SHAKEEL AHEMED IMTIAZ SHAIKH, MUMBAI v. ITO 26(2)(1), MUMBAI

ITA 5788/MUM/2014 | 2010-2011
Pronouncement Date: 19-10-2016

Appeal Details

RSA Number 578819914 RSA 2014
Assessee PAN ALJPS2053F
Bench Mumbai
Appeal Number ITA 5788/MUM/2014
Duration Of Justice 2 year(s) 1 month(s) 3 day(s)
Appellant SHAKEEL AHEMED IMTIAZ SHAIKH, MUMBAI
Respondent ITO 26(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 19-10-2016
Appeal Filed By Assessee
Bench Allotted E
Tribunal Order Date 19-10-2016
Assessment Year 2010-2011
Appeal Filed On 15-09-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 5788 /MUM/20 14 (ASSESSMENT YEAR 20 10 - 11 ) SHAKEEL AHMED IMTIAZ SHAIKH 208 2 ND FLOOR AMTULLAH APARTMENT A WING ARAB LANE GRANT ROAD MUMB AI - 400 008. VS. ITO 26(2)(1) MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . ALJPS2053F ASSESSEE BY SHRI VIRENDRA SINGH KHURANA DEPARTMENT BY S HRI A.K. KARDAM DATE OF HEARING 1 9 .10 . 201 6 DATE OF PRONOUNCEMENT 19 . 10 . 201 6 O R D E R PER B.R. BA SKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.7.2014 PASSED BY LEARNED CIT(A) - 28 MUMBAI AND IT RELATES TO A.Y. 2010 - 11. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN CONFIRMING THE ADDITION O F ` 21 68 000/ - MADE BY THE ASSESSING OFFICER. 3. THE ASSESSEE HAD DEPOSITED CASH AGGREGATING TO ` 26.98 LAKHS IN THE SAVINGS BANK ACCOUNT MAINTAINED BY HIM WITH UNION BANK OF INDIA. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH SOURCES FOR THE DEP OSITS. THE ASSESSEE EXPLAINED THE SOURCES TO BE SAVINGS MADE BY HIM AND HIS WIFE LOANS TAKEN FROM FRIEND S AND RELATIVE S AND SALE PROCEEDS OF OLD JEW E LLERY. THE ASSESSING OFFICER ACCEPTED THE SOURCES EXPLAINED TO BE PAST SAVINGS AND LOANS TAKEN FROM FRIEN DS AND RELATIVES. HE DID NOT ACCEPT THE CLAIM OF SALE OF OLD JEWELLERY. ACCORDINGLY HE ADDED SALE PROCEEDS OF OLD JEWELLERY AMOUNTING TO ` SHAKEEL AHMED IMTIAZ SHAIKH 2 21.68 LAKHS TO THE INCOME OF THE ASSESSEE. THE LEARNED CIT(A) ALSO CONFIRMED THE SAME AND HENCE THE ASSESSEE HAS FIL ED THIS APPEAL BEFORE US. 4. WE NOTICED FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER HAS AS K ED THE ASSESSEE TO PRODUCE CASH BOOK AND ALSO TO PR ODUCE JEWELLERS TO WHOM GOLD ORNAMENTS WERE SOLD. THE ASSESSEE FILED COPIES OF PURCHASE BILLS GIVEN BY M/S. SHREEJI ART JEWLLERS AND M/S. K.D. SANGHVI & CO. JEWELLERS. THE ASSESSING OFFICER APPEARS TO HAVE TRIED TO CALL THE JEWELLERS THROUGH TELEPHONE NUMBERS GIVEN IN THE BILLS BUT THE SAME WAS FOUND TO BE NON - EXISTING. THE ASSESSING OFFICER ALSO DEPUTED I NSPECTOR WHO REPORTED THAT THE JEWELLERS WERE NOT FOUND AT THE ADDRESSES MENTIONED IN THE SALE BILLS. ACCORDINGLY THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASSESSEE HAS FAILED TO PROVE THE CLAIM OF SALE OF JEWELLERY. THE LEARNED CIT(A) ALSO CONFI RM ED T HE SAME. 5. LEARNED AR SUBMITTED THAT THE ASSESSEE IS SALARIED EMPLOYEE WORKING IN MEDIUM GRADE LEVEL IN A PRIVATE FIRM . HE SUBMITTED THAT T HE ASSESSEE WAS CONSTRAINED TO SELL THE JEWELLERY TO MEET THE EDUCATION EXPENSES OF HIS ONLY SON NAMED SAROSH W H O PROPOSED TO GO TO SWITZERLAND TO STUDY H OTEL MANAGEMENT COURSE. HENCE THE ASSESSEE WAS CONSTRAINED TO SELL THE JEWELLERY RECEIVED BY HIM AND HIS WIFE AT THE TIME OF MARRIAGE AND ALSO THOSE ACQUIRED AFTER MARRIAGE. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS PRODUCED BILLS ISSUED BY THE JEW E LLERS TO PROVE THE SALE OF JEWELLERY. THE ASSESSEE BEING A SMALL TIME EMPLOYEE COULD NOT ENFORCE ATTENDANCE OF THE JEWELLERS. EVEN THOUGH THE ASSESSING OFFICER HAS STATED THAT THE TELEPHONE NUMBERS GIVEN IN THE BILLS WE RE NOT EXISTED AND FURTHER THEY WERE NOT AVAILABLE IN THE ADDRESS GIVEN BELOW YET THE ASSESSING OFFICER DID NOT CONFRONT THOSE FINDINGS WITH THE ASSESSEE. EVEN OTHERWISE THE ASSESSEE CANNOT BE FOUND FAULT WITH SINCE THE JEWELLERS WERE NOT UNDER HIS CONT ROL AND HE DOES NOT HAVE ANY OTHER CONTINUING RELATIONSHIP WITH THEM. 6. ON THE CONTRARY THE LD D.R STRONGLY SUPPORTED THE ORDER PASSED BY THE LD CIT(A) BY SUBMITTING THAT THE ASSESSEE HAS FAILED TO PROVE THE CLAIM OF SALE SHAKEEL AHMED IMTIAZ SHAIKH 3 OF JEWELLERY. HE FURTHER SU BMITTED THAT THE JEWELLERY BILLS FURNISHED BY THE ASSESSEE ARE NOT RELIABLE. 7. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSING OFFICER HAS EXAMINED THE DEPOSITS FOUND IN THE BANK ACCOUNT OF THE ASSESSEE IN TERMS OF SEC. 68 OF THE ACT. WE FURTHER NOTICE THAT THE ASSESSING OFFICER HAS ACCEPTED THE SOURCES CLAIMED TO BE PAST SAVINGS AND LOANS. THE LD A.R SUBMITTED THAT THE ASSESSEE HAS PRODUCED ALL THE LOAN CREDITORS BEFORE THE AO AND HE HAS ACCEPTED THE LOANS AFTER EXAMINING THE CREDITORS. THUS WE NOTICE THAT THE ASSESSEE HAS FULLY CO - OPERATED WITH THE AO VIS - - VIS LOAN CREDITORS SINCE HE THE LOAN CREDITORS HAS OBLIGED HIM. 8. IN RESPECT OF JEWELLERY SALES WE NOTICE THAT THE ASSESSEE HAS SOLD JEWELLERY BELONGING TO HIM AND HIS SPOUSE TO TWO JEWELLERS . IN SUPPORT OF THE SAID CLAIM THE ASSESSEE HAS PRODUCED COPIES OF PURCHASE BILLS IS SUED BY TWO JEWELLERS. WE NOTICE THAT THE ASSESSING OFFICER HAS CONDUCTED ENQUIRIES THROUGH HIS INSPECTOR WHO HAD REPORTED THAT THE S AID PERSONS WERE NOT AVAILABLE AT THE GIVEN ADDRESSES. WE NOTICE THAT THE AO THEREAFTER DID NOT CALL FOR ANY EXPLANATION IN THIS REGARD. THE ALLEGED REPORT GIVEN BY THE INSPECTOR WAS USED TO TAKE ADVERSE INFERENCE AGAINST THE ASSESSEE WITHOUT CONFRONT ING THE SAME TO THE ASSESSEE. IN OUR VIEW THIS ACTION OF THE AO IS NOT JUSTIFIED. THERE IS NO DISPUTE THAT THE PRIMARY ONUS TO PROVE THE CASH CREDITS IS PLACED UPON THE ASSESSEE. ONCE THE ASSESSEE DISCHARGES THE SAID PRIMARY ONUS THEN THE ONUS SHIFTS TO THE SHOULDER OF THE AO. IN THE INSTANT CASE THE ASSESSEE HAS FURNISHED THE COPIES OF SALES BILLS OF GOLD ORNAMENTS AND HAS ALSO EXPLAINED THE REASON WHICH COMPELLED THE ASSESSEE TO SELL THE JEWELLERY. THE ASSESSEE HAS ALSO FURNISHED A COPY OF CONFIR MATION LETTER GIVEN BY HIM TO M/S SHREEJI ART JEWELLERS BEING ONE OF THE BUYERS WHOSE PAN NO. IS STATED AS BWOPS 0889 N. THE PHOTOCOPY OF PAN CARD WAS ALSO FURNISHED. HENCE IT IS NOT UNDERSTANDABLE AS TO HOW THE INSPECTOR COULD NOT FIND THE SHOP WHEN T HE ASSESSEE HAS FURNISHED PAN NO. OF M/S SHREEJI JEWELLERS. FURTHER THE ASSESSEE HAS ALSO FURNISHED A CONFIRMATION LETTER OBTAINED FROM HIS FATHER - IN - SHAKEEL AHMED IMTIAZ SHAIKH 4 LAW/MOTHER - IN - LAW CERTIFYING THE DETAILS OF GOLD ORNAMENTS GIVEN AT THE TIME OF MARRIAGE. SINCE THE ASSE SSEE IS A SALARIED EMPLOYEE HE DID NOT MAINTAIN REGULAR BOOKS OF ACCOUNTS. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE VIEW THAT THE ASSESSEE HAS DISCHARGED THE PRIMARY RESPONSIBILITY PLACED UPON HIM U/S 68 OF THE ACT. ON THE CONTRARY THE AO HAS CLAIMED TO HAVE CONDUCTED ENQUIRIES THROUGH INSPECTOR BUT THE SAME WAS NOT PROVIDED TO THE ASSESSEE. WE HAVE ALSO NOTICED THAT THE ALLEGED ENQUIRY CONDUCTED BY THE INSPECTOR IS FOUND TO BE DEFICIENT. HENCE WE ARE OF THE VIEW THAT THE ASSESSIN G OFFICER HAS NOT DISCHARGED THE RESPONSIBILITY SHIFTED UPON HIS SHOULDERS. 9. IN VIEW OF THE FOREGOING WE ARE OF THE VIEW THAT THERE IS NO REASON TO DISBELIEVE THE CLAIM OF SALE OF JEWELLERY AND ACCORDINGLY THE SAME SHOULD BE ACCEPTED. ACCORDINGLY W E SET ASIDE THE ORDER PASSED BY LD CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS.21 68 000/ - REFERRED ABOVE. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 19 . 10 .2016 SD/ - SD/ - (RA MLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 9 / 10 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RE SPONDENT 3. THE CIT(A) 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. BY ORDER //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT MUMBAI