OMKUMARI JOGINDER KUMAR CHADHA, MUMBAI v. ADDL CIT RG 17(2), MUMBAI

ITA 3067/MUM/2013 | 2009-2010
Pronouncement Date: 05-10-2016 | Result: Allowed

Appeal Details

RSA Number 306719914 RSA 2013
Assessee PAN AADPC1806H
Bench Mumbai
Appeal Number ITA 3067/MUM/2013
Duration Of Justice 3 year(s) 5 month(s) 13 day(s)
Appellant OMKUMARI JOGINDER KUMAR CHADHA, MUMBAI
Respondent ADDL CIT RG 17(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 05-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 05-10-2016
Date Of Final Hearing 13-11-2014
Next Hearing Date 13-11-2014
Assessment Year 2009-2010
Appeal Filed On 22-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C MUMBAI BEFORE SHRI R.C.SHARMA ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.3067/MUM/2013 (ASSESSMENT YEAR : 2009-10) UMESH CHADHA LEGAL HEIR OF OMKUMARI JOGINDER KUMAR CHADHA C/O EASTERN OVERSEAS CORPORATION GROUND FLOOR JOSEPHINE 44 ST. ANDREWS ROAD NEXT TO BANDRA GYMKHANA BANDRA WEST MUMBAI-400050. PAN: AADPC1806H VS. ACIT RANGE-17(2) PIRAMAL CHAMBERS LALBAUG MUMBAI-400012. (APPELLANT) (RESPONDENT) ITA NO.3462/MUM/2013 (ASSESSMENT YEAR : 2009-10) ACIT-20(2) ROOM NO. 217 2 ND FLOOR PIRAMAL CHAMBERS LALBAUG PAREL MUMBAI-400012. VS. LATE OMKUMARI JOGINDERKUMAR CHADHA THROUGH LEGAL HEIR UMESH CHADHA 15/16 KISMET 48 CARTER ROAD MUMBAI-400050. PAN: AADPC1806H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MILIND V. SA HASRABUDHE (AR) REVENUE BY : SHRI M.C.OMI NINGSHEN (DR) DATE OF HEARING : 24.08.2016 DATE OF PRONOUNCEMENT : 05.10.2016 2 ITA NOS. 3067 & 3462/M/2013- UMESH CHADHA O R D E R PER PAWAN SINGH JM: 1. THESE TWO CROSS APPEAL ARE DIRECTED AGAINST THE ORD ER OF CIT(A)-29 MUMBAI DATED 11.02.2013 FOR AY-2009-10. AS BOTH THE APPEAL S ARE ARISING OUT OF THE SAME ORDER HENCE BOTH THE APPEALS WERE CLUBBED TO GETHER HEARD AND ARE BEING DECIDED BY A COMMON ORDER. 2. DURING THE PENDENCY OF THE APPEAL THE ASSESSEE DIE D ON 24.09.2015. SHRI UMESH CHADHA CLAIMING AS HER SOLE SURVIVING SON FILED APP LICATION IN THE FORM OF AFFIDAVIT DATED 08.03.2016 INFORMING THAT ASSESSEE DIED ON 24.09.2015. AFFIDAVIT FURTHER DISCLOSED THAT HE IS THE ONLY LEGAL HEIR OF THE ASSESSEE. THE COPY OF DEATH CERTIFICATE OF THE ASSESSEE DATED 01.10.2015 IS FIL ED ON RECORD. AMENDED FORM- 36 HAS BEEN FILED BY THE LEGAL HEIRS OF THE ASSESSE E. IN CROSS APPEAL THE REVENUE HAS ALSO PLACED ON RECORD THE AMENDED FORM- 36 ON 31.05.2016. THUS IN BOTH THE APPEAL SHRI UMESH CHADHA WAS SUBSTITUTE D AS A LEGAL HEIR OF ASSESSEE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT ASSESSMENT YEAR (AY) ON 30.07.2009 DECLARING TOTAL INCOME OF RS. 1 00 46 366/-. THE RETURN OF INCOME WAS SELECTED FO R SCRUTINY. ON THE BASIS OF AIR INFORMATION THE AO ISSUED NOTICE TO THE ASSESSE E THAT ON 31.03.2009 ASSESSEE HAD DEPOSITED A SUM OF RS. 17 50 000/- IN CASH IN STANDARD CHARTERED BANK AND RS. 26 84 000/- IN CORPORATION BANK ON 25. 03.2009. THE ASSESSEE WAS ASKED TO GIVE THE EVIDENCE OF SOURCE OF CASH DEPOSI T. THE ASSESSEE FILED HER REPLY DATED 14.10.2011 AND CONTENDED THAT SHE HAD WITHDRA WN RS. 20 00 000/- FROM CORPORATION BANK KANDIVALI AND DEPOSITED RS. 26 84 000/- IN THE SAID BANK DURING THE YEAR. THE ASSESSEE HAS AN OPENING BALANC E OF CASH OF RS. 7 32 861/-. THIS CASH WAS KEPT BY HER AS HUSBAND SHRI JOGINDER KUMAR WAS CRITICALLY ILL FOR LAST TWO-THREE YEARS AND WAS BEING TREATED IN LEELA VATI HOSPITAL BANDRA WHO ULTIMATELY PASSED AWAY ON 06.06.2008. THE ASSESSEE FURTHER CONTENDED THAT THE EXTRACT OF CASH-BOOK FOR THE YEAR ENDED ON 31.03.20 09 FOR TRANSACTION OF CASH WITH STANDARD CHARTERED BANK WHICH SHOWN RS. 2 00 0 00/- WITHDRAWAL FROM STANDARD CHARTERED BANK AND DEPOSIT OF RS. 17 50 00 0/- IN THE ACCOUNT DURING 3 ITA NOS. 3067 & 3462/M/2013- UMESH CHADHA THE YEAR. THERE WAS TRANSACTION OF ACCOUNT FROM THE ACCOUNT OF HER HUSBAND OF RS. 17 68 630/- AS HER HUSBAND EXPIRED ON 06.06.20 08. THE AO AGAIN VIDE LETTER DATED 01.11.2011 ASKED THE ASSESSEE TO SUBMIT THE D ATE WISE DETAILS OF CASH WITHDRAWAL AND CASH DEPOSIT IN THE BANK ACCOUNT ALO NG WITH DETAILS OF CASH IN HANDS FOR LAST THREE YEARS. THE ASSESSEE FURTHER SU BMITTED HER REPLY DATED 11.11.2011 WHEREIN THE ASSESSEE REPEATED THE SAME CONTENTION. THE CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY AO. THE AO CONCLUDE D THAT THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF CASH CREDIT IN HER CASH-BOOK AND ADDED RS. 44 34 000/- IN THE HAND OF ASSESSEE U/S 68 OF THE A CT. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) WH EREIN THE ASSESSEE WAS GRANTED A PARTIAL RELIEF OF RS. 22 00 000/- OUT OF TOTAL ADDITION OF RS. 44 34 000/-. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE FILED TH E PRESENT APPEAL BEFORE US CHALLENGING THE ADDITION OF RS. 6 84 000/- OF CASH DEPOSIT IN CORPORATION BANK AND RS. 15 50 000/- IN STANDARD CHARTERED BANK. AND THE REVENUE HAS FILED THE CROSS APPEAL AGAINST THE DELETION OF RS. 22 00 000/ -. 4. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVE (AR) OF ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR REVENUE AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET THE LD. AR OF A SSESSEE ARGUED THAT THE APPEAL FILED BY THE REVENUE BEING ITA NO. 3462/MUM/2013 I S NOT MAINTAINABLE IN VIEW OF THE CIRCULAR NO. 21/15 DATED 10.12.2015 WH EREIN THE REVENUE IS PRECLUDED FROM FILING THE APPEAL BEFORE THE TRIBUNA L WHEREIN THE TAX EFFECT DOES NOT EXCEED THE AMOUNT OF RS. 10 00 000/-. THE LD. D R FOR REVENUE HAS NOT DISPUTED THE TAX EFFECT IN REVENUES APPEAL THUS T HE REVENUES APPEAL (ITA NO. 3462/MUM/2013) IS DISMISSED AS NOT MAINTAINABLE. 5. FOR ITA NO. 3067/MUM/2013 THE LD. AR OF THE ASSESS EE ARGUED THAT THE ASSESSEE HAS DEPOSITED IN CORPORATION BANK A CASH O F RS. 26 84 000/- ON VARIOUS DATES BETWEEN 8 TH SEPTEMBER 2008 TO 25 TH MARCH 2009 AND DEPOSITED CASH OF RS. 17 50 000/- IN STANDARD CHARTERED BANK DURING THE Y EAR ENDED ON 31.03.2009. THE AO WRONGLY MENTIONED THE DATE OF DEPOSIT AS 25. 03.2011 INSTEAD OF 25.03.2009. THE HUSBAND OF ASSESSEE WHO WAS SICK FR OM LAST TWO-THREE YEARS AND WAS TREATED IN LEELAVATI HOSPITAL BANDRA PASSE D AWAY ON 06.06.2008. THE 4 ITA NOS. 3067 & 3462/M/2013- UMESH CHADHA HUSBAND OF ASSESSEE EXECUTED A WILL DATED 24.04.200 8 WHEREIN ALL THE ASSETS WAS BEQUEATHED IN FAVOUR OF ASSESSEE. THE PROBATE O F WILL WAS GRANTED BY HONBLE HIGH COURT OF BOMBAY. AFTER PROBATE ALL ASS ETS OF HUSBAND OF THE ASSESSEE INCLUDING THE CASH WAS TRANSFERRED FROM TH E ACCOUNT OF HIS HUSBAND TO THE ASSESSEE. THE ASSESSEE MADE THE WITHDRAWAL FROM ONE BANK AND DEPOSITED IN THE OTHER BANK. IT WAS FURTHER ARGUED THAT NEITHER THE AO NOR THE LD. CIT(A) APPRECIATED THE FACT PROPERLY. ON THE OTHER HAND T HE LD. DR FOR REVENUE RELIED UPON THE ORDER OF AUTHORITIES BELOW. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AO MADE THE ADDIT ION OF RS. 44 34 000/- IN THE INCOME OF ASSESSEE U/S 68 OF THE ACT. ADDITION OF RS. 17 50 000/- WAS MADE ON THE BASIS OF CASH DEPOSIT IN STANDARD CHARTERED BANK AND RS. 26 84 000/- IN CORPORATION BANK. WHILE MAKING ADDITION THE AO OBS ERVED THAT THE CASH-BOOK SUBMITTED BY THE ASSESSEE FROM 01.04.2005 TO 31.03. 2009 REVEALS THAT THE CASH WITHDRAWAL RS. 10 00 000/- ON 17.07.2008 AND RS. 10 00 000/- ON 12.12.2008 THE WITHDRAWAL IS AFTER THE DEATH OF ASSESSES HUSB AND. THE REASONS EXPLAINED FOR CASH WITHDRAWAL BY ASSESSEE FOR THE TREATMENT OF HE R HUSBAND WAS NOT ACCEPTED BY AO HOLDING THAT NOT A SINGLE RUPEE WAS SPENT DUR ING THE YEAR. THE CASH-BOOK OF SHRI JOGINDER KUMAR FOR 01.10.2007 TO 31.03.2009 FURNISHED BY ASSESSEE IT WAS NOTICED BY AO THAT THERE IS A CASH WITHDRAWAL O F RS. 15 00 000/- FOR THE PERIOD 02.02.2008 TO 17.04.2008 AND THERE IS OPENIN G BALANCE OF RS. 2 68 630/- AS ON 01.10.2007. IT WAS FURTHER OBSERVED BY AO THA T IN THE WILL OF SHRI JOGINDER KUMAR THERE IS NO REFERENCE OF CASH AMOUNT . THE LD. CIT(A) WHILE CONSIDERING THIS GROUND ACCEPTED THE CASH WITHDRAWA L OF RS. 2 00 000/-FROM STANDARD CHARTERED BANK AND REMAINING RS. 15 50 000 /- OUT OF HUSBANDS CASH BALANCE WAS NOT ACCEPTED. LD. CIT(A) HOLD THAT THE HUSBAND OF ASSESSEE DIED ON 06.06.2008 AND CASH WAS DEPOSITED IN THE BANK AFTER NINE MONTH OF HER HUSBAND DEATH. THE CLAIM OF RECEIVING CASH AS PER THE WILL IS NOT PROVED. AS THERE IS NO MENTION OF ANY AMOUNT OF CASH AVAILABLE WITH THE HU SBAND THUS SUSTAINED THE ADDITION OF RS. 15 50 000/-. IN RESPECT OF ADDITION OF RS. 26 84 000/- THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAS EXPLAINED TH E SOURCE OF RS. 20 00 000/- 5 ITA NOS. 3067 & 3462/M/2013- UMESH CHADHA AS THE SAME WAS WITHDRAWN FROM THE SAME BANK. HOWEV ER FOR REMAINING RS. 6 84 000/- IT WAS OBSERVED THAT NO EXPLANATION HAS BEEN GIVEN BY ASSESSEE ABOUT THE SOURCE OF SUCH AMOUNT AND CONFIRMED THE SAME. 6. WE HAVE SEEN THE COPY OF CERTIFIED WILL DATED 24.04 .2008 OF SHRI JOGINDER KUMAR DULY ATTESTED BY REGISTRAR (ORIGINAL SIDE) HI GH COURT OF BOMBAY (PAGE 14 TO 23 OF PB) WHEREIN AT PARA 5 OF THE WILL EXECUTAN TS AS REFERRED AS MANY AS 23 FDS IN CORPORATION BANK SHOWING MATURITY VALUE OF SEVERAL CRORES. AS PARA 6 OF THE WILL ALL MOVABLE AND IMMOVABLE PROPERTY WERE BEQUEATHED IN FAVOUR OF ASSESSEE. THE AR OF THE ASSESSEE IS CLAIMING THAT P ROBATE OF WILL WAS GRANTED BY HONBLE HIGH COURT AND THE SAID AMOUNT WAS TRANSFE RRED IN THE ACCOUNT OF ASSESSEE AFTER THE ORDER OF HONBLE HIGH COURT. TH E CASH FLOW CAN BE FOUND FROM THE CASH STATEMENTS OF THE ASSESSEE AS WELL AS OF HER HUSBAND. THE ASSESSEE IS FURTHER CLAIMING THAT SHE WAS HAVING SUFFICIENT CASH BALANCE IN HIS HAND. IN THESE CIRCUMSTANCES WE DEEM IT APPROPRIATE TO REST ORE THE CASE TO THE FILE OF AO TO EXAMINE CASH FLOW STATEMENT OF ASSESSEE AND HIS HUSBAND AND THE AMOUNT TRANSFERRED FROM THE ACCOUNT OF HIS HUSBAND AND GRA NT THE ASSESSEE APPROPRIATE RELIEF IN ACCORDANCE WITH LAW. WITH THESE OBSERVATI ONS BOTH THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE ALLOWED FOR STATISTIC AL PURPOSE. 7. IN THE RESULT ITA NO. 3067/MUM/13 FILED BY ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSE AND ITA NO. 3462MUM/13 FILED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON T HIS 5 TH OCTOBER 2016. SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/10/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) MUMBAI. 4. CIT 6 ITA NOS. 3067 & 3462/M/2013- UMESH CHADHA BY ORDER (ASSTT.REGISTRAR) ITAT MUMBAI 5. DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY/