Jhamtani Jairam Ramchand, Pune V. Income-tax Officer, Akurdi

ITA 1018/PUN/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3950 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 11-03-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE VIRTUAL COURT BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER . / ITA NO.1018/PUN/2017 / ASSESSMENT YEAR 2008-09 JHAMTANI JAIRAM RAMCHAND, JHAMTANI IRON TRADING, S.NO.11/2/7, OPP. ROYAL WORLD SCHOOL, BEHIND JHAMTANI IMPRESSIONS, PIMPRI, PUNE 411 017 PAN :AAYPJ2708E VS. ITO, WARD-8(3), PUNE APPELLANT RESPONDENT / ORDER PER R.S. SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A)-9, PUNE ON 09-02-2017 IN RELATION TO THE ASSESS MENT YEAR 2008-09. 2. THE ASSESSEE HAS FILED MODIFIED GROUNDS OF THE APPEAL , WHICH HAVE BEEN TAKEN INTO CONSIDERATION FOR DISPOSAL. 3. THE FIRST ISSUE RAISED THROUGH MODIFIED GROUND NOS. 1 & 2 IS AGAINST THE CONFIRMATION OF ADDITION OF RS.5,23,348/-, BEING , DEPOSITS MADE BY THE ASSESSEE IN SEVA VIKAS COOPERATIVE BAN K ASSESSEE BY SHRI DINESH GULABANI REVENUE BY SHRI S.P. WALIMBE DATE OF HEARING 11-03-2021 DATE OF PRONOUNCEMENT 11-03-2021 ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 2 (SAVINGS ACCOUNT NO.007260) NOT DISCLOSED BY THE ASSESS EE IN ITS RETURN OF INCOME. 4. THE FACTUAL SCENARIO OF THE CASE IS THAT THE ASSESSEE F ILED HIS RETURN OF INCOME ON 27-09-2008 FOR WHICH THE ASSESSMENT WAS COMPLETED ON 24-10-2010. LATER, THE AO CAME TO OBSERVE THAT THE ASSESSEE HAD MAINTAINED TWO BANK ACCOUNTS MAINTAINED WITH SE VA VIKAS COOPERATIVE BANK, PIMPRI, PUNE HAVING NUMBERS S.B.A/C.NOS.7260 AND 8638, WHICH WERE NOT DISCLOSED IN THE BOOKS OF ACCOUNTS. TAKING RECOURSE TO SEC.147 OF THE ACT, HE IS SUED NOTICE U/S.148. ON BEING CALLED UPON TO EXPLAIN THE SOURCE OF DE POSITS IN THESE ACCOUNTS, THE ASSESSEE SUBMITTED QUA S.B.A/C. NO.7260 THAT TRANSACTIONS IN RESPECT OF ITS UNDISCLOSED TRANSPORTATION BUSINES S WERE RECORDED HEREIN, WHICH WERE COVERED U/S.44AE OF TH E ACT. A PRAYER WAS MADE THAT ONLY THE INCOME CHARGEABLE U/S.44AE, AT THE RATE OF RS.3,150/- PER MONTH AS MULTIPLIED WITH 12 TOTALING TO RS.37,800/-, SHOULD BE CHARGED TO TAX. THE AO DID NOT ACCEPT THE ASSESSEES CONTENTION AND INCLUDED THE AMOUNT OF DEPOSITS OF RS.5,23,348/- IN THE TOTAL INCOME ON THIS SCORE. THE ASSE SSEE REMAINED UNSUCCESSFUL BEFORE THE LD. CIT(A), WHO FOLLOWE D THE VIEW TAKEN IN THE APPEAL OF THE ASSESSEE FOR THE ASSESSMEN T YEAR ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 3 2009-10. AGGRIEVED THEREBY, THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE SIDES THROUGH VIRTUAL COURT AND G ONE THROUGH THE RELEVANT MATERIAL ON RECORD. IT IS SEEN THAT THE ASSESSEE THOUGH FILED THE RETURN OF INCOME, BUT DID NOT DISCLOSE THE SA VINGS BANK ACCOUNT NO. 7260 MAINTAINED WITH SEVA VIKAS COOPERATIVE BANK. THE TRANSACTIONS RECORDED IN THIS BANK ACCOUNT WERE CONSEQUENTLY NOT DEPICTED IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY HIM. WHEN THE AO ENQUIRED ABOUT THE MAINTENAN CE OF SUCH A BANK ACCOUNT AND SOURCES OF THE DEPOSITS, TH E ASSESSEE CAME OUT WITH A PLEA THAT HE WAS RUNNING A TRANSPORTATION BUSIN ESS OUTSIDE THE BOOKS OF ACCOUNT AND THE RECEIPTS FROM SUCH BU SINESS WERE DEPOSITED IN THE BANK ACCOUNT. THIS PLEA WAS TAKEN SO AS TO CIRCUMVENT THE TAXATION OF THE FULL AMOUNTS DEPOSITED IN THE BAN K ACCOUNT IN THIS RESPECT AND ACCORDINGLY GET COVERED U/S.44AE OF THE ACT WITH A LOWER INCIDENCE OF INCOME. THIS CLAIM COULD HAVE BEEN MERITED ACCEPTANCE IF THE ASSESSEE HAD SHOWN THE LIST OF P ERSONS AND THEIR CONFIRMATIONS ETC. FOR WHOM HE DID THE TRANSPORTATION B USINESS AND THE RESULTANT TRANSPORTATION RECEIPTS. NO SUCH EVIDENCE HAS BEEN PLACED ON RECORD. IN SUCH A SCENARIO, IT IS DIFFICULT TO ACC EPT THE ASSESSEES PLEA OF RUNNING A TRANSPORTATION BUSINESS OUTSIDE BOOKS OF ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 4 ACCOUNT AND DEPOSITING THE PROCEEDS OF SUCH A BUSINESS IN THIS BANK ACCOUNT. IT IS PERTINENT TO MENTION THAT SIMILAR PLEA TAKEN BY TH E ASSESSEE FOR THE ASSESSMENT YEARS 2009-10 AND 2010-11 WAS ALSO DISCARDED BY THE TRIBUNAL, COPIES OF WHICH ORDERS HAVE BE EN PLACED ON RECORD. RESPECTFULLY FOLLOWING THE PRECEDENT, WE DISMISS THE GROUNDS TAKEN BY THE ASSESSEE QUA S.B.A/C. NO.7260 AND HOLD THAT THE ADDITION OF RS.5,23,348/- WAS RIGHTLY MADE. FURTHER, THE RE IS NO SUBSTANCE IN THE ASSESSEES ALTERNATE GROUND FOR TAXING PEA K CREDIT AS SUCH A CONTENTION HAS ALSO BEEN REJECTED BY THE TRIBUNAL IN TH E AFORE NOTED ORDERS IN IDENTICAL CIRCUMSTANCES. THESE TWO GROUN DS, THEREFORE, STAND DISMISSED. 6. THE NEXT THREE GROUNDS ARE WITH REFERENCE TO DEPOSITS M ADE IN SAVINGS BANK A/C. NO.008638 MAINTAINED WITH SEVA VIKAS COOPERATIVE BANK WHICH WAS ALSO NOT DISCLOSED. THE AO ADD ED RS.30,01,000/- REPRESENTING DEPOSITS IN THIS BANK ACCOUNT O N THE GROUND THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT. THE ASSESSEE HAD, IN FACT , STATED BEFORE THE AO, WHICH HAS BEEN REPRODUCED ON PAGE 3 OF THE ASSESSMENT ORDER, THAT THIS BANK ACCOUNT WAS JOINTLY OPERATED WITH HIS BROTHER AND THE RECEIPT OF RS.30.00 LAKH WAS ON ACCO UNT OF SALE OF PLOT WHICH WAS OWNED BY HIS FATHER-HUF AND SHOULD BE TAXED IN ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 5 THE FATHERS HUF AND BOTH THE BROTHERS, BEING, MEMBERS OF THE HUF. IN SUPPORT OF THE CONTENTION, THE ASSESSEE ALSO FURNISHED A COPY OF AGREEMENT FOR THE PLOT SALE AND ALSO THE ASSESSMENT ORDER F OR THE ASSESSMENT YEAR 2009-10. NOT CONVINCED, THE AO MADE AD DITION FOR THE ENTIRE AMOUNT OF DEPOSITS WHICH CAME TO BE AFFIRMED IN THE FIRST APPEAL. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE RECORD, WE FIND THAT THE ASSESSEE CATEGORICALLY STATED BEFO RE THE AO THAT THE DEPOSIT OF RS.30.00 LAKH IN THIS BANK ACCOUNT WAS H IS SHARE IN THE SALE OF PLOT OF LAND BY HIS FATHER. THE ASSESSEE A LSO PLACED ON RECORD A COPY OF RETURN FILED ON BEHALF OF HIS FATHER FO R THE ASSESSMENT YEAR 2008-09, INDICATING THE DISCLOSURE OF THE FACTUM OF THE SALE OF THE PLOT, A COPY OF WHICH HAS BEEN PLACED AT P AGE 169 OF THE PAPER BOOK. SUCH RETURN WAS FILED ON 20-04-2009 AND A COPY OF ASSESSMENT ORDER PASSED ON 27-12-2010 HAS ALSO BEEN P LACED ON PAGE 145 OF THE PAPER BOOK. THESE FACTS EVIDENCE THAT T HE FATHER DID SELL CERTAIN PROPERTY AND THE AMOUNT OF PROPORTIONATE CAPITAL GA IN WAS OFFERED IN THE RETURN OF INCOME. WHEN SUCH MATERIAL WAS PLACED BEFORE THE AO AND THE ASSESSEE CONTENDED THAT THE BANK ACCOUNT WAS MAINTAINED JOINTLY WITH HIS BROTHER, THEN IT BECAME THE DUTY OF THE AO TO EXAMINE THE ASSESSEES CONTENTION FOR UNE ARTHING ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 6 THE TRUTH INSTEAD OF SIMPLY MAKING AN ADDITION TOWARDS THE AM OUNTS CREDITED IN THE BANK ACCOUNT. ANY TEMPTATION ON THE PART O F THE AO TO ADOPT SHORT CUTS AND MAKE ADDITION WITHOUT EXAMINING THE ASSESSEES CONTENTION, NEEDS TO BE ESCHEWED. WE, THERE FORE, SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE AO FOR EXAMINING THE ASSESSEES CONTENTION AFRESH IN THIS REGAR D AND THEREAFTER FIND OUT THE AMOUNT OF ADDITION, IF ANY, CALLED FOR UNDER THE CIRCUMSTANCES. 8. THE LAST ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMA TION OF ADDITION OF RS.48,314/- TOWARDS INTEREST RECEIVED. THE AO MADE ADDITION FOR THIS SUM ON THE BASIS OF CASH FLOW STATEMENT FILED BY THE ASSESSEE, WHICH INDICATED THE INTEREST EARNED BUT NOT DISCLO SED IN THE RETURN. THE LD. CIT(A) AFFIRMED THE ADDITION. 9. THE LD. AR INVITED OUR ATTENTION TOWARDS PAGE 11 OF THE PA PER BOOK WHICH IS A COPY OF BANK ACCOUNT RECORDING SUCH INTER EST INCOME. CORRECT AMOUNT OF THE ENTRY IN THE STATEMENT IS RS.1 8,314/- AS AGAINST RS.48,314/- WHICH WAS INADVERTENTLY SHOWN AS IN TEREST INCOME AND GOT INCLUDED IN THE ASSESSEES TOTAL INCOME. SINCE THE CORRECT AMOUNT AS PER THE BANK ACCOUNT IS RS.18,314/-, W E DIRECT TO RESTRICT THE ADDITION TO THIS EXTENT. CONSEQUENTIAL RELIEF OF RS.30,000/- IS ALLOWED. ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 7 10. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2021. SD/- SD/- ( S.S.VISWANETHRA RAVI ) (R.S.SYAL) JUDICIAL MEMBER VIC E PRESIDENT PUNE; DATED : 11 TH MARCH, 2021 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. 4. THE CIT(A)-9, PUNE THE PR. CIT-5, PUNE 5. 6. , , B / DR B, ITAT, PUNE; / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR P RIVATE SECRETARY , / ITAT, PUNE ITA NO.1018/PUN/2017 JHAMTANI JAIRAM RAMCHAND 8 DATE 1. DRAFT DICTATED ON 11-03-2021 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11-03-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *