Rashmi Mujumdar, Bhopal V. Deputy Commissioner of Income Tax Central (1), Bhopal, Bhopal

ITSSA 227/Ind/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0111 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: S S DESH
• Keywords: Unexplained investment; Capital asset; Search and seizure; Salary income; Period of limitation; Time period of passing order
• Section: 143(3); 153A; 139

Judgement Text

RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS) NO.227 TO 232/IND/2017 & ITA NO.592/IND/201 7 ASSESSMENT YEARS 2009-10 TO 2015-16 REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY SHRI S.S. DESHPANDE, C . A DATE OF HEARING 29.11 . 2018 DATE OF PRONOUNCEMENT 10 .1 2 .2018 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED BUNCH OF SEVEN APPEALS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009-10 TO 2015-16 ARE DIRECTED AGAINST THE ORDERS OF LD. COMM ISSIONER OF INCOME TAX (APPEALS)-3 (IN SHORT LD.CIT(A)], BHOP AL DATED 29.06.2017 WHICH ARE ARISING OUT OF THE ORDER U/S 153A R.W.S 143(3) FOR A.Y. 2009-10 TO 2014-15 & U/S 143(3) FO R A.Y. 2015-16 SMT. RASHMI MUJUMDAR, A-44 AAKRITI GARDEN, NEHRU NAGAR, BHOPAL (M.P) VS. D CIT CENTRAL(1), BHOPAL ( APPELLANT ) (RESPONDENT ) PAN NO.ABGPM7546N RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 2 OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATE D 28.10.2016 FRAMED BY DCIT (CENTRAL)-I, BHOPAL. 2. AS THE ISSUES RAISED IN THESE SEVEN APPEALS ARE MOSTLY COMMON THEY WERE HEARD TOGETHER AND ARE BEING DISPO SED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 3. FROM THE PERUSAL OF THE GROUNDS RAISED BY THE AS SESSEE IN THESE SEVEN APPEALS FOLLOWING ISSUES NEEDS OUR ADJU DICATION:- (1) WHETHER THE ADDITIONS MADE BY THE LEARNED ASSES SING OFFICER (IN SHORT LD. A.O) FOR ASSESSMENT YEAR 2009 -10 TO 2012-13 WERE ON THE BASIS OF INCRIMINATING DOCUMENTS/MATERIALS FOUND DURING THE COURSE OF SEAR CH. (2) WHETHER THE LD. CIT(A) WAS JUSTIFIED IN SUSTAI NING THE ADDITION MADE BY LD. A.O ON ACCOUNT OF THE ALLEGED UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNTS FOR ASSESSMENT YEAR 2009-10 TO 2015-16. (3) WHETHER THE LD. CIT(A) JUSTIFIED IN CONFIRMING THE ADDITION FOR UNEXPLAINED SILVER UTENSILS VALUING AT RS.34,49 5/- RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 3 FOUND DURING THE COURSE OF SEARCH FOR THE ASSESSMEN T YEAR 2015-16. 4. BRIEF FACTS AS CULLED OUT FROM THE RECORDS ARE T HAT THE ASSESSEE IS EMPLOYEE WITH STATE BANK OF INDIA FOR LAST MANY YEARS AND REGULARLY FILING HER INCOME TAX RETURN U/S 139 OF T HE ACT. A SEARCH AND SEIZURE OPERATIONS U/S 132(1) OF THE ACT WERE C ARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE PERSONS/PA RTNERS/ ASSOCIATED CONCERNS OF REGAL HOMES GROUP ON 12.08.2 014 WHICH IS PROMOTED BY SHRI KISHAN LAL SHARMA. SOME OF THE GR OUP CONCERNS ARE M/S. REGAL SAMARTH CONSTRUCTION COMPANY, M/S. R EGAL KASTURI AND M/S. REGAL KRISHNA BUILDERS. ONE OF THE PARTNER S IN THESE THREE CONCERNS IS SHRI RAJEEV MAJUMDAR. ASSESSEE IS THE WIFE OF SHRI RAJEEV MAUMDAR. SEARCH WERE ALSO CONDUCTED AT THE RESIDENTIAL PREMISE AS WELL AS THE LOCKERS OWNED BY THE ASSESSE E. NOTICES U/S 153A OF THE INCOME TAX ACT (IN SHORT THE ACT HEREAF TER) FOR THESE ASSESSMENT YEARS I.E. ASSESSMENT YEAR 2009-10 TO 20 14-15 AS WELL AS NOTICE U/S 143(2) OF THE ACT FOR ASSESSMENT YEAR 2015-16 WERE DULY ISSUED AND SERVED UPON THE ASSESSEE. THOUGH T HE ASSESSEE HAD BEEN FILING HER INCOME TAX RETURN REGULARLY BUT IT AGAIN RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 4 FURNISHED THE RETURNS IN REPLY TO THE NOTICES ISSUE D U/S 153A OF THE ACT FOR VARIOUS ASSESSMENT YEARS. CERTAIN ADDITIONS WERE MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN THE JEWEL LERY AND UNEXPLAINED CASH DEPOSIT FOR VARIOUS ASSESSMENT YEA RS AND THE ASSESSMENTS WERE COMPLETED. AGAINST THE VARIOUS ADD ITIONS MADE BY THE LD.A.O ASSESSEE PREFERRED APPEALS BEFORE LD. CIT(A) AND PARTLY SUCCEEDED. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L FOR THESE SIX YEARS. 6. THE FIRST COMMON ISSUE RAISED BY THE ASSESSEE IS THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH RELATING TO THE ASSESSEE AND THEREFORE THE ADDITION S MADE FOR ASSESSMENT YEARS 2009-10 TO 2012-13 NEEDS TO BE DEL ETED AS ALL THESE FOUR YEARS FALL UNDER THE CATEGORY OF COMPLET ED ASSESSMENTS. 7. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET REFER RED AND RELIED THE DECISION OF THE CO-ORDINATE BENCH, INDORE IN TH E CASE OF S.K. JAIN VS ACIT (2010) 14 ITJ 434 (IND), DCIT VS. KALA NI BROTHERS (INDORE) P LTD (2016) 27 ITJ 286. HE ALSO PLACED R ELIANCE OF JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 5 CHAWLA (2015) 234 TAXMAN 300 (DELHI). HE PLEADED TH AT ALL THE RETURNS WERE FILED FOR ASSESSMENT YEAR 2009-10 TO 2012-13 AND THE LIMITATION PERIOD FOR ISSUANCE OF NOTICE U/S 14 3(2) OF THE ACT EXPIRED BEFORE THE DATE OF THE SEARCH INITIATED ON 12.08.2014 AND THEREFORE THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2009-10 TO 2012-13 ABATED ON THE DATE OF SEARCH. HE FURTHER PLEADED THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD HAVE BEEN TAKEN AS A BASIS FOR MAKING THE ALL EGED ADDITION. 8. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEM ENTLY ARGUED SUPPORTING THE ORDERS OF LOWER AUTHORITIES B UT COULD NOT PLEAD MUCH AGAINST THE CONTENTION OF THE ASSESSEE T HAT WHETHER ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND ALSO CAREFULLY GONE THROUGH TH E VARIOUS JUDGMENTS REFERRED AND RELIED BY THE LD. COUNSEL FO R THE ASSESSEE. WE FIND THAT DURING THE COURSE OF SEARCH CONDUCTED ON 12.8.2014 AT THE RESIDENTIAL PREMISES AND THE LOCKERS OWNED BY T HE ASSESSEE. EXCEPT SOME QUANTITY OF GOLD AND SILVER JEWELLERY F OUND IN THE BANK LOCKER NO OTHER DOCUMENTS WERE FOUND. THE ADDITION S RELATING TO RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 6 GOLD JEWELLERY ALREADY STANDS DELETED BY LD.CIT(A) EXCEPT FOR THE SILVER UTENSILS VALUING AT RS.34,495/- ADDED TO THE INCOME FOR ASSESSMENT YEAR 2015-16. THE OTHER ADDITION MADE B Y THE LD.A.O IS FOR UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT . 10. WE FIND THAT DURING THE COURSE OF SEARCH EXCEPT THE JEWELLERY ORNAMENTS FOUND IN THE LOCKER NO OTHER DOCUMENTS PE RTAINING TO THE ASSESSEE WERE SEIZED. IT WAS DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE BLOCK PERIOD, THAT THE INFORMAT ION RELATING TO VARIOUS BANK ACCOUNTS HELD BY THE ASSESSEE WAS CALL ED FROM THE ASSESSEE AND IN REPLY DETAIL OF TWO SAVING BANK AC COUNT AND TWO OVER DRAFT STAFF ACCOUNT WERE PRODUCED. THESE BANK ACCOUNTS ARE REGULARLY SHOWN IN THE INCOME TAX RETURN FILED BY T HE ASSESSEE. IT WAS ONLY ON THE BASIS OF THESE BANK STATEMENTS THAT THE INFORMATION RELATING TO VARIOUS CASH DEPOSITS WERE ASKED FROM T HE ASSESSEE. THESE FACTS CLEARLY SHOWS THAT THE ALLEGED ADDITION FOR UNEXPLAINED CASH DEPOSITS IS NOT BASED ON ANY INCRIMINATING MAT ERIAL/DOCUMENT FOUND DURING THE COURSE OF SEARCH RATHER IT HAS BEE N MADE ON THE BASIS OF DOCUMENTS COLLECTED BY THE LD. A.O DURING THE COURSE OF ASSESSMENT PROCEEDINGS. RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 7 11. IN SUCH SITUATION WHERE NO INCRIMINATING MATER IAL/DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH WHETHER THE L D. A.O WAS JUSTIFIED IN MAKING THE ADDITIONS FOR THE ASSESSMEN T YEARS THE ASSESSMENT PROCEEDINGS RELATING THERETO STOOD ABATE D ON THE DATE OF SEARCH. WE FIND THAT THE INCOME TAX RETURNS FOR AS SESSMENT YEAR 2009-10 TO 2012-13 WERE DULY SUBMITTED ON 13.09.200 9, 26.08.2010, 30.01.2012 AND 19.11.2012 DECLARING INC OME OF RS.1,41,932/-, RS.2,08,640/-, RS.3,59,660/- AND RS. 4,13,110/- RESPECTIVELY. ASSESSEES CASE COULD HAVE BEEN SEL ECTED FOR SCRUTINY FOR ASSESSMENT YEAR 2012-13 BY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT NOT LATER THAN 30.9.2013. AS THE SEARCH WA S CONDUCTED ON 12.8.2014 THE FOUR ASSESSMENT YEARS FROM ASSESSMENT YEAR 2009- 10 TO 2012-13 COMES UNDER THE CATEGORY OF COMPLETED ASSESSMENTS AND GETS ABATED AS ON THE DATE OF SEARCH. 12. WE FIND THAT HON'BLE DELHI HIGH COURT IN THE CA SE OF CIT V/S KABUL CHAWLA (SUPRA) HAS HELD THAT IF NO INCRIMINATING MATERIAL IS UNEARTHED DURING THE COURSE OF SEARCH NO ADDITION C OULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. SIMILARLY SP ECIAL BENCH OF TRIBUNAL IN THE CASE OF ALL GLOBAL CARGO LOGISTIC L TD VS DCIT (2012) RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 8 147 TTJ 513 CONSIDERING THE SIMILAR ISSUE HELD THAT ASSESSMENT PERIOD ABATED: THE ASSESSING OFFICER IN THE CASE RE TAINS THE ORIGINAL JURISDICTION AS WELL AS THE JURISDICTION CONFINED T O HIM BY SECTION 153A OF THE ACT FOR WHICH THE ASSESSMENT SHALL BE M ADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY. IN OTHER CASES ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED WILL BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL I.E. THE BOOKS OF A CCOUNTS AND OTHER DOCUMENTS FOUND DURING THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT OR UNDISCLOSED IN COME OR PROPERTY DISCLOSED IN THE COURSE OF SEARCH. 13. SIMILAR VIEW ALSO TAKEN THE DECISION OF CO-ORD INATE BENCH IN THE CASE OF SHRI KANTA PRASAD DIWEDI V DCIT ITA NO. 182/IND/16 DATED 19.9.2018 IN WHICH THE UNDERSIGNED IS ONE OF THE CO-AUTHOR AND AFTER ADJUDICATING SIMILAR ISSUE IT WAS HELD TH AT WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AV AILABLE ON RECORD AND GONE THROUGH THE ORDERS OF LOWER AUTHORITIES BE LOW. LD. DR HAS PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENC H IN THE CASE OF ANANT STEEL LTD V/S ACIT (2016) 28 ITJ 47 AND THE J UDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT (CENTRA L) V/S KABUL RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 9 CHAWLA (2015) 61 TAXMAN.COM 412. LD. DR COULD NOT CONTROVERT THE SUBMISSIONS OF THE ASSESSEE THAT NO INCRIMINATING D OCUMENTS WAS FOUND. MOREOVER WE FIND THAT THE ADDITION IS SUSTA INED MERELY ON THE BASIS OF PRESUMPTIONS. WE THEREFORE DIRECT THE AO TO DELETE THIS ADDITION. 14. WE THEREFORE RESPECTFULLY FOLLOWING THE ABOVE R EFERRED JUDGMENTS AND DECISIONS AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE WHERE NO INCRIMINATING MATERIAL WAS FOU ND DURING THE COURSE OF SEARCH, THE ALLEGED ADDITIONS CONFIRMED B Y LD.CIT(A) WHICH WERE MADE BY LD. A.O ON ACCOUNT OF UNEXPLAINE D CASH DEPOSIT NEEDS TO BE DELETED FOR ASSESSMENT YEAR 200 9-10 TO 2012- 13 AT RS.62,000/-, RS.1,33,000/-, RS.66,000/- AND RS.20,000/- RESPECTIVELY. WE ACCORDINGLY ORDER SO AND ALLOW TH E FIRST COMMON ISSUE IN FAVOUR OF THE ASSESSEE. 15. NOW WE WILL TAKE UP SECOND COMMON ISSUE RELATIN G TO ASSESSMENT YEAR 2013-14, 2014-15 AND 2015-16 RAISED BY THE ASSESSEE AGAINST THE ADDITION CONFIRMED BY LD.CIT(A ) AT RS. 24,000/-, RS.20,625/- AND RS.2,07,850/- MADE BY THE LD. A.O FOR UNEXPLAINED CASH DEPOSITS. RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 10 16. THE LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE WRITTEN SUBMISSION PLACED ON RECORD, WHICH READS AS FOLLOWS ; THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSEE HAD SUBMITTED A CASH CHART INCORPORATING THE DETAILS OF CASH DRAWN FROM BANK BY THE ASSESSEE, THE CASH UTILIZED BY THE ASSE SSEE INCLUDING THE CASH DEPOSITED IN THE BANK, THE SOURCE OF CASH RECE IPTS AND CASH RECEIVED FROM HUSBAND. THE ASSESSEE HAD BEEN RECEIVING CASH FROM HER HUSBAND ON A MONTHLY BASIS FOR MEETING THE HOUSE HOLD EXPEN SES OF THE FAMILY WHICH WAS UTILIZED BY HER IN SUCH MANNER AS CONSIDE RED APPROPRIATE BY HER. THE WITHDRAWALS MADE BY THE HUSBAND WERE DULY RECORDED IN HIS BOOKS OF ACCOUNT AND WERE READILY VERIFIABLE FROM T HE BOOKS, THE ASSESSMENT OF THE HUSBAND (MR, RAJEEV MAJUMDAR) WAS ALSO SIMULTANEOUSLY COMPLETED U/S 153A BY THE SAME AO. T HUS THE AMOUNT RECEIVED FROM THE HUSBAND WAS ALSO DULY VERIFIED. T HUS ALL THE SOURCE OF RECEIPT OF FUNDS WERE READILY VERIFIABLE FROM THE R ECORDS AVAILABLE WITH THE AO, HOWEVER THE AO IGNORED THE SAID CASH CHART AND MADE ADDITIONS OF THE CASH DEPOSITED AFTER MAKING THE FOLLOWING OBSER VATIONS: PARA NO OBSERVATION OF THE SUBMISSION OF THE ASSESSEE AO SUBMISSION OF THE ASSESSEE 9.6.I SALARY IS RECEIVED BY THE ASSESSEE THROUGH RTGS THIS FACT IS NOT IN DISPUTE AND THE ASSESSEE HAS NOT SHOWN ANY RECEIPT OF SALARY IN CASH AND THUS THE OBSERVATION NEEDS TO BE IGNORED. 9.6.II THE ASSESSEE HAS NO OTHER SOURCE OF INCOME WHICH CAN BE RECEIVED IN CASH ONCE THE AO HAS HERSELF HELD THAT THE ASSESSEE DOES NOT HAVE ANY SOURCE OF RECEIPT OF INCOME IN CASH SHE WAS NOT JUSTIFIED IN MAKING ANY BE RECEIVED IN CASH ADDITION. RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 11 FURTHER THE ASSESSEE HAS SUBMITTED A CASH FLOW CHART GIVING THE SOURCE OF CASH AND THE SAME DID NOT INCLUDE RECEIPT OF ANY INCOME AND THUS THE OBSERVATION NEEDS TO BE IGNORED. 9.6.III THERE ARE NO SIGNIFICANT CASH WITHDRAWALS FROM BANK A/C NO PRUDENT PERSON WILL WITHDRAW MONEY JUST TO DEPOSIT IN BANK THE DETAIL OF SOURCES FROM WHICH THE CASH WAS RECEIVED WAS FURNISHED AND ALL SUCH DETAILS WERE READILY VERIFIABLE FROM THE RECORDS AVAILABLE AT THE FILE OF THE AO, NO SPECIFIC DEFICIENCY IS FOUND BY THE AO. FURTHER THE ASSESSEE IS A BANK EMPLOYEE AND ANY SURPLUS CASH IS DEPOSITED BY HER IN THE BANK ACCOUNT AND IS WITHDRAWN BY HER FROM TIME TO TIME AS MAY BE REQUIRED BY HER. IT MAY BE MENTIONED THAT SHE WAS NOT REQUIRED TO PUT ANY EXTRA EFFORTS OR TO INCUR ANY COST IN MAKING SUCH DEPOSITS A5 SHE WAS HERSELF SERVING WITH THE SAME BANK WHICH IS OBVIOUS FROM THE FACT THAT SHE HAS EVEN DEPOSITED RS. 1000/-, RS. 250/-, RS. 1200/-, IN HER BANK ACCOUNT. 9.6.IV CASH RECEIVED FROM THE HUSBAND MUST HAVE BEEN UTILIZED FOR HOUSE HOLD EXPENSES THE ASSESSEE RECEIVES A FIXED AMOUNT FOR HOUSE HOLD EXPENSES WHICH WAS UTILIZED BY HER AS PER THE NEEDS OF THE FAMILY AND AT TIMES THE FUNDS NOT IMMEDIATELY REQUIRED WERE DEPOSITED IN THE BANK ACCOUNT. IT MAY BE MENTIONED RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 12 THAT THE TOTAL CONTRIBUTION RECEIVED BY THE ASSESSEE IN ALL THE YEARS UNDER CONSIDERATION FROM HER HUSBAND IN CASH FOR HOUSE HOLD EXPENSES WAS RS. 12,00,000/- AS AGAINST WHICH THE ASSESSEE HAS MADE CASH EXPENSES OF RS. 13,18,770/-. BOTH THESE FIGURES ARE READILY VERIFIABLE FROM THE CASH CHART SUBMITTED BEFORE THE AO. IT MAY BE MENTIONED THAT IN ADDITION TO ABOVE HOUSE HOLD EXPENSES WERE ALSO INCURRED BY CHEQUE FOR PAYMENT OF SCHOOL FEES, TELEPHONE BILLS ETC. THUS THE CASH CHART SUBMITTED BY THE ASSESSEE IN WH ICH THE SOURCES OF ALL RECEIPTS WERE READILY VERIFIABLE WAS IGNORED BY THE AO ON IRRELEVANT GROUND. IT MAY BE MENTIONED THAT IT HAS BEEN HELD B Y VARIOUS COURTS THAT IF THERE IS NO OTHER CONTRARY EVIDENCE IN POSSESSIO N OF THE REVENUE DEPARTMENT ABOUT THE UTILIZATION OF CASH FOR SOME O THER PURPOSE THAN THE RE DEPOSIT OF CASH IN THE BANK OUT OF THE PREVIOUS WITHDRAWAL CANNOT BE RULED OUT. REFERENCE IN THIS REGARDS MAY BE MADE TO THE DECISI ON OF THE GUJARAT HIGH COURT IN THE CASE OF CIT V RAJSHIBHAI MERAMANB HAI ODEDERA REPORTED AT (2014) 108 DTR 265 WHEREIN THE COURT AG REED WITH THE ITAT IN ACCEPTING THAT THE CASH WITHDRAWN FROM THE BANK WAS RE-DEPOSITED. REFERENCE MAY ALSO BE MADE TO THE DECISION OF THE D ELHI TRIBUNAL IN THE CASE OF ACIT VS BULDEV RAJ CHARLA & OTHRS (2009) 12 1 TIL 366 AND DECISION DATED 30.04.2013 OF THE AHEMDABAD BENCH OF IT AT IN THE CASE OF SAURIN NANDKUMAR SHODHAN VS ITO INIIT A NO 207 5 1 AHD/2012 WHERE RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 13 IN IT HAS BEEN HELD BY THE COURT THAT' IF REVENUE H AS NOT ESTABLISHED THAT CASH AVAILABLE WAS UTILIZED ELSEWHERE THAN ON BASIS ON BASIS OF PREPONDERANCE OF PROBABILITIES, IT CAN BE ASSUMED T HAT THAT VERY CASH WAS RE DEPOSITED IN BANK. 17. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE SUPP ORTED THE ORDER OF LD. A.O AND ALSO SUBMITTED THAT THE ASSESS EE HAS BEEN UNABLE TO GIVE ANY BASIS FOR THE CASH RECEIPT FROM HER HUSBAND AND MORE SPECIFICALLY THE AMOUNT RECEIVED FROM THE HUSB AND HAS DOUBLED IN ASSESSMENT YEAR 2015-16. 18. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ADDITION CONFIRMED BY LD. CIT (A) AT RS.24,000/-, RS.20,625/- AND RS.2,07,850/- ARE BEIN G CHALLENGED BY THE ASSESSEE. THESE ADDITIONS HAVE BEEN MADE FO R THE ALLEGED UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. THE ASSESSEE HAS PLACED DETAILED CASH FLOW CHART IN THE PAPER BOOK AT PAGE 33 TO 47. DURING THE EXAMINATION IT IS FOUND THAT THE DETAILS OF CASH RECEIPTS ARE FROM VARIOUS SOURCES. SUMMARISED STATEMENT HA VE ALSO BEEN PREPARED, WE WOULD LIKE TO REPRODUCE THE SAME AS BE LOW; RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 14 PARTICULARS ASSESSMENT YEARS 2013-14 2014-15 2015-16 19. FROM GOING THROUGH THE ABOVE CHART WE FIND THAT THE ASSESSEE WHO IS THE EMPLOYEE OF STATE BANK OF INDIA IS REGUL ARLY EARNING INCOME FROM SALARY. SHE HAS SOME AMOUNT OF CASH IN HAND. ASSESSEE ALSO DRAWS CASH FROM BANK DURING THE YEAR FOR THE HOUSEHOLD EXPENSES. SOME OF THE HOUSEHOLD EXPENSES HAVE BEEN INCURRED BY HER THROUGH CHEQUE. IT HAS ALSO BEEN CL AIMED THAT THE ASSESSEE HAS RECEIVED CASH FROM HER HUSBAND FOR INC URRING HOUSEHOLD EXPENSES. 20. AS FAR AS LOOKING TO THE DETAILS OF ASSESSMENT YEAR 2013-14 AND 2014-15 WHEREIN THE ASSESSEE HAS SPENT RS.2,59, 405/- AND OPENING BALANCE OF CASH IN HAND 44,950 146,480 64,655 CASH DRAWN FROM BANK 251,485 62,700 162,500 CASH RECEIVED FROM HUSBAND 180,000 180,000 360,000 HOUSEHOLD CASH EXPENSES INCURRED 259,405 195, 700 301,000 CASH DEPOSITED IN BANK CONSIDERED BY A.O 42,250 124,325 308,207 CASH DEPOSITED IN BANK NOT CONSIDERED BY A.O 28,300 4,500 - CLOSING BALANCE OF CASH IN HAND 146,480 64,655 - HOUSE HOLD EXPENSES BY CHEQUE 33,866 22,097 88,181 CIT(A) DELETED THE ADDITION 18,250 103,700 54918+ 45439 CIT(A) CONFIRMED THE ADDITION 24,000 20,625 207,850 RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 15 RS.1,95,700/- AS CASH EXPENDITURE FOR HOUSEHOLD NEE DS ALONG WITH INCURRING OF HOUSEHOLD EXPENSES BY CHEQUE AT RS.33 ,866/- AND RS.22,097/- , THE ADDITIONS SUSTAINED BY LD. CIT(A ) IS ONLY TO THE EXTENT OF RS.24,000/- AND RS.20,625/-. LOOKING TO THE REGULAR EARNING SOURCE OF THE ASSESSEE AND HER HUSBAND, WE FIND NO JUSTIFICATION IN THE FINDING OF LD.CIT(A) CONFIRMIN G THE ADDITION FOR RS.24,000/- AND RS.20,625/- TOWARDS UNEXPLAINED CAS H DEPOSIT. WE THEREFORE DIRECT THE LD.A.O TO DELETE THE ADDITI ON OF RS.24,000/- AND RS.20,625/- FOR THE ASSESSMENT YEAR 2013-14 AN D 2014-15. 21. AS REGARDS THE ADDITION OF RS.2,07,850/- CONFIR MED BY LD.CIT(A) ONE GLARING FACT OBSERVED BY US IS THAT T HE AMOUNT RECEIVED FROM HUSBAND TOWARDS HOUSEHOLD EXPENSES AT RS.1,80,000/- UP TO ASSESSMENT YEAR 2014-15 HAS DOU BLED TO RS.3,60,000/-. THERE IS NO EVIDENCE PLACED ON RECO RD WHICH COULD SUPPORT THIS CONTENTION OF THE ASSESSEE THAT THE AM OUNT OF RS.3,60,000/- HAS BEEN RECEIVED FROM HER HUSBAND. NO MATERIAL ON RECORD IN THE FORM OF BALANCE SHEET OR CAPITAL ACCO UNT OF THE ASSESSEES HUSBAND HAS BEEN FILED WHICH COULD PROVE THAT RAJEEV MAZUMDAR HAS GIVEN RS.3,60,000/- TO HIS WIFE FOR HO USEHOLD NEEDS. THIS FACT COULD BE VERIFIED ONLY FROM THE CAPITAL A CCOUNT OF SHRI RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 16 RAJEEV MAZUMDAR FOR ASSESSMENT YEAR 2015-16 AND FOR THIS WE DIRECT THE LD. A.O FOR CARRYING OUT THE NECESSARY V ERIFICATION BY CALLING DETAILS FROM THE ASSESSEE AFTER PROVIDING S UFFICIENT OPPORTUNITY AND IF IT IS FOUND THAT RAJEEV MAZUMDAR HAS SHOWN CASH WITHDRAWAL OF RS.3,60,000/- FOR HOUSEHOLD NEED S FROM HIS CAPITAL ACCOUNT, THEN THE CASH FLOW STATEMENT GIVEN BY THE ASSESSEE SHOULD BE ACCEPTED AND THE ALLEGED ADDITION OF RS.2 ,07,850/- TO BE DELETED. WE ACCORDINGLY SET ASIDE GROUND NO.1 RAISE D BY THE ASSESSEE FOR ASSESSMENT YEAR 2015-16 TO THE FILE OF LD. A.O FOR NECESSARY VERIFICATION AND ACCORDINGLY ALLOW GROUND NO.1 FOR ASSESSMENT YEAR 2015-16 FOR STATISTICAL PURPOSES. 22. NOW WE ARE LEFT WITH GROUND NO.2 FOR ASSESSMENT YEAR 2015- 16 RELATING TO THE ADDITION OF RS.34,495/- WHICH P ERTAINS TO SILVER UTENSILS FOUND IN THE LOCKER HELD BY THE ASSESSEE D URING THE COURSE OF SEARCH. DURING THE COURSE OF SEARCH GOLD WEIGHI NG 30.90 GRAMS (NET WEIGHT) AND 491.56 GRAMS (NET WEIGHT) WERE FOU ND IN THE TWO LOCKERS IN THE NAME OF THE ASSESSEE VALUING AT RS.7 0,889/- AND RS.12,75,938/- AND THE ADDITIONS OF THE SAME WERE M ADE IN THE ASSESSMENT. LD.CIT(A) FOLLOWING THE INSTRUCTIONS GI VEN BY CENTRAL BOARD OF DIRECT TAXES (CBDT) VIDE ITS INSTRUCTION NO.1916 DATED RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 17 11.5.1994 DELETED THE ADDITION FOR THE GOLD JEWELLE RY OBSERVING THAT THE GOLD JEWELLERY FOUND IN THE LOCKERS HELD BY TH E ASSESSEE WERE WITHIN THE LIMIT PROVIDED IN THE CBDT INSTRUCTION N O.1916 I.E. 500 GRAMS PER MARRIED LADY AND 250 GRAM FOR UNMARRIED L ADY AND 100 GRAMS FOR MALE MEMBER. 23. WE ARE SURPRISED TO NOTE THAT THE LD.CIT(A) DID NOT ALLOWED THE CLAIM OF SILVER ARTICLES WEIGHING 609 GRAMS AND 28 0 GRAMS VALUING RS.24,639/- AND RS.9856/-. CBDT INSTRUCTION NO.191 6 DATED 11.5.1994, CBDT DIRECTS THE INCOME TAX AUTHORITIES CONDUCTING THE SEARCH NOT TO SEIZE THE JEWELLERY ORNAMENTS FOUND D URING THE COURSE OF SEARCH OF VARYING QUANTITY SPECIFIED IN THE INST RUCTION DEPENDING UPON THE MARITAL STATUS AND GENDER OF THE PERSON SE ARCHED. WE FIND THAT LD.CIT(A) HAS ONLY GIVEN RELIEF FOR THE G OLD JEWELLERY BUT DID NOT ACCEPT THE FACT THAT IN THE INDIAN CUSTOMS AND TRADITIONS AT THE TIME OF MARRIAGE SILVER UTENSILS ARE ALSO GIVEN TO THE BRIDE. IT IS QUITE POSSIBLE THAT THE WORD SILVER UTENSILS WERE N OT INCLUDED IN THE CBDT INSTRUCTIONS BECAUSE AT THAT POINT OF TIME SIL VER UTENSILS WERE NOT COMING UNDER THE CATEGORY OF CAPITAL ASSETS. I N OUR CONSIDERED VIEW LD. CIT(A) OUGHT TO HAVE TAKEN A LIBERAL APPRO ACH BY GIVING THE BENEFIT TO THE ASSESSEE FOR THE VALUE OF GOLD JEWEL LERY AND VALUE OF RASHMI MUJUMDAR IT(SS)NOS.227 TO 232/IND/2017 & ITA NO.592/IND/2017 18 SILVER UTENSILS HELD BY HER, WITHIN THE MONETARY LI MIT OF VALUE AS ON THE DATE OF SEARCH OF THE GOLD JEWELLERY ORNAMENTS AND PERMITTED TO BE HELD, AS PROVIDED IN THE CBDT INSTRUCTION NO.191 6 DATED 11.5.1994. WE ACCORDINGLY DIRECT THE LD.A.O TO DELE TE THE ADDITION OF RS.34,495/- MADE FOR ASSESSMENT YEAR 2015-16 F OR SILVER UTENSILS FOUND IN THE LOCKER OWNED BY THE ASSESSEE. ACCORDINGLY GROUND NO.2 FOR ASSESSMENT YEAR 2015-16 STANDS ALLO WED. 24. GROUNDS OTHER THAN THOSE ADJUDICATED BY US IN T HE PRECEDING PARAGRAPHS ARE GENERAL IN NATURE WHICH NEEDS NO ADJ UDICATION. 25. IN THE RESULT THE APPEAL OF THE ASSESSEE FOR AS SESSMENT YEAR 2009-10 TO 2014-15 ARE ALLOWED AND THAT FOR ASSESSM ENT YEAR 2015-16 IS PARTIALLY ALLOWED FOR STATISTICAL PURPOS ES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 10.12.201 8. SD/- ( KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 10 TH DECEMBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE