Amitaben Kanjibhai Patel, Ahmedabad V. The Income Tax Officer, Ward-7(2)(1), Ahmedabad

ITA 1198/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6245 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 18-11-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K GOYAL
• Assessee Lawyers: PF JAIN
• Keywords: Reopening of assessment; Business income
• Section: 143(3); 142(1); 234B; 139(1); 13; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I AMARJIT SINGH , ACCOUNTANT MEMBER AND MS. MADHUMITA ROY , JUDICIAL MEMBER AMIT A BEN KANJIBHAI PATEL B/2, URVI CO. OP. SOCIETY, B/H. BANGLA BUS STAND, NARODA ROAD, N.H. NO. 08, AHMEDABAD - 382330 PAN: ASZPP4927E (APPELLANT) VS THE IT O , WARD - 7 ( 2)(1 ) , AHMEDABAD (RESPONDENT) REVENUE BY : S H RI N.K. GOYAL , SR. D . R. ASSESSEE BY: SHRI P.F. JAIN , A.R. DATE OF HEARING : 18 - 11 - 2 019 DATE OF PRONOUNCEMENT : 28 - 01 - 2 020 / ORDER P ER : AMARJIT SING H, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2010 - 11 , ARI SES FROM ORDER OF THE CIT(A) - 7, AHMEDABAD DATED 20 - 02 - 2 017 , IN PROCEEDINGS UNDER SECTION 1 4 3(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING RE ASSESSMENT PROCEEDING U/S. 147 WITHOUT APPRECIATING THE FACTS THAT THE REASONS RECORDED WERE NOT I T A NO . 1198 / A HD/20 17 A SS ESSMENT YEAR 2010 - 11 I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 2 FURNISHED DEPRIVING THE APPELLANT FROM FILING OBJECTIONS TO NOTICE U/S. 148 RENDERING THE ASSESSMENT AS BAD IN LAW AND VOID AB INITIO. 2. SHE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING ORDER PASSED U/S. 143(3) R.W.S. 147 IN AS MUCH AS THAT CONDITIONS OF SECTION 147 FOR REOPENING WERE NOT FULFILLED. 3. SHE HAS ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS. 13,11,000/ - U/S. 68 BEING CASH DEPOSIT IN S.B. ACCOUNT WITH ICICI BANK WITHOUT PROPERLY APPRECIATING THE FACTS AND EVIDENCE ADDUCED BY THE APPELLANT. 4. THE ADDITION OF RS. 13,11,000/ - U/S.68 O UGHT TO HAVE BEEN HELD AS BAD IN LAW AND ON FACTS AS NO BOOKS ARE MAINTAINED BY THE ASSESSEE AND THE IMPUGNED AMOUNT DOES NOT PERTAIN TO HER. 5. SHE HAS ERRED IN LAW AND FACTS IN NOT CONSIDERING AND APPRECIATING THE CONTENTION OF THE APPELLANT THAT EVEN IF THE EXPLANATION OF THE ASSESSEE IS NOT FOUND SATISFACTORY IF WILL NOT AUTOMATICALLY ENTITLE THE AO TO TREAT THE SAID RECEIPTS AS INCOME OF THE ASSESSEE THE WORD USED IN SECTION 68/69 IS 'MAY' AND NOT 'SHALL' READ WITH THE DECISION OF SUPREME COURT AND GUJARAT HIGH COURT. 6. ON THE FACTS OF THE APPELLANT NO SUCH ADDITION OUGHT TO HAVE BEEN CONFIRMED. 7. ON THE FACTS NO INTEREST U/S 234B OF THE IT. ACT OUGHT TO HAVE BEEN LEVIED. 3. THE ASSESSEE HAS NOT FILED RETURN OF INCOME WITHIN THE TIME LI MIT PRESCRIBED U/S. 139(1) OF THE ACT OR TILL 31 ST MARCH, 2014. THE ASSESSING OFFICER WAS HAVING INFORMATION THAT ASSESSEE HAD MADE SUBSTANTIAL CASH DEPOSIT IN HER BANK ACCOUNT WITH THE ICICI BANK. THEREFORE, A NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 13 TH MARCH, 2014. THE ASSESSEE HAS NOT M ADE ANY COMPLIANCE TILL ISSUING OF FURTHER NOTICE DATED 11 TH AUGUST, 2014 AND 24 TH NOV, 2014. THE ASSESSEE HAS FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010 - 11 ON 8 TH DECEMBER, 2014 DECLARING TAXABLE INCO ME OF R S. 1 , 09 , 626/ - . DURING THE COURSE OF ASSESSMENT , THE ASSESSEE REPORTED THAT IT WAS HER FIRST YEAR OF BUSINESS OF TRADING IN IRON AND STEEL ON RETAIL BASIS. T HE ASSESSING OFFICER OBSERVED THA T ASSESSEE HAS SHOWN PURCHASE FROM ONLY ONE DEALER M/S. HARIKRIS H NA S T EEL TRADER AND DETAILS, ADDRESS, PHONE NO. ETC . OF THE DEALER WAS NOT FURNISHED. SUBSEQUENTLY , THE ASSESSEE HAS FURNISHED COPY OF LEDGER ACCOUNT AND THE POSTAL ADDRESS OF THE DEALER , HOWEVER , ON MAKING INQUIRY THE ASSESSING OFFICER NOTICED THAT NO S UCH DEALER WAS EXISTED AT THE GIVEN ADDRESS AND NOTICE WAS ALSO RETURNED UN - SERVED. THEREAFTER, THE ASSESSEE WAS ASKED I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 3 TO FURNISH THE SOURCE OF CASH DEPOSIT FOUND IN THE SAVING BA NK ACCOUNT MAINTAINED WITH ICICI BANK. THE ASSESSEE REPORTED THAT SHE HAD DEPOSITED ALL HER BUSINESS CASH INTO BANK ACCOUNT . T HE ASSESSING OFFICER HAD PROVIDED COPY OF THE BANK STATEMENT TO THE ASSESSEE FOR GIVING PROPER REPLY OF THE ENTRIES OF CASH DEPOSIT REFLECTED IN THE BANK ACCOUNT STATE MENT. THE ASSESSEE EXPLAINED THAT S HE WAS NOT LIABLE TO MAINTAIN B OOKS OF ACCOUNT AND HER TOTAL TURNOVER WAS HIGHER THAN THE CASH DEPOSITED IN THE BANK ACC OUNT. THE ASSESSING OFFICER STATED THAT THE ASSESSEE HAS NOT FURNISHED ANY CONCRETE EVIDENCES OF DEPOSITING OF CASH OF RS. 8 LACS ON 1 3 TH NOV, 2009 AND DEPOSITING OF CASH OF RS. 5 LAC S ON 16 TH DECEMBER, 2009 AND FAILED TO PROVE THE SOURCE OF CASH DEPOSITED IN THE BANK A CCOUNT. CONSEQUENTLY, THE ASSESSING OFFICER HAD MADE ADDITION OF R S. 13,11,000/ - TO THE TOTAL INCO M E OF THE ASSESSEE AS UNEXPLAINED CASH DEPOSIT DETECTED IN THE BANK ACCOUNT. 4. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE HAD CHANGED HER EXPLANATION STATING THAT THE SAID BANK ACCOUNT WAS NOT OPENED BY HER AT ALL AND THI S WAS OPENED BY A TRAVEL AGENT AND ALL THE TRANSACTIONS IN THE BANK WERE MADE BY T H E TRAVEL AGENT TO WHOM SH E HAD CONTACTED TO OBTAIN VISA LETTER ETC. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AFTER CONSIDER ING THE EVIDENCES ON RECORD ON FA ILING OF THE ASSESSEE TO SUBSTANTIATE THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS FILED PAPER BOOK CONTAINING DETAILS OF SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND ALSO FILED ANOTHER PAPER BOOK COMPRISING OF JUDICIAL PRONOUNCEMENTS. THE LD. COUNSEL HAS CONTENDED THAT ISSUING OF NOTICE U/S. I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 4 148 BY THE ASSESSING OFFICER WAS BAD IN LAW AND THE LD. CIT(A) WAS ERRED IN SUSTAINING THE ADDITION WITHOUT APPRECIATING TH E FACTS AND EVIDEN CES FURNISHED BY THE ASSESSEE. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS VEHEMENTLY CONTENDED THAT ASSESSEE HAS FAILED TO SUBSTANTIATE THE GENUINENESS O F UNACCOUNTED CASH DEPOSITED IN HER SAVING BANK ACC OUNT AND SUPPORTED TH E DECISION OF THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. GROUND NOS. 1 & 2 ARE AGAINST THE DECISION OF LD. CIT(A) IN UPHOLDING RE - ASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT. ON PERU S AL OF THE MATERIAL ON R ECORD, IT IS NOTICED THAT ASSESSEE HAS NOT FILED THE RETURN OF INCOME WITHIN THE TIME LIMIT PRESCRIBED U/S. 139(1) OF THE ACT TILL 31 ST MARCH, 2014. THERE WAS A SPECIFIC INFORMATION WITH THE ASS ESSING OFFICER THAT ASSESSEE HAD DEPOSITED CA SH TO THE AMOUNT FOR RS. 13,11,000/ - IN HE R SAVING BANK ACCOUNT MAINTAINED WITH THE ICICI BANK. SINCE THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME WITHIN THE TIME LIMIT U/S. 139(1) OF THE ACT, THEREFORE, NOTICE U/S . 148 OF THE ACT WAS ISSUED. THE ASSESSING OFFICER HA S ISSUED A LETTER D A TED 19 TH DECEMBER, 2013 TO THE ASSESSEE STATING THAT AS PER INFORMATION RECEIVED BY THE INCOME TAX DEPARTMENT YOU HAVE NOT FILED INCOME TAX RETURN FOR ASSESSMENT YEAR 2010 - 11 AND 2011 - 12. A COPY OF THE SAID LETTER ISSUED BY THE ASSESS ING OFFICER WAS PLACED AT PAGE NO. 10 OF THE PAPER BOOK FILED BY THE ASSESSEE WHEREIN INFORMATION PERTAINING TO THE PAN ASZPP4927E OF THE ASSESSEE ALSO REFLECTED THAT CASH DEPOSIT OF R S. 10 LACS WAS MA D E IN HER SAVING BANK ACCOUNT. THE ASSESSEE HAS NOT RE SPONDED TO THE SAID LETTER. THEREFORE, A NOTIC E U/S. 142(1) OF THE ACT ON 30 TH DECEMBER, 2013 WAS ISSUED ALO NG WITH BLANK RETURN FORM HOWEVER THE ASSESSEE HAS NOT RESPONDED . I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 5 T HEREAFTER , ON 13 TH MARCH, 2014 A NOTICE U/S. 148 WAS ISSUED TO THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN 30 DAYS FROM THE RECEIPT OF THE NOTICE. I T IS C LEAR FROM THE FACTS REPORTED ABOVE THAT ASSESSEE HAS NOT FILED ANY RETURN OF INCOME U/S. 139(1) OF THE ACT. IT IS UNDISPUTED FACT THAT HUGE CASH DEPOSIT WAS FOUND IN THE S.B. ACCOUNT NO. 093001502470 OF THE ASSESSEE MAINTAINED WITH THE ICICI BANK. THE ASSESSING OFFICER VIDE LETTER DATED 19 - 12 - 2013 HAD BROUGHT TO THE NOTICE OF THE ASSESSEE THAT INCOME TAX DEPARTMENT HAS RECEIVED INFORMATION RELATING TO FINANCIAL ACTIVITIES OF THE ASSESSEE AND PROVIDED INFORMATION SUMMARY PERTAINING TO THE PAN OF THE ASSESSEE WHICH ALSO CONTAIN THE INFORMATION THAT DURING F.Y. 2008 - 09 THERE WAS A CASH DEPOSIT OF MORE THAN 10 LACS IN THE SAVING BANK OF THE ASSESSEE. N O COMPLIANCE WAS MADE BY THE ASSESSEE UNTIL ISSUING OF NOTICES AND REMINDERS AS REFERRED IN THIS ORDER. IT WAS ALSO BROUGHT TO THE NOTICE OF THE ASSESSEE VIDE LETTER THAT 19 - 12 - 2013 THAT AS PER INFORMATION SUMMARY PERTAINING TO THE TD S THERE WAS ALSO TRANSACTIONS WITH THE PAN OF THE ASSESSEE OF INTEREST OTHER THAN THE INTEREST ON SECURITIES. EVEN THE ASSESSEE HAD FAILED TO MAKE COMPLIANCES WITH NOTICE U/S. 142(1) OF THE ACT ISSUED BY THE ASSESSING OFFICER. IT IS CLEAR FROM THE ABOVE FACT THAT THE ASSESSING OFFICER HAD GIVEN DUE OPPORTUNITY TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE FROM THE ASSESSEE. THE CASE LAWS RELYING UPON BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AND ARE OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES , WE DO NOT FIND ANY REASON TO INTERFERE IN T H E DECISION OF LD. CIT(A) IN JUSTIFYING THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE AS SESSMENT. THEREFORE , WE UPHOLD REOPENING OF ASSESSMENT UNDER SECTION 148 OF THE ACT. ACCORDINGLY , GROUND NO S . 1 & 2 OF THE ASSESSEE ARE DISMISSED . I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 6 GROUNDS OF APPEAL NO. 3 TO 6: - IN ADDITION TO THE FACTS AS ELABORATED ABOVE , THE ASSESSEE HAS FILED THE INCOME TAX RETURN ONLY ON 8 TH DECEMBER, 2014 DECLARING INCOME OF RS. 1 , 09 , 626/ - . THE ASSESSEE HAS CLAIMED IN THE R ETURN OF INCOME THAT SHE HAS EARNED BUSINESS INCOME OF R S. 80 , 984/ - FROM THE BUSINESS OF TRADING IN IRON AND STEEL , HOWEVER , ON VERIFI CATION THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS CLAIMED PURCHASES MADE F ROM ONE PARTY M/S. HARIKRISHNA T RADER BUT THE SAID PARTY WAS NOT EXI S TED AT THE GIVEN ADDRESS . T HE ASSESSEE COULD NOT SUBSTANTIATE WITH RELEVANT EVIDENCES THAT SHE WAS ENGAGED IN ANY BUSINESS. SUBSEQUENTLY BEFORE THE LD. CIT(A) THE ASSESSEE HAD CLAIMED THAT SHE HAD NOT SIGNED THE ACCOUNT OPENING FORM AND THE BANK ACCOUNT WAS OPERATED BY HER TRAVEL AGENT. THE ASSESSEE HAS FAILED TO FURNISH ANY COM MUNICATION FROM THE BANK STATING THAT THIS ACCOUNT WAS NOT PERTAINED TO HER. I N THIS REGARD, WE HAVE VERIFI ED THE PAPER BOOK SUBMITTED BY T H E ASSESSEE AND IT IS NOTICED THAT AT PAGE NO. 29 TO 31 THE ASSESSEE HAS PLACED THE COPY OF INCOME TAX RETURN FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION ON 8 TH DECEMBER, 2014 WITH THE INCOME TAX RETURN W - 7(2)(1) AND IN THE RETURN OF INCOME THE ASSESSEE HE RSELF HAS DECLARED AND OWNED UP THE IMPUGNED SAVING B ANK ACCOUNT NO. 093001502470 MAINTAINED WITH THE ICICI BANK IN WHICH THE IMPUGNED CASH WAS DEPOSITED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES , IT IS CLE AR THAT ASSESSEE HAS HE RSELF CLAIMED AND OW NED UP THE ABOVE REFERRED SAVING BANK ACCOUNT IN INCOME TAX RE TURN FILED BY HER . IT IS DEMONSTRATED FROM THE ABOVE CITED MATERIAL FACT THAT ASSESSEE HAD DISCLAIMED THIS BANK ACCOUNT WITHOUT ANY BASIS AND INEXACTLY STATED THAT IT WAS PERTAINED TO TRAVEL A GEN T. THE ASSESSEE HAS GIVEN CONTRADICTORY STATEMENT FIRST AT THE LEVEL OF ASSESSING OFFICER THAT SHE HAS EARNED THE CASH DEPOSITED IN THE SAID SAVING BANK ACCOUNT I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 7 FROM HER BUSINESS OF TRADING IN IRON AND STEEL WHEN SHE HAS FAILED TO SUBSTANTIATE HER CLA IM WITH RELEVANT EVIDENCES THEN SHE HAS MADE NEW SUBMISSION BEFORE THE LD. CIT(A) THAT THE SAID SAVING BANK ACCOUNT WITH ICICI WAS NOT OPENED AND OPERATED BY HER AND IT WAS NOT PERTAINED TO HER . H OWEVER , SHE HAS FAILED TO SUBSTANTIATE HER NEW CLAIM WITH A NY RELEVANT EVIDENCES AND MATERIAL . AS DISCUSSED ABOVE IN THIS ORDER ON PERUSAL OF THE REL EVANT MATERIAL ON RECORD , IT IS NOTICED THAT ASSESSEE HAS HERSELF REPORTED UNDER HER SIGNATURE IN HER INCOME TA X RETURN FILED AFTER REPLYING THE NOTICES F ROM THE ASS ESSING OFFICER THAT T H E IMPUGNED BANK ACCOUNT WITH THE ICICI BANK WAS PERTAINED TO HER . IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES , WE CONSIDER THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE SOURCE OF CASH DEPOSIT DETECTED IN THE SAVING BANK ACCO UNT, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LD. CIT(A). IN VIEW OF THE DISCUSSION MADE ABOVE, WE DO NOT FIND ANY MERIT IN THE GROUNDS OF APPEAL 3 TO 6 OF THE ASSESSEE, THEREFORE, AL L THESE GROUNDS OF APPEAL STAND DISMISSED. 7. GROUND NO. 7 OF THE APPEAL PERTAINING TO LEVY OF INTEREST U/S. 234B IS NOT REQUIRED ANY ADJUDICATION AS THE INTEREST U/S. 234B IS TO BE CHARGED MANDATORILY AS PER LAW. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 28 - 01 - 20 20 SD/ - SD/ - ( MADHUMITA ROY ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 28 /01/2020 I.T.A NO. 1198 /AHD/20 17 A.Y. 2010 - 11 PAGE NO AMITABEN KANJIBHAI PATEL VS. IT O 8 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,