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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH & SHRI RAMIT KOCHAR
सुनवाई क� तार�ख /Date of Hearing : 09-06-2016 घोषणा क� तार�ख /Date of Pronouncement : 17.08.2016 आदेश / O R D E R PER RAMIT KOCHAR, Accountant Member
This appeal, filed by the assessee , being 14th January, 2011 passed by learned Commissioner of Income Tax (Appeals)- 30, Mumbai (hereinafter called “the CIT(A)”), for the assessment year 2005-06, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 18th December, 2007 passed by the learned Assessing Officer (hereinafter called “the AO”) u/s 143(3) of the Income Tax Act,1961 (Hereinafter called “the Act”).
ITA 2412/Mum/2011 2
The grounds of appeal raised by the assessee in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called “the Tribunal”) reads as under:-
“1) The Learned Commissioner of Income Tax, (Appeals) has erred in up holding the disallowances made by the Learned Income Tax Officer of a) Society Charges 29292 b) Electricity Charges 6340 c) Telephone Charges 5000 -------- TOTAL : 51699 -------- The appellant is doing her business of dress designing from her residence and hence part of the expenses like society charges, electricity charges, telephone charges have been debited to the Profit & Loss A.O and are allowable as expenses against the business income and should be allowed. 2) The Learned Commissioner of Income Tax, (Appeals) has erred in confirming Rs.1618000/- being cash deposit an unexplained cash credits. It is submitted that the cash a/c summary was filed with the assessing officer which consisted of business income and cash deposits out of cash withdrawn from the bank account interest income received in cash the total deposits of cash has been explained so the question of making any additions does not arise and should be deleted.”
At the outset, the ld. Counsel for the assessee submitted that the assessee is not pressing ground No. 1 and the same may be dismissed as ‘not pressed’. The ld. D.R. has also not raised any objection to the afore-stated submission of the assessee . We accordingly dismiss ground No. 1 as not pressed.
Regarding ground No. 2, the brief facts of the case are that the assessee is an individual and involved in the profession of dress designing. The assessee has shown total receipts from profession of Rs. 6,77,865/- and after ITA 2412/Mum/2011 3 deducting expenses , net profit from business has been shown at Rs.2,09,591/- in the return of income filed with the Revenue. The assessee also showed interest income from Sh. Manohar Ahuja of Rs.78,094/- which has been credited to Profit and Loss Account. The assessee has also shown capital gains on sale of share both long term and short term earned during the previous year relevant to the assessment year which was offered for taxation.
During the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the A.O. observed from the date-wise bank summary as well as the bank statements maintained by the assessee during the year, that the assessee has deposited cash amounting to Rs. 16,18,000/- in her bank accounts of which the details are as under:-
(a) Standard Chartered Bank (225-0-549348-5) 7,41,000/- (b) ABN Amro Bank 8,02,000/- (c) Standard Chartered Bank(225-1-064758-4) 75,000/- 16,18,000/- ___________ The assessee was asked by the AO to explain the source of these cash deposits in the bank accounts.
The assessee submitted that the source of the cash deposits were the receipts from sale to parties of dress designing business and cash withdrawn from the bank accounts which was deposited back in the bank accounts. The assessee was confronted during the course of hearing that the total receipts shown by the assessee during the year was Rs. 6,77,865/- from her business of dress designing whereas the cash deposits far exceed the said receipts. It was further observed by the AO that the cash withdrawals shown by the assessee ITA 2412/Mum/2011 4 from the bank accounts were still not enough to cover the entire cash deposits. The assessee was asked to give details of receipts from her dress designing business shown in the Profit and Loss Account alongwith a list of all the parties with the name and address , dates and modes of receipts , bills raised in respect of such payments and relevant bank extracts and ledger extracts to support and evidence the same. In reply the assessee submitted that most of the payments from her dress designing business were received in cash and deposited in the bank accounts . No evidence of any kind had been furnished by the assessee before the AO to substantiate that sale proceeds from parties with respect to dress designing business were deposited in the bank and thus the claim of the assessee that the business receipts had been deposited in the bank accounts was rejected by the AO. The assessee’s further claimed that the cash withdrawn from bank was used to deposit the same back to the bank account, the A.O. noted that the assessee had shown several cash withdrawals from her accounts as per the bank summary submitted by the assessee whereas the entries shown by the assessee as cash withdrawals in the bank summary were actually not cash withdrawals. The analysis of relevant entries were made by the AO as under:-
SN Name of the Bank Date of Amount Narration in bank withdrawal statement 1 ABN Amro 07-09-2004 2,50,000 ABN Amro Equity Fund 2 ABN Amro 27-09-2004 1,50,000 Inward clearing 3 ABN Amro 07-03-2005 1,00,000 DD/CC issued 4 SCB (549348-5) 02-11-2004 15,000 Cash withdrawal 5 HSBC 08-02-2005 2,50,000 Investment in Franklin India Flexi Cap fund Div/R 6 CITI Bank 12-10-2004 3,00,000 Funds Transfer ITA 2412/Mum/2011 5 Thus, from the above entries, it was concluded by the AO that as against the claim of the assessee that above six entries reflected cash withdrawal from bank is only partially true as only entry at S. No. 4 reflects cash withdrawal of Rs.15,000/- from the bank , while the rest of the five entries were not cash withdrawal from the bank account and the claim of the assessee is not correct was the observation of the AO. With respect to the assessee’s claim that she had withdrawn an amount of Rs. 15,000/- from her bank account which has been deposited back in the bank accounts, it was observed by the AO that however, no evidence has been submitted by the assessee in this respect. Further, the assessee has shown withdrawals of Rs. 95,319/- from her capital account which must include some cash withdrawals from the bank accounts. Therefore, this amount of Rs. 15,000/- may be part of the same withdrawals since no other cash withdrawals were reflected in the bank accounts of the assessee. Thus, the AO observed that the cash withdrawals shown by the assessee in her bank summaries have been found to be bogus except one cash withdrawal of Rs. 15,000/- which may be part of withdrawal of Rs.95.319/- by the assessee from her capital account. Hence, the amount of cash deposits in the bank accounts as mentioned above i.e. Rs. 16,18,000/- was added to the total income of the assessee as unexplained cash credits u/s 68 of the Act by the AO vide assessment order dated 18-12-2007 passed by the AO u/s 143(3) of the Act.
Aggrieved by the assessment order dated 18-12-2007 passed by the A.O. u/s 143(3) of the Act, the assessee filed first appeal before the learned CIT(A).
Before the ld. CIT(A), the assessee contended that as regards addition of Rs. 16,18,000/- u/s 68 of the Act, representing the cash deposits made in the bank account, represents receipts from sale to the parties of her dress designing business and cash withdrawn from the bank which were deposited back in the bank accounts. It was submitted that the summary of cash ITA 2412/Mum/2011 6 account was given by the assessee before the AO vide letter dated 17-12-2007 submitted on 20-12-2007 but the same did not appear to have been taken into consideration by the AO while passing the assessment order dated 18- 12-2007 u/s 143(3) of the Act . The assessee submitted that certain inadvertent mistake crept in the bank summary furnished earlier and on account of these mistakes, as analyzed and highlighted in the assessment order, A.O. had come to the conclusion that cash withdrawals shown in the summary are bogus except Rs. 15000/-. The assessee submitted that it is a fact on record that the assessee is carrying on business of dress designing for the last many years and receipts are in cash which had been explained. The assessee prepared the fresh cash flow statement and submitted before the learned CIT(A) which is as under:-
Name of the Bank Cash deposited Cash withdrawn.
Std. Chartered Bank Rs.7,41,000 Rs.1,35,000 A/C No. 549348 Std. Chartered Bank Rs.75,000 Rs.1,00,000 A/c No. 064758 ABN Amro Rs.8,02,000 Rs.1,00,000 Citi Bank Rs.22,500 Rs. 3,06,000 Rs.16,40,500 Rs.6,41,000 Gross receipts of profession Rs. 6,77,865 Interest received in cash Rs. 78,094 Opening cash Rs. 5,064 Total Rs.7,61,023 Expenses and withdrawals:-
Telephone Rs. 8723/- Salary Rs. 78000/- Conveyance Rs. 6498/- Misc. Rs. 2434/- Withdrawals Rs. 95320/- Rs. 1,90,975 ITA 2412/Mum/2011 7
Net surplus Rs.5,70,048 ----------------- Based on the above, the assessee submitted that total cash available with the assessee was Rs.12,11,048 (Rs.570048 + 641000) and cash deposited and expended was Rs. 1640500/- resulting in shortage of cash of Rs. 4,29,452/- and the copies of all bank account highlighting the cash deposits and withdrawals were submitted before the learned CIT(A). In the circumstances, it was submitted that there was no shortage of cash of Rs. 16,18,000/- as found by the A.O. in the assessment order dated 18-12-2007 passed u/s. 143(3) of the Act but actual shortage of cash is only of Rs. 4,29,452/- which may kindly be added to the income of the assessee was the prayer of the assessee before the learned CIT(A).
However, the ld. CIT(A) rejected the plea of the assessee on the ground that the assessee has not furnished complete details of all the parties with name and address from whom business receipts from dress designing business were received by the assessee , dates and modes of receipts, bills raised in respect of these receipts and relevant ledger/bank extracts were not submitted by the assessee as called for by the AO . The learned CIT(A) held that the AO has rightly rejected the claim of the assessee that the business receipts were deposited in the bank account of the assessee and also wrong claim was made by the assessee about cash withdrawal from bank while the assesssee only withdrew Rs.15000/- from the bank which could be part of withdrawal made by the assessee shown in her capital account. Accordingly the addition made by the A.O. of Rs. 16,18,000/- u/s 68 of the Act was confirmed by the learned CIT(A) vide appellate orders dated 14.1.2011 passed by learned CIT(A).
Aggrieved by the appellate order dated 14.1.2011 passed by the ld. CIT(A) the assessee filed second appeal before the Tribunal.
ITA 2412/Mum/2011 8
The ld. Counsel for the assessee submitted that the assessee has received income from dress designing to the tune of Rs. 6,77,865/- which was received in cash and also there was receipt of interest of Rs.78,094/- in cash from Mr Manohar Ahuja, out of which the net profit transferred to capital account was Rs. 209591.75. The profit and loss account of the assessee is placed in paper book page 3 filed with the Tribunal . The ld. Counsel submitted that the assessee has withdrawn an amount of Rs. 3,00,000/- (paper book / 4-bank statement placed on record) in cash on 12th October, 2004 from Citi Bank whereby there is remark ‘Fund Transfer- Intercity cash payments’ which is in-fact cash withdrawal by the assessee from the bank and which was wrongly rejected by the authorities below. He also invited our attention to paper book page 5 whereby bank statement is placed on record and submitted that the assessee had further withdrawn an amount of Rs. 15,000/- in cash from Standard Chartered Bank on 02-11-2004 which was accepted by the AO as cash withdrawal . The assessee has also received interest to the tune of Rs. 78,094/- in cash from Mr. Manohar Ahuja which should also be considered while computing cash deposits in the bank and arriving at shortfall of cash in hand to arrive at income to be brought to tax on this count. The ld. Counsel submitted that as per the cash flow statement (paper book page 62), the total cash available with the assessee was Rs. 12,11,048/- and the cash deposited and expended was Rs. 16,40,500/- resulted in shortage of cash to the tune of Rs. 4,29,452/- which could be brought to tax , hence there is no shortage of cash of Rs.16,18,000/- as alleged by the A.O. in his assessment order dated 18.12.2007 passed u/s 143(3) of the Act as confirmed by learned CIT(A) in his appellate orders 14.1.2011.
The ld. D.R. relied on the orders of the learned CIT(A) and submitted in alternative that verification is required with respect to the cash flow ITA 2412/Mum/2011 9 statement, bank statement etc. submitted by the assessee , hence the matter may be set aside the to the file of the A.O. for verification and de-novo determination of the issue on merits.
We have considered the rival contentions and also perused the material available on record. We have observed that the assessee has deposited cash in bank to the tune of Rs. 16,18,000/- for which the assessee has explained by way of cash flow statements , cash book , bank book/summary, bank statements etc. to justify the sources of the cash deposit which mainly is claimed by the assessee to have arisen from business receipts from dress designing business, receipt of interest income in cash from Manohar Ahuja and re-deposit of cash withdrawn from the bank accounts as set out above. The assessee has submitted paper book which contained various bank statements, cash book and summary charts to explain that shortage of cash was only to the tune of Rs.4,29,452/- and not Rs.16,18,000/- as alleged by the authorities below and submitted that to the extent of Rs.4,29,452/- addition is sustainable and acceptable to the assessee . These contentions along with documents and cash flow/summaries submitted have not been verified by the authorities below. In our considered view and in the interest of justice and fair play, we set aside and restore this issue back to the file of the A.O. for verification , examination and enquiry of the claim of the assessee , in the light of the cash flow statement , summaries, cash book, bank statement and other relevant evidences which the assessee files to support her contentions in her defense with respect to the deposit of the cash in the bank , and also in the light of any other explanation which the AO may require for proper adjudication of the issue on merits . The A.O. shall thereafter frame the assessment de-novo on merits after considering all the evidences and explanation furnished by the assessee on merits. Needless to say proper and adequate opportunity of being heard shall be provided by the ITA 2412/Mum/2011 10 AO to the assessee in accordance with principles of natural justice in accordance with law. We order accordingly.
In the result, assessee’s appeal in 2005-06 is allowed for statistical purpose.
Order pronounced in the open court on 17th August , 2016. आदेश क� घोषणा खुले �यायालय म� �दनांकः 17-08-2016 को क� गई ।