RAFAT AADIL LATIF, MUMBAI V. ITO WD 17(3)(4), MUMBAI

ITA 6634/MUM/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62569 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 14-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Keywords: Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO.6634/MUM/2010 (ASSESSMENT YEAR: 2006-07) MRS. RAFAT AADIL LATIF, FLAT NO.1A/1B, FIRDAUS CHS, 10 MOTLIBAI STREET, MUMBAI -400 011 ..... APPELLANT VS INCOME-TAX OFFICER -17(3)(4), PIRAMAL CHAMBERS, 6TH FLOOR, LALBAUG, PAREL, MUMBAI -400 012 .... RESPONDENT PAN : ACFPL 6002 L APPELLANT BY: SHRI DEEPAK TRALSHAWALA RESPONDENT BY: SHRI C.G.K. NAIR DATE OF HEARING: 01.05.2012 DATE OF PRONOUNCEMENT: 15.06.2012 O R D E R PER P.M. JAGTAP, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT (A)-29, MUMBAI DATED 02.06.2010 AND THE SOLITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE ADDITION OF ` 14,50,000/- MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT (A) ON ACCOUN T OF DEPOSITS MADE BY THE ASSESSEE IN CASH IN HIS BANK ACCOUNT TREATIN G THE SAME AS UNEXPLAINED. 2. THE ASSESSEE, IN THE PRESENT CASE, IS AN INDIVID UAL WHO IS ENGAGED IN THE BUSINESS OF TRANSPORTATION WITH THE HELP OF TWO TANKERS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY HER ON 26.07.2006 DECLARING TOTAL INCOME OF ` 11,447/-. IN THE SAID RETURN, PROFIT FROM TRANSPORT BUSINESS WAS DECLARED BY THE ASSESSEE AS PER THE ITA NO.6634/MUM/2010 MRS. RAFAT AADIL LATIF 2 PROVISIONS OF SEC.44AE OF THE ACT CONTAINING PRESUM PTIVE SCHEME OF TAXATION. AS PER THE AIR INFORMATION RECEIVED BY T HE A.O., THE ASSESSEE WAS FOUND TO HAVE DEPOSITED A TOTAL SUM OF ` 14,50,000/- IN CASH IN HIS BANK ACCOUNT WITH HDFC BANK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPON TO EXPLAI N THE SOURCE OF THE SAID CASH DEPOSITED IN THE BANK ACCOUNT. IN REPLY, IT WAS EXPLAINED BY THE ASSESSEE THAT SHE HAD RECEIVED CASH ADVANCES FR OM HER CLIENTS TO TAKE CARE OF EXPENSES ON TRANSPORT ROUTE. IT WAS EXPLAINED THAT THE BALANCE AMOUNT THAT REMAINED WITH THE DRIVERS AFTER INCURRING EXPENSES FROM THE CASH ADVANCES GOT ACCUMULATED AND WAS DEPO SITED IN THE BANK ACCOUNT OF THE ASSESSEE. IN ORDER TO VERIFY THE CL AIM OF THE ASSESSEE OF HAVING RECEIVED SUCH ADVANCES FOR EXPENSES FROM M/S . L.E. CARRIERS PVT. LTD. A NOTICE U/S.133(6) WAS ISSUED BY THE A.O . TO THE SAID PARTY WHO REPLIED THAT OPERATING EXPENSES IN THE TRANSPOR T ROUTE WERE DIRECTLY INCURRED BY IT WHILE PAYMENTS TO THE ASSESSEE WERE MADE BY ACCOUNT PAYEE CHEQUES ONLY. KEEPING IN VIEW THIS REPLY REC EIVED FROM M/S. L.E. CARRIERS PVT. LTD., THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BY THE A.O. AND THE TOTAL AMOUNT OF ` 14,50,000/- FOUND DEPOSITED BY THE ASSESSEE IN CASH IN HER BANK ACCOUNT WAS ADDED BY T HE A.O. TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, THE LD. CIT (A) CONFIRMED THE SAID ADDITION MADE BY THE A.O. HOLDING THAT THE EXPLANAT ION OFFERED BY THE ASSESSEE IN RESPECT OF SOURCE OF CASH DEPOSIT IN BA NK ACCOUNT WAS NOT SATISFACTORY. AGGRIEVED BY THE ORDER OF THE LD. CI T (A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY T HE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE WAS NOT GIVEN PROPER AND ADEQUATE OPPORTUNITY EITHER BY THE A.O. OR BY THE LD. CIT (A ) TO SUPPORT AND SUBSTANTIATE HER EXPLANATION IN RESPECT OF SOURCE O F CASH DEPOSITED IN THE BANK ACCOUNT WITH HDFC BANK. AS FURTHER SUBMIT TED BY HIM, THE EXPLANATION OFFERED BY THE ASSESSEE IN RESPECT OF C ASH DEPOSITED WITH THE BANK ACCOUNT WAS DULY SUPPORTED BY THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESSEE IN WHICH THE AMOUNTS REC EIVED FROM THE ITA NO.6634/MUM/2010 MRS. RAFAT AADIL LATIF 3 DRIVERS WERE DULY CREDITED AND THE SAME WERE SUBSEQ UENTLY DEPOSITED IN THE BANK ACCOUNT AFTER ACCUMULATION. HE HAS SUBMIT TED THAT THE ASSESSEE IS IN A POSITION TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HER BANK ACCOUNT WITH THE HELP OF BOOKS OF ACCOUNT REGU LARLY MAINTAINED AS WELL AS OTHER DOCUMENTARY EVIDENCE IF AN OPPORTUNIT Y IS GIVEN TO HER IN THIS REGARD. ALTHOUGH THE LD. D.R. HAS STRONGLY OBJECTED TO THIS REQUEST MADE BY THE LD. COUNSEL FOR THE ASSESSEE KE EPING IN VIEW THE FINDINGS RECORDED BY THE AUTHORITIES BELOW IN THEIR RESPECTIVE ORDERS, WE ARE OF THE VIEW THAT KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE INTEREST OF JUSTICE, AN OPPORTU NITY CAN JUSTIFIABLY BE GIVEN TO THE ASSESSEE TO EXPLAIN THE CASH DEPOSITS MADE IN HER BANK ACCOUNT WITH THE HELP OF BOOKS OF ACCOUNT WHICH ARE STATED TO BE REGULARLY MAINTAINED. IN THAT VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT (A) AND RESTORE THE M ATTER TO THE FILE OF THE A.O. FOR DECIDING THE SAME AFRESH AFTER GIVING THE ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 5TH JUNE 2012. SD/- ( AMIT SHUKLA ) JUDICIAL MEMBER SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER MUMBAI, DATE: 15TH JUNE 2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) 29, MUMBAI. 4) THE CIT-17, MUMBAI. 5) THE D.R. D BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN