Shri Kamlesh Nandlal Thakkar, Ahmedabad V. The Income tax Officer,Ward-7(2), Ahmedabad

CO 93/AHD/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8640 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 06-05-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: NANDLAL THAKKAR
• Keywords: Corroborative evidences
• Section: 143(3); 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE SHRI G. C. GUPTA, VP AND SHRI T. R. MEENA, AM) ITA NO.762/AHD/2012 (AY: 2008-09) THE INCOME TAX OFFICER, WARD 7 (2), AHMEDABAD VS SHRI KAMLESH NANDLAL THAKKAR, C/O. M/S. SUSHEEL CORPORATION, NANDANVAN, SUSHEEL PARK, VASTRAPUR, AHMEDABAD 380054 P. A. NO. AAPPT 0319 Q (APPELLANT) (RESPONDENT) C. O. NO.93/AHD/2012 (IN ITA NO.762/AHD/2012) SHRI KAMLESH NANDLAL THAKKAR, C/O. M/S. SUSHEEL CORPORATION, NANDANVAN, SUSHEEL PARK, VASTRAPUR, AHMEDABAD 380054 P. A. NO. AAPPT 0319 Q VS THE INCOME TAX OFFICER, WARD 7 (2), AHMEDABAD (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY SHRI Y. P. VERMA, SR. DR ASSESSEE BY SHRI NANDLAL THAKKAR, DATE OF HEARING: 06-05-2013 DATE OF PRONOUNCEMENT: 21-06-2013 ORDER PER T. R. MEENA : THE REVENUES APPEAL IS EMANATING FROM THE ORDER OF THE LEARNED CIT(A)-XIV, AHMEDABAD DATED 13-01-2012 FOR THE ASSESSMENT YEAR 2008-09. THE ONLY EFFECTIVE GROUND RAISED BY THE RE VENUE IS AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION TO THE EXTENT OF RS.7,00,000/- AS AGAINST THE ADDITION OF RS.25,00,000/- MADE BY THE ASSESSING OFFICER U/S. 6 8 OF THE I. T. ACT. IT A NO.762/AHD/2012 & CO NO.93/AHD/2012 (AY: 2008- 09) SHRI KAMLESH N. THAKKAR 2 2. THE ASSESSEES CROSS OBJECTION IS AGAINST CONFIR MATION OF ADDITION OF RS.7,00,000/- BY THE LEARNED CIT(A). 3. THE FACTUAL MATRIX OF THE CASE ARE THAT THE ASSE SSEES CASE FOR THE ASSESSMENT YEAR 2008-09 WAS SCRUTINIZED BY THE AO U /S 143(3) OF THE ACT. DURING THE YEAR THE ASSESSEE HAD DEPOSITED CASH OF RS.9.,50,000/- ON 05-09- 2007, RS.9,50,000/- ON 06-09-2007 AND RS.6,00,000/- ON 07-09-2007 IN HIS ACCOUNT NO.141801504278 WITH THE INDIAN OVERSEAS BA NK, SATELLITE BRANCH, AHMEDABAD. THUS, AGGREGATE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT WAS RS.25,00,000/-. THE LEARNED AO GAVE REASONABLE OPPO RTUNITY OF BEING HEARD ON THIS ISSUE TO THE ASSESSEE. THE ASSESSEE REPLIED BY LETTER DATED 13-08-2010 AND CLAIMED THAT THE ASSESSEE IS NRI AND THIS CASH WAS DEPOSITED OUT OF US DOLLARS BROUGHT FROM ABROAD TO INDIA. BUT THE ASSESSEES R EPLY WAS NOT FOUND CONVINCING TO THE AO. THEREFORE, HE MADE ADDITION U/S 68 OF TH E ACT FOR THE AFORESAID SUM OF RS.25,00,000/-. 4. BEING AGGRIEVED BY THE ORDER OF THE AO, THE ASSE SSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A) WHO HAD PARTLY ALLOWED T HE APPEAL OF THE ASSESSEE. IT WAS HELD BY THE LEARNED CIT(A) THAT THE ASSESSEE HA D NOT BEEN ABLE TO GIVE ANY SUPPORTING EVIDENCE REGARDING BRINGING OF MONEY FRO M ABROAD IN FOREIGN CURRENCY. THE ASSESSEE HAS ALSO NOT GIVEN ANY PROOF OR SUPPORTING EVIDENCE TO SHOW THAT HE HAD SUFFICIENT INCOME AS NRI IN UK. HE HAD NOT SUBMITTED ANY COPY OF HIS BANK ACCOUNT OR OTHER EVIDENCES TO SHOW THAT HE WITHDREW MONEY FROM THAT SOURCE AND HANDED OVER THE SAME TO HIS RELATIVES IN INDIA. THE CLAIM OF THE ASSESSEE REGARDING DEPOSIT OF RS.7,00,000/- OUT OF HIS INCOME KEPT WITH HIS FATHER WAS, THEREFORE, WITHOUT ANY EVIDENCE AND CAN NOT BE ACCEPTED. ADDITION MADE BY THE AO TO THE EXTENT OF RS.7,00,000/- IS AC CORDINGLY UPHELD BY HIM. 5. NOW, BOTH THE REVENUE AS WELL AS THE ASSESSEE IS BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSE E IS NRI FROM 21-10-2006 TO 06-09-2007. DURING HIS NRI PERIOD HE HAD AUTHORI ZED HIS FATHER BY EXECUTING POWER OF ATTORNEY TO ACT FOR AND ON BEHALF OF HIS F AMILY MEMBERS AND ACCORDINGLY IT A NO.762/AHD/2012 & CO NO.93/AHD/2012 (AY: 2008- 09) SHRI KAMLESH N. THAKKAR 3 HE WAS HANDLING HIS BANK ACCOUNT AND PERSONAL DEALI NGS. IT WAS SUBMITTED THAT OUT OF RS.25,00,000/- DEPOSITED IN CASH IN THE BANK ACCOUNT A SUM OF RS.19,00,0000/- WAS WITHDRAWN FROM THE SAME BANK AN D THE BALANCE AMOUNT OF RS.6,00,000/- WAS DEPOSITED FROM THE AMOUNT OF POUN D CONVERTED INTO RUPEES. HE FURTHER ARGUED THAT HIS FATHER, MOTHER, TWO BROT HERS AND WIFE HAD VISITED LONDON AND CAME BACK TO INDIA WITH HIS SAVINGS WHIC H HE HANDED OVER TO THEM WHEN THEY RETURNED TO INDIA. ON RETURN TO INDIA ON 06-09-2007 ALL THE AMOUNTS WHICH WERE LYING WITH HIS FATHER WERE DEPOSITED IN THE BANK ACCOUNT ON 07-09-2007. THE LEARNED COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE ASSESSEE HAD WITHDRAWN THESE AMOUNTS FROM HIS BANK ACCOUNT I N THREE YEARS. AT THE AIRPORT, NO ENTRY WAS MADE BY THE CUSTOMS AUTHORITY ABOUT HAVING FOREIGN CURRENCY OF LESS THAN 10,000 DOLLAR. THERE WERE SIX TRIPS BY THE ASSESSEE FROM UK. THEREFORE, HE PRAYED THAT THE ADDITION MAY BE D ELETED TO THE EXTENT OF RS.7,00,000/- CONFIRMED BY THE LEARNED CIT(A). 6. AT THE OUTSET, THE LEARNED DR CONTENDED THAT THE LEARNED CIT(A) WAS NOT RIGHT IN DELETING THE ADDITION OF RS.18,00,000/- ON THE BASIS OF ASSESSEES EXPLANATION THAT ON VISIT TO LONDON AND COMING BACK TO INDIA, THE ASSESSEE HANDED OVER THE DOLLARS TO HIS FAMILY MEMBERS. THER E IS NO EVIDENCE DECLARING THE DOLLAR AT AIRPORT AS WELL CONVERSION OF DOLLAR INTO RUPEES. IT IS HIGHLY IMPOSSIBLE THAT A PRUDENT NRI SHALL KEEP SUCH AMOUN T AT HIS RESIDENCE. THEREFORE, HE PRAYED TO CONFIRM THE ADDITION MADE B Y THE AO. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS ON RECORD. THE ASSESSEE IS NRI DURING THE PERIOD 21-10-2004 TO 06-09-2007. ALL THE CURRENCY WAS IN THE NATURE OF DOLLAR WHICH WAS DEPO SITED BY THE ASSESSEE AFTER RETURN TO INDIA IN 2007 IN HIS BANK ACCOUNT ON 07-0 9-2007. AS PER THE MIGRATION LAWS OF GOVERNMENT OF INDIA AND OTHER COUNTRIES, CE RTAIN AMOUNT OF DOLLAR IS ALLOWED TO THE TOURISTS IN ANY FORM TO BRING WITH T HEM. THE ASSESSEE HAS EXPLAINED THE SOURCE OF RS.25,00,000/- DEPOSITED IN THE BANK ACCOUNT WHICH WAS WITHDRAWN ON 10-05-2007 AND 11-05-2007 BY HIS FATHE R WHICH WERE KEPT WITH HIM. THE SAME AMOUNT WAS INCLUDED IN THE CASH DEPOS ITED BY HIM ON IT A NO.762/AHD/2012 & CO NO.93/AHD/2012 (AY: 2008- 09) SHRI KAMLESH N. THAKKAR 4 05-09-2007, 06-09-2007 AND 07-09-2007. THE AO HAD N OT BROUGHT ON RECORD ANY EVIDENCE THAT THE AMOUNT WITHDRAWN IN THE MONTH OF MAY, 2007 HAVE BEEN UTILIZED BY THE ASSESSEE SOMEWHERE ELSE. THEREFORE, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) CONFIRMING THE DELETION TO THE EXTEN T OF RS.18,00,000/-. FOR THE REMAINING AMOUNT OF RS.7,00,000/- THE ASSESSEE ARGU ED THAT THIS WAS ALSO EXPLAINED AND THAT THIS WAS THE AMOUNT CONVERTED FR OM DOLLAR INTO RUPEES BY VARIOUS FAMILY MEMBERS AND DEPOSITED IN THE BANK AC COUNT. IT IS EVIDENT THAT ASSESSEES FAMILY MEMBERS VISITED LONDON IN THE FIN ANCIAL YEAR 2004-05, 205-06 AND 2006-07 AND HAVE CLAIMED TO BE IN POSSESSION OF 15,000 DOLLARS IN TOTAL WITH THEM. HOWEVER, WE FIND THAT THE ASSESSEE COULD NOT BRING ANY EVIDENCE REGARDING BRINGING OF MONEY FROM ABROAD IN FOREIGN CURRENCY BY THE FAMILY MEMBERS OF THE ASSESSEE. IN FACT IT IS A MERE CLAIM BUT NOT SUPPORTED BY DOCUMENTARY OR CORROBORATIVE EVIDENCE. THE ASSESSEE COULD NOT FILE ANY EVIDENCE REGARDING CONVERSION OF FOREIGN EXCHANGE I N INDIAN CURRENCY AND HANDING OVER THE MONEY BY THE FAMILY MEMBERS TO THE ASSESSEE. THE ONUS IS ON THE ASSESSEE TO LEAD EVIDENCE IN THIS REGARD. THE L EARNED CIT(A) HAD GIVEN A FINDING THAT THE ASSESSEE COULD NOT GIVE ANY EVIDEN CE THAT HE HAS BROUGHT MONEY FROM UK. THE EXPLANATION OF THE ASSESSEE IN THIS RE GARD IS VAGUE AND GENERAL IN NATURE. BUT, THERE IS NO DIRECT NEXUS BETWEEN POSSE SSING THE DOLLAR AND CONVERTING THE SAME INTO RUPEES. HOWEVER, WE FIND T HAT THE ASSESSEE HAS CLAIMED THAT HE HAS BROUGHT 2000 DOLLAR ON HIS RETU RN ON 06-09-2007 AND 1500 DOLLAR WERE BROUGHT BY HIS WIFE ON HER RETURN TO IN DIA ON 03-03-2006. TAKING A LENIENT VIEW AND ALLOWING CREDIT FOR POSSIBLE MONEY BROUGHT FROM ABROAD, WE HOLD THAT THE ENDS OF JUSTICE SHALL BE MET IF WE CONFIRM THE ADDITION OF RS.4,00,000/- MADE U/S 68 OF THE ACT AND REMAINING ADDITION OF RS .3,00,000/- IS DELETED. ACCORDINGLY, ASSESSEES APPEAL IS PARTLY ALLOWED WH EREAS THE REVENUES APPEAL IS DISMISSED. IT A NO.762/AHD/2012 & CO NO.93/AHD/2012 (AY: 2008- 09) SHRI KAMLESH N. THAKKAR 5 8. IN THE RESULT, THE C. O. OF THE ASSESSEE IS PART LY ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21-06-2013. SD/- SD/- (G. C. GUPTA) VICE PRESIDENT (T. R. MEENA) ACCOUNTANT MEMBER LAKSHMIKANTA DEKA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 18-06-2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 19--06-2013/20-06-2013 OTHER MEM BER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: