RAMLING PRABHU SHINDE, MUMBAI V. ITO WARD 3(2), MUMBAI

ITA 6668/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6462 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 26-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KAMAL MANGAL
• Keywords: Corroborative evidences
• Section: 201; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI G. MANJUNATH , ACCOUNTANT MEMBER ITA NO. 6668 / MUM . /201 8 ( ASSESSMENT YEAR : 20 14 15 ) RAMLING PRABHU SHINDE FLAT NO.501, RSM HEIGHTS A TOWERS, TELEGIRANI CHOWK BARSHI SOLAPUR 413 401 PAN AERPS8192L . APPELLANT V/S INCOME TAX OFFICER WARD 3(2), MUMBAI . RESPONDENT ASSESSEE BY : SHRI DEVENDRA JAIN REVENUE BY : SHRI KAMAL MANGAL DATE OF HEARING 14.01.2020 DATE OF ORDER 05.02.2020 O R D E R PER SAKTIJIT DEY. J.M. THE AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 1 2 TH JULY 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 2 , MUMBAI, FOR THE ASSESSMENT YEAR 201 4 15 . 2. THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE ADDITION OF ` 35,80,000 , UNDER SECTION 69A OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 2 RAMLING PRABHU SHINDE 3. BRIEF FACTS ARE, THE ASSESSEE , AN INDIVIDUAL , IS STATED TO BE A RETIRED EMPLOYEE OF MUNICIPAL CORPORATION AND DERIVES INCOME FROM PENSION AND AGRICULTURAL ACTIVITY. FOR THE ASSESSMENT UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 29 TH APRIL 2015, DECLARING TOTAL INCOME OF ` 1,70,020. IN T HE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON VERIFYING THE RETURN OF INCOME FOUND THAT THE ASSESSEE HAS SHOWN INCOME FROM OTHER SOURCES AMOUNTING TO ` 1,80,000 AND AGRICULTURAL INCOME OF ` 7,20,000. AFTER VERIFICATION OF FURTHER DETAILS CA LLED FOR, HE FOUND THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS MADE CASH DEPOSIT OF ` 43,00,000, IN A BANK ACCOUNT MAINTAINED WITH GOPINATH PATIL PARSIK J ANATA SAHAKARI BANK LTD. WHEN CALLED UPON BY THE ASSESSING OFFICER TO EXPLAIN THE SOURC E OF SUCH CASH DEPOSIT WITH SUPPORTING EVIDENCES, IT WAS SUBMITTED BY THE ASSESSEE THAT SUCH DEPOSIT HAS BEEN MADE FROM THE FOLLOWING SOURCES: AGRICULTURAL INCOME ` 7,20,000 RETIREMENT BENEFITS ` 13,68,758 LOAN GIVEN AND RECEIVED BACK ` 12,00,000 PAST SAVINGS ` 8,00,000 4. AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE AND SOURCE OF CASH DEPOSIT, THE ASSESSING OFFICER ACCEPTED ASSESSEES EXPLANATION TO THE EXTENT OF ` 7,20,000, REPRESENTING THE AGRICULTURAL INCOME. 3 RAMLING PRABHU SHINDE HOWEVER, WITH REGARD TO THE BALANCE CASH DEPOSIT OF ` 35,80,000, HE DID NOT FIND THE EXPLANATION OF THE ASSESSEE CONVINCING. ACCORDINGLY, HE T REATED SUCH CASH DEPOSIT AS UNEXPLAINED INCOME UNDER SECTION 69A OF THE ACT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. THOUGH , THE ASSESSEE CHALLE NGED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, HE WAS UNSUCCESSFUL. 5. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , OUT OF THE CASH DEPOSITS MADE IN THE BANK ACCOUNT AN AMOUNT OF ` 7,00,000, DEPOSITED ON 1 ST FEBRUARY 2014, WAS OUT OF CASH WITHDRAWALS MADE OF ` 8,10,000, FROM ASSESSEES PENSION ACCOUNT. FURTHER, HE SUBMITTED , IN THE PRECEDING ASSESSMENT YEAR I.E., A.Y. 2013 14, THE ASSESSEE HAS OFFERED NET AGRICULTURAL INCOME OF ` 9,35,812, WHICH WAS AVAILABLE WITH THE ASSESSEE. FURTHER, HE SUBMITTED , THE ASSESSEE HAS ADVANCE SOME LOAN TO FRIENDS AND CLOSELY KNOWN PERSON S IN THEIR TIME OF NEED WHICH WAS RE PAID BY THEM SINCE THE ASSESSEE WANTED FUNDS FOR THE PURPOSE OF FOREIGN EDUCATION OF HIS SON. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , TOWARDS RE PAYMENT OF LOAN THE ASSESSEE RECEIVED AN AMOUNT OF ` 13,25,000. THUS, HE SUBMITTED , BALANCE AMOUNT OF CASH DEPOSIT ALMOST STANDS EXPLAINED. HE SUBMITTED , TO PROVE RECEIVING BACK LOAN S , THE ASSESSEE HAS FURNIS HED AFFIDAVIT S OF THE CONCERNED PERSONS WHO HAD AVAILED LOAN AS WELL AS THEIR IDENTIFICATION. HE SUBMITTED , LEARNED COMMISSIONER (APPEALS) WITHOUT CONSIDERING THE 4 RAMLING PRABHU SHINDE VERACITY OF THE STATEMENT S MADE IN THE A FFIDAVIT S HAS MECHANICALLY REJECTED THEM BY SIMPLY OB SERVING THAT THEY ARE SELF SERVING DOCUMENTS. IN SUPPORT OF SUCH CONTENTION, HE DREW OUR ATTENTION TO THE A FFIDAVIT S PLACED IN THE PAPER BOOK AND THEIR TRANSLA TED VERSION IN ENGLISH. EXPLAINING THE PURPOSE OF CASH DEPOSIT IN THE BANK ACCOUNT, THE LEARNED A UTHORISED REPRESENTATIVE SUBMITTED , FOR THE PURPOSE OF OBTAINING VISA FOR HIS SONS FOREIGN EDUCATION, THE ASSESSEE AS PER REQUIREMENT HAD TO MAINTAIN A BALANCE IN THE BANK ACCOUNT. ACCORDINGLY, THE CASH DEPOSITS WERE MADE IN THE BANK ACCOUNT AND THEREAFTE R CONVERT INTO FIXED DEPOSIT. THUS, HE SUBMITTED , THE ADDITION MADE SHOULD BE DELETED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY RELYING UPON THE OBSERVATIONS OF THE ASSESSING OFFICER AND LEARNED COMMISSIONER (APPEALS) SUBMITTED , THE ASSESSEE HAS NOT PROPERLY EXPLAINED THE SOURCE OF CASH DEPOSIT WITH SUPPORTING EVIDENCES. HE SUBMITTED , THE AMOUNT RECEIVED TOWARDS RE PAYMENT OF LOAN WAS NOT PROVED BY PRODUCING THE CONCERNED PERSON S EITHER BEFORE THE ASSESSING OFFICER OR BEFORE LEARNED COMMISSIONER ( APPEALS). HE SUBMITTED , ONLY BEFORE LEARNED COMMISSIONER (AP PEALS), THE ASSESSEE FURNISHED A FFIDAVIT OF THE PERSONS WHO ALLEGEDLY AVAILED LOAN FROM THE ASSESSEE. HE SUBMITTED , BY MERELY FURNISHING A FFIDAVIT S ASSESSEES CLAIM CANNOT BE ACCEPTED. AS REGARDS THE CLAIM OF AGRICULTURAL INCOME, THE LEARNED 5 RAMLING PRABHU SHINDE DEPARTMENTAL REPRESENTATIVE SUBMITTED , THE ASSESSEE HAS N OT FURNISHED THE DETAILS OF LAND HOLDING AND THE PERSONS TO WH OM THE AGRICULTURAL PRODUCE WAS SOLD TO PR OVE THE AGRICULTURAL INCOME . 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSEE HAS MADE CASH DEPOSIT OF ` 43,00,000, IN A BANK ACCOUNT STANDING IN HIS NAME. BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS E XPLAINED THE SOURCE OF SUCH CASH DEPOSITS BY FURNISHING CERTAIN EVIDENCES. AS COULD BE SEEN, EXCEPT THE AMOUNT OF ` 7,20,000, REPRESENTING THE AGRICULTURAL INCOME EARNED IN THE IMPUGNED ASSESSMENT YEAR, THE ASSESSING OFFICER HAS DISBELIEVED ASSESSEES EXPL ANATION WITH REGARD TO THE BALANCE CASH DEPOSIT. BEFORE US, THE ASSESSEE HAS FILED CERTAIN DOCUMENTARY EVIDENC E S IN THE FORM OF A PAPER BOOK. ON A PERUSAL OF THE SAID DOCUMENTARY EVIDENCE S , IT IS EVIDENT , THE ASSESSEE HAS TWO BANK ACCOUNT S. O NE IS A PENSIO N ACCOUNT AND THE OTHER ONE IS THE ACCOUNT WHEREIN CASH DEPOSITS HAVE BEEN MADE. ON A PERUSAL OF THE P ENSION ACCOUNT, IT IS NOTICED THAT ON 4 TH JANUARY 2014, THE ASSESSEE HAS WITHDRAWN CASH AMOUNT ING TO ` 8,10,000 , WHEREAS , HE HAS DEPOSITED CASH AMOUNTING TO ` 7,00,000, IN THE OTHER ACCOUNT ON 1 ST FEBRUARY 2014. IT IS THE SAY OF THE ASSESSEE THAT THE AFORESAID CASH DEPOSIT OF ` 7,00,000, IS OUT OF THE EARLIER CASH WITHDRAWAL OF ` 8,10,000. THOUGH, THERE MAY BE A DELAY OF ABOUT 24 25 DAYS BETWEEN THE CASH WI THDRAWAL AND CASH DEPOSIT, HOWEVER, THE 6 RAMLING PRABHU SHINDE EXPLANATION OF THE ASSESSEE IN THIS REGARD IS ACCEPTABLE. THEREFORE, THE CASH DEPOSIT OF ` 7,00,000, MADE ON 1 ST FEBRUARY 2014, IN OUR VIEW, STANDS EXPLAINED. FURTHER, IT IS THE CLAIM OF THE ASSESSEE THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, IT HAS SHOWN NET AGRICULTURAL INCOME OF ` 9,35,812, WHICH IS AVAILABLE WITH THE ASSESSEE IN THE FORM OF CASH AND WAS DEPOSITED IN THE BANK ACCOUNT. FROM THE MATERIAL ON RECORD, IT IS APPARENT THAT THE ASSESSEE HAS AGRICULTURAL LAND HOLDING AND DERIVES INCOME FROM AGRICULTURAL ACTIVITY. IN FACT, IN THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEE HAS OF FERED NET AGRICULTURAL IN COME OF ` 7,20,000, WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER. THEREFORE, EXPLANATION OF THE ASSESSEE THAT HE HAS PAST SAVING S FROM AGRICULTURAL INCOME CANNOT B E REJECTED TOTALLY. HOWEVER, ASSESSEES CLAIM THAT THE ENTIRE NET AGRICULTURAL INCOME OF ` 9,35,812, WAS AVAILABLE WITH HIM IS ALSO NOT ACCEPTABLE C ONSIDERING THE FACT THAT THE ASSESSEE MUST HAVE UTILIZED SOME AMOUNT OUT OF SUCH INCOME FOR HIS DOMESTIC AND OTHER EXPENDITURE. THUS, IN OUR OPINION, OUT OF THE NET AGRICULTURAL INCOME OF THE PAST YEARS, THE ASSESSEE COULD REASONABL Y BE ACCEPTED TO HAVE SAVED AN AMOUNT OF ` 9,00,000. THEREFORE, TO THAT EXTENT, CASH DEPOSIT MADE IN THE BANK ACCOUNT STANDS EXPLAINED. THIS LEAVES US WITH THE BALANCE CASH DEPOSIT OF ` 19,80,000 . TO EXPLAIN THIS, THE LEA RNED AUTHORISED REPRESENTATIVE HAS SUBMITTED THAT ASSESSEE HAS RECEIVED BACK THE AMOUNT OF ` 13,25,000, FROM THREE PERSONS WHO HAVE AVAILED LOAN FROM HIM. IN THIS CONTEXT, THE ASSESSEE 7 RAMLING PRABHU SHINDE HAS RELIED UPON THE A FFIDAVIT OF THE CONCERNED PERSONS AND CONFIRMATION LETTERS. AS IT APPEARS, THE A FORESAID DOCUMENTARY EVIDENCES (A FFIDAVIT S , ETC.) WERE NOT FURNISHED BEFORE THE ASSESSING OFFICER, BUT WERE FURNISHED FOR THE FIRST TIME BEFORE LEARNED COMM ISSIONER (APPEALS). HOWEVER, LEARNED COMMISSIONER (APPEALS) HAS REJECT ED THESE EVIDENCES BY STATING THAT THEY ARE IN THE NATURE OF SELF SERVING DOCUMENT S . IN OUR CONSIDERED OPINION, THE A FFIDAVIT S FURNISHED BY THE ASSESSEE HAVE EVIDENTIARY VALUE, HENCE, CANNOT BE DISCARDED WITHOUT ENQUIRING INTO OR EXAMINING THE VERACITY OF THE AVERMENTS MADE THEREIN. SINCE , THE AFORESAID V E RI FI CATION HAS NOT BEEN DONE BY THE DEPARTMENTAL AUTHORITIES, WE ARE INCLINED TO RESTORE THE ISSUE R ELATING TO THE BALANCE ADDITION REPRESENTING THE CASH DEPOSIT OF ` 19,80,000 , TO THE ASSESSING OFFICER FOR FRESH EXAMINATION AND ADJUDICATION AFTER VERIFYING ALL THE EVIDENCES AND MATERIAL ON RECORD. THE ASSESSEE MUST BE GIVEN ADEQUATE OPPORTUNITY TO ESTABLISH ITS CASE WITH REGARD TO THE AFORESAID CASH DEPOSIT BY FURNISHING EVIDEN CE / WITNESS, ETC., AS THE CASE MAY BE. THUS, THE ASSESSEE GETS RELIEF OF ` 16,00,000. GROUNDS RAISED ARE PARTLY ALLOWED . 8. IN THE RESULT, APPEAL STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.02.2020 SD/ - G. MANJUNATH ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 05.02.2020 8 RAMLING PRABHU SHINDE COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI