SANTOSH KUMARI ARYA, MUMBAI V. ACIT CEN CIR 42, MUMBAI

ITA 7967/MUM/2011

• Counselvise Citation: 796719914 RSA 2011
• Duration Of Justice: 3 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 08-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 25-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Onus to prove
• Section: 143(3); 68; 69; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) . . , , ./ I.T .A. NO. 7967 / MUM/20 11 ( / ASSESSMENT YEAR : 200 3 - 04 ) SMT.SANTOSH KUMARI ARYA , 1 - D, VICEROY PAR K , TOWER B, THAKUR COMPLEX, KANDIVALI (E), MUMBAI - 400101 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 42, A A YAKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AJUPA4390G / APPELLANT BY NONE / RSPONDENT BY SHRI MANJUNATHA SWAMY / DATE OF HEARING : 8. 7 . 201 5 / DATE OF PRONOUNCEMENT : 8. 7. 201 5 / O R D E R PER B.R. BASKARAN (AM) THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 30.8. 2011 PASSED BY LD CIT(A) - 38 , MUMBAI AND IT RELATES TO ASSESSMENT YEAR 200 3 - 04 . 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LD.CIT(A) ON THE FOLLOWING ISSUES : A) UNEXPLAINED INVESTMENT IN IMMOVABLE PROPERTIES; AND B) UNEXPLAINED CASH CREDIT IN BANK ACCOUNT. ITA NO. 7967 / MUM/20 11 2 3. NONE AP PEARED ON BEHALF OF THE ASSESSEE , EVEN THOUGH THE NOTICE OF HEARING WAS SENT ON SEVERAL OCCASIONS TO THE ASSESSEE. HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE, WITHOUT PRESENCE OF ASSESSEE. 4. WE HAVE HEARD THE LD.DR AND PERUSED THE RECORD. THE A SSESSEE WAS SUBJECTED TO SEARCH ACTION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 ON 12.12.2008 AND ACCORDINGLY THE PRESENT ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S.153A OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE A SSESSEE HAS PURCHASED THREE PROPERTIES DURING THE YEAR UNDER CONSIDERATION. IT APPEARS THAT THE ASSESSEE HAD PURCHASED THE SAID PROPERTIES BY AVAILING LOANS. SINCE, THE ASSESSEE DID NOT FURNISH THE SOURCES FOR THE AMOUNTS PAID AS DOWN PAYMENT AND STAMP D UTY CHARGES, THE AO ASSESSED THE EXPENDITURE INCURRED ON THEM , AGGREGATING TO RS.2,52,016/ - , AS INCOME OF THE ASSESSEE U/S 69 OF THE ACT. FURTHER, THE AO NOTICED THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.41,000/ - IN THE SAVING BANK ACCOUNT MAINTAINED WI TH HSBC BANK. SINCE THE ASSESSEE DID NOT EXPLAIN THE SOURCES FOR THE SAID DEPOSIT, THE AO ASSESSED THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT . THE LD.CIT(A) ALSO CONFIRMED BOTH THE ADDITIONS, HENCE THE ASSESSEE HAS FILED THIS APPEAL BEFORE US . 5. A PERUSAL OF THE ORDER PASSED BY THE LD . CIT(A) WOULD SHOW THAT THE ASSESSEE HAS EXPLAINED THE PAYMENT MADE TOWARDS PURCHASE OF PROPERTIES AS HAVING BEEN PAID OUT OF GIFT RECEIVED FROM FRIENDS AND RELATIVES. HOWEVER, NO DETAILS ABOUT THE DONORS , VI Z., THE NAME OF THE DONORS, THE AMOUNT GIFTED , DATE OF GIFT, RELATIONSHIP , OCCASION ETC . HAVE BEEN FILED BY THE ASSESSEE . B EFORE US ALSO , T HE ASSESSEE HAS NOT FILED ANY MATERIAL TO SUBSTANTIATE THE CLAIM OF RECEIPT OF GIFT. IT IS A SETTLED PROPOSITION OF LAW THAT THE INITIAL BURDEN TO PROVE THE UNEXPLAINED INVESTMENTS IS PLACED UPON ITA NO. 7967 / MUM/20 11 3 THE ASSESSEE. IN THIS CASE, WE NOTICE THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE SAID RESPONSIBILITY. HENCE, WE ARE OF THE VIEW THAT THERE IS NO INFIRMITY IN THE DECISION OF THE LD.CIT(A) IN CONFIRMING THE ADDITION OF RS.2,52,016/ - MADE BY THE AO. ACCORDINGLY , WE UPHOLD THE ORDER OF LD.CIT(A) ON THIS ISSUE. 6 . WITH REGARD TO THE DEPOSIT OF RS.41,000/ - MADE IN THE BANK ACCOUNT , W E NOTICE THAT THE ASSESSING OFFICER HIMSELF HA S ASS ESSED THE RENTAL INCOME OF RS.3,64,205/ - , WHICH INCLUDED THE RENT OF RS.1,20,000/ - DECLARED BY THE ASSESSEE. THOUGH THE ASSESSEE HAS EXPLAINED THE SOURCES FOR MAKING THE ABOVE SAID DEPOSITS AS INCOME AND GIFT RECEIPTS, IN OUR VIEW , THE ABOVE SAID RENTAL INCOME SUFFICIENTLY EXPLAIN S THE SOURCE OF DEPOSIT OF RS.41,000/ - . HENCE , WE ARE NOT IN AGREEMENT WITH THE VIEW TAKEN BY THE LD CIT(A) ON THIS ADDITION. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE T HE ADDITION OF RS.41,000/ - REFERRED ABOVE. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED ACCORDINGLY ON 8 TH JULY , 2015. 8 TH J ULY , 2015 SD SD ( / SANJAY GARG ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI : 8TH JULY ,2015 . . . ./ SRL , SR. PS ITA NO. 7967 / MUM/20 11 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5 . , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI