MEENAZ BUXARIA, MUMBAI v. ITO 18(3)(3), MUMBAI

ITA 4070/MUM/2009 | 2005-2006
Pronouncement Date: 29-07-2011 | Result: Allowed

Appeal Details

RSA Number 407019914 RSA 2009
Assessee PAN AAXPB1881H
Bench Mumbai
Appeal Number ITA 4070/MUM/2009
Duration Of Justice 2 year(s) 27 day(s)
Appellant MEENAZ BUXARIA, MUMBAI
Respondent ITO 18(3)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-07-2011
Date Of Final Hearing 10-05-2011
Next Hearing Date 10-05-2011
Assessment Year 2005-2006
Appeal Filed On 02-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI R.S. SYAL A.M. AND SHRI V. DURGA RAO J.M. ITA NO. 4070/MUM/2009 ASSESSMENT YEAR: 2005-06 MEENAZ BUXARIA . APPELLANT 15 SUBHANI BUILDING DURGA STREET MAHIM MUMBAI 400 016 (PAN AAXPB1881H) VS. INCOME TAX OFFICER-18(3)(3) RESPONDENT 2 ND FLOOR PIRAMAL CHAMBERS MUMBAI 400 012. APPELLANT BY : MR. A.D. MANWANI REVENUE BY : MR. T.T. JACOB ORDER PER V. DURGA RAO J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)-XXVIII MUMBAI PASSED ON 04/05/2009 FOR THE ASSESSMENT YEAR 2005-06 WHEREIN THE ASSESSEE HAS RAISED THE FO LLOWING GROUNDS OF APPEAL:- 1. THE LD. CIT(A) HAS BRUSHED ASIDE THE EVIDENCES O F PERSONS WHO DEPOSITED MONEY WITH THE APPELLANT. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING ADDITIONS OF RS. 5 04 050/- IN SPITE OF THE FACT OF RETURN OF AMOUNT S TO DEPOSITORS. 3. THE LD. CIT(A) HAS ARBITRARILY REJECTED THE CONT ENTIONS OF THE DECISIONS OF HONBLE COURTS. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE IS A BEAUTICIAN BY PROFESSION UNDERTAKES VARIOUS BEAUTIFICATION ORDER S FOR VARIOUS OCCASIONS SUCH AS MARRIAGES PARTIES PERSONAL FUNC TIONS ETC. SHE ALSO UNDERTAKES MEHENDI ORDERS AND EARNS INCOME BY THIS PROFESSION IN ITA NO. 4070/M/2009 MRS. MEENAZ BUXARIA 2 CASH. SHE FILED HER RETURN OF INCOME ON 31/08/05 DE CLARING TOTAL INCOME AT RS. 1 03 333/- WHICH WAS PROCESSED U/S 1 43(1) ON 20/02/06 ACCEPTING THE RETURNED INCOME. THE CASE WA S SELECTED FOR SCRUTINY UNDER CASS SYSTEM. THE AO RECEIVED INFORMA TION THROUGH AIR THAT THE ASSESSEE HAD DEPOSITED CASH OF RS. 21 58 490/- IN DEVELOPMENT CREDIT BANK LTD. MAHIM UPTO 31/03/05. ON BEING ASKED BY THE AO TO SUBMIT COMPLETE DETAILS IN RESPE CT OF THE SAID CASH CREDIT I.E. BANK STATEMENT BANK SUMMARY STATEMENT CASH FLOW STATEMENT SOURCE OF DEPOSIT EXPLANATION REGARDING CASH CREDIT AND WHY THE AMOUNT OF CASH CREDIT SHOULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT U/S 68 IN THE ABSENCE OF NON-SATISFACTO RY EXPLANATION THE ASSESSEE VIDE LETTER DATED 16/11/07 HAD SUBMITT ED THE REQUIRED DOCUMENTS REGARDING CASH CREDIT. ON GOING THROUGH T HE BANK STATEMENT THE AO NOTICED THAT THE ASSESSEE HAD REC EIVED CASH OF RS. 5 04 050/- ON VARIOUS DATES AND THE SAME HAD BEEN G IVEN WITHIN SHORT SPAN OF TIME BY THE ASSESSEE IN CHEQUE TO VAR IOUS PARTIES IN THE FORM OF LOAN. WHEN ASKED TO PROVIDE THE NAMES OF PE RSONS FROM WHOM THE ASSESSEE HAD RECEIVED CASH ALONG WITH CONFIRMAT IONS AND ALSO ASKED TO PROVIDE THE NAMES OF PERSONS TO WHOM THE A SSESSEE HAD GIVEN LOANS ALONG WITH CONFIRMATIONS THE ASSESSEE SUBMITTED THE NAMES OF THREE PARTIES FROM WHOM SHE HAD TAKEN LOAN S AND ADVANCED DURING THE YEAR UNDER CONSIDERATION. HOWEVER NO CO NFIRMATION HAD BEEN FILED FROM THESE PARTIES AND ALSO NO PAN NUMBE RS OF THESE PARTIES HAD BEEN SUBMITTED. SHE HAD ALSO NOT EXPLAI NED FOR WHAT PURPOSE SHE HAD TAKEN LOANS AND ADVANCES. THE AO NO TICED THAT THERE WAS A CREDIT OF RS. 5 04 050/- IN THE BOOKS OF THE ASSESSEE AND SHE HAD NOT OFFERED ANY SATISFACTORY EXPLANATION REGARD ING THIS CREDIT. THE AO AFTER CONSIDERING THE FACTS OF THE CASE AND ALSO CONSIDERING THE LEGAL POSITION AS LAID DOWN BY VARIOUS JUDICIAL PRO NOUNCEMENTS WHICH WERE DISCUSSED BY THE AO IN HIS ORDER HELD THAT TH E SUM OF RS. 5 04 050/- FOUND TO BE CREDITED IN THE BOOKS OF ACC OUNTS OF THE ASESSSEE AND FOR WHICH NO SATISFACTORY EXPLANATION HAD BEEN OFFERED BY HER THEREFORE THE SAME IS TREATED AS INCOME OF THE ASSESSEE U/S ITA NO. 4070/M/2009 MRS. MEENAZ BUXARIA 3 68 OF THE ACT. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 3. BEFORE THE CIT(A) THE ASSESSEE CONTENDED ON TWO COUNTS ONE IS THAT THE AO MADE THE ADDITION WITHOUT GIVING PROPER OPPORTUNITY OF HEARING AND SECOND ONE IS THE AO MADE THE ADDITION U;/S 68 ON THE GROUND THAT NO CONFIRMATIONS WERE SUBMITTED AND NO PAN NUMBERS WERE GIVEN. IT WAS SUBMITTED THAT DURING THE ASSES SMENT PROCEEDINGS THE AO ON 10/12/2007 DIRECTED THE ASSESSEE TO SUBMI T THE NAMES OF THE THREE PARTIES FROM WHOM SHE HAD TAKEN LOAN OF R S. 5 04 050/- AND THE ASSESSMENT WAS PASSED ON 28/12/07 BY MAKING ADD ITION OF RS. 5 04 050/- ON THE GROUND THAT THE ASSESSEE HAD FAIL ED TO SUBMIT THE CONFIRMATIONS AND DID NOT SUBMIT PAN NUMBERS. IT WA S CONTENDED THAT THE AO DID NOT ASK FOR CONFIRMATIONS AND PAN N UMBERS. AFTER CONSIDERING THE SUBMISSIONS THE CIT(A) HELD THAT T HE ASSESSEE FAILED TO SUBMIT THE EXACT DETAILS AS TO HOW EACH AMOUNT I S RECEIVED/PAID ON WHICH DATE AND FROM WHOM AS THE ASSESSEE ADMITTED T HAT THE CASH OF RS. 5 04 050/- WAS RECEIVED BY HER BUT THE ENTIRE RECORD IS SILENT ON AS TO HOW THESE AMOUNTS WERE PAID. THE CIT(A) THER EFORE CONFIRMED THE ACTION OF THE AO. STILL AGGRIEVED THE ASSESSE E IS IN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) HAS BRUSHED ASIDE THE EVIDENCES OF PERSONS WHO DEPOSITED MONEY WITH THE ASSESSEE. ON THE OTHER HA ND THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD AS WELL AS GONE THROUGH THE ORDERS OF THE AU THORITIES BELOW. IT IS OBSERVED THAT THE CONTENTION OF THE ASSESSEE BEF ORE THE CIT(A) WAS THAT THE AO HAS NOT FOLLOWED THE PRINCIPLES OF NATU RAL JUSTICE AND SUFFICIENT OPPORTUNITY WAS NOT GIVEN. HE FURTHER CO NTENDED THAT THE AO HAD NOT DIRECTED THE ASSESSEE TO PRODUCE THE PAR TIES NOR HE HAD ITA NO. 4070/M/2009 MRS. MEENAZ BUXARIA 4 ISSUED SUMMONS U/S 131 TO ENFORCE THEIR ATTENDANCE AND ALL THE THREE PARTIES HAVE FILED AFFIDAVITS CONFIRMING THE CASH D EPOSITS MADE. THEREFORE THE CIT(A) REMANDED THE MATTER TO AO. BE FORE THE AO THE ASSESSEE PRODUCED TWO PARTIES AND THIRD PARTY WAS N OT PRODUCED. THE STATEMENTS WERE RECORDED BY THE AO U/S 131 ON 18/06 /08 IN WHICH THEY STATED THAT THEY DID NOT GIVE ANY LOAN TO THE ASSESSEE. HOWEVER MADE CASH DEPOSITS WITH THE ASSESSEE FOR SAFE KEEPI NG AS THEY DO NOT HAVE BANK ACCOUNT. THE CIT(A) CONFIRMED THE ADDITIO N MADE BY THE AO ON THE GROUND THAT THE ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS OF THE PERSONS WHO SUPPOSED TO HAVE DEPOSITED THE CASH WITH HER AS THEY APPEAR TO BE EMPLOYED ON DAILY WAGE ARE NOT ASSESS ED TO TAX AND DO NOT HAVE PAN NUMBER THEREFORE THE TRANSACTIONS CA NNOT BE CONSIDERED AS GENUINE. AFTER CONSIDERING THE FACTS OF THE CASE UNDER CONSIDERATION WE ARE OF THE VIEW THAT IN THE INTE REST OF JUSTICE ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO ME ET THE ENDS OF JUSTICE. THEREFORE THE MATTER IS REMITTED BACK TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE AFRESH AFTER PROVIDING AN OPPOR TUNITY OF THE ASSESSEE AND IN ACCORDANCE WITH LAW. THE ASSESSEE I S DIRECTED TO FILE ALL THE EVIDENCES AND CONFIRMATIONS FROM THE PARTIE S IN RESPECT OF THE CASH CREDITS TO PROVE THE GENUINENESS OF CASH CREDI TS BY FILING EVIDENCES WITH REGARD TO THE IDENTITY OF THE CREDIT ORS CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTION S. 6. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS T REATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JULY 2011. SD/- SD/- (R.S. SYAL) (V. DUR GA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI DATED: 29 TH JULY 2011 KV ITA NO. 4070/M/2009 MRS. MEENAZ BUXARIA 5 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE B BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI.