Smt Bharathi Narayan, Bangalore V. Income Tax Officer, Ward-4(4), Bangalore

ITA 1103/BANG/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9758 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-05-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 26-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DHIVAHAR J
• Assessee Lawyers: N SURAYANARAYANA ITP
• Keywords: Unexplained cash credit
• Section: 143(3); 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER A ND SHRI JASON P.BOAZ, ACCOUNTANT MEMBER ITA NO. 1 103 / BANG/20 1 4 (ASSESSMENT YEAR: 2010 - 11 ) SMT.BHARATHI NARAYAN, # 681, 1 ST C MAIN, 2 ND CROSS, 3 RD PHASE, K.G.LAYOUT, BANGALORE - 560085. APPELLANT PAN: AAZPB3178K VS. INCOME - TAX OFFICER, WARD 4(4), BANGALORE. RESPONDENT APPELLANT BY: SHRI N.SURAYANARAYANA, ITP. RESPONDENT BY: SHRI P.DHIVAHAR, JCIT(DR) . DATE OF HEARING : 1 8 /05/2015 DATE OF PRONOUNCEMENT: 22 /05/2015 O R D E R PER SMT.P.MADHAVI DEVI, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - II, BANGALORE, DATED 01/05/2015 CONFIRMING THE ADDITION OF RS.4.92,000/ - MAD E BY THE ASSESSING OFFICER (AO) U/S 68 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] FOR ASSESSMENT YEAR 2010 - 11. ITA NO . 1103 /BANG/20 1 4 SMT.BHARATHI NARAYAN PAGE 2 OF 5 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, AN INDIVIDUAL, FILED H ER RETURN OF INCOME FOR THE ASSESSME NT YEAR 2010 - 11 ON 29/06/2010 DECLARING TOTAL INCOME OF RS.6,53,440/ - . DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT, THE ASSESSEE WAS REQUIRED TO PRODUCE THE BOOKS OF ACCOUNT AND OTHER SUPPORTING DOCUMENTS IN RESPECT OF THE CLAIMS MADE IN THE R ETURN OF INCOME MORE PARTICULARLY IN RESPECT OF CREDIT S IN HER BANK ACCOUNT BY WAY OF CASH. THE ASSESSEE SUBMITTED A REPLY DATED 29/10/2012 EXPLAINING THE SOURCES FOR CASH DEPOSIT INTO HER BANK ACCOUNT. THE DETAILS OF THE SAID LETTER ARE REPRODUCED AT PA GES 2 TO 4 OF THE ASSESSMENT ORDER. THE ASSESSEE HAD ALSO EXPLAINED THAT THE ASSESSEE HAD WITHDRAWN A SUM OF RS.5 LAKHS FROM HER BANK ACCOUNT BY WAY OF A BEARER CHEQUE ISSUED IN THE NAME OF SHRI K.LAKSHMINARASIMHA MURTHY WHO RETURNED THE MONEY TO HER. TH E ASSESSEE WAS DIRECTED TO PRODUCE THE BANK STATEMENT OF SHRI K.LAKSHMINARASIMHA MURTHY AND ALSO TO PRODUCE SUCH PERSON. THE ASSESSEE FILED A LETTER STATING THAT SHRI K.LAKSHMINARASIMHA MURTHY WAS NOT AVAILABLE TO BE PRODUCED. THE AO, HOLDING THAT THE ASS ESSEE HAS FAILED TO EXPLAIN THE SOURCE OF DEPOSIT INTO HER ACCOUNT ON 3/8/2009 (RS.2 LAKHS), 28/8/2009 (RS.1 LAKH), 3/12/2009(RS.92,000/ - ), 4/12/2009 (RS.20,000/ - ) AND 7/12/2009 (RS.80,000/ - ) TREATED THE SAID AMOUNT AS UNEXPLAINED CREDIT AND ADDED IT TO TH E TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE ACT. ITA NO . 1103 /BANG/20 1 4 SMT.BHARATHI NARAYAN PAGE 3 OF 5 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ADDITION HOLDING IT TO BE A LOAN FROM SHRI K.LAKSHMINARASIMHA MURTHY. AGGRIEVED, ASSESSEE IS IN SECOND APPEAL BEFOR E US. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS EXPLAINED SOURCES OF THE CASH DEPOSIT S INTO HER ACCOUNT AS AMOUNTS WITHDRAWN FROM HER OWN ACCOUNT BUT NEITHER OF THE AUTHORITIES BELOW HA VE PROPERLY VERIFIED THE SAME AN D THE CIT(A) HAS ERRONEOUSLY UPHELD THE ADDITION MADE BY THE AO. HE HAS FILED BEFORE US COPY OF THE LETTER ISSUED BY THE KANAKAPURA BRANCH OF THE STATE BANK OF MYSORE STATING THAT A SUM OF RS.5,00,000/ - HAS BEEN WITHDRAWN BY K.LAKSHMINARASIMHA MURTHY THR OUGH BEARER CHEQUE NO.381861 DATED 22/06/2009 (ON BEHALF OF SMT.BHARATHI NARAYAN FROM HER ACCOUNT NO.364024070269) . LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO FILED BEFORE US A COPY OF THE BANK STATEMENT OF THE ASSESSEE WITH STATE BANK OF MYSORE, KANAKAPUR A REFLECTING THE TRANSACTION. HE, THEREFORE, SUBMITTED THAT THE AO HAS ERRONEOUSLY TREATED THE SAME AS UNEXPLAINED CASH CREDIT WHILE THE CIT(A) HAS TREATED IT AS A LOAN FROM SHRI K.LAKSHMINARASIMHA MURTHY, WHICH IS NOT CORRECT. LEARNED DEPARTMENTAL REPRE SENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAD FAILED TO PRODUCE DOCUMENTARY EVIDENCE IN ITA NO . 1103 /BANG/20 1 4 SMT.BHARATHI NARAYAN PAGE 4 OF 5 SUPPORT OF HER CONTENTION DUE TO WHICH THE AUTHORITIES BELOW HAVE CONFIRMED THE ADDITION. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAD CONTENDED BEFORE THE AO THAT THE SOURCE OF DEPOSITS WAS THE CASH WITHDRAWN FROM THE STATE BANK OF MYSORE ON 28/6/2009. HOWEVER, BEFORE US NOW, IT IS THE CON TENTION OF THE ASSESSEE THAT THE SOURCE OF THE DEPOSIT IS THE WITHDRAWAL OF CASH FROM THE STATE BANK OF MYSORE, VIDE CHEQUE BEARING NO.381861 ON 22/6/2009. FROM THE STATEMENT OF ACCOUNT OF THE ASSESSEE IN THE STATE BANK OF MYSORE, WE FIND THAT THERE IS N O WITHDRAWAL ON 28/6/2009 , BUT THE WITHDRAWAL DATED 22/6/2009 IS VERY MUCH REFLECTED. THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY THE BANK STATEMENT OF THE ASSESSEE AND THE LETTER ISSUED BY THE BANK FILED BY THE ASSESSEE AND IF THEY ARE FOUND TO BE GENUINE, THEN THE SAME MAY BE TREATED AS THE SOURCE FOR CASH DEPOSIT INTO ASSESSEE S BANK ACCOUNT. THE AO S FINDING THAT THE ASSESSEE HAS FAILED TO FILE THE BANK ACCOUNT COPY OF SHRI K.LAKSHMINARASIMHA MURTHY IS IRRELEVANT BECAUSE THE ASSESSEE HAS WITHDRAWN CASH FROM HER ACCOUNT AS IT IS THE CASE OF THE ASSESSEE WAS THAT A BEARER CHEQUE WAS IN THE NAME OF SHRI K.LAKSHMINARASIMHA MURTHY AND THEREFORE THE SAME WOUL D DEFINITELY NOT BE REFLECTED IN HIS BANK ACCOUNT. THEREFORE, THAT SHOULD NOT COME IN THE WAY OF THE ASSESSEE S EXPLAINING THE ITA NO . 1103 /BANG/20 1 4 SMT.BHARATHI NARAYAN PAGE 5 OF 5 SOURCE OF CASH DEPOSIT INTO HER BANK ACCOUNT BY WITHDRAWAL FROM HER OWN BANK ACCOUNT THROUGH THE BEARER SHRI K.LAKSHMINARASIMHA MURTHY. 6. IN VIEW OF THE SAME, THE ASSESSEE S APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRON OUNCED IN THE OPEN COURT ON 22 ND MAY , 201 5 . S D/ - S D/ - (JASON P BOAZ ) ( SMT. P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICI AL MEMBER EKSRINIVASULU COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE