SUPRITA SACHIN VAISHAMPAYAN, THANE V. ITO 3(3), THANE

ITA 7173/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1873 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CAPTAIN PRADEEP ARYA
• Keywords: Additional evidence
• Section: 143(3); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 MRS. SUPRITA SACHIN VAISHAMPAYAN. 19, UMA NIWAS CHS., 49 RAM MARUTI CROSS ROAD NO. 1, NAUPADA, THANE. PAN:- AAQPV8847G VS. THE ITO WARD 3(3) , ROOM NO. 10, B-WING, ASHAR IT PARK, ROAD NO-16-2, WAGLE INDUSTRIAL ESTATE, THANE- 400 604. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. DEVENDRA JAIN RESPONDENT BY : CAPTAIN PRADEEP ARYA DATE OF HEARING: 2 6/09 /2016 DATE OF PRONOUNCEMENT: 18/11/20 16 O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 24/09/2012 PASSED BY THE LD. CIT(APPEALS)-I MUMBAI FOR THE ASST. YEAR 2008-09, WHEREBY THE LD. CIT(A) DISMISSED THE APPEA L FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER DATED 31/12/2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT T HE ACT). 2. BRIEF FACTS WHICH NEED NECESSARY MENTION FOR TH E PURPOSE OF DECIDING THE ISSUE INVOLVED IN THIS APPEAL ARE THAT THE ASSESSEE AN INDIVIDUAL ADD ADVOCATE BY PROFESSION FILED HER RETURN OF INCOME FOR THE A. Y. 2008-09 DECLARING THE TOTAL INCOME OF RS. 1,92,779/-. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, 2 ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS MAD E HUGE CASH DEPOSITS IN HER BANK ACCOUNT NO. 08/92 AMOUNTING TO RS. 14,67,450/- AND IN THE ACCOUNT NO. 018/514 AMOUNTING TO RS. 3,20,000/- MAINTAINED WITH THE GOPINATH PATIL PARSIK JANTA SAHAKARI BANK DURING THE YEAR UNDER CO NSIDERATION. ACCORDINGLY, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE AND NATURE OF THE CASH DEPOSITS IN HER BANK ACCOUNTS. IN RESPONSE THE REOF THE ASSESSEE SUBMITTED A COPY OF BALANCE SHEET. HOWEVER, THE ASS ESSEE NEITHER APPEARED BEFORE THE A.O. NOR FILED ANY EXPLANATION REGARDING NATURE AND SOURCE OF CASH DEPOSITS DESPITE SERVICE OF SUMMONS/NOTICE ISSUED U/S 131 OF THE ACT. ACCORDINGLY, THE A.O MADE INTER ALIA ADDITION OF TH E SAID AMOUNTS TO THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT, HOLDING T HE SAME AS UNPROVED CREDITS AND PASSED ASSESSMENT ORDER U/S 143(3) OF THE ACT D ETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 26,24,750/-. THE ASSE SSMENT ORDER WAS CHALLENGED BY THE ASSESSEE BY FILING APPEAL BEFORE THE LD. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDING IT WAS CONTENDED BY THE APPELLANT/ASSESSEE THAT THE CASH DEPOSITS OF RS. 17,55,450/ IN THE BANK ACC OUNTS WAS RECEIVED FROM HER CLIENTS FOR PURCHASING LAND ON THEIR BEHALF. T HE ACTUAL EXPENSES INCURRED WERE WITHDRAWN AND THE BALANCE AMOUNTS WERE RETURNE D BACK TO THEM. THE ASSESSEE FURTHER CONTENDED THAT SHE COULD NOT GIVE THE SAID EXPLANATION BEFORE THE A.O DUE TO PAUCITY OF TIME. TO SUBSTANTIATE HER CLAIM THE ASSESSEE FILED CONFIRMATION OF TWO PERSONS FROM WHOM THE MONEY WAS RECEIVED. THE LD. CIT(A) ADMITTED THE ADDITIONAL EVIDENCE UNDER RULE 46 OF THE INCOME TAX RULES AND DIRECTED THE A.O TO VERIFY AND FURNISH A REMAND REP ORT IN THE MATTER. IN RESPONSE THERE OF THE A.O MADE NECESSARY VERIFICATI ON AND SUBMITTED REMAND REPORT. THE LD. CIT(A) AFTER GOING THROUGH THE SA ME UPHELD THE FINDINGS OF THE LD. A.O AND DISMISSED THE APPEAL FILED BY THE ASSES SEE. 3 ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 3. FEELING AGGRIEVED BY THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE HAS CHALLENGED THE ASSESSMENT ORDER ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1) THE LD. CIT(A), HAS ERRED IN CONFIRMING THE ACTI ON OF A.O OF ADDING CASH DEPOSITS OF RS. 17,55,450/- U/S. 68. 2) THE LD. CIT(A) HAS ERRED IN NOT PASSING A SPEAKI NG ORDER SO AS TO REBUT THE EXPRESS FINDINGS CONTAINED IN THE REMAND REPORT. 3). THE LD. CIT(A) HAS ALSO ERRED IN CONFIRMING THE ACTION OF A.O OF ADDING RS. 6,76,496/- AS UNDISCLOSED PROFESSIONAL R ECEIPTS. 4. GROUND NO 1 AND 2 PERTAIN TO CONFIRMATION OF ADD ITION OF RS. 17,55,450/- MADE BY THE AO. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS WRONGLY CONFIRMED THE ACTION OF A.O. THE ASSESSEE HAS SUBMITTED CONFIRMATIONS FROM SH. BHASKAR C SOGIR AN D SH. BALU P KHAMBALKAR WHO HAD HANDED OVER RS. 8,00.000/- AND RS. 10,00,00 0/- RESPECTIVELY IN CONNECTION WITH FINALIZATION OF LAND DEAL ON THEIR BEHALF. AO HAS ALSO RECORDED THEIR STATEMENTS U/S 131 OF THE ACT. THAT THE FACTS OF THE CASES RELIED UPON BY THE LD. CIT(A) ARE DISTINGUISHABLE FROM THE FACTS O F THE PRESENT CASE THEREFORE, THE RATIO LAID DOWN IN THE SAID CASE IS NOT APPLICA BLE IN THE PRESENT CASE. THE LD. COUNSEL PLACED RELIANCE ON THE JUDGMENT DELIVER ED BY THE HONBLE SUPREME COURT, IN DHAKESHWARI COTTON MILLS VS CIT 26 ITR 775(SC) AND DECISIONS RENDERED BY THE ITAT MUMBAI BENCH IN THE CASE OF ITO VS KUMAR METAL INDUSTRIES (1991) 36 ITD 261 (MUM) AND THE AGRA BENCH IN ITO VS LAXMAN DASS MAKHIJA[2009]116 ITD 47(AGRA ) TO SUBSTANTIATE HIS CONTENTIONS. THE LD. COUNSEL FURTHER SUBMITTED THAT SINCE THE ASSESSEE H AS DISCHARGED THE ONUS OF EXPLAINING THE NATURE AND SOURCE OF THE AMOUNT IN Q UESTION, THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE. 4 ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 5. ON THE OTHER HAND THE LD. DR RELYING ON THE ORD ER PASSED BY THE LD. CIT(A) SUBMITTED THAT THE ADDITIONAL EVIDENCE PRODU CED BEFORE THE APPELLATE AUTHORITY WAS AN AFTERTHOUGHT ATTEMPT TO EXPLAIN TH E SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THIS PLEA WAS TAK EN FOR THE FIRST TIME DURING THE APPELLATE PROCEEDINGS. EVEN DURING THE APPELLAT E PROCEEDINGS OR REMAND PROCEEDINGS THE ASSESSEE HAS FAILED TO ESTABLISH CR EDITWORTHINESS OF THE PERSONS WHOSE CONFIRMATIONS WERE PLACED ON RECORD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE DOCUMENTS. ADMITTEDLY, NEITHER THE ASSESSEE RAISED ANY PLEA BE FORE THE AO NOR DID SHE SUBMIT ANY DOCUMENTARY EVIDENCE TO EXPLAIN THE NATU RE AND SOURCE OF THE AMOUNT IN QUESTION, EXCEPT THE COPY OF BALANCE SHEE T. THE PLEA THAT THE AMOUNT IN QUESTION WAS RECEIVED FROM HER CLIENTS IN CONNECTION WITH PURCHASE OF LAND ON THEIR BEHALF WAS INTRODUCED FOR THE FIRS T TIME DURING THE APPELLATE PROCEEDINGS AND CONFIRMATIONS FROM TWO PERSONS/FARM ERS WERE SUBMITTED BEFORE THE FIRST APPELLATE AUTHORITY. DURING THE RE MAND PROCEEDING AO RECORDED THE STATEMENTS OF THE SAID FARMERS U/S 131 OF THE A CT, IN THEIR STATEMENTS THEY ADMITTED THAT THEY HANDED OVER AMOUNTS IN CASH TO T HE ASSESSEE IN CONNECTION WITH THEIR LAND DEALS. THE LD. CIT(A) HAS REJECTED THE CONTENTIONS OF THE ASSESSEE HOLDING AS UNDER:- FROM THE ANALYSIS OF THE STATEMENTS RECORDED OF TH E TWO FARMERS, WHO HAVE GIVEN AN ADVANCE OF RS. 18,00,000/- TO THE APPELLANT IN CASH, CLEARLY POINT OUT TO THE FACT THAT THE STORY OF THE ADVANCE TAKEN FROM THE FARMERS FOR PURCHASE OF LAND IS AN AFTER T HOUGH ATTEMPT TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE BANK ACC OUNT OF THE APPELLANT. THIS IS BECAUSE OF THE REASON THAT THIS STORY WAS NEVER BROUGHT BEFORE THE ASSESSING OFFICER BY THE APPELLA NT DESPITE SUFFICIENT OPPORTUNITIES GIVEN. THE A.O EVEN ISSUED SUMMONS U/S 5 ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 131 TO THE APPELLANT TO ADDUCE EVIDENCE TO PROVE TH E SOURCE AND NATURE OF THE CASH DEPOSITS IN HER BANK ACCOUNT, BU T THE APPELLANT CHOSE NEITHER TO ATTEND NOR TO PROVE THE SOURCE OF THE CREDITS THROUGH ANY SATISFACTORY EXPLANATION. SO THE APPELLANT LOST THE CHANCES OF PROVING THE SOURCE AND NATURE OF THE CASH DEPOSITS AT THE VERY FIRST OPPORTUNITY OFFERED TO PROVE THE SAME. 7. THE LD. CIT(A) FURTHER POINTED OUT THAT THE EVE N DURING THE REMAND PROCEEDINGS THE APPELLANT ONLY PRODUCED THE CONFIRM ATIONS AND THE STATEMENT OF TWO PERSONS AFORESAID, HOWEVER, FAILED TO PROVE THEIR CREDITWORTHINESS AND THEIR REAL INTENTION TO PURCHASE SOME LAND THROUGH APPELLANT/ASSESSEE. THE LD. CIT(A) HAS FURTHER RELIED ON THE DECISION RENDERED BY THE DELHI TRIBUNAL IN M .M.ENTERPRISES VS. ACIT (2007) 12 SOT 372(DEL-TRIB) , AND THE DECISION OF MUMBAI TRIBUNAL IN THE CASE OF ITO VS. KUMAR METAL INDUSTRIES (1991) 36 ITD 261 (BOM-TRIB). 8. IN ITO VS. KUMAR METAL INDUSTRIES (SUPRA), THE C O-ORDINATE BENCH OF THE ITAT HAS HELD THAT WHERE IT IS NOT PROVED THAT CASH CREDIT WAS ACTUALLY RECEIVED BY THE ASSESSEE, THOUGH THE SOURCE AS WELL AS CAPAC ITY OF THE CREDITOR WAS PROVED, IT CANNOT BE SAID THAT THE ASSESSEE HAS PRO VED THE GENUINENESS OF THE CASH CREDIT. IN THE PRESENT CASE THE ASSESSEE HAS F AILED TO PROVE THE GENUINENESS OF THE TRANSACTION AS WELL AS THE CREDI TWORTHINESS OF THE PERSONS WHO CONFIRMED THE PAYMENT OF AMOUNTS IN QUESTION. A BSENCE OF BOTH THE THINGS FURTHER CREATES DOUBT IN THE VERSION OF THE WITNESS ES THAT THE AMOUNTS WERE ACTUALLY HANDED BY THEM TO THE ASSESSEE. NO EVIDENC E WAS BROUGHT ON RECORD TO PROVE CREDITWORTHINESS OF THE PERSONS WHO FURNISHED THE CONFIRMATIONS. IN ORDER TO PROVE GENUINENESS OF THE TRANSACTION THE A SSESSEE COULD HAVE PRODUCED COPY OF AGREEMENT TO SELL OR ANY OTHER DOC UMENT, PARTICULARS OF LAND AND ITS OWNERS FROM WHOM THE LAND WAS TO BE PURCHAS ED OR THE ASSESSEE COULD 6 ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 HAVE EXAMINED THE OWNER(S) OF THE LAND WITH WHOM TH E DEAL WAS/WERE GOING TO BE FINALIZED. THE ASSESSEE HAS NO ANSWER AS TO WHY THE UNUTILIZED AMOUNT WAS RETURNED IN CASH. THE ASSESSEE COULD HAVE PROVED TH E GENUINENESS OF THE TRANSACTION BY BRINGING ON RECORD THE EFFORTS MADE BY HER IN FINALIZING THE ALLEGED DEAL. THE ASSESSEE IS SILENT AS TO WHY ANY RECEIPT WAS NOT FURNISHED TO THE INTENDING PURCHASERS OF THE LAND AGAINST THE AL LEGED PAYMENT. THE ASSESSEE HAS FAILED TO PROVE ANY COMMUNICATION WITH THE INTE NDING BUYERS OR WITH THE SELLER(S) FROM WHOM THE DEAL WAS TO BE FINALIZED. T HE FACTS OF THE CASES RELIED UPON BY THE ASSESSEE ARE DISTINGUISHABLE FROM THE F ACTS OF THE PRESENT CASE. 9. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCE S OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED ORDER PASSED BY T HE LD. CIT(A) DOES NOT SUFFER FROM ANY FACTUAL OR LEGAL INFIRMITY TO INTER FERE WITH THE SAME. WE THEREFORE, UPHOLD THE ORDER PASSED BY THE LD. CIT(A ) AND DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE BEING DEVOID OF ANY MERIT. S O FAR AS GROUND NO 3 OF THE APPEAL IS CONCERNED, SINCE THE ASSESSEE HAS NOT PRE SSED THE SAID GROUND, THE SAME IS DISMISSED AS NOT PRESSED. 10 IN THE RESULT APPEAL FILED BY THE ASSESSEE FOR A.Y. 2008-09 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH NOVEMBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:18/11/2016 7 ITA NO 7173/MUM/2012 ASSESSMENT YEAR: 2008-09 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA