The ITO, Ward-3(1), Surat V. Smt. Bhartiben Prakashchandra Gajjar, Surat

ITA 1205/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6974 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Income from undisclosed sources
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICI AL MEMBER ITO, WARD-3[1], SURAT (APPELLANT) VS SMT. BHARTIBEN PRAKASHCHANDRA GAJJAR, 16/124, KHATODARA COLONY, UDHNA DARWAJA, SURAT PAN: AAWPG3728K (RESPONDENT) REVENUE BY: SRI V.K SINGH, SR.D.R. ASSESSEE BY: SRI RASESH SHAH, A.R. DATE OF HEARING : 28-11-2014 DATE OF PRONOUNCEMENT : 12-12-20 14 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A)-II, SURAT DATED 14-02-2011 FOR A.Y. 2008-09. ITA NO. 1205/AHD/2011 ASSESSMENT YEAR 2008-09 I.T.A NO. 1205/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. BHARTIBEN PRAKASHCHANDRA GAJJAR 2 2. FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE EARNING I NCOME FROM TAILORING, RENTAL INCOME AND INCOME FROM OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICED THAT ASSESSEE HA D ACCEPTED LOANS FROM DIFFERENT DEPOSITORS. THE ASSESSEE WAS ASKED TO PROVE THE IDENTITY OF THE DEPOSITORS, GENUINENESS OF TRANSACTIONS AND CRE DITWORTHINESS OF THE DEPOSITORS INCLUDING THE SQUARED UP LOAN ACCOUNT. IN RESPONSE TO WHICH ASSESSEE INTERALIA SUBMITTED THE CONFIRMATION AND P AN NO. THE SUBMISSIONS OF THE ASSESSEE WAS NOT FOUND ACCEPTABL E TO THE AO AS HE WAS OF THE VIEW THAT MERE FILING OF PAN DOES NOT PR OVE THE GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE DEPOSITORS . HE FURTHER NOTED THAT SINCE ASSESSEE HAD FAILED TO SUBMIT THE COPY OF THE BANK STATEMENT OR CASH BOOK, BALANCE SHEET AND RETURN OF INCOME OF TH E DEPOSITORS AND SINCE ASSESSEE HAD NOT PRODUCED EVEN A SINGLE DEPOSITORS FOR EXAMINATION, THE SUBMISSIONS OF THE ASSESSEE WERE NOT FOUND ACCEPTAB LE; AO THEREFORE CONCLUDED THAT ASSESSEE HAD INTRODUCED BOGUS CASH C REDIT IN BOOK. HE ACCORDINGLY CONSIDERED CASH CREDIT AGGREGATING TO R S. 1,13,225/- AND THE CASH LOANS OF RS. 26,750/- WHICH WERE SQUARED UP DU RING THE YEAR AS UNEXPLAINED CASH CREDIT U/S. 68 AND ADDED TO THE IN COME. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE ADDITION BY HOLDING AS UNDER: 4. DECISION 4.1. 1 HAVE DULY CONSIDERED THE SUBMISSION OF THE A PPELLANT. IN RESPECT OF CASH LOAN OF RS 12,750/- AND RS 13,325/- ACCEPTED F ROM SHRI PARSHOTTAM PATEL AND APEKSHA D PATEL RESPECTIVELY, SQUARED UP DURING THE YEAR, I FIND THAT THE APPELLANT HAS SUBMITTED CONFIRMATIONS FROM THESE DEPOSITORS WITH THEIR NAMES & ADDRESSES, PHOTOCOPY OF THEIR PAN CAR D, COMPUTATION OF THEIR INCOME AND ACKNOWLEDGEMENT OF RETURNS OF INCO ME FILED BY THEM DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT HAS ALSO BEEN STATED THAT I.T.A NO. 1205/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. BHARTIBEN PRAKASHCHANDRA GAJJAR 3 THE APPELLANT HAS PAID INTEREST IN BOTH CASES AND R EPAID THE ABOVE LOAN AMOUNTS. I, THEREFORE FIND THE APPELLANT HAS DISCH ARGED THE INITIAL ONUS IN RESPECT OF THE ABOVE CASES BY FURNISHING PROOF OF THEIR IDENTITY AND SOURCE OF THE LOAN AMOUNT. THE ASSESSING OFFICER HAS DISAL LOWED THE LOAN AMOUNT ON THE GROUND THAT IT IS UNACCOUNTED INCOME OF THE APPELLANT WHICH HAS BEEN TAKEN BY WAY OF LOAN OF LESS THAN RS. 20,000/- . HOWEVER, THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVI DENCE TO ESTABLISH THIS OBSERVATION MADE BY HIM. FURTHER, WHILE THE ASSESSI NG OFFICER IS HIMSELF RECORDING THAT THE APPELLANT HAS NOT FURNISHED COPY OF BALANCE-SHEET & COPY OF RETURNS OF INCOME FILED BY THE ABOVE TWO DEPOSITORS, HE HAS IN THE SAME PARA, VIZ 4.3 OF THE ORDER RECORDED THAT THE CONFIRMATION FURNISHED BY THE APPELLANT, COPY OF PAN CARD AND COPY OF RETU RNS OF INCOME IN THE CASES OF LOAN TAKEN FROM SHRI PARSHOTTAM PATEL AND APEKSHANEN D PATEL, DO NOT PROVE THE GENUINENESS OF LOAN TRANSACTION. I , THEREFORE, DO NOT FIND ANY JURISDICTION IN MAKING THIS ADDITION AND RELYIN G UPON THE DECISION OF THE PATNA HIGH COURT IN THE CASE OF SAROGI CREDIT CORPO RATION VS CIT (1976) 103 ITR 344, AHMEDABAD TRIBUNAL'S DECISION IN THE C ASE OF ROHINI BUILDERS VS DY.CIT (2002) 76 TTJ (AHD.TRIB.) 521 AN D SUPREME COURT'S DECISION IN THE CASE OF CIT VS ORISSA CORPORATIO N (P) LTD. (1986) 52 CTR 138 I DELETE THE ADDITION OF RS 26, 075/- BEING THE SQUARED UP LOAN AMOUNTS IN THE NAMES SHRI PARSOTTARN PATEL AND APEKSHA D. PATEL. 4.2. AS REGARDS, LOAN AMOUNT TAKEN FROM SMT. JAYS HREE V MODI, THE APPELLANT HAS SUBMITTED THAT SHE HAS FILED CONFIRMA TIONS, PHOTOCOPY OF CARD, COMPUTATION OF INCOME, ACKNOWLEDGEMENT OF RET URN OF INCOME FILED, COPY OF BALANCE-SHEET AND PHOTOCOPY OF BANK PASS BO OK & CASH BOOK OF BANK DEPOSITOR. THE APPELLANT HAS FURTHER CERTIFIED THAT ALL THESE DETAILS WERE FILED BEFORE THE ASSESSING OFFICER. THE APPEL LANT HAS ALSO SUBMITTED THAT THE ENTIRE AMOUNT HAS BEEN REPAID. UPON PERUS AL OF THE BANK A/C. OF SMT. JAYSHREE V MODI, I FIND THAT THE ASSESSING OFF ICER HAS CONSIDERED ONLY THE BALANCE AS ON 16.01.2008 OF RS. 1,335.63. HE HAS NOT CONSIDERED THAT EVEN PRIOR TO THAT, I.E. ON 01.01.2 008 SMT. JAYSHREE V MODI BROUGHT AN AMOUNT OF RS. 1,47,875/- AND AGAIN AN AMOUNT OF RS. 3,75,000/- ON 07.01.2008 BY TRANSFER. THE BALANCE, THEREFORE AS ON 08.01.2008 WAS RS. 5,01,335.83 AND ON 12.01.2008, S HE ISSUED A CHEQUE OF RS. 1,50,000/-, THEREAFTER ON 16/17.01.2008 THER E WAS TWO DEPOSITS FOR RS. 1,00,000/- AND RS. 50,000/- IN CASH AGAINST WHI CH CHEQUE OF RS. 1,50,000/- WAS ISSUED TO THE APPELLANT AND AGAIN CA SH DEPOSITS FOR RS. 1,00,000/- AND RS. 25,000/- ON 21.01.2008 AGAINST W HICH CHEQUE OF RS. 1,25,000/- HAS BEEN ISSUED TO THE APPELLANT. THERE IS ANOTHER CASH DEPOSITS OF RS. 2,50,000/- ON 09.02.2008 AGAINST WH ICH CHEQUE OF RS. 2,50,000/- HAS BEEN ISSUED TO THE APPELLANT. THE A PPELLANT HAS FURNISHED COPY OF CASH BOOK OF SMT. JAYSHREE V MODI TO SHOW T HAT CASH DEPOSITED IN I.T.A NO. 1205/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. BHARTIBEN PRAKASHCHANDRA GAJJAR 4 THE BANK IS OUT OF HERE CASH BALANCES APPEARING ON THE RESPECTIVE PAGES IN THE CASH BOOK, I.E. CASH HAS BEEN DEPOSITED IN T HE BANK A/C. BY WAY OF WITHDRAWAL FROM THE CASH BOOK WHICH HAD SUFFICIENT BALANCE ON THE DATE WHEN CASH DEPOSIT HAS BEEN MADE. THE APPELLANT HAS FURTHER CERTIFIED THAT THE SAID CASH BOOK ETC. HAS BEEN PRODUCED BEFO RE THE ASSESSING OFFICER AND VERIFIED BY HIM. I, THEREFORE FIND THA T THE ASSESSING OFFICER HAS NOT DISCUSSED THAT THE CASH DEPOSITED IN THE BANK A /C. OF THE DEPOSITOR AGAINST WHICH CHEQUES HAVE BEEN ISSUED TO THE APPEL LANT ARE FROM THE WITHDRAWAL MADE FROM THE CASH BOOK OF DEPOSITOR. I , THEREFORE, FIND THAT THE ASSESSING OFFICER HAS IGNORED THESE FACTS AND A DDED AN AMOUNT OF RS. 5,25,000/- TO THE INCOME OF THE APPELLANT, AND, THE REFORE, DELETE THE SAME. 4.3 IN RESPECT OF LOAN OF RS. 2,00,000/- TAKEN FROM SMT. NIRMALABEN P MODI, THE APPELLANT HAS SUBMITTED THAT SHE HAS FILE D CONFIRMATION FROM THE SAID DEPOSITOR, PHOTOCOPY OF HER PAN CARD, COMPUTAT ION OF HER INCOME, ACKNOWLEDGEMENT OF HER RETURN OF INCOME & BALANCE-S HEET AND PHOTOCOPY OF BANK PASS BOOK OR CASH BOOK OF THE DEPOSITOR. I T HAS BEEN FURTHER SUBMITTED THAT THE SAID AMOUNT HAS BEEN REPAID ON 1 3.02.2008, WHICH TOO IS REFLECTED IN THE BANK STATEMENT. THE ASSESSING OFFICER HAS IGNORED THE ABOVE FACTS THAT THE CASH DEPOSITED IN THE DEPOSITO RS BANK A/C FROM THE CASH BALANCE IS APPEARING IN THE CASH BOOK OF THE D EPOSITOR, THEREFORE, THE GENUINENESS OF THE TRANSACTION IS ESTABLISHED. IN VIEW OF THE ABOVE, I DELETE THE ADDITION OF RS. 2,00,000/- MADE ON ACCOU NT OF UNEXPLAINED CASH CREDIT. 4.4 IN RESPECT OF LOAN AMOUNT OF RS. 2,88,225/- TAK EN FROM SHRI VIPUL P. GAJJAR, THE APPELLANT HAS SUBMITTED THAT SHE HAS FI LED CONFIRMATION FROM THE SAID DEPOSITOR, PHOTOCOPY OF HIS PAN CARD, ACKNOWLE DGMENT OF RETURN OF INCOME, BALANCE-SHEET AND PHOTOCOPY OF BANK PASS BO OK OR CASH BOOK OF THE DEPOSITOR BEFORE THE ASSESSING OFFICER. A PERUS AL OF THE ABOVE DOCUMENTS SHOWS THAT CASH OF RS. 35,000/-, RS. 1,00 ,000/- AND RS. 1,52,000/- WAS DEPOSITED ON 08.12.2007, 21.01.2008 AND 22.01.2008 RESPECTIVELY. IN THIS REGARD, THE APPELLANT HAS FI LED A COPY OF CASH BOOK OF SHRI VIPUL P GAJJAR WHICH SHOWS THAT ON 08.12.2007, HE HAD CASH BALANCE OF RS. 5,30,402/-. THE SAID CASH BOOK OF SHRI VIPU L GAJJAR SHOWS WITHDRAWAL OF RS. 35,000/- AND DEPOSIT OF THE SAME IN THE BANK A/C. ON 08.12.2007. SIMILARLY, ON 21.01.2008, CASH BALANCE OF RS. 4,85,321/- IS APPEARING IN THE CASH BOOK OF SHRI VIPUL GAJJAR FRO M WHICH RS. 1,00,000/- WAS WITHDRAWN AND DEPOSITED IN THE BANK ACCOUNT OF ON 22.01.2008, AND FROM THE CASH BALANCE OF RS. 3,85,321/-, CASH RS. 1 ,52,00/- WAS WITHDRAWN BY HIM AND DEPOSITED IN HIS BOOK ACCOUNT IN 22.01.2008. I, THEREFORE, FIND THAT THE ASSESSING OFFICER HAS IGNO RED THE ABOVE DOCUMENTARY EVIDENCE SUBMITTED BEFORE HIM AND HAS A DDED AN AMOUNT OF I.T.A NO. 1205/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. BHARTIBEN PRAKASHCHANDRA GAJJAR 5 RS. 2,88,225/- AS UNEXPLAINED CASH CREDIT. I, THER EFORE, DELETE THIS ADDITION. 4. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFORE US. 5. BEFORE US LD. DR POINTED TO THE FINDINGS OF AO A ND SUPPORTED HIS ORDER. HE FURTHER SUBMITTED THAT ASSESSEE DID NOT PRODUCE CASH BOOK BEFORE AO AND THE NEW EVIDENCE PRODUCED BEFORE LD. CIT(A). LD. CIT(A) DELETED THE ADDITION BY ADMITTING THE NEW EVIDENCE AND WITHOUT GIVING ANY OPPORTUNITY TO THE AO TO OFFER HIS COMMENTS. HE TH US SUPPORTED THE ORDER OF AO. LD. AR ON THE OTHER REITERATED THE SUBMISSI ONS MADE BEFORE AO AND LD. CIT(A) AND SUPPORTED THE ORDER OF LD. CIT(A ). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HAS GIVEN A FINDING THAT ASSESSEE HAD DISC HARGED THE INITIAL ONUS IN RESPECT OF CASH LOANS REPAID DURING THE YEAR BY FURNISHING PROOF OF IDENTITY AND SOURCE OF LOAN AMOUNT. WITH RESPECT T O OTHER LOANS TAKEN BY THE ASSESSEE LD. CIT(A) HAS GIVEN A FINDING THAT TH E COPY OF CONFIRMATION, PHOTOCOPY OF PAN CARD, COMPUTATION OF INCOME, ACKNO WLEDGMENT OF RETURN OF INCOME, PHOTOCOPY OF PASS BOOK AND CASH BOOK OF THE DEPOSITORS WERE FILED BEFORE THE AO. BEFORE US, REVENUE HAS NOT BR OUGHT ANY MATERIAL TO CONTROVERT THE FINDINGS OF LD. CIT(A). IN VIEW OF THE ABOVE, WE FIND NO REASONS TO INTERFERE WITH THE ORDER OF LD. CIT(A) A ND THUS THIS GROUND OF REVENUE IS DISMISSED. I.T.A NO. 1205/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. BHARTIBEN PRAKASHCHANDRA GAJJAR 6 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 12/12/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,