JYOTI S. AGARWAL,MUMBAI vs. ITO WD 20(1)(3), MUMBAI

The assessee is aggrieved by the decision of learned CIT(A) in confirming the addition of ` 20,29,800/- made by the Assessing Officer u/s. 68 of the Act. The assessee is appeared in person.

I have heard the parties and perused the record. The Assessing Officer reopened the assessment of the year under consideration by issuing notice u/s. 148 of the Act on noticing that the assessee had deposited cash aggregating to ` 20,29,800/- in her bank account. Before the Assessing Officer, the assessee submitted that the said deposits were made by her erstwhile employer named Mr. Bhavesh K. Vora and accordingly pleaded that these deposits do not belong to her. The Assessing Officer was not satisfied with the explanation of the assessee and accordingly assessed the above said

The assessee submitted that her employer had actually operated her bank account and all the deposits made therein were immediately transferred to the account of the employer Mr. Bhavesh K. Vora. She further submitted that the employer has not kept his words with many people and hence many people have filed cases against Mr. Bhavesh K. Vora. She further submitted that she has also filed a case against him in a cheque dishonour matter and case is still pending before the Court. Accordingly she submitted that the Assessing Officer was not justified in assessing the deposits made by Mr. Bhavesh K. Vora in her bank account. Accordingly, she pleaded that the addition made by the tax authorities may kindly be deleted.

On the contrary, learned Departmental Representative submitted that the deposits were found in the bank account of the assessee and explanations furnished by her were not substantiated with any evidence. Accordingly, he submitted that learned CIT(A) was justified in confirming the assessment of ` 20,29,800/- made by the Assessing Officer.

From the records, I noticed that the assessee has also filed a complaint against Mr. Bhavesh K. Vora and further the assessee has also furnished copies of cases/complaints filed against Mr. Bhavesh K. Vora by her and other persons. The claim of the assessee is that the cash deposits have been made by Mr. Bhavesh K. Vora in her bank account and the deposits so made have been transferred to the account of Mr. Bhavesh K. Vora. I notice that the assessee has left employment with Shri Bhavesh K Vora and hence there would be difficulty in proving these submissions, since it is natural that Shri Bhavesh Vora would not co-operate with the assessee.

The Hon'ble Supreme Court in the case of P.K. Noorjahan (237 ITR 570) has explained the scope of provisions of section 69 and has stated that power vested with the Assessing Officer u/s. 68 & 69 is discretionary in nature and the Assessing Officer may also choose not to make any addition considering the peculiar facts available in a particular case. In my view decision rendered by Hon'ble Supreme Court in the above said case can be applied to the facts prevailing in the instant case. The very fact that many people have lodged the complaint against Mr. Bhavesh K. Vora including the assessee and also the fact that the deposits made into the bank account of the assessee have been transferred to the account of Mr. Bhavesh K. Vora, in my view, show that there may be merit in the submission of the assessee that the deposits were not made by her. Considering the peculiar facts prevailing in the instant case, I am of the view that the explanations of the assessee may be accepted. Accordingly, I set aside the order passed by learned CIT(A) and direct the Assessing Officer to delete this addition.

In the result, appeal filed by the assessee is allowed. Order has been pronounced in the Court on 3.8.2016