JAYESH DAMANIA, MUMBAI v. ITO 25(3)(2), MUMBAI

ITA 5952/MUM/2009 | 2005-2006
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 595219914 RSA 2009
Assessee PAN AAGPD8969H
Bench Mumbai
Appeal Number ITA 5952/MUM/2009
Duration Of Justice 1 year(s) 10 month(s)
Appellant JAYESH DAMANIA, MUMBAI
Respondent ITO 25(3)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 09-09-2011
Date Of Final Hearing 25-08-2011
Next Hearing Date 25-08-2011
Assessment Year 2005-2006
Appeal Filed On 09-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH BEFORE SHRI N.V.VASUDEVAN JUDICIAL MEMBER & SHRI T.R.SOOD ACCOUNTANT MEMBER I.T.A.NO.5952/MUM/2009 A.Y 2005-06 MR. JAYESH DAMANIA A 606 CRYSTAL AVENUE THAKUR VILLAGE KANDIVALI (E) MUMBAI 400 001. AAGPD 8969 H VS. THE INCOME TAX OFFICER -25(3)(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. VIJAY KOTHARI. RESPONDENT BY : MR. SUNIL KUMAR SINGH. DATE OF HEARING: 25/08/2011 DATE OF PRONOUNCEMENT: 9/9/2011 O R D E R PER T.R.SOOD AM: IN THIS APPEAL ASSESSEE HAS RAISED VARIOUS GROUNDS THROUGH WHICH ADDITIONS CONFIRMED TO THE EXTENT OF RS.16 20 712/- HAVE BEEN CHALLENGED. THE ADDITIONS HAVE BEEN FINALLY CONFIRM ED BY THE CIT(A) VIDE PARA 4.25 WHICH IS AS UNDER: 4.25 IN THE RESULT ADDITION RELATING TO THE CREDI T ENTRIES TO THE EXTENT OF RS.16 20 712/- (RS.1 64 800 + RS.1 38 001 + RS.20 000 + RS.11 71 408 + RS.782 IS CONFIRMED. THE ASSESSING O FFICER IS DIRECTED TO DELETE THE REMAINING ADDITION OF RS.17 07 581/- (RS.33 28 292 RS.16 20 712). THE GROUND OF APPEAL NO.2 TO 6 ARE T HEREFORE PARTLY ALLOWED. 2. OUT OF THE ABOVE ADDITIONS CONSISTING OF RS.1 38 001 + RS.20 000 + RS.782 WERE NOT PRESSED BEFORE US THER EFORE SAME ARE CONFIRMED. IN RESPECT OF THE OTHER ADDITIONS THE F IRST ADDITION WAS OF RS.1 64 800/- AND THE MAIN CONTENTION WAS THAT THIS SHOULD HAVE BEEN ITA NO.5952 OF 09 2 SET OFF AGAINST THE VARIOUS CASH WITHDRAWALS IMMEDI ATELY BEFORE SUCH CASH DEPOSITS AND REFERENCE WAS MADE TO THE BANK ST ATEMENT. IT WAS ALSO POINTED OUT THAT SIMILAR RELIEF WAS ALLOWED IN EARLIER YEARS BY THE TRIBUNAL IN I.T.A.NOS.1947 & 1948/MUM/2010. AGAINST THE OTHER ADDITIONS IT WAS MAINLY SUBMITTED THAT SUCH DEPOSI TS WERE ALSO OUT OF LOANS EARLIER GRANTED WHICH HAVE BEEN RETURNED FROM ENCASHMENT OF SOME MUTUAL FUNDS OR SUCH OTHER SOURCES. WHEN THE L D. COUNSEL OF THE ASSESSEE WAS CONFRONTED THAT WHAT WAS THE SOURCE OF SUCH LOANS HE SUBMITTED THAT SAME CAN BE EXPLAINED BY PREPARING A CASH FLOW STATEMENT AND STATEMENT OF AFFAIRS FOR VARIOUS YEAR S AND THEREFORE HE REQUESTED THAT MATTER MAY BE SET ASIDE AND HE IS RE ADY TO FURNISH THESE STATEMENTS AND EXPLAIN THE SOURCE. 3. ON THE OTHER HAND LD. DR STRONGLY SUPPORTED THE ORDER OF THE CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT WHEN THE ISSUES CAME UP FOR CONSIDERATION BEFORE TH E TRIBUNAL FOR A.YRS.2003-04 AND 2004-05 AS FAR AS ISSUE REGARDIN G CASH DEPOSIT IS CONCERNED RELIEF WAS GIVEN BY CONFIRMING THE ORDER OF THE LD. CIT(A) VIDE PARA-7 WHICH IS AS UNDER: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY AND FIND FORCE IN THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE A SSESSEE. ASSESSEE IS STATED TO BE ONLY A PART-TIME ACCOUNTANT AND IS NOT REQUIRED TO MAINTAIN ANY BOOKS OF ACCOUNT. EVEN AS PER SECTION 44AA ONLY PROFESSIONALS LIKE ADVOCATES ENGINEERS ARCHITECTS CHARTERED ACCOUNTANTS INTERIOR DECORATORS OR ANY OTHER PROFE SSIONALS NOTIFIED BY THE BOARD WERE REQUIRED TO MAINTAIN BOOKS. IN ANY C ASE THE A.O. HAS HIMSELF ACCEPTED THE REVISED RETURN FOR A.Y. 2002-0 3 WHEREIN INITIAL DEPOSIT OF ABOUT `5 LAKHS WAS MADE IN THE ORIENTAL BANK OF COMMERCE ACCOUNT. A PERUSAL OF CIT(A)S ORDER WHEREIN HE HA S EXTRACTED THE ITA NO.5952 OF 09 3 SUMMARY OF ACCOUNTS CLEARLY SHOWS THAT LATER ON MON EY HAS BEEN FIRST DRAWN AND THEN REDEPOSITED IN THE BANK AND THEREFOR E IT IS A MERE CASE OF ROTATION OF SAME MONEY. IN FACT BEFORE THE A.O. VIDE LETTER DATED 01.12.2008 IT WAS CLEARLY STATED AS UNDER: - 3. AS PER THE CASH ACCOUNT ENCLOSED YOU WILL OBSER VE THAT DURING A.Y. 2002-03 THE AMOUNT OF CASH DEPOSITED IN THE BANK AC COUNT WAS RS.11 43 679/- AND THE AMOUNT OF CASH WITHDRAWN WAS RS.12 71 800/- . SIMILARLY FOR A.Y. 2003-04 THE AMOUNT OF CASH DEP OSITED IN THE BANK ACCOUNT WAS RS.10 55 800/- AND THE AMOUNT OF CASH W ITHDRAWN WAS RS.5 97 060 AND FOR A.Y. 2004-05 THE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT WAS RS.8 33 350/- AND THE AMOUNT OF C ASH WITHDRAWN WAS RS.9 67 685/-. FROM THIS YOU WILL OBSERVE THAT OUT OF THE 3 YEARS I HAD WITHDRAWN MORE CASH FROM THE BANK THAN WAS DE POSITED. FOR A.Y. 2002-03 THE EXCESS WITHDRAWN WAS RS.1 38 121 AND FOR A.Y. 2004-05 THE EXCESS WITHDRAWN WAS RS.1 34 335/-. FOR A.Y. 2003-04 AFTER CONSIDERING THE EXCESS CASH WITHDRAWN DURING A.Y. 2002-03 THE EXCESS DEPOSITED WAS ONLY RS.3 30 619/-. THIS CASH WAS FORM MY ACCUMULATED SAVINGS AND THE AMOUNT RECEIVED FROM MY FATHER AS STATED ABOVE. 5. AS FAR AS THE SOURCE FOR DEPOSITS FROM REFUND OF LOAN OR OTHER SOURCES IS CONCERNED IN THE ABSENCE OF ALL DETAILS IT IS NOT POSSIBLE TO VERIFY THE SAME BY US. THEREFORE IN THE INTERESTS OF JUSTICE WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MAT TER BACK TO THE FILE OF THE AO WITH A DIRECTION TO RE-EXAMINE THE SOURCE OF DEPOSITS WITH REFERENCE TO THE SOURCES WHICH MAY BE EXPLAINED THR OUGH STATEMENT OF AFFAIRS AND CASH FLOW STATEMENT BEFORE THE AO. NEED LESS TO SAY THAT ASSESSEE SHOULD BE GIVEN AN ADEQUATE OPPORTUNITY FO R EXPLAINING HIS CASE. 6. IN THE RESULT APPEAL IS PARTLY ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 9/9/2011. SD/- SD/- (N.V.VASUDEVAN) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 9/9/2011.