DILIPKUMAR BIKJAMCHAND JAIN, MUMBAI V. DCIT CC 2(4), MUMBAI

ITA 7187/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8129 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 06-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA LD
• Assessee Lawyers: RITESH KUMAR SHAH LD
• Keywords: Gift; Search and seizure; Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 7187/MUM/2016 ASSESSMENT YEAR: 2013-14 DILIPKUMAR BIK AMCHAND JAIN FLAT NO. 206, B WING, 7 KUKREJA COMPLEX, LBS MARG, OPP JAIN TEMPLE, BHANDUP(W), MUMBAI. PAN:ACMPD5405A VS. D.C.I.T, CC 2(4), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RITESH KUMAR SHAH, LD.AR RESPONDENT BY : SHRI CHAITNYA ANJARIA, LD.DR DATE OF HEARING : 1 8 .07.2019 DATE OF PRONOUNCEMENT : 1 8 - 07 - 2019 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 21-09- 2016 PASSED BY LD CIT(A)-48, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2013-14. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING ADDITIONS MADE BY THE AO. 2. I HEARD THE PARTIES AND PERUSED THE RECORD. THE REVENUE CARRIED OUT SEARCH AND SEIZURE OPERATIONS IN THE CASE OF M/S GO LD SUKH SAFETY VAULTS LTD ON 08.11.2012. THE SAID COMPANY WAS PROVIDING LOCKERS ON RENT. THE ASSESSEE ALONG WITH SOME OTHER PERSONS HAD RENTED A LOCKER NUMBERED AS 599. THE REVENUE ALSO SEARCHED THE LOCKER HELD BY THE ASSESSEE ALONG WITH SOME OTHER PERSONS. IT CONTAINED CASH OF RS.12.50 LAKHS, SILVER BARS WEIGHING 8.44 KGS VALUED AT RS.5.30 LAKHS. THE ASS ESSEE COULD NOT EXPLAIN [2] ITA NO.7187/MUM/2016 DILIPKUMAR BIKAMCHAND JAIN THE SOURCES THEREOF IN THE STATEMENT TAKEN U/S 132( 4) OF THE ACT. THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDIN GS, TOOK CONTRADICTORY STANDS, I.E., HE AGREED TO OFFER ABOVE AMOUNTS AS U NDISCLOSED INCOME AT ONE STAGE, BUT SUBSEQUENTLY EXPLAINED THAT THE CASH REP RESENTS HIS SAVINGS AND SILVER BARS REPRESENT GIFTS RECEIVED FROM HIS FATHE R IN LAW. THE AO DID NOT ACCEPT THE SAME AND ACCORDINGLY ASSESSED BOTH THE A BOVE SAID AMOUNTS AS INCOME OF THE ASSESSEE. 3. THE AO ALSO NOTICED THAT THE ASSESSEE HAS MA DE DEPOSITS INTO HIS BANK ACCOUNTS AGGREGATING TO RS.11.94 LAKHS AND THE AO A LSO ASSESSED THE SAME AS INCOME OF THE ASSESSEE. HE ALSO ADDED RS.2.00 L AKHS TOWARDS HOUSEHOLD EXPENSES. IN THE APPELLATE PROCEEDINGS, THE LD CIT (A) CONFIRMED ALL THE ADDITIONS. 4. THE LD A.R REITERATED THE SUBMISSIONS MADE B EFORE TAX AUTHORITIES. INVITING MY ATTENTION TO THE CASH FLOW STATEMENT GI VEN IN THE PAPER BOOK, THE LD A.R SUBMITTED THAT THE CASH OF RS.12.50 LAKHS AN D CASH DEPOSITS OF RS.11.94 LAKHS STAND FULLY EXPLAINED BY THE CASH FL OW. HE SUBMITTED THAT THE ASSESSEE HAS RECEIVED SILVER BARS FROM HIS FATH ER-IN-LAW ONLY. 5. THE LD D.R, ON THE CONTRARY, SUBMITTED THAT T HE ASSESSEE IS MAKING SELF SERVING STATEMENTS AND HENCE HIS EXPLANATIONS WERE RIGHTLY REJECTED BY LD CIT(A). 6. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE RECORD. DURING THE COURSE OF HEARING BEFORE ME, THE LD A.R WAS ASKED A S TO WHETHER THE ASSESSEE WOULD BE IN A POSITION TO PREPARE A CASH B OOK ON DAY TO DAY BASIS, INSTEAD OF CASH FLOW STATEMENT FURNISHED IN THE PAP ER BOOK. THE LD A.R SUBMITTED THAT THE CASH BOOK COULD BE PREPARED AND THE SAME WOULD EXPLAIN AVAILABILITY OF CASH BALANCE AS WELL AS THE SOURCES FOR DEPOSITS MADE [3] ITA NO.7187/MUM/2016 DILIPKUMAR BIKAMCHAND JAIN INTO THE BANK ACCOUNT. HE ALSO SUBMITTED THAT THE DOMESTIC DRAWINGS COULD ALSO BE EXPLAINED THROUGH THE CASH BOOK. WITH REGA RD TO THE CLAIM OF RECEIPT OF SILVER BARS AS GIFTS FROM FATHER IN LAW, THE LD A.R SUBMITTED THAT THE ASSESSEE WOULD BE IN A POSITION TO OBTAIN AFFIDAVIT S FROM MOTHER-IN-LAW OR OTHER CLOSE RELATIVES. 7. IN VIEW OF THE ABOVE, I AM OF THE VIEW THAT, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE MAY BE PROVIDED WITH ONE MORE OPPORTUNITY TO EXPLAIN HIS CASE. ACCORDINGLY I SET ASIDE THE ORDER PASSED BY LD CIT(A) AND RESTORE ALL THE ISSUES TO THE FILE OF THE AO FOR EXAMINING THEM AFRESH. AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD, THE AO MAY TAK E APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 18-07-2019 SD/- ( B.R. BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 18 TH JULY,2019 *PP/SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER (ASSISTANTREGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI [4] ITA NO.7187/MUM/2016 DILIPKUMAR BIKAMCHAND JAIN DATE INITIAL WHETHER DICTATION PAD ENCLOSED WITH THE FILE : NO 1. DRAFT DICTATED ON 19.07.2019 YES SR.PS 2. DRAFT PLACED BEFORE AUTHOR 19/7 MATTER TYPED P.P SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 19.07.2019 P.P JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 19/07 PP SR.PS 6. DATE OF PRONOUNCEMENT 18/7 SR.PS 7. FILE SENT TO THE BENCH CLERK 19/7 PP SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER