MEENA VASWANI,MUMBAI vs. ACIT 26(1), MUMBAI

आदेश / O R D E R PER BENCH

These three appeals filed by the assessee are directed against three separate appellate orders all dated 27th January, 2015 passed by the learned Commissioner of Income Tax(Appeals)- 46, Mumbai (Hereinafter called “the CIT (A)”) pertaining to the assessment year’s 2009-10 to 2011-12. Since

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identical issues are involved in all three appeals, these appeals were heard together and are disposed of by this common order for the sake of convenience and brevity.

“The appellant objects to the order dated 27/01/2015 passed by Additional Commissioner of Income Tax - 26 (1), Mumbai passed u/s 143(3) of the Income Tax Act, 1961 for the Assessment Years 2009-10 to 2011-12 on the following amongst the other grounds: 1. The learned Assessing Officer has erred in disallowing HRA exemption u/s l0(13A) amounting to Rs.2,21,640/- (for A.Y. 2009-10) Rs. 2,52,000/- (For A.Y. 2010-11) & Rs. 2,58,000/- (For A.Y. 2011-12) without appreciating the facts of the case in the right perspective. 2. The ground of appeal is without prejudice to the other.”

ITA No. 1983/Mum/2015 to 3 ITA No. 1985/Mum/2015

observed that the assessee is staying in his own house in Mumbai as the assessee had claimed deduction u/s 80C of the Act for housing loan repayment . It was also observed by the AO that House Rent Allowance(HRA) of Rs. 2,52,040/- received by the assessee from her employer was claimed as exempt by the assessee as per provisions of Section 10(13A) of the Act. The assessee was asked by the AO vide SCN dated 14-02-2013 as to why HRA claimed as exempt should not be added to income of the assessee and consequently brought to tax under the provisions of 1961 Act.

The assessee submitted that she has paid a rent of Rs.31,500/- per month to her mother in cash.

The A.O. observed that the assessee has shown her residential address as 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai( hereinafter called “Tropicana” ) in return of income filed with Revenue which address also appears in the ration card as well as the bank account maintained with Saraswat Co-op. Bank, Juhu Branch. The AO also observed that the assessee has claimed this property at ‘Tropicana’ as a self occupied property(SOP) and has also claimed loss from self occupied house property being interest on housing loan amounting to Rs.13,888/-. Thus it was observed by AO that assessee was claiming loss from self occupied property and also claiming exemption u/s.10(13A) of the Act. The AO asked assessee to furnish leave and license agreement with respect to property claimed to be taken on rent, and need of hiring a house property when one property has been claimed as self occupied being residential flat situated at ‘Tropicana’ itself.

The assessee submitted that assessee has a self occupied property jointly held with her husband at ‘Tropicana’ but she has to live in her mother's house at A-3, Ground floor, Neha Apartment, Seven Bunglows, Andheri,

ITA No. 1983/Mum/2015 to 4 ITA No. 1985/Mum/2015

Mumbai (Hereinafter called “Neha Apartments”) and pay her rent for her day to day living cost. The assessee submitted that she has no option but to live with her mother at ‘Neha Apartments’ as her mother is a sick and single old lady and at the same time she has to pay her rent so that none of the other siblings raise any question on her staying and her living in a rented property is a purely family matter. It was submitted that since this transaction is between mother and daughter, no formal agreement was executed. However, rent receipts were collected for income tax purpose as an evidence of payment of rent. The assessee submitted that it complied with all the requirements as stipulated u/s 10(13A) of 1961 Act and there is no violation by the assessee while claiming exemption u/s 10(13A) of 1961 Act.

The A.O. rejected the contention of the assessee and held that the assessee needs to prove that she hired an accommodation and used it and paid the rent.The contention of the assessee that payment of rent was a family affair and no leave and license agreement was entered was rejected by the AO as it was observed by the AO that if the rent is paid the relation between the parties was a contractual relation even if it is between family members also, and it needs to be supported by documentary evidence to prove the same. It was observed by the AO that if the rent was paid by the assessee to help her mother who was old and sick to meet her day to day living cost does not entitle assessee to claim exemption of HRA u/s 10(13A) of 1961 Act.

The A.O. deputed Ward Inspector to make an enquiry to verify claim of the assessee that she is living with her mother at ‘Neha Apartments’ and paying rent to her mother. The inspector visited the residential premises of mother of the assessee Smt. P.B. Dorwani, situated at A-3, Ground floor, Neha Apartment, Seven Bunglows, Andheri, Mumbai and served notice u/s 133(6) of the Act on mother of the assessee Smt. P.B.Dorwani who was present at the said premises. The Ward Inspector in his report stated that Smt. P.B.

ITA No. 1983/Mum/2015 to 5 ITA No. 1985/Mum/2015

Dorwani is staying in a one BHK residential flat having an area of 400 sq. ft. at ‘Neha Apartments’. The Ward Inspector reported that Smt P.B.Dorwani has three daughters and one of them Ms. Vimla who is unmarried is staying in the said flat at ‘Neha Apartments’ with Smt. P.B. Dorwani and another daughter Ms. Meena Vaswani i.e. assessee is staying at ‘Tropicana’ with her family consisting of husband and daughter , while the third daughter Ms Kamla is staying at Thane. The Inspector also visited premises at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai which is only five minutes walking distance from the residential flat of Mrs. P B . Dorwani and confirmed that the assessee Mrs. Meena D. Vaswani is staying at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai which is a 2 BHK flat for the last many years with her husband and her daughter.

The AO observed that ward inspector report clearly reveals that the assessee is staying at ‘Tropicana’ and not with her mother Smt P B Dorwani at ‘Neha Apartments’ as claimed by the assessee. The AO also observed that Secretaries and watchman of these two societies ( where ‘Tropicana’ and ‘Neha Apartments’ are situated)also confirmed that the assessee is not staying with her mother but with her husband and accordingly the AO concluded that the rent receipt issued by mother of the assessee are merely to claim the benefit of exemption of HRA received u/s 10(13A) of 1961 Act.

The A.O. also observed that the assessee’s had herself submitted vide letter dated 6th March, 2013 that the assessee is a qualified chartered accountant living with her husband, who is also a qualified chartered accountant and a daughter (student) and most of the household expenses were being taken care of by the husband of the assessee. .It was also submitted by the assessee that there are not many withdrawals for household expenses except the payment of mobile bills by cheque. The assessee also could not produce Mrs. P.B.

ITA No. 1983/Mum/2015 to 6 ITA No. 1985/Mum/2015

Dorwani for examination before the AO nor Mrs. Dorwani filed any details subsequent to serving of notice u/s. 133(6) of the Act. The A.O. after verifications ,also found that Mrs. P.B. Dorwani was not filing any return of income with Revenue for last six assessment years. However, on 21-03-2013 the assessee filed a copy of the return of income filed with the Revenue by Mrs. P.B. Dorwani for assessment year 2011-12 and the return of income was found to be filed for the first time on 21st March, 2013 itself which shows that return of income was filed by Mrs P B Dorwani with Revenue only because the verification was being done by the AO regarding the offering of the rent received from assessee by her mother Mrs. P B Dorwani as income in the hands of Mrs. P.B. Dorwani. The A.O. observed that the assessee's mother Mrs. P.B. Dorwani receives pension from her employer and rental income if received has to be offered for taxation by her. It was observed that Mrs. P.B. Dorwani had not filed any return of income for the relevant assessment year disclosing any income from house property till this issue was raised during the assessment proceedings on 4th October, 2012. It was also held by the AO that Smt. P B Dorwani lives in her one bed room flat of 400 square feet along with her unmarried daughter Ms Vimla and not with the assessee.It was also held by the AO that the assessee cannot claim both the benefits u/s 10(13A) and 24(1) of 1961 Act. The AO also held that there is no leave and license agreement and there is no proof of stay of assessee with her mother, thus, genuineness of payment of rent is not established by the assessee. The A.O. accordingly came to the conclusion that the assessee is neither staying in her mother's flat, nor paying any rent to her and therefore the assessee’s claim of exemption of HRA u/s.10(13A) is totally wrong and bogus and accordingly AO added the amount of Rs. 2,52,000/- to the total income of the assessee which was claimed as exempt by the assessee u/s 10(13A) of 1961 Act, vide assessment order dated 28-03-2013 passed by the AO u/s 143(3) of 1961 Act.

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“1. Ms. Vimla who is unmarried does not stay with Smt. P. B. Dorwani since she has her own ownership flat at Bhayander.

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moving out nor his statement for past events can be considered as "Evidence" by any stretch of imagination.

Thus, the assessee submitted that the conclusion drawn by the Inspector in his report was purely on surmises and conjectures and that no adverse inference could be drawn against the assessee without any documentary evidence to support the inspector report. The assessee submitted that confirmations obtained by the Inspector from the Secretary of the societies and watchman cannot be inferred as crucial evidence by any stretch of imagination. The assessee contended that the rent receipts are valid documentary evidence for claiming exemption of HRA u/s 10(13A) of 1961 Act.

The ld. CIT(A) after considering the submission of the assessee rejected the same and observed that the A.O. had carried out detailed inquiries to establish that the claim of payment of rent by the assessee to her mother was not fully established. The ld. CIT(A) observed that the assessee has a bigger flat owned by her at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai in which the assessee and her husband and children reside and no pressing need is shown by the assessee as to why the assessee stayed with her mother in a small flat of 400 square feet at ‘Neha Apartments’ while leaving her bigger flat at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai with family, which is five minute walking distance away. The assessee’s claim that Ms. Vimla was not staying with Mrs. P.B. Dorwani as she has own flat at Bhayander and also the claim that the assessee shifted back to ‘Tropicana’ in assessment year 2013-14 and was staying with her mother was a self serving statement which are not supported

ITA No. 1983/Mum/2015 to 9 ITA No. 1985/Mum/2015

by any evidence on record. The learned CIT(A) also gave credence to inspector report and statement of Secretaries and Watchman of the society who had confirmed that the assessee was not staying with her mother but was staying at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai with her husband and daughter and observed that the said statements could not be rebutted by the assessee. Hence, the ld. CIT(A) rejected the contention of the assessee and held that the assessee grossly failed to establish that she was staying with her mother and paying rent to her mother and hence , as such learned CIT(A) held that the exemption of HRA u/s 10(13A) of the Act was rightly denied to the assessee by the AO, vide appellate orders dated 27- 01-2015 passed by learned CIT(A).

7.Aggrieved by the appellate order dated 27-01-2015 passed the ld. CIT(A), the assessee filed second appeal before the Tribunal.

ITA No. 1983/Mum/2015 to 10 ITA No. 1985/Mum/2015

Societies who stated that the assessee is staying at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai and not at residence owned by mother Mrs P B Doorwani at ‘Neha Apartment’ for which rent was paid by the assessee. The distance between the residence owned by the assessee at ‘Tropicana’ and her mother residence at ‘Neha Apartments’ is only five minute walking distance. It is submitted by learned counsel for assessee that the assessee’s mother is a old and sick lady. The learned counsel for the assessee submitted that other daughter of Smt P B Dorwani i.e Ms Vimla is staying at Bhayander and not with mother of the assessee at ‘Neha Apartment’ as contended by Inspector in his report. It is submitted that the third daughter of Mrs P B Dorwani namely Ms Kamla stays at Thane while the assessee stays with Mrs P B Dorwani at ‘Neha Apartments’ for which rent of Rs. 31,500/- per month is paid by the assessee. It is submitted that rent was paid regularly to Mrs P B Dorwani against which rent receipts were obtained and the said rent was paid in cash. It was submitted that the AO treated rent receipts as self serving documents. It was submitted that rent paid by the assessee was not treated as genuine by the authorities below. The learned counsel reiterated the submissions as were made before lower authorities. The assessee also filed affidavit executed by her as well separate affidavit filed by her mother declaring the whole facts along with rent receipt which were filed along with written submissions which are placed in file. The assessee prayed for allowability of claim of exemption of HRA u/s 10(13A) of 1961 Act .

ITA No. 1983/Mum/2015 to 11 ITA No. 1985/Mum/2015

daughter at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai and not with her mother at ‘Neha Apartments’ . No payments of alleged rents were made by cheque and the alleged rent is stated to be paid in cash. The A.O. verified the bank statements and there were no payments by cheque of rent to mother of the assessee as well drawings from bank are minimal as also admitted by the assessee that her household expenses were met by her husband and only payments for mobile bills were made from bank account of the assessee. No leave and license agreement has been produced by the assessee and only rent receipts were submitted. There is no independent evidence submitted by the assessee to prove of being living in the residential apartments at ‘Neha Apartment’ owned by mother of the assessee namely Mrs P B Dorwani for which rent is being allegedly paid by the assessee. The ld. D.R. submitted that no intimation has been given to the society of ‘Neha Apartments’ by the assessee about the stay of the assessee with her mother. On verification by the A.O., it was revealed that Mrs. P.B. Dorwani was not filing any return of income with Revenue for last six assessment years and only after enquiry was started to verify genuineness of HRA exemption claimed by the assessee on 14-10-2012, the said Mrs P B Dorwani i.e. mother of the assessee filed return of income for assessment year 2011-12 only on 21st March, 2013. It was submitted that the AO verified ration card, bank statements and also return of income filed by the assessee and the assessee is showing her residence at 301, Tropicana, 7 Bungalow, Near nana-nani Park, Andheri(W), Mumbai in the afore-stated documents and not at ‘Neha Apartments’ as her residence. It is submitted by learned DR that the assessee has claimed exemption of HRA u/s 10(13A) of 1961 Act and also assessee has shown apartment at 301, Tropicana, 7 Bungalow, Near nana- nani Park, Andheri(W), Mumbai as self occupied property and deduction u/s 80C of 1961 Act was claimed towards the housing loan repayment for loan borrowed for purchase of residential flat at ‘Tropicana’. The learned DR submitted that residential flat owned by the assessee at ‘Tropicana’ is a joint

ITA No. 1983/Mum/2015 to 12 ITA No. 1985/Mum/2015

property with her husband and was declared as self occupied property by the assessee and benefit of interest payments were also availed by the assessee to claim loss under the head ‘income from house property’. It was submitted by learned DR that no reply was filed against the issue of notice u/s 133(6) of the Act to Mrs P B Dorwani which was duly served on Mrs P B Dorwani. The assessee did not produce her mother before the authorities below was the contention of learned DR. . It was submitted by learned DR that whereas now the assessee has filed before the tribunal an affidavit executed by Mrs P B Dorwani which is to be rejected as the same is filed for the first time before ITAT after 4 years. It was submitted that this constitute additional evidence which should not be admitted by tribunal. The learned DR submitted that Ward Inspector had made detailed enquiry with Secretaries and watchman of both the societies which clearly reveals that the assessee is not staying with her mother at ‘Neha Apartments’ rather the assessee is staying in her own flat at ‘Tropicana’ . It is also submitted by learned DR that the contention of the assessee that the unmarried daughter Ms Vimla is staying in Bhayender and not with her mother at ‘Neha Apartments’ is not supported by any evidence on record . It was submitted that rent receipts are self serving documents as both the assessee and her mother to whom rent was paid are closely related to each other being daughter and mother. The assessee is a qualified chartered accountant and she was fully aware of the legal requirements for availing exemption of HRA u/s 10(13A) of 1961 Act and also that mother of the assessee has pension income and if rent is included then she will have income exceeding minimum amount not chargeable to tax and she will be liable to file return of income with Revenue and pay due taxes which was not done by mother of the assessee. It was submitted that no such return of income was filed by said Mrs P B Dorwani for the last six assessment years.The learned DR relied upon orders of the learned CIT(A).

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ITA No. 1983/Mum/2015 to 14 ITA No. 1985/Mum/2015

400 square feet at ‘Neha Apartments’ which is just five minutes walking distance from ‘Tropicana’. Smt P B Dorwani has three daughters namely assessee who is married , Ms Kamla who is staying at Thane and one unmarried daughter Ms Vimla. The assessee has received HRA of Rs.2,52,000/- from her employer as a part of her remuneration which was claimed as exempt u/s 10(13A) of the Act on the ground that she had paid rent of Rs. 31,500/- per month to her mother Mrs. P B Dorwani towards renting of her residential flat situated at ‘Neha Apartments’ , wherein assessee has claimed that she was staying with her mother at ‘Neha Apartments‘ instead of staying in her own flat at ‘Tropicana’ which is only five minute walking distance. It is also observed that no leave and license agreement was entered into by the assessee with her mother for renting of ‘Neha Apartment’. The rent receipts issued by Mrs P B Dorwani were however duly produced before the authorities below and rent was stated to be paid regularly in cash. It is undisputed that no cheque has been issued by the assessee to Mrs P B Dorwani towards rent. The assessee also could not produce any document showing the intimation given by her to the society of ‘Neha Apartments’ regarding her stay with her mother. It is also an undisputed position that the assessee could not produce proof of cash withdrawals from her bank account to substantiate that the payment have been made by her to her mother towards rent which were made out of withdrawals by her from her bank account. The assessee in-fact admitted that household expenses were met by her husband and withdrawal from her bank account is minimum as cheques were issued only for mobile bill payments. The assessee has produced the rent receipt to substantiate that the rent has been paid by the assessee. It is also noticed that the mother of the assessee has not filed return of income with Revenue disclosing the said rental income received from the assessee. No return of income has been filed by the mother of the assessee since last six assessment years. The ward inspector was deputed by the AO to verify the contentions of the assessee who has reported that the assessee is staying at

ITA No. 1983/Mum/2015 to 15 ITA No. 1985/Mum/2015

‘Tropicana’ and not at ‘Neha Apartments’ . The report was submitted by Inspector after personally visiting both the residential flats at ‘Tropicana’ and ‘Neha Apartments’ and after making due enquiries from Secretaries and watchman of the two societies of ‘Tropicana’ and ‘Neha Apartments’ .It was also stated by the inspector in his report that flat at ‘Neha Apartment’ is one BHK flat of 400 square feet wherein mother of the assessee namely Mrs P B Dorwani lives with her unmarried daughter Ms Vimla. Notices u/s 133(6) of 1961 Act were served on mother of the assessee Mrs P B Dorwani but no replies were submitted by said Mrs. P B Dorwani to the said notice. The assessee also did not produce Smt. P.B. Dorwani, mother of the assessee before the AO. No cogent reasons are brought on record for non-compliance of notices u/s 133(6) of 1961 Act nor any reasons were forthcoming for non production of Mrs P B Dorwani before the authorities below, more so opportunities were accorded to the assessee by the AO and even at the stage of appellate proceedings before learned CIT(A) to substantiate its claim. The assessee has now filed affidavit of her mother Mrs P B Dorwani for the first time before the tribunal stating that the assessee has paid rent of Rs. Rs.31,500/- to her mother during the previous year relevant assessment year and residential flat at ‘Neha Apartment’ was taken on rent by the assessee from her mother Mrs. P B Dorwani . The said affidavit filed by the assessee of her mother as well an affidavit of her ( both placed in file ) constitute additional evidences for which no application has been made by the assessee for admission of additional evidences as contemplated u/r 29 of Income- tax(Appellate Tribunal) Rules, 1963 nor any reasons have been specified for non furnishing of the same before authorities below. However, on perusal of the content of the two affidavits it is seen that the reiteration is made of the contentions of the assessee before lower authorities which were already on record. The assessee has also submitted that inspector report was not provided to the assessee by the AO and no opportunity was given for cross examination of the incriminating information provided to the ward inspector

ITA No. 1983/Mum/2015 to 16 ITA No. 1985/Mum/2015

by the Secretary and Watch man of the two societies of the residential apartments situated at ‘Tropicana’ and ‘Neha Apartments’. We have observed that the assessee as well her husband both are qualified chartered accountants and are well versed with the law. The assessee is contemplating paying rent to her mother for taking her premises on rent for her residential purposes. The assessee did not produce any evidence except rent receipts to substantiate that there was actual hiring of premises by the assessee for which rent is paid. The rent is paid in cash against which there are no withdrawal of cash from bank shown by the assessee. The assesse herself admitted that there are minimal withdrawal from her bank account as household expenses are incurred by her husband. The assessee could not explain and reconcile said cash payments of rent with known sources of cash as the cash was not withdrawn from bank. This rent receipt prepared by her mother does not inspire confidence. There are no other evidences available which relate to the period when the transaction of hiring of the premises by the assessee in the normal course of renting of premises was progressing . The evidences at the time of transactions which are normal to are relevant and cogent evidence to substantiate the assessee’s contentions. These facts are especially in the knowledge of the assessee and burden is on the assessee to bring out these evidences to substantiate her contentions that rent paid was genuine but such evidences are not forthcoming . The assessee did not come forward with any evidence to substantiate its contentions except rent receipt which is not backed by any known sources of cash held by the assessee as there were no cash withdrawal from bank account of the assessee .Section 106 of Indian Evidence Act, 1872 is relevant which stipulates as under:

“Section 106 in The Indian Evidence Act, 1872 106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

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(a) **** (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

Section 6 of Indian Evidence Act, 1872 is also relevant in this context which is reproduce hereunder:

“Section 6 in The Indian Evidence Act, 1872 6. Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) to (c) ****

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.”

(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.”

The doctrine of Res gestae will set in. The assessee could not produce any evidence arising in the normal course of happening of transaction of hiring of premises such as leave and license agreement, letter to society intimating about her tenancy, payment through bank, cash payments backed with known sources, electricity bill payments through cheque, water bill payments through cheque , some correspondence coming during that period of alleged tenancy to prove that transaction of hiring of premises was genuine and was happening during the said period. In-fact we have observed that no such cogent evidence has been brought on record which could substantiate that the assessee had taken the said premises on rent from her mother as no evidence of her actually staying at the said premises were produced on

ITA No. 1983/Mum/2015 to 18 ITA No. 1985/Mum/2015

record. The assessee was in-fact staying in her own flat at ‘Tropicana’ with her husband which is emanating from various evidences which are on record such as ration card, bank statements, return of income filed with Revenue etc which is also in consonance with normal human conduct of Indian married women living with her husband and daughter in a residential flat owned by the assessee jointly with husband , the assessee also did not bring any cogent evidence to substantiate that she had taken the residential flat at ‘Neha Apartment’ on rent from her mother. The mother of the assessee has also not filed return of income since last six assessment years and said rental income was not brought to tax in the hands of mother of the assessee . The assessee could also not able to bring on record any cogent evidence to prove that her un-married sister Ms Vimla was living at Bhayander. Even on touchstone of preponderance of human probabilities , it is quite improbable that the assessee was living with her mother at ‘Neha Apartments’ and paying her substantial rent of Rs. 31,500/- per month for a small flat of 1 BHK of 400 square feet while her own house was at just five minute walking distance at ‘Tropicana’ . It is also improbable that the assessee being a married lady will leave her husband and daughter and start living with mother at another residential flat which is just five minute walking distance and pay huge rent per month. It is different matter that the assessee may look after her old and sick mother by frequent visits but this theory of rent as set out by the assessee did not inspire confidence keeping in view material produced before us. It is also probable that the assessee may contribute towards looking after her old and ailing mother out of salary but the same is not sufficient to claim exemption u/s 10(13A) of 1961 Act. Looking into all these factual matrix of the case before us, we are of considered view that the whole arrangement of rent payment by the assessee to her mother is a sham transaction which was undertaken by the assessee with the sole intention to claim exemption of HRA u/s 10(13A) of 1961 Act in order to reduce tax liability and hence in our considered view, exemption u/s 10(13A) of the Act cannot be allowed to the

ITA No. 1983/Mum/2015 to 19 ITA No. 1985/Mum/2015

assessee as the payments towards rent are not genuine payment . The evidences on record are speaking loudly which is just opposite to what the assessee is contending. Even if we eschew report of inspector , then also material on record do not inspire confidence that the transaction of rent was a genuine transaction as discussed by us in detail above. The right of cross examination is not absolute. The assessee has to first discharge its primary onus cast under law and if the same stood duly discharged which is not rebutted by authorities , but despite that then also the authorities proceed to put assessee to prejudice solely relying on the basis of incriminating statement recorded of third party at the back of the assessee, then certainly the right to cross examination the said third party whose incriminating statement recorded at the back of the assessee is relied upon by authorities to prejudice the assessee will become absolute. But in the instant case , primary onus cast on the assessee itself did not stood discharged by the assessee as discussed above. The assessee could not prove the genuineness of the rent paid by the assessee to her mother Mrs. P B Dorwani for alleged renting of ‘Neha Apartments’ and usage of the said premises ‘Neha Apartments’ by the assessee. Under these circumstances, we find no infirmity in the order of the ld. CIT(A) and we confirm the same and dismiss the appeal of the assessee. We order accordingly.

ITA No. 1983/Mum/2015 to 20 ITA No. 1985/Mum/2015

Order pronounced in the open court on 30th March, 2017. आदेश क� घोषणा खुले �यायालय म� �दनांकः 30-03-2017 को क� गई ।

Sd/- sd/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER मुंबई Mumbai; �दनांक Dated 30-03-2017 व.�न.स./ R.K. R.K., Ex. Sr. PS R.K. R.K.

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT(A)- concerned, Mumbai 4. आयकर आयु�त / CIT- Concerned, Mumbai �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai H” Bench 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai