SUMITRA DEVI AGRAWAL, JAIPUR V. ITO, WARD-4(4), JAIPUR

ITA 1169/JPR/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2254 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 01-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PA K VIHYKFKHZ IZRFKHZ
• Assessee Lawyers: PALLAVI JOSHI ADV MAN M
• Section: 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1169/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13 SUMITRA DEVI AGRAWAL A-280, SHIVAJI MARG, NEHRU NAGAR, JAIPUR. CUKE VS. ITO, WARD-4(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABYPA1325K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : PALLAVI JOSHI (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MAN MOHAN KANDPAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/11/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 03/12/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 24.07.2019 WHEREIN THE ASSES SEE HAS TAKEN FOLLOWING SOLE GROUND OF APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE HAS NOT FILE D ANY LINKAGE/PROOF THAT WITHDRAWAL MADE LAST YEAR REMAIN ED AND WAS UTILIZED DURING THE YEAR FOR DEPOSIT IN THE CAPITAL ACCOUNT AND THEREBY CONFIRMING THE ADDITION OF RS. 7,50,500/-. ITA NO. 1169/JP/2019 SUMITRA DEVI AGARWAL VS. ITO 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS ENGAGED IN TRADING OF MUSTARD OIL, MUSTARD CAKE, GE NERAL GROCERY ETC. DURING THE YEAR UNDER CONSIDERATION, SHE HAS INTROD UCE CAPITAL OF RS. 7,50,500/- IN HER BUSINESS AND THE SOURCE OF SUCH C APITAL INTRODUCTION HAS BEEN EXPLAINED AS WITHDRAWALS MADE BY THE ASSES SEE FROM HER CAPITAL ACCOUNT OF THE PREVIOUS FINANCIAL YEAR. HOW EVER, THE AO DID NOT ACCEPT THE SUBMISSION OF THE ASSESSEE FOR THE REASO N THAT THE WITHDRAWALS MADE DURING THE PRECEDING FINANCIAL YEA R WERE DEPOSITED IN THE CURRENT FINANCIAL YEAR HAVE NO WEIGHT BECAUSE I N HIS VIEW, THE WITHDRAWALS MAY HAVE BEEN UTILIZED FOR SOME OTHER P URPOSES AND IT CANNOT BE RETAINED BY THE ASSESSEE IN ANTICIPATION OF PROPOSED CAPITAL INTRODUCTION DURING THE YEAR UNDER CONSIDERATION. A CCORDINGLY, AN AMOUNT OF RS. 7,50,500/- WAS ADDED AS INCOME FROM O THER SOURCES U/S 69 OF THE ACT. BEING AGGRIEVED, THE ASSESSEE CARRIE D THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS SUSTAINED THE SAID ADDITION AND NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE IS AN OLD LADY AND HAS WITHDRAWN A SUM OF RS. 7,00,000/- IN PRECEDING FINANCIAL YEAR AND RS. 1,00,000/- IN CURR ENT FINANCIAL YEAR FROM HER CAPITAL ACCOUNT AND THE SAME HAS BEEN REIN TRODUCED AS CAPITAL IN HER BUSINESS DURING THE YEAR UNDER CONSIDERATION . IT WAS SUBMITTED THAT BEING AN OLD LADY, SHE USED TO KEEP CASH WITH HER FOR EMERGENCY REQUIREMENT AND THE SAME WAS AVAILABLE AT THE BEGIN NING OF THE FINANCIAL YEAR. IT WAS FURTHER SUBMITTED THAT THE AO DID NOT BRING ANY EVIDENCE OR MATERIAL THAT WITHDRAWALS OF PRECEDING FINANCIAL YEAR WERE UTILIZED ELSEWHERE AND IN THE ASSESSMENT ORDER, HE HAS STATED THAT THE WITHDRAWALS MAY HAVE BEEN UTILIZED FOR SOME OTHER P URPOSES. IT WAS ITA NO. 1169/JP/2019 SUMITRA DEVI AGARWAL VS. ITO 3 ACCORDINGLY SUBMITTED THAT IT WAS A MERE SUSPICION ON PART OF THE ASSESSING OFFICER THAT CASH SO WITHDRAWN WAS NOT AV AILABLE AND MERE SUSPICION CANNOT BE MADE THE BASIS FOR MAKING THE A DDITION IN THE HANDS OF THE ASSESSEE. FURTHER, IN SUPPORT OF THE F ACT THAT THERE WERE WITHDRAWALS MADE ON VARIOUS DATES IN THE PRECEDING FINANCIAL YEAR AMOUNTING TO RS. 7 LAC AND SAME WAS AVAILABLE AT TH E BEGINNING OF THE FINANCIAL YEAR AND WHICH WAS REINTRODUCED IN THE CA PITAL ACCOUNT DURING THE YEAR UNDER CONSIDERATION, COPY OF CAPITAL ACCOU NT OF PREVIOUS FINANCIAL YEAR AND AN AFFIDAVIT OF THE ASSESSEE WAS ALSO SUBMITTED. IT WAS ACCORDINGLY SUBMITTED THAT THE ADDITION SO MADE BY THE AO MAY BE DIRECTED TO BE DELETED. FURTHER, IN SUPPORT OF THE PROPOSITION THAT MERELY BECAUSE THERE IS TIME GAP BETWEEN WITHDRAWAL S AND DEPOSITS, NO ADDITION CAN BE MADE IN ABSENCE OF ANY COGENT MATER IAL IN POSSESSION OF THE ASSESSING OFFICER, THE LD AR HAS PLACED RELI ANCE ON THE FOLLOWING DECISIONS:- ACIT VS BALDEVRAJ CHARLA AND ORS. (2009) 121 TTJ 36 6 (DELHI) S.R. VENKATTA RATNAM VS. CIT (1981) 127 ITR 807 (KA R) ITO VS. MRS. DEEPALI SEHGAL (ITAT DELHI), ITA NO. 5 660/DEL/2012 KOLLI GOPI KRISHNA VS. DCIT (2015) 42 ITR (TRIB) 63 8(HYDERBAD) 4. PER CONTRA, THE LD. DR IS HEARD WHO HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES. IT WAS SUBMITTED THAT THE AS SESSEE HAS FAILED TO SUBMIT ANY MATERIAL TO PROVE THAT CASH SO WITHDRAWN IN THE PREVIOUS FINANCIAL YEAR WAS AVAILABLE AT THE BEGINNING OF TH E FINANCIAL YEAR WHICH WAS REINTRODUCED IN THE CAPITAL ACCOUNT DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY, THE ADDITION MADE BY TH E AO SHOULD BE CONFIRMED. ITA NO. 1169/JP/2019 SUMITRA DEVI AGARWAL VS. ITO 4 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LIMITED ISSUE UNDER CONSID ERATION IS WHETHER THE ASSESSEE HAS REASONABLY EXPLAINED THE SOURCE OF CAPITAL INTRODUCTION DURING THE YEAR OR NOT. WE FIND THAT THERE ARE CAS H WITHDRAWALS ON 4 DIFFERENT DATES IN THE LATTER HALF OF IMMEDIATELY P RECEDING FINANCIAL YEAR TOTALLING TO RS. 7 LAC FROM THE ASSESSEES CAPITAL ACCOUNT AND ALSO THERE IS A WITHDRAWAL OF RS. 1 LAC DURING THE CURRENT FIN ANCIAL YEAR. WE THEREFORE FIND THAT THERE IS NO DISPUTE THAT THE WI THDRAWALS HAVE BEEN MADE BY THE ASSESSEE IN THE PRECEDING FINANCIAL YEA R AS WELL AS CURRENT FINANCIAL YEAR FROM HER CAPITAL ACCOUNT. EVEN THE ASSESSING OFFICER HAS ALSO NOT DISPUTED THAT THESE WITHDRAWALS HAVE BEEN MADE BY THE ASSESSEE FROM HER CAPITAL ACCOUNT. REGARDING THE A VAILABILITY OF CASH SO WITHDRAWN AT THE TIME OF REINTRODUCTION OF CAPITAL DURING THE YEAR, THE ASSESSING OFFICER HAS RAISED AN APPREHENSION THAT W ITHDRAWALS MIGHT HAVE BEEN UTILIZED FOR SOME OTHER PURPOSES AND IT C ANNOT BE RETAINED BY THE ASSESSEE IN ANTICIPATION OF PROPOSED CAPITAL IN TRODUCTION DURING THE YEAR UNDER CONSIDERATION. IN HER SUPPORT, THE ASSES SEE HAS SUBMITTED THAT BEING AN OLD LADY, SHE HAD KEPT THE AMOUNT SO WITHDRAWN WITH HER FOR EMERGENCY REQUIREMENT, THE SAME WAS NOT UTILIZE D ELSEWHERE, WAS AVAILABLE WITH HER AT THE BEGINNING OF THE FINANCIA L YEAR AND WAS USED FOR REINTRODUCTION OF CAPITAL AND HAS ALSO SUBMITTE D AN AFFIDAVIT IN SUPPORT OF HER CONTENTIONS. WE THEREFORE FIND THAT THE FINDING OF THE AUTHORITIES BELOW IS IN THE REALM OF SUSPICION AND CONJECTURES AS THE SOURCE OF CAPITAL INTRODUCTION HAS BEEN REASONABLY EXPLAINED BY THE ASSESSEE AS OUT OF HER WITHDRAWALS FROM HER CAPITAL ACCOUNT IN THE LATTER HALF OF IMMEDIATE PAST FINANCIAL YEAR WHICH WERE AV AILABLE AT THE BEGINNING OF THE FINANCIAL YEAR AS WELL AS FROM THE CURRENT FINANCIAL YEAR ITA NO. 1169/JP/2019 SUMITRA DEVI AGARWAL VS. ITO 5 WITHDRAWALS AND THE ADDITION SO MADE BY THE ASSESSI NG OFFICER IS HEREBY DIRECTED TO BE DELETED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/12/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/12/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SUMITRA DEVI AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-4(4), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1169/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR