10% ONLY. ACCORDINGLY, THE ASSESSEE PAID A SUM OF RS.6 9,94,500/-. ALL THESE PAYMENTS WERE DULY ACCOUNTED FOR IN THE B OOKS OF ACCOUNT AND WERE EXPLAINED BEFORE THE AO IN THE ASS ESSMENT PROCEEDINGS. THE AO MISUNDERSTOOD THE VARIOUS TRAN SACTIONS OF PURCHASE OF PROPERTY WHICH HAS BEEN DULY SHOWN IN T HE BOOKS OF ACCOUNTS BY CONFUSING THE VARIOUS STATEMENTS AND FI NALLY ADDED A SUM OF RS.69,94,500/- TO THE INCOME OF THE ASSESS EE. 5. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) ALL OWED THE APPEAL BY OBSERVING AND HOLDING AS UNDER: 15. I HAVE CAREFULLY GONE THROUGH THE IMPUGNED ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AR OF THE APPELLANT CAREFULL Y. MY OBSERVATIONS ARE AS UNDER:- 16. FROM THE ASSESSMENT RECORDS, IT IS OBSERVED THA T THE AO HAS MADE THE IMPUGNED ADDITION ON TWO COUNTS- (I) THE APPELLANT HAS TAKEN LOANS OF RS. 20,00,000/ -, RS.45,14,120/- AND RS.3,53,000/- FROM SHRI RAMNIK D. MARU, M/S MARU EN TERPRISE AND M/S MARU ITA NO.6116/M/2017 M/S. SALONI RAMANIK MARU 3 ENTERPRISE RESPECTIVELY. HENCE ACCORDING TO THE AO, THE ACTUAL SOURCES OF FUND WERE FROM THESE CONCERNS AND THE ROLE OF APPELLANT IS JU ST A CARRIER IN THE SAID TRANSACTIONS. (II) ALTHOUGH THE APPELLANT IS 10% OF THE SHAREHOLD ER OF THE PROPERTY AND CLAIMED TO HAVE PAID ONLY RS 68,72,620/- AS HER SHARE, IN THE SALE DEED DATED 24TH APRIL, 2012 HER NAME APPEARS AT SR. NO. 3 AND TOTAL TRANSFER IN VOLVED RS. 70,00,000/- IN THE FORM OF 5 CHEQUES. HENCE, THERE EXISTS DIFFERENCE. 17. AS FAR AS THE SECOND NOTION IS CONCERNED, THE L D. AR HAS SUCCESSFULLY DEMONSTRATED THAT THE RECEIPT OF THE SAID AGREEMENT AT PAGE NO. 16 OF THE SALE DEED, THE VENDOR NO.3 IS THE SELLER OF THE PROPERTY , SHRI BHARAT RAJARAM PATIL, OUT OF THE TOTAL THREE VENDORS, WHO HAS RECEIVED TOTAL SA LE CONSIDERATION OF RS 70.00 LAKHS AT FOUR OCCASIONS IN CHEQUE FROM THE PURCHASERS INC LUDING THE APPELLANT. IT IS VERY CLEAR FROM THE SALE AGREEMENT THAT THE AO HAS ERRON EOUSLY CONSIDERED THE APPELLANT, THE PURCHASER LISTED AT SR. NO.3 IN PAG E NO. 15 WITH THE 3 RD VENDOR (THE SELLER) REFLECTED IN PAGE NO. 16 & 17. THIS HAS RE SULTED INTO THE DISCREPANCY DOUBTING THE PAYMENTS MADE. 18. ON THE FIRST ISSUE OF RECEIPTS OF LOANS FROM DI FFERENT ENTITIES AND THE APPELLANT, BEING ONLY A CARRIER AND NOT DEPLOYED HE R OWN FUNDS, IT IS EXPLAINED DURING APPELLATE PROCEEDINGS THAT THE FIRST PAYMENT OF RS. 20,00,000/- MADE TO SHRI. BHARAT R. PATIL (VENDOR/SELLER) BY CHEQUE NO. 12749 0 DRAWN ON THE COSMOS CO- OPERATIVE BANK LTD., THE SOURCE WAS TRANSFER FROM M /S. RAMNIK D. MARU, FATHER OF THE APPELLANT. THE SAID SUM OF RS. 20,00,000/- WAS FIRST TRANSFERRED FROM SHRI. RAMNIK D. MARU ON 12.03.2012 TO THE APPELLANT. THE A.O. HAS ALSO FOUND FROM THE BANK STATEMENT OF SHRI. RAMNIK D. MARU THAT HE GOT THIS FUND OF 20 LACS, FROM M/S. SUVIDHA COMPLETE FAMILY SHOP, WHEREIN HE IS A PARTN ER. IT IS BROUGHT TO THE NOTICE OF THE UNDERSIGNED THAT PER THE PAYMENT RECEIPTS EN TERED ON PAGE NO.15 OF THE SALE DEED AT SR. NO. 12 THE NAME OF THE BANK IS WRONGLY MENTIONED AS UNION BANK OF INDIA INSTEAD IT IS COSMOS BANK THOUGH CHEQUE NUMBE R IS CORRECTLY MENTIONED. THIS TYPOGRAPHICAL ERROR IN AGREEMENT WAS OVERLOOKED BY THE PURCHASER/S. THIS IS CLEAR FROM THE RELEVANT BASED STATEMENT. IN THIS REGARD, IT IS ALSO BROUGHT ON RECORD THAT ALL CONFIRMATIONS ALONG WITH BANK STATEMENTS WERE S UBMITTED FOR VERIFICATION OF THE LD. A.O. 19. AS FAR AS RS. 45,14,120/- AND RS.3,53,000/- REC EIVED THROUGH CHEQUE NO.152025 & CHEQUE NO. 152026 DRAWN ON THE COSMOS CO-OPERATIV E BANK LTD., THE SOURCES ARE NO DOUBT TRANSFER FROM M/S. MARU ENTERPRISES WH ICH IS PROPRIETARY CONCERN OF HUF. DURING ASSESSMENT PROCEEDINGS, ALL CONCERNED D OCUMENTS VIZ., THE APPELLANT BANK STATEMENTS AND LOAN CONFIRMATION AND BANK STAT EMENTS OF M/S. MARU ENTERPRISES WHICH ARE VERIFIED BY A.O. TOO. ACCORDI NG TO THE LD. AR, LOOKING AT THE HUGE TRANSACTIONS IN THE CASE OF RF M/S. SUVIDHA CO MPLETE FAMILY SHOP AND ALSO HUGE TRANSACTIONS BY AND BETWEEN M/S MARU ENTERPRIS ES, THE AO CAME TO THE CONCLUSION THAT THE INVESTMENT IN THE SAID PROPERTY IS OUT OF THE FUNDS OF LATTER TWO CONCERNS. 20. IN THIS REGARD, I FIND THAT NO WHERE THE AO HAS GIVEN THE FINDING THAT THE APPELLANT HAS INTRODUCED HER UNACCOUNTED MONEY IN T HE FORM OF LOANS FROM SHRI ITA NO.6116/M/2017 M/S. SALONI RAMANIK MARU 4 RAMNIK D. MARU OF M/S MARU ENTERPRISE. HE HAS ALSO ENQUIRED ABOUT THE SOURCES OF THE FUND AND FOUND IT TO FLOW FROM HER FATHER AND F AMILY CONCERNS SHRI RAMNIK D MARU, M/S MARU ENTERPRISE AND M/S. SUVIDHA COMPLETE FAMILY SHOP. TAKING LOAN FROM FAMILY CONCERNS IS NOT PROHIBITED IN LAW, THE SOURCES OF WHICH HAVE EVEN BEEN INDEPENDENTLY VERIFIED BY THE AO IN MY OPINION, THE RE IS NO RATIONAL IN THE OBSERVATION OF THE AO THAT JUST BECAUSE THE SOURCES OF FUND FOR INVESTMENT IN THE SAID PROPERTY WERE LOAN FROM THE FAMILY ENTITIES, T HE ROLE OF APPELLANT WILL BE A CARRIER IN THE SAID TRANSACTIONS PARTAKING THE CHAR ACTER OF UNEXPLAINED INVESTMENT U/S. 69. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE ISSUE INVOLVED, IN MY CONSIDERED OPINION, THE AO HAS NOT BEEN SUCCESSFUL IN ESTABLISHING THAT THE INVESTMENTS MADE BY THE APPELLANT IS OUT O F THE UNEXPLAINED SOURCES REQUIRED TO BE TAXED U/S 69 OF THE I.T. ACT. HENCE , THE ADDITION OF RS.69,94,500/- IS DELETED. THUS GROUNDS OF APPEAL NO.1 AND 2 ARE ALL OWED. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD AND THE IMPUGNED ORDER PASSED BY LD. CIT(A), WE OBSERVE THAT THE LD. CIT(A) HAS COMPREHENSIVELY BROUGHT OUT AS TO HOW THE AO HAS MISCONSTRUED AND MISUNDERSTOOD THE FACTS OF THE CASE. THE LD CIT(A) REASONED THE DELETION OF EVERY ITEM OF ADDITIONS WITH THE RECORDS WHICH WERE ALSO BEFORE T HE AO. UNDER THESE FACTS AND CIRCUMSTANCES WE DO NOT FIND ANY RE ASONS TO DEVIATE FROM THE FINDING OF THE LD CIT(A). WE, ARE THEREFORE , INCLINED TO UPHOLD THE ORDER OF AO BY DISMISSING TH E APPEAL OF THE REVENUE. 7. IN RESULT THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 24.04.2019. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24.04.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI ITA NO.6116/M/2017 M/S. SALONI RAMANIK MARU 5 THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.