SURESH H. THAKKAR, MUMBAI V. CIT (A)-45, MUMBAI, MUMBAI

ITA 7446/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3444 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 27-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAMMED RIZWAN
• Assessee Lawyers: PRAVESH AGARWAL
• Keywords: Search and seizure
• Section: 143(3); 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH, JM ITA NO. 7446/MUM/2018 ( ASSESSMENT YEAR: 2010-11) SURESH H. THAKKAR, PLOT NO. 278, THAKKAR NIWAS, SINGH ESTATE ROAD, NEAR SAMTA NAGAR, KANDIVALI (EAST), MUMBAI-400101. VS. CIT(A)-45, MUMBAI, 103, 1 ST FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400001. PAN/GIR NO. AEDPT 5373 A (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI PRAVESH AGARWAL (AR) REVENUE BY SHRI MOHAMMED RIZWAN (ADDL.CIT) DATE OF HEARING 06/01/2020 DATE OF PRONOUNCEMENT 06/03/2020 / O R D E R PER: R.C. SHARMA, A.M. THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)-45, MUMBAI DATED 11/09/2018 FOR THE A.Y. 2010-11 IN THE MATTER OF ORDER PASSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. THE GRIEVANCE OF THE ASSESSEE RELATES TO ADDITIO N OF RS. 6.50 LACS UPHELD BY THE LD. CIT(A) IN RESPECT OF CASH PA ID FOR PURCHASE OF RESIDENTIAL FLAT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. FACTS IN BRIEF ARE THAT THE ASSESSMENT OF THE ASSESSEE WA S REOPENED ON ITA NO. 7446/MUM/2018 SURESH H. THAKKAR VS CIT(A)-45, MUMBAI 2 GETTING INFORMATION FROM DGIT THAT THE ASSESSEE HAD MADE CASH PAYMENT OF RS. 13.00 LACS FOR PURCHASE OF FLAT AND NO RETURN OF INCOME WAS FILED. A SEARCH AND SEIZURE ACTION WAS C ARRIED OUT ON M/S EKTA AND BHOOMI GROUP BY THE INVESTIGATION WING OF THE DEPARTMENT AND ON THE BASIS OF DOCUMENTS FOUND DURING THE SEAR CH IT WAS ALLEGED THAT THE ASSESSEE PAID A SUM OF RS. 13,00,0 00/- IN CASH DURING MARCH 2010 FOR PURCHASE OF A RESIDENTIAL FLA T. THEREAFTER THE ASSESSEES ASSESSMENT WAS REOPENED U/S 147 AND NOTI CE U/S 148 OF THE ACT WAS SERVED ON THE ASSESSEE. DURING THE ASSE SSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED DAY WISE CASH B OOK AND BANK STATEMENTS OF SAVING BANK ACCOUNTS AND OF PROPRIETO RY CONCERN HIGHLIGHTING EACH CASH WITHDRAWALS PERTAINING TO TH E CASH AVAILABLE OF RS. 13,00,000/- WITH HIM AS ON 11/03/2010 OUT OF TO TAL CASH BALANCE AS ON THAT DAY OF RS. 15,14,150/- WAS PAID TO THE B UILDER ALOGWITH SOURCE OF THE SAME. HOWEVER, THE A.O. DID NOT AGREE WITH THE ASSESSEES CONTENTION AND ADDED RS. 13.00 LACS U/S 69 OF THE ACT. 4. BY THE IMPUGNED ORDER, THE LD. CIT(A) ACCEPTED A VAILABILITY OF CASH TO THE EXTENT OF RS. 6.50 LACS AND CONFIRMED B ALANCE ADDITION. THE MAIN CONTENTION OF THE LD. CIT(A) WAS THAT IT I S NOT POSSIBLE TO BELIEVE THAT ALL CASH WITHDRAWN DURING THE F.Y. 200 8-09 AND 2009-10 WAS AVAILABLE WITH ASSESSEE FOR GIVING TO THE BUILD ER. THE LD. CIT(A) FURTHER OBSERVED THAT GENERALLY, HUMAN BEHAVIOR IS SMALL AMOUNTS ITA NO. 7446/MUM/2018 SURESH H. THAKKAR VS CIT(A)-45, MUMBAI 3 ARE WITHDRAWN FOR IMMEDIATE EXPENDITURE BUT NOT TO KEEP AT HOME. THE EXPENDITURE OF RS. 10,000/- PER MONTH ACCOUNTED IN CASH SUMMARY FOR LIVING AND HOUSEHOLD EXPENSES DURING TH ESE YEARS WAS FOUND TO BE UNBELIEVABLE. AGAINST THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOU ND FROM THE RECORD THAT BEFORE THE LOWER AUTHORITIES, THE ASSES SEE HAS FILED DETAILED STATEMENT OF DATE WISE WITHDRAWAL FROM HIS BANK ACCOUNTS DURING THE F.Y. 2008-09 AND 2009-10. WE ALSO FOUND THAT AS PER THE CASH STATEMENT SO SUBMITTED, THERE WAS A CASH BALAN CE OF RS. 15,14,150/- AS ON 11/03/2010, OUT OF TOTAL CASH BAL ANCE AS ON THAT DATE OF RS. 15,14,150/-. THE ASSESSEE HAD PAID CASH OF RS. 13.00 LACS TO THE BUILDER. THE LOWER AUTHORITIES HAVE DOU BTED THE AVAILABILITY OF CASH ON THE PLEA THAT THE CASH WAS WITHDRAWN BY THE ASSESEE FROM HIS BANK ACCOUNT IN THE EARLIER YEAR A ND WAS NOT AVAILABLE FOR GIVING THE SAME TO THE BUILDER. NEITH ER THE A.O. NOR THE LD. CIT(A) HAS BROUGHT ANY MATERIAL ON RECORD TO SU GGEST THAT THE CASH SO WITHDRAWN BY THE ASSESSEE WAS UTILIZED FOR SOME OTHER PURPOSES AND WAS NOT AVAILABLE WITH HIM ON THE DATE OF PAYMENT. WE ALSO FOUND THAT THE CORRECTNESS OF DATE WISE STA TEMENT OF WITHDRAWAL OF CASH FROM THE BANK ACCOUNT AND DEPOSI T IN THE BANK ITA NO. 7446/MUM/2018 SURESH H. THAKKAR VS CIT(A)-45, MUMBAI 4 ACCOUNT WAS NEITHER FAULTED NOR DOUBTED BY ANY OF T HE LOWER AUTHORITIES. UNDER THESE FACTS AND CIRCUMSTANCES, T HERE IS NO JUSTIFICATION ON THE PART OF THE LD. CIT(A) FOR ACC EPTING ONLY RS. 6.50 LACS OUT OF TOTAL ADDITION OF RS. 13.00 LACS SO MAD E BY THE A.O..THEREFORE, WE DIRECT THE A.O. TO DELETE THE AD DITION SO MADE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH MARCH, 2020. SD/- SD/- (PAWAN SINGH) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 06/03/2020 *RANJAN COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//