Jayaben R. Buria, Mumbai vs Department Of Income Tax

आयकर अपील य अ धकरण, मंब ु ई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'J' MUMBAI सव ी आय.पी. बंसल, या यक सद य एवं नरे कुमार ब लै या, लेखा सद य के सम । BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER

आयकर अपील सं. / ITA No. 6819/MUM/2012 नधा रण वष /Assessment Year 2004-05

The ITO 25(2)(1), बनाम/ Smt. Jayaben R. Buria, C-11 Bldg., Room No.107, A/1/101, Star Galaxy, Vs. P.K.Bhavan, BKC, Bandra(E), L.T.Road, Borivali (West), Mumbai -51 Mumbai 400092

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAKPB 8800D

(अपीलाथ$ /Appellant) .. (%&यथ$ / Respondent)

Appellant by Shri Pawan Kumar Beerla Respondent by : Shri Anil Thakur सन ु वाई क( तार*ख / Date of Hearing : 24/06/2015 घोषणा क( तार*ख /Date of Pronouncement : 24/06/2015 आदे श / O R D E R

PER I.P.BANSAL, JM:

This is an appeal filed by the Revenue and it is directed against order passed by Ld. CIT(A)-35 Mumbai dated 1/8/2012 for assessment year 2004-

05. Grounds of appeal read as under:

"On the facts and in the circumstances of the case and in law, the Ld.ClT(A) erred in deleting the addition to the tune of Rs.15,65, 947/- out of total addition of Rs. 16,80,021/- u/s.68 of the Act without appreciating the fact that the assessee failed to provide the necessary documentary evidence regarding credits appearing in the bank account such as gift, sale of silver utensils and other receipts during the course of assessment proceedings or even during the course of appellate proceedings. "

2 आयकर अपील सं. / ITA No. 6819/MUM/2012 नधा रण वष /Assessment Year 2004-05

(ii) "On the facts and in the circumstances of the case and in law, the Ld.ClT(A) erred in deleting the addition to the tune of Rs. 15,65,947/- out of total addition of Rs. 16,80,021/- u/s.68 of the Act without appreciating the fact that the said account was not disclosed to the department in the return of income."

(iii) "The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the A.O be restored."

2. The assessee is an old lady of 75 years. All the credits in her account in ABN Amro Bank were added to the income of the assessee. The summary of the bank account as given in the assessment order is as follows:

Op.Balance 14239 Bank Charge 200 Gift received 130000 Inv. C/F 1074175 C.Y inv Return 580000 C.Y.Investment 580000 Silver Utensil Sold 336000 CL Balance 39885 31.03.05 M.F Gain Short 11455 term Bank Interest 2926 Other 619640 1694260 1694260

2.1 According to AO assessee could not explain the credit entries, therefore, after excluding the opening balance he added a sum of Rs.16,80,021/- to the income of the assessee being unexplained cash credit under section 68 of the Income Tax Act, 1961(the Act). The addition was agitated in an appeal filed before Ld. CIT(A).

3. Before Ld. CIT(A) the details of credit in the bank account were submitted which is reproduced in para -4 of the CIT(A)'s order as Annexure -A and from the said chart another chart is reproduced giving summary of the bank account from the deposit, which is reproduced below:

3 आयकर अपील सं. / ITA No. 6819/MUM/2012 नधा रण वष /Assessment Year 2004-05

Particulars Rs. Particulars Rs.

Opening Balance 14239 Proceeds of opening Investment 600,000 Bank charges 200 Gain on above investment 84,946 Others 29,500 Proceeds of current year 500,000 Current investment to next 1,145,000 investment year Gain on above current year 4650 Current year investment 500,000 investment Bank interest 2,927 Dividend 20,325 Proceeds from sale of silver utensils 336,000 Cash Gift Deposited 105,000 Gift Received 25,000 Other Receipts 21,500 Closing balance 39,887 Total 1,714,587 Total 1,714,587 Total Excluding Opening/ Closing 1,700,348 1,674,700 Balance

3.1 A chart has also been prepared regarding taxable income earned by the

assessee from mutual funds and bank etc. and the same chart is also reproduced below:

S.No. Name Date of Amt. Date of sale Amount Gain Nature Investment Invested realized from sale

1. ICICI Mutual 4/1/2002 175,000 11/5/2003 197.357 22,357 Long term fund

2. ICICI Mutual 4/1/2002 50,000 11/7/2003 66,805 16,805 Long term fund

3. ICICI Mutual 4/1/2002 50,000 11/7/2003 58,496 8,496 Long term Fund

4. ICICI Mutual 4/1/2002 275,000 11/14/2003 299,710 24,710 Long term Fund

5. ICICI Mutual 11/18/2003 250,000 1/23/2004 252,997 2,997 Short fund term

6. ICICI Mutual 11/18/2003 250,000 1/28/2004 251,653 1,653 Short Fund term

7. JM Mutual Fund 4/1/2002 50,000 11/6/2003 62,577 12,577 Long term Total capital 1,100,000 1,189,595 89,595 gain Bank interest 2,927 Total taxable 92,522 income

4 आयकर अपील सं. / ITA No. 6819/MUM/2012 नधा रण वष /Assessment Year 2004-05

3.2 After considering all these submissions Ld. CIT(A) recorded a finding that AO made addition by taking into consideration all credit entries in the bank account without looking into the nature of the credits. Most of the credits are from realization of investment in mutual funds invested either in the same year or in earlier years and in such situation only profit from mutual fund could be taxed. Regarding gifts and silver utensils, the assessee had filed declaration and nothing contrary had been proved by the AO. Considering the amount involved and age of the assessee, the addition was not justified. The investment in mutual funds is nothing but rotation of funds from one mutual fund to another and switch of the said funds periodically. Thus, he has held that only following income can be assessed.

1. Bank Interest Rs. 2,979/-

2. Profit on sale of MF Rs. 89,595/-

3. Other receipts Rs. 21,500/-

Total Rs.1,14,074/-

3.3 In this manner Ld. CIT(A) sustained the addition of Rs.1,14,074/- in

respect of addition made by the AO at Rs.16,80,021/- and appeal has been partly allowed by him. The Revenue is aggrieved with the deleted part of the addition and has filed aforementioned grounds.

4. Ld. DR relied upon the order passed by AO and on the other hand Ld. AR of the assessee relied upon the order passed by Ld. CIT(A).

5. We have heard both the parties and their contentions have carefully been considered. The entire deposit in the bank account were added by the AO. The assessee had submitted the explanation which has been considered by Ld. CIT(A) and he has recorded a finding that assessee could explain all the deposits in the bank account which could not be added under section 68 of the Act. He has held that addition to the extent of Rs.1,14,074/- was sustainable 5 आयकर अपील सं. / ITA No. 6819/MUM/2012 नधा रण वष /Assessment Year 2004-05

which has been upheld by him. Looking into the entirety of the facts, we are of the opinion that Ld. CIT(A) did not commit any error in giving impugned relief to the assessee. We decline to interfere . Accordingly, the appeal filed by the Revenue is dismissed.

6. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the open court on 24/06/2015 आदे श क( घोषणा खुले यायालय म0 1दनांकः 24/06/2015 को क( गई ।

Sd/- Sd/- (नरे कुमार ब लै या / N.K.BILLAIYA) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai; 1दनांक Dated 24/06/2015

आदे श त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ$ / The Appellant

2. %&यथ$ / The Respondent.

3. आयकर आयु4त(अपील) / The CIT(A)-

4. आयकर आयु4त / CIT

5. 5वभागीय % त न7ध, आयकर अपील*य अ7धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, स&या5पत % त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS