DOLLY LUTHRA, M.P. v. ITO 21(1)(1), MUMBAI

ITA 5212/MUM/2014 | 2009-2010
Pronouncement Date: 30-09-2016

Appeal Details

RSA Number 521219914 RSA 2014
Assessee PAN ABPPL0268D
Bench Mumbai
Appeal Number ITA 5212/MUM/2014
Duration Of Justice 2 year(s) 1 month(s) 15 day(s)
Appellant DOLLY LUTHRA, M.P.
Respondent ITO 21(1)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Bench Allotted D
Tribunal Order Date 30-09-2016
Assessment Year 2009-2010
Appeal Filed On 14-08-2014
Judgment Text
D IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI SANJAY GARG JUDICIAL MEMBER AND SHRI ASHWANI TANEJA ACCOUNTANT MEMBER ITA NO.5212/MUM/2014 ASSESSMENT YEAR: 2009-10 MRS. DOLLY LUTHRA 155 SAKET NAGAR INDORE M.P. / VS. ITO 21(1)(1) MUMBAI (ASSESSEE ) (REVENUE) P.A. NO . ABPPL0268D APPELLANT BY SHRI SUNIL R. BHANDARI (AR) REVENUE BY SH RI B.S. BIST ( SR. D R) ! ' # $% / DATE OF HEARING : 26/09/2016 # $% / DATE OF ORDER: 30/09/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) MUMBAI- 22 {(IN SHORT CIT(A)} DATED 19.06.2014 PASSED AG AINST ASSESSMENT ORDER U/S 143(3) DATED 13.12.2011 FOR T HE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS: MRS. DOLLY LUTHRA 2 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD COMMISSIONER OF INCOME TAX (APPEALS) [HERE-IN-AFTER REFERRED TO AS LD. CIT (APPEALS)] WAS NOT JUSTIFIED AND ERRED IN UPHOLDING ADDITION OF RS. 13.91771/- MADE BY THE ASSESSING OFFICER U/S 68 OF INCOME TAX ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT (APPEALS) WAS NOT JUSTIFIED AND ERRED IN UPHOLDING ADDITION OF RS. 98 507/- MADE BY THE ASSESSING OFFICER U/S 68 OF IN COME TAX. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW. THE LEARNED CIT (APPEALS) WAS NOT JUSTIFIED AND ERRED IN SUSTAINING ADDITION TO THE E XTENT OF RS. 20 000/- MADE BY THE ASSESSING OFFICER U/S 6 8 OF INCOME TAX ACT. 4.WITHOUT PREJUDICE TO ANY OF THE GROUNDS RAISED ABOVE THE LEARNED CIT(APPEALS) FAILED TO APPRECIAT E THAT ADDITION FOR UNEXPLAINED CREDIT UNDER SECTION 68 IS NOT MANDATORY BUT IS DISCRETIONARY AS EVIDENT FR OM THE WORDS 'THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME' USED IN SECTION 68. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD TO AMEND MODIFY RESCIND SUPPLEMENT OR ALTER ANY OF THE GRO UNDS STATED HERE-IN-ABOVE EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 2. DURING THE COURSE OF HEARING ARGUMENTS WERE MADE B Y SHRI SUNIL R. BHANDARI AUTHORISED REPRESENTATIVE ( AR) ON BEHALF OF THE ASSESSEE AND BY SHRI B.S. BIST DEPAR TMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. GROUND NO.1: IN THIS GROUND THE ASSESSEE HAS AGITATED THE ACTION OF LOWER AUTHORITIES IN UPHOLDING ADDITION O F RS.13 91 771/- MADE U/S 68 ON ACCOUNT OF CASH DEPOS ITED BY THE ASSESSEE IN HER BANK ACCOUNT DURING THE YEAR UN DER CONSIDERATION. MRS. DOLLY LUTHRA 3 3.1. THE BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE ORDER OF THE LOWER AUTHORITIES ARE THAT ON THE BASIS OF AIR THE AO ASKED THE ASSESSEE TO EXPLAIN THE CASH DEPOSIT OF RS.15 90 000/- IN ASSESSEES SAVING BANK ACCOUNT. B EFORE THE AO IT WAS INTER ALIA EXPLAINED BY THE ASSESSEE THAT ALL THE FINANCIAL AFFAIRS OF THE ASSESSEE WERE BEING LOOKED AFTER BY HER HUSBAND AND AFTER HIS UNFORTUNATE DEATH THE ASSESS EE FACED SEVERE FINANCIAL CRISIS AND EVERYTHING IN THIS REGA RD HAD GONE HAYWIRE. IT WAS ALSO SUBMITTED THAT AGGREGATE AMOUN T OF CASH DEPOSITED IN HER SAVING BANK ACCOUNT MAINTAINED WIT H STANDARD CHARTERED BANK WAS RS. 13 91 771/-. IN RES PECT TO THE SAME IT WAS EXPLAINED THAT THE ASSESSEE HAS BE EN TIME TO TIME WITHDRAWING CASH FOR HER FAMILY NEEDS FROM HER ANOTHER BANK ACCOUNT MAINTAINED WITH THE CORPORATION BANK MATUNGA MUMBAI ON VARIOUS DATES AND WHEN THE CASH COULD NOT BE PROPERLY UTILIZED THE SAME WAS DEPOSITED BAC K INTO ANOTHER BANK ACCOUNT MAINTAINED WITH STANDARD CHART ERED BANK INDORE FOR SOME FAMILY NEEDS. THE AO WAS NOT SATISFIED WITH THE JUSTIFICATION OF WITHDRAWING AND KEEPING C ASH IDLE AND THEREFORE THE ENTIRE AMOUNT DEPOSITED IN THE STANDA RD CHARTERED BANK WAS FOUND UNEXPLAINED AND THEREFORE SAME WAS ADDED U/S 68 OF THE ACT. 3.2. BEING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A) AND FURNISHED VARIOUS DETAILS AND EVIDEN CES TO EXPLAIN THE SOURCES OF THE CASH DEPOSITED INTO HER BANK ACCOUNT. THE MAIN THRUST OF ARGUMENT OF THE ASSESSE E BEFORE THE LD. CIT(A) WAS SAME AS WAS BEFORE THE AO VIZ. T HE ORIGINAL SOURCES WAS CASH WITHDRAWN FROM ASSESSEES ACCOUNT MRS. DOLLY LUTHRA 4 MAINTAINED WITH CORPORATION BANK. HOWEVER LD. CIT( A) WAS NOT SATISFIED WITH THE SUBMISSIONS OF THE ASSESSEE AND THEREFORE HE CONFIRMED ORDER OF THE AO. 3.3. BEING AGGRIEVED THE ASSESSEE FILED BEFORE US. DUR ING THE COURSE OF HEARING LD. COUNSEL REITERATED THE ADVER SE CIRCUMSTANCES FACED BY THE ASSESSEE SINCE UNFORTUNA TE DEMISE OF HER HUSBAND WHO WAS LOOKING AFTER ALL THE FINANC IAL MATTERS OF THE ASSESSEE. IT WAS ALSO SUBMITTED THAT THIS FA CT IS NOT DISPUTED THAT CASH WAS WITHDRAWN FROM THE CORPORATI ON BANK. THE ASSESSEE FOR HER VARIOUS FAMILY NEEDS HAS BEEN WITHDRAWING AND DEPOSITING CASH FROM ONE BANK ACCOU NT TO THE OTHER. NO EVIDENCES HAVE BEEN BROUGHT ON RECORD BY THE LOWER AUTHORITIES TO DEMONSTRATE THAT CASH WITHDRAW N FROM THE CORPORATION BANK WAS UTILIZED ELSEWHERE. UNDER THES E CIRCUMSTANCES THE SOURCE OF CASH DEPOSITED INTO ST ANDARD CORPORATION BANK ACCOUNT STOOD DULY EXPLAINED. THE BURDEN HAS BEEN WRONGLY PUT UPON THE ASSESSEE TO PROVE THE NEGATIVE I.E. THE CASH WAS NOT UTILIZED ELSEWHERE. SUCH AN APPROACH OF THE LOWER AUTHORITIES WAS NOT FAIR. HE THUS REQUE STED FOR DELETING THE ADDITION MADE BY THE LOWER AUTHORITIES . 3.4 . PER CONTRA LD. DR REITERATED THE REASONING GIVEN BY THE AO AND LD. CIT(A). 3.5. WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHOR ITIES AS WELL AS SUBMISSIONS MADE BY BOTH THE SIDES BEFOR E US. BEFORE US LD. DR FAIRLY SUBMITTED THAT NOTHING IS THERE ON RECORD TO SHOW THAT CASH HAS BEEN UTILIZED ELSEWHER E. THUS IN OUR VIEW THE ASSESSEE HAS BEEN ABLE TO SUCCESSFULL Y SHOW THE AVAILABILITY OF CASH. THE REQUISITE CASH FLOW STATE MENT ETC. MRS. DOLLY LUTHRA 5 HAVE BEEN FILED BEFORE THE LOWER AUTHORITIES. NOTHI NG IS THERE ON RECORD TO SHOW THAT CASH WITHDRAWN FROM THE CORP ORATION BANK HAS BEEN UTILIZED ELSEWHERE. IN CASE THE AO WA S KEEN TO ALLEGE THAT THE CASH WITHDRAWN FROM CORPORATION BAN K MIGHT HAVE BEEN UTILISED SOMEWHERE ELSE THEN THE BURDEN WAS UPON THE REVENUE TO PROVE THE SAME. THE ASSESSEE CANNOT BE ASKED TO PROVE THE NEGATIVE. IN OTHER WORDS THE ASSESSEE CANNOT PROVE THAT CASH WAS NOT UTILIZED ELSEWHERE. IN OUR OPINION THE ASSESSEE AS WAS VERY MUCH AT HER LIBERTY TO KEEP AV AILABILITY OF CASH IN SUCH A MANNER SO AS TO FULFILL HER FAMILY N EEDS BY WITHDRAWING CASH FROM HER ONE BANK ACCOUNT KEEPING IT WITH WITH HER AND DEPOSITING IT INTO ANOTHER BANK ACCOUN T IN ACCORDANCE WITH HER FAMILY NEEDS AND OTHER REQUIREM ENTS ESPECIALLY AFTER THE DEATH OF HER HUSBAND. IN OUR V IEW THE ASSESSEE HAS BEEN ABLE TO SUCCESSFUL PROVE THE SOUR CE OF CASH DEPOSITED IN HER ACCOUNT MAINTAINED WITH STANDARD C HARTERED BANK. THUS ADDITION MADE WAS ILLEGAL AND INCORRECT ON FACTS AND THEREFORE SAME IS DIRECTED TO BE DELETED. THIS GROUND IS ALLOWED. 4. GROUND NO.2: IN THIS GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF LOWER AUTHORITIES IN UPHOLDING ADDITI ON OF RS.98 507/- ON ACCOUNT OF CASH DEPOSITED IN BANK AC COUNT THE SOURCE OF WHICH WAS CLAIMED TO BE REIMBURSEMENT RECEIVED FROM IMPERIAL ACADEMY AND MS. SHEETU LUTHRA AGAINST EXPENSES INCURRED EARLIER BY THE ASSESSEE. 4.1. THE BRIEF FINDINGS IN THIS REGARD ARE THAT THE AGG REGATE AMOUNT OF RS.98 507/- WAS EXPLAINED BY THE ASSESSEE TO HAVE BEEN RECEIVED FROM M/S IMPERIAL ACADEMY AND MS. SHE ETU MRS. DOLLY LUTHRA 6 LUTHRA ON DIFFERENT DATES ON ACCOUNT OF REIMBURSEME NT OF EXPENSES WHICH WERE INCURRED ON EARLIER DATES BY TH E ASSESSEE. THE LOWER AUTHORITIES MADE THE ADDITION O N THE GROUND THAT NOTHING WAS BROUGHT ON RECORD TO SUBSTA NTIATE THE CLAIM OF THE ASSESSEE. BEFORE US LD. COUNSEL OF TH E ASSESSEE SUBMITTED THAT OUT OF THE TOTAL AMOUNT A SUM OF RS .23 150/- WAS ON ACCOUNT OF REIMBURSEMENT RECEIVED FROM IMPER IAL ACADEMY FOR WHICH ADMITTEDLY NO EVIDENCES COULD BE SUBMITTED. BUT WITH REGARD TO AMOUNT RECEIVED FROM MS. SHEETU LUTHRA CONFIRMATION LETTER DULY SIGNED BY H ER WAS SUBMITTED BEFORE THE LOWER AUTHORITIES. BUT THE SA ME HAS BEEN REJECTED AFTER FINDING SOME FAULTS THEREIN THA T TOO WITHOUT CONFRONTING THE SAME WITH THE ASSESSEE. 4.2. PER CONTRA LD. DR RELIED UPON THE ORDERS OF THE L OWER AUTHORITIES. 4.3. WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHO RITIES CAREFULLY AND FIND THAT THERE IS NO EVIDENCE AT ALL WITH RESPECT TO SUM OF RS.23 150/- CLAIMED TO BE RECEIVED ON ACC OUNT OF REIMBURSEMENT FROM M/S. IMPERIAL ACADEMY AND THEREF ORE SAME HAS BEEN RIGHTLY DISALLOWED BY THE AO AND THE SAME IS CONFIRMED. BUT WITH RESPECT TO BALANCE SUM OF RS.7 5 350/- IT IS NOTED THAT THE SAME WAS RECEIVED BY THE ASSESSEE FROM HER DAUGHTER NAMELY MS. SHEETU LUTHRA. IN SUPPORT OF TH IS A CONFIRMATION LETTER ISSUED BY MRS. SHEETU LUTHRA WA S FILED BEFORE THE LD. CIT(A) ALSO. THE SAME HAS BEEN REJEC TED ON THE GROUND THAT SAME WAS UNDATED AND THE FACT OF PAYMEN T OF CASH ON 01.02.2009 WAS NOT EXPLICITLY MENTIONED THE REIN. WE DO NOT APPRECIATE THE APPROACH FOLLOWED BY THE LD. CIT(A) IN MRS. DOLLY LUTHRA 7 THIS REGARD. WHILE REJECTING THE EVIDENCE SUBMITTED BY THE ASSESSEE IN CASE THE LD. CIT(A) FELT SOME DEFICIEN CIES IN THE CONFIRMATION THE SAME SHOULD HAVE BEEN CONFRONTED TO THE ASSESSEE. ALTERNATIVELY IT WAS WELL WITHIN THE POW ERS OF THE LOWER AUTHORITIES TO GET THESE FACTS DIRECTLY VERIF IED FROM MS. SHEETU LUTHRA WHOSE COMPLETE PARTICULARS WERE THERE BEFORE THEM. WITHOUT PROPERLY EXAMINING THE EVIDENCES THE SE SHOULD NOT BE REJECTED ON SOME SURMISES AND CONJECTURES. S UCH KIND OF APPROACH LEADS TO UNFAIRNESS AND SHAKES THE FAIT H OF THE TAXPAYERS AND THEREFORE IT SHOULD BE AVOIDED. UNDE R THESE CIRCUMSTANCES IN OUR OPINION THE ASSESSEE HAD DUL Y SUBMITTED THE EVIDENCES WITH RESPECT TO SAID AMOUNT . THEREFORE THE AO IS DIRECTED TO DELETE SUM OF RS.7 5 350/-. THUS THIS GROUND IS PARTLY ALLOWED. 5. GROUND NO.3: IN THIS GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF LOWER AUTHORITIES IN MAKING ADDITION OF RS.20 000/-. 5.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTED BY THE AO THAT AGGREGATE AMOUNT OF RS.2 00 000/- WA S RECEIVED BY THE ASSESSEE FROM IMPERIAL COLLEGE OF P ROFESSIONAL STUDIES(ICPS) OUT OF WHICH A SUM OF RS.1 80 000/- WAS RECEIVED BY WAY OF CHEQUE AND BALANCE AMOUNT OF RS. 20 000/- WAS RECEIVED IN CASH. THE TOTAL OUTSTANDING BALANCE RECEIVABLE FROM THE SAID COLLEGE WAS RS.1 91 332/-. THE AO MAD E AGGREGATE ADDITION OF RS.2 00 000/-. THE LD. CIT(A) DELETED THE ADDITION OF RS.1 80 000/- AND SUSTAINED THE BALANCE AMOUNT OF RS.20 000/-. BEFORE US LD. COUNSEL SUBMITTED TH AT WHEN ALL THE TRANSACTIONS FROM THE SAID COLLEGE WERE ACCEPTE D BY THE MRS. DOLLY LUTHRA 8 LD. CIT(A) THERE WERE NO BASIS TO DISBELIEVE TRANS ACTIONS OF RS.20 000/- THAT TOO WITHOUT ANY VERIFICATION OR BR INGING ON RECORD TO ANY CONTRARY MATERIAL. 5.2. PER CONTRA LD. DR RELIED UPON THE ORDERS OF THE L OWER AUTHORITIES. 5.3. WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHO RITIES. IT IS NOTED THAT ASSESSEE BROUGHT ON RECORD OF COMP LETE DETAILS AND FINDINGS ON RECORD AND COPY OF LEDGER ACCOUNT OF IMPERIAL COLLEGE OF PROFESSIONAL STUDIES WAS ALSO SUBMITTED. WHEN THE LD. CIT(A) HIMSELF BELIEVED THE TRANSACTION TO THE EXTENT OF RS.1 80 000/- THERE WERE NO CONCRETE BASIS TO DISB ELIEVE THE REMAINING AMOUNT OF RS.20 000 MERELY BECAUSE SAME WAS RECEIVED IN CASH. THE LD. CIT(A) HAD FULL POWERS UN DER THE LAW TO MAKE DIRECT VERIFICATION FROM THE SAID PROPERTY IN CASE THERE WERE ANY DOUBTS. BUT WITHOUT MAKING ANY VERIFICATI ON HE WAS NOT JUSTIFIED TO PARTLY DISBELIEVE THE ACCOUNT. THU S ADDITION OF RS.20 000/- HAS BEEN WRONGLY SUSTAINED AND SAME IS DIRECTED TO BE DELETED. THIS GROUND IS ALLOWED. 6. GROUND NOS. 4 & 5 ARE GENERAL AND DO NOT NEED ANY SPECIFIC ADJUDICATION AND THEREFORE DISMISSED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.09.2 016. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER ! ' MUMBAI; ' DATED : 30/09/2016 CTX? P.S/. .. MRS. DOLLY LUTHRA 9 #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. ) *+ / THE APPELLANT 2. -*+ / THE RESPONDENT. 3. .$ . ! / ( ) ) / THE CIT MUMBAI. 4. .$ . ! / / CIT(A)- MUMBAI 5. 23 45 .$ )% 45$6 ! ' / DR ITAT MUMBAI 6. 7 8 ' / GUARD FILE. / BY ORDER - 2) //TRUE COPY// / (DY./ASSTT. REGISTRAR) ! ' / ITAT MUMBAI