CHANDRIKA TAPURIAH, KOLKATTA V. ASST CIT CEN CIR-2, MUMBAI

ITA 771/MUM/2013

• Counselvise Citation: 77119914 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: CHETAN A KARIA
• Keywords: Unexplained cash credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, M UMBAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM ./I.T.A. NO. 771/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) CHANDIRAKA TAPURIAH 9, ROWDON STREET, UDYANCHAL BUILDING, FLAT NO. 20, 5 TH FLOOR KOLKATA 700 017 / VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2 MUMBAI ./PAN : ABPPT9474K ( ! /APPELLANT ) .. ( '# ! / RESPONDENT ) ! $ % / APPELLANT BY : SHRI CHETAN A. KARIA '# ! $ % / RESPONDENT BY : SHRI NEIL PHILIP &' ( $ ) /DATE OF HEARING : 03.11.2014 * +, $ ) /DATE OF ORDER : 07.11.2014 / O R D E R PER SANJAY ARORA, AM THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-36, MUMBAI (CIT(A) FOR SH ORT) DATED 29.11.2012, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT UN DER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 14.12.2011 FOR THE ASSESSMENT YEAR (AY) 2009- 10. 2. THOUGH THE APPEAL RAISES SEVERAL (5) GROUNDS, IT INVOLVES A SINGLE ISSUE, I.E., THE ADDITION TOWARD CASH DEPOSITS IN BANK/S AT RS.1,43, 000/- DURING THE YEAR AS UNEXPLAINED CREDITS. 3. THE BRIEF FACTS, ON WHICH THERE IS NO DISPUTE, I S THAT CASH DEPOSITS IN ASSESSEES BANK ACCOUNTS WITH HDFC BANK & ORIENTAL BANK OF COM MERCE, ON VARIOUS DATES DURING 2 ITA NO. 771/MUM/2013 (A.Y. 2009-10) CHANDIRAKA TAPURIAH VS. ASST. CIT THE RELEVANT YEAR, AT A TOTAL OF RS.1,43,000/-, WER E OBSERVED IN ASSESSMENT. THE ASSESSEE, ON BEING REQUIRED TO EXPLAIN THE SOURCE THEREOF, SU BMITTED THAT THE SAME WAS THE CASH WITHDRAWALS FROM THE BANK ITSELF AS WELL AS THE CAS H-IN-HAND OBTAINING IN THE CASH-BOOK FOR THE RELEVANT YEAR. HOWEVER, AS THE ASSESSEE COU LD NOT SUBSTANTIATE ITS STAND/CLAIM, ADDITION WAS MADE, TREATING SUCH DEPOSITS AS UNEXPL AINED, WHICH, AS IT APPEARS, WOULD BE UNDER SECTION 69. BEFORE THE LD. CIT(A), THE ASSESS EE SOUGHT TO RECONCILE THE VARIOUS CASH DEPOSITS IN HER BANK ACCOUNTS, WHO WAS, HOWEVER, UN IMPRESSED, AND CONFIRMED THE ADDITION, ENDORSING THE VIEW OF THE AO. AGGRIEVED, ASSESSEE IS IN SECOND APPEAL. 4.1 BEFORE US, IT WAS EXPLAINED BY THE LD. AUTHORIZ ED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THE ASSESSEE STATED OF BEI NG UNABLE TO FURNISH ANY FURTHER INFORMATION IN THE ASSESSMENT PROCEEDINGS IN VIEW O F THE PECULIAR FACTS AND CIRCUMSTANCES OBTAINING AT THE RELEVANT TIME. THE A SSESSEE IS BASED IN KOLKATA. HER HUSBAND BEING IN CUSTODY AT THE RELEVANT TIME, SHE WAS FACING A TRAUMATIC SITUATION, WITH EVEN THE STAFF OF THE KOLKATA OFFICE HAVING LEFT, S O THAT SHE WAS RENDERED AS WITHOUT ANY SUPPORT. HOWEVER, BY THE TIME OF THE APPELLATE PROC EEDINGS BEFORE THE LD. CIT(A), THE ASSESSEE HAD APPOINTED A COUNSEL, WHO SOUGHT TO EXP LAIN THE ENTRIES WITH REFERENCE TO HER BOOKS, SINCE AVAILABLE, OF WHICH, HOWEVER, NO COGNI ZANCE WAS TAKEN BY THE FIRST APPELLATE AUTHORITY. ACCORDINGLY, IT WAS PRAYED THAT THE MATT ER BE REMANDED BACK TO THE FILE OF THE AO FOR A RECONSIDERATION OF THE ASSESSEES CASE ON MERITS IN THE INTEREST OF JUSTICE. 4.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON TH E OTHER HAND, WOULD, WITH REFERENCE TO THE ORDERS OF THE AUTHORITIES BELOW, S UBMIT THAT SUFFICIENT OPPORTUNITY HAS ALREADY BEEN EXTENDED TO THE ASSESSEE, WHO HOWEVER HAD FAILED TO SUBSTANTIATE HER CASE, ONLY MAKING BALD ASSERTIONS. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. THE STATEMENT OF FACTS BEFORE THE LD. CIT(A), TO WH ICH REFERENCE WAS DRAWN BY THE LD A.R. DURING HEARING, IS EXPLICIT. THE BACKGROUND FACTS OF A CASE CANNOT BUT BE KEPT IN VIEW AND TAKEN DUE NOTE OF WHILE DECIDING THE SAME. THE SITUATION HAVING MATERIALLY 3 ITA NO. 771/MUM/2013 (A.Y. 2009-10) CHANDIRAKA TAPURIAH VS. ASST. CIT IMPROVED, SO THAT THE ASSESSEE WAS IN A POSITION TO SUBSTANTIATE HER CASE BEFORE HIM, INABILITY QUA WHICH WAS THE PRINCIPAL REASON FOR THE ADDITION BY THE AO, THE FIRST APPELLATE AUTHORITY OUGHT TO HAVE CONSIDERED THE AS SESSEES CASE ON MERITS, EITHER HIMSELF OR BY SEEKING A REMAND REPORT FROM THE AO. IT WAS F ULLY WITHIN HIS POWERS; RATHER, INCUMBENT ON THE LD. CIT(A), TO CALL UPON THE ASSES SEE TO SUBSTANTIATE HER CASE, AND ADJUDICATE ON THE IMPUGNED ADDITION ON ITS MERITS, BY RENDERING A FINDING/S OF FACT IN THE EVENT SHE FAILED TO. HE, INSTEAD, MERELY ENDORSED T HE FINDINGS OF THE AO. REFERENCE IN THIS CONTEXT MAY BE MADE TO THE DECISION IN THE CAS E OF PRABHAVATI S. SHAH V. CIT [1998] 231 ITR 1 (BOM) BY THE HONBLE JURISDICTIONAL HIGH COURT. THE ASSESSEES RETURN IS DULY SUPPORTED BY THE BALA NCE SHEET AS AT THE YEAR-END, IMPLYING MAINTENANCE OF BOOKS OF ACCOUNT, WHICH THE LD. AR CONFIRMED BEFORE US TO BEING AVAILABLE. ACCORDINGLY, WE ONLY CONSIDER IT F IT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO RESTORE THE MATTER BAC K TO THE FILE OF THE AO FOR CONSIDERING THE ASSESSEES EXPLANATION QUA THE IMPUGNED CASH DEPOSITS/CREDITS, ON MERITS. WE MAY CLARIFY THAT WE ARE NOT MAKING ANY OBSERVATION WITH REGARD TO THE MERITS OF THE ADDITION, WHICH HAS REMAINED UNEXAMINED TO DATE. THE AO SHALL PASS A SPEAKING ORDER AFTER CONSIDERING THE ASSESSEES EXPLANATION/S, TOGETHER WITH THE MATERIALS, IF ANY, FURNISHED OR RELIED UPON IN SUPPORT. THE ASSESSEE SHALL EXTEND F ULL COOPERATION IN THE SAID PROCEEDINGS. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. -, . &/ 0- $ 1$ 234 5 ' 6 $ 78 ORDER PRONOUNCED IN THE OPEN COURT AT THE CONCLUSIO N OF THE HEARING ON 03/11/2014 SD/- SD/- AMIT SHUKLA SANJAY ARORA /JUDICIAL MEMBER /ACCOUNTANT MEMBER 9( MUMBAI; :& DATED: 07/11/2014 4 ITA NO. 771/MUM/2013 (A.Y. 2009-10) CHANDIRAKA TAPURIAH VS. ASST. CIT !'#$ %$' / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. ( ) / THE CIT(A)-36 4. / CIT-I 5. ;'< = '&>/ , ) >/, , 9( / DR, ITAT, MUMBAI 6. = ?0 @ ( / GUARD FILE. & / BY ORDER, '' ''''''''''''''''''''''''''''''''''''''''''''''''' ()&*'+ (DY./ASSTT. REGISTRAR) '' ,' 9( / ITAT, MUMBAI N.P.