SAMIR P MOMIN, MUMBAI V. ITO WD 24(3)3, MUMBAI

ITA 7327/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4326 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SACHIDANAND DUBEYDR
• Assessee Lawyers: S M MAKHIJA
• Keywords: Unexplained cash credit

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI- E,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SANDEEP GOSAIN,JUDICIAL MEMBER /.ITA NO.7327/MUM/2013 /ASSESSMENT YEAR-2008-09 SAMIR P MOMIN B/302, NEW EKTA CO-OPERATIVE HOUSING SOCIETY LIMITED, BEHRAM BAUG, JOGESHWARI-W MUMBAI-400 012. PAN NO.AKOPM 1090 N VS. INCOME TAX OFFICER- WARD - 24(3)(3) BANDRA KURLA COMPLEX, BANDRA(EAST), MUMBAI-50 ( / ASSESSEE ) ( /RESPONDENT) /ASSESSEE BY :SH. S.M. MAKHIJA AR / REVENUE BY :SH. SACHIDANAND DUBEY-DR / DATE OF HEARING :17 - 11 -2015 / DATE OF PRONOUNCEMENT : 01.01.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER 17.04.2013 OF CIT-34,MUMBAI T HE ASSESSEE HAS FILED THE PRESENT APPEAL. ASSESSEE,AN INDIVIDUAL,FILED HIS RETURN OF INCOME O N 26.08.2008,DECLARING INCOME OF RS.1,43, 992/-.THE ASSESSING OFFICER(AO)COMPLETED THE ASSESS MENT ON 27.12.2010,U/S.143(3) OF THE ACT, DETERMINING THE INCOME OF THE ASSESSEE AT RS.19,01, 992/-. 2. FIRST EFFECTIVE GROUND OF APPEAL IS ABOUT CONFIRMIN G OF AN ADDITION OF RS.10.53 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE.DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND FORM THE AIR INFORMATION THAT THE ASSESSEE HAD DEPOSITED RS.17.5 8 LAKHS IN HIS BANK ACCOUNTS.HE DIRECTED THE ASSESSEE TO EXPLAIN THE SOURCES OF DEPOSITS.IT WAS CONTENDED BEFORE HIM THAT IMPUGNED AMOUNT WAS BORROWED FROM VARIOUS PERSONS FOR THE PURPOSE O F OBTAINING OF U S VISA.AS PER THE AO THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE IN HIS SUPPOR T.HE HELD THAT CASH DEPOSITS MADE BY THE HIM HAD TO BE TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHOIRTY(FAA).BEFORE HIM,IT WAS ARGUED THAT THE AS SESSEE HAD DEPOSITED RS.10.53 LAKHS IN THE BANK, THAT THE AO HAD IGNORED THE CASH WITHDRAWAL M ADE BY THE ASSESSEE,THAT HE HAD TAKEN TEMPORARY LOAN FROM 19 PERSONS,THAT THE OPENING BAL ANCE WAS NOT CONSIDERED BY THE AO,THAT PEAK OF THE CASH DEPOSIT WORKED OUT TO RS.3.85 LAKH S.AFTER CONSIDERING THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE ASSESSEE,THE FAA HELD THAT T HE ASSESSEE HAD DEPOSITED RS.10.53 LAKHS AND NOT RS.17.53 LAKHS IN HIS BANK ACCOUNT DURING THE Y EAR UNDER APPEAL,THAT THE AO HAD NO EVIDENCE THAT THE ASSESSEE HAD DEPOSITED RS.17.53 LAKHS.HE D ELETED THE ADDITION TO THE EXTENT OF RS.7.05 LAKHS.HE FURTHER HELD THAT BETWEEN 17.04.2007 AND 2 4.04.2007 THE ASSESSEE HAD WITHDRAWN CASH OF RS.6.02 LAKHS,THAT THERE WAS NEGATIVE CASH BALAN CE OF RS.2.17 LAKHS ON 14.04.2007,THAT THE WITHDRAWALS WERE MORE THAN DEPOSITS,THAT THE ARGUME NT OF RE-DEPOSIT OF CASH COULD NOT BE ACCEPTED.FINALLY,HE CONFIRMED THE ADDITION OF RS.10 .53 LAKHS. ITA/7327/MUM/2013,SAMIR P-AY.08-09 2 4. BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)CONTENDE D THAT THE PEAK AMOUNT WORKED OUT TO RS. 3.85 LAKHS,THAT THE ADDITION SHOULD HAVE BEEN R ESTRICTED TO PEAK AMOUNT,THAT THERE COULD NOT BE ANY NEGATIVE CASH BALANCE,THERE WAS NO JUSTIFICA TION IN HOLDING THAT CASH COULD NOT BE RE- DEPOSITED.HE REFERRED TO THE PAGE NO.10 OF THE PAPE R BOOK WHICH GIVES DETAILS OF CASH DEPOSITS AND CASH WITHDRAWALS FOR THE YEAR UNDER APPEAL.DEPA RTMENTAL REPRESENTATIVE (DR)SUPPORTED THE ORDER OF THE FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT PEAK AMOUNT WORKED OUT BY THE ASSESSEE IS RS.3.85 LAKHS, THAT WHILE PARTLY UPHOLDING THE ADDITION THE FAA HAD NOT TAKEN IN TO CONSIDERATION THE WITHDRAWA LS MADE BY THE ASSESSEE.BESIDES,OPENING BALANCE FOR THE YEAR HAS TO BE TAKEN IN TO CONSIDER ATION.IN OUR OPINION,IN SUCH CASES ONLY PEAK AMOUNT CAN BE ADDED.THEREFORE,WE HOLD THAT ADDITION SHOULD BE RESTRICTED TO RS.3.85 LAKHS ONLY. EFFECTIVE GROUND OF APPEAL IS ALLOWED IN FAVOUR OF THE ASSESSEE,IN PART. AS A RESULT,APPEAL FILED BY THE ASSESSEE STA NDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JANUARY, 2016. 01 , 2016 SD/- SD/- ( /SANDEEP GOSAIN ) ( / RAJENDRA ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER MUMBAI, DATE: 01.01.2016 . . . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR E BENCH, ITAT, MUMBAI / , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.