SHRADDHA N PAWAR, MUMBAI V. ITO 18(3)(4), MUMBAI

ITA 7471/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0447 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 24-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DINESH R SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Revised return
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 7471 / MUM/ 201 2 ( / ASSESSMENT YEAR: 2008 - 09 ) SMT. SHRADDHA N PAWAR, 106 - A, ELAVIA BUILDING, T.H. KATARIA MARG, MAHIM, MUMBAI - 400016 VS. THE ITO 18(3)(4), MUMBAI ./ ./ PAN/GIR NO. : AKKPP 1213 C ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI DINESH R. SHAH (AR) /REVENUE BY : SHRI RAJESH OJHA (DR) / DATE OF HEARING : 29 /05 /2017 / DATE OF PRONOUNCEMENT : 31 /05 /2017 / O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 16/10/2012 PASSED BY THE LD. CIT (A), 29 , MUMBA I PERTAI NIN G TO THE ASSESSMENT YEAR 2008 - 09 , WHEREBY THE LD. CIT (A) HAS DISMISS ED T HE APPEAL FILED BY THE ASSESSEE U/S 143 (3) OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT) . 2. BRIEF FACTS LEADING TO THE PRESENT APPEAL ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y. 2008 - 09 DECLARING THE TOTAL INCOME OF RS. 1,43 ,765/ - . THE RETURN WAS PR OCESSED AND AFTER THE SCRUTINY ASSESSMENT ORDER U/S 143 (3) OF THE ACT WAS PASSED DETERMINING THE TOTAL INCOME OF RS. 2 ITA NO. 7471/MUM/2012 ASSESSMENT YEAR: 2008 - 09 21,43,765/ - AFTER MAKING ADDITION OF RS. 20,00,000/ - AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 3. THE ASSES SEE CHALLENGED THE ASSESSMENT ORDER BY FILING APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER HEARING THE ASSESSEE DISMISSED THE APPEAL AND CONFIRMED THE ADDITION MADE BY THE AO. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4 . T HE AS SESSEE HAS CHALLENGED THE IMPUGNED ORDER ON THE FOLLOWING GROUND S : - THE LEARNED ITO HAS ERRED IN ADDING THE CASH DEPOSITED BY THE ASSESSEE ON THE INFORMATION MADE BEFORE HIM AT THE TIME OF THE HEARING. THE LEARNED ITO HAS NOT UNDERSTOOD THE FACTS EXPLAIN ED AND DISMISSED IT AS STORY IRRESPECTIVE OF SUBMISSION MADE. THE LEARNED CIT (APPEAL) - 29, TOO HAS CONFIRMED ITOS ORDER. YOUR PETITIONER SUBMITS THAT SHE IS A VERY SMALL ASSESSEE, WHATEVER SHE SUBMITTED UNDER ITO IS UNDER OATH AND ITO HAS SEEN BANK PAS SBOOKS OF LAST MANY YEARS WHICH INDICATE THAT THERE ARE NO SUCH HUGE DEPOSITS . ONLY DEPOSITS ARE IN THE FORM OF COMMISSIONS RECEIVED BY POSTAL SMALL SAVINGS SCHEMES. YOUR PETITIONER ALSO SUBMITS THE ITO HAS NOT ACTED JUDICIALLY AND FAILED TO DEEPLY LOOK I N TO SUBMISSIONS AT THE TIME OF HEARING. ALSO, THE LEARNED CIT HAS FAILED TO APPRECIATE ADDITIONAL SUBMISSION AT THE TIME OF THE HEARING. YOUR PETITIONER ADDS THAT WHATEVER CASH WAS ACCUMULATED BY APPELLANT WAS NOT BELONGING TO HER AND NOT UNDISCLOSED. YO UR PETITIONER HAS NOT RETAINED A CA WHO COULD EXPLAIN LAWFULLY THE REFERRED TRANSACTION. 3 ITA NO. 7471/MUM/2012 ASSESSMENT YEAR: 2008 - 09 YOUR PETITIONER THEREFORE PRAYS TO CONSIDER THE PRAYER AND DEDUCT THE ADDITION TO INCOME AND REDUCE THE TAX AND INTEREST BY THE LOWER AUTHORITY. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS AN AIR INFORMATION REGARDING CASH DEPOSIT OF RS. 23,74,000/ - IN THE ACCOUNT OF THE ASSESSEE IN SHAMRAO VITHAL COOPERATIVE BANK LTD, MATUNGA BRANCH. IT WAS EXPLAINED DURING ASSESSMENT PROCEEDINGS THAT TH E AMOUNT OF RS. 3,74,000/ - WAS DEPOSITED FROM THE REGULAR BUSINESS OF THE APPELLANT I.E. AGENCY OF SMALL POSTAL SAVING SCHEME. THE AO ACCEPTED THE EXPLANATION. AS REGARDS, THE REMAINING AMOUNT OF RS. 20,00,000/ - THE ASSESSEE CONTENDED THAT THE SAID AMOUNT WAS RECEIVED FROM MR. SANTOSH, DIREC TOR OF M/S F DISK (1) PVT. LTD. SH. SANTOSH APPROACHED THE HUSBAND OF THE ASSESSEE AND ASKED HER HUSBAND TO DEPOSIT THE CASH IN HIS ACCOUNT AND ISSUE A CHEQUE OF THE SAME AMOUNT. ACCORDINGLY, HER HUSBAND DEPOSITED THE SA ME AMOUNT IN THE ASSESSEES ACCOUNT AND OBTAINED THE CHEQUE FOR THE SAME AMOUNT WHICH WAS DEPOSITED IN HIS COMPAN Y S ACCOUNT. HENCE , THE SAID AMOUNT WAS NOT REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE. 6. SINCE, T HE ASSESSE E COULD NOT FURNISH THE ADDR ESS AND WHEREABOUTS OF MR. SANTOSH DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE BY MAKING WRITTEN SUBMISSION ADMITTED THAT SHE HAD NO EVIDENCE TO EXPLAIN THE CASH CREDIT IN QUESTION. THE RELEVANT PORTION OF THE SUBMISSION READS AS UNDER: - WITHOUT PREJ UDICE THE MISTAKE HAS HAPPENED BY MY HUSBAND. I HAVE NO OTHER PROOF FOR THE ABOVE DEPOSIT OF RS. 20,00,000/ - , AND UNWILLINGLY I AM DECLARING THIS AS MY INCOME. I AM ENCLOSING THEREWITH MY REVISED COMPUTATION OF TOTAL INCOME SHOWING DECLARATION OF RS. 20,0 0,000/ - AS INCOME 7. DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE CONTENDED THAT THE REVISED RETURN WAS FILED UNDER COMPULSION AND LETTER TO THIS EFFECT WAS WRITTEN 4 ITA NO. 7471/MUM/2012 ASSESSMENT YEAR: 2008 - 09 TO THE INCOME TAX OFFICER ON THE SAME DAY. HOWEVER, THE ASSESSEE ADMITTED THAT THE AMOU NT IN QUESTION WAS DEPOSITED IN HER ACCOUNT AND TO SUBSTANTIATE HER CLAIM EVIDENCE IN THE FORM OF CONFIRMATION LETTERS WERE PRODUCED BEFORE THE LD. CIT(A). THE CIT(A) DID NOT FIND ANY JUSTIFICATION IN ADMITTING ADDITIONAL EVIDENCE AND DECLINED TO ADMIT THE ADDITIONAL EVIDENCE AND CONFIRMED THE ADDITION MADE BY THE AO HOLDING THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF THESE CASH DEPOSIT. 8. THE LD. COUNSEL FOR THE ASSESSEE MOVED AN APPLICATION BEFORE US FOR PLACING ON RECORD THE WRITTEN S UBMISSIONS WITH REQUEST TO ACCEPT THE ADDITIONAL EVIDENCE SUBMITTED IN THE FORM OF PAPER BOOK WHICH INCLUDES AFFIDAVITS SWORN BY ASSESSEE SMT. SHARADDHA N PAWAR AND MR. SANTOSH ATHANI. THE LD C OUNSEL FURTHER SUBMITTED THAT THESE DOCUMENTS ARE RELEVANT TO E STABLISH THE FACT THAT RS. 20,00,000/ - WAS GIVEN BY MR. SANTOSH ATHANI, MD ON BEHALF OF THE COMPANY AFORESAID ; THE COMPANY HAS ACCOUNTED FOR THE SAME AND HAS BEEN ASSESSED TO TAX. THE LD. COUNSEL FURTHER SUBMITTED THAT IN THE INTEREST OF JUSTICE THE ADDITI ONAL EVIDENCE MAY BE ADMITTED AND THE ASSESSEE MAY BE ALLOWED TO EXPLAIN THE CASH CREDIT IN HER ACCOUNT. 9. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) VEHEMENTLY OPPOSED THE SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE ON THE GROU ND THAT THE ADDITIONAL EVIDENCE IS AN AFTERTHOUGHT AND THERE IS NO REASON FOR NOT SUBMITTING/PRODUCING THE SAME EVIDENCE BEFORE THE AO OR BEFORE THE LD. CIT (A). SINCE, THE ASSESSEE HAS FAILED TO EXPLAIN THE CASH CREDIT OF RS . 20,00,000/ - THE AUTHORITIES B ELOW HAVE RIGHTLY CONFIRMED THE ADDITIONS OF RS . 20,00,000/ - AS UNEXPLAINED CASH CREDIT. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO 5 ITA NO. 7471/MUM/2012 ASSESSMENT YEAR: 2008 - 09 FURNISH THE ADD RESS AND WHEREABOUTS OF MR. SANTOSH ATHANI. NOW MR. SANTOSH ATHANI IS AVAILABLE AS HE HAS SWORN THE AFFIDAVIT ON 30.12.2016 IN SUPPORT OF THE CONTENTION OF THE ASSESSEE . THE ASSESSEE HAS STATED IN HER AFFIDAVIT THAT THE SAID AMOUNT WAS GIVEN BY SH. SANTOS H ATHANI TO MR. NANDKUMAR PAWAR HUSBAND OF THE ASSESSEE FOR PURCHAS ING IMMOVABLE PROPERTY IN THE NAME OF COMPANY AND THE SAID AMOUNT WAS DEPOSITED HER ACCOUNT IN CONNECTION WITH THE SAID DEAL. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THA T THE ASSESSEE SHOULD GET AN OPPORTUNITY TO SUBSTANTIATE HER CONTENTION. ALTHOUGH IT THE ASSESSEE HAS AVAILED ADEQUATE OPPORTUNITY TO ESTABLISH HER VERSION DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS , Y ET IN THE INTEREST OF JUSTICE WE ALLOW THE ADDITIO NAL DOCUMENTS SUBMITTED BY THE COUNSEL AS ADDITIONAL EVIDENCE. ACCORDINGLY , WE SET ASIDE THE ORDER PASSED BY THE LD. CIT (A) AND SEND THE MATTER BACK TO THE AO TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE ADDITIONAL DOCUMENTS SUBMITTED BEFORE US , AFTER A FFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED NOT TO SEEK ADJOURNMENT ON FRIVOLOUS GROUNDS DURING THE ASSESSMENT PROCEEDINGS. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008 - 2009 IS ALLOWE D FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY , 2017 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 31 / 0 5 / 2017 ALINDRA, PS 6 ITA NO. 7471/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, //TRU E COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI