Shri Kishorebhai V. Vithlani, Ahmedabad V. The Income Tax Officer, Ward-6(3), Baroda

ITA 1216/AHD/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 2888 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH
• Keywords: Unexplained investment; Additional evidence
• Section: 54F; 133(6); 69A; 64; 147

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.1216/AHD/2015 / ASSTT. YEAR: 2009-2010 SHRI KISHORCHANDRA V. VITHLANI 10, DHARAMNAGAR HSG. SOCIETY NR. SBI NAVBAZAR, AT. KARJAN DIST. VADODARA. PAN : AATPV 8204 E VS. ITO, WARD-6(3) BARODA. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI ANIL R. SHAH REVENUE BY : SHRI VIRENDRA SINGH, SR.DR ! / DATE OF HEARING : 04/03/2019 '#$ ! / DATE OF PRONOUNCEMENT: 05/03/2019 %& / O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-4, VADODARA DATED 2.2.2015 PASSED FOR THE ASSTT.YEAR 2009-10. 2. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH THE RULE 8 OF THE INCOME TAX (APPEL LATE TRIBUNAL) RULES, 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIV E IN NATURE. IN BRIEF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING REOPENING OF THE ASSESSMENT UNDER SECT ION 147 OF THE INCOME TAX ACT AND CONFIRMED THE ADDITION OF RS.9,4 3,500/- WHICH WAS ADDED BY THE AO UNDER SECTION 69A OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SHARE TRADING, PENSION AND OTH ER SOURCES. ITA NO.1216/AHD/2015 2 HE HAS NOT FILED RETURN OF INCOME FOR THE ASSTT.YEA R 2009-10. THE LD.AO FOUND THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.11,15,400/- INTO HIS SAVING BANK ACCOUNT WITH PR IME COOPERATIVE BANK LTD. NOTICE UNDER SECTION 133(6) O F THE ACT WAS ISSUED BY THE AO TO THE BRANCH MANAGER AND HE OBTAI NED COPY OF BANK STATEMENT. THEREAFTER, HE RECORDED REASONS AN D REOPENED THE ASSESSMENT. THE REASONS RECORDED BY THE AO ARE AVAILABLE AT PAGE NO.4 OF THE PAPER BOOK. IT READS AS UNDER: THIS OFFICE HAS RECEIVED AIR INFORMATION. IN THE INFORMATION IT IS STATED THAT THE ASSESSEE HAD MADE CASH DEPOSI T OF RS.11,15,400/- IN SAVING BANK ACCOUNT DURING THE PR EIVOUS YEAR RELEVANT TO ASSESSMENT YEAR 2009-10. AS THE ASSESSEE HAS NOT FILED RETURN OF INCOME, I H AVE REASONS TO BELIEF THAT, INCOME TO THE EXTENT OF CAS H DEPOSITED AS ABOVE, CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. ISSUED NOTICE U/S.148 OF THE ACT. 4. ON THE BASIS OF THE ABOVE, THE LD.AO REOPENED TH E ASSESSMENT. THE ASSESSEE WAS NOT SATISFIED WITH TH E ACTION OF THE AO. HE CHALLENGED REOPENING, BUT THE LD.FIRST APPE LLATE AUTHORITY HAS UPHELD REOPENING OF THE ASSESSMENT. 5. BEFORE ME, THE LD.COUNSEL FOR THE ASSESSEE CONTEN DED THAT ON THE BASIS OF INFORMATION RECEIVED UNDER AIR WING TH AT CASH WAS BEING DEPOSITED IN THE SAVING BANK ACCOUNT, THE AO CANNOT FINALLY CONCLUDE THAT INCOME HAS ESCAPED THE ASSESSMENT. H E OUGHT TO HAVE COLLECTED MORE EVIDENCE BEFORE THE FORMATION O F SUCH OPINION. HIS EMPHASIS WAS THAT CASH DEPOSITED IN T HE BANK ACCOUNT CANNOT BE EQUATED WITH ESCAPED INCOME. IN SUPPORT OF HIS CONTENTIONS, HE RELIED UPON THE FOLLOWING DECIS IONS: ITA NO.1216/AHD/2015 3 I) PCIT VS. VRUNDAVAN CERAMICS P.LTD., 256 TAXMANN PAGE 383 (GUJ. HC); II) VARSHABEN SANATBHAI PATEL VS. ITO, 64 TAXMANN.COM PAGE 179 (GUJ. HC); III) HARIKISHAN SUNDERLAL VIRMAN VS. DCIT, CIVIL APPLICA TION NO.16204 OF 2016 (GUJ. HC); IV) NU POWER RENEWABLES P.LTD. VS. DCIT, 94 TAXMANN.COM 29 (BOM HC); V) KHALIQ AHMAD VS. ITO, 62 ITR (TRIB) PG.1 (LUCKNOW) 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON ORDERS OF THE LD.REVENUE AUTHORITIES AND POINTED OUT THAT THE ASS ESSEE HAS NEVER FILED RETURN OF INCOME. HOW, THE AO COULD VE RIFY, WHETHER IT WAS SIMPLICITOR CASH AVAILABLE WITH THE ASSESSEE OR IT IS ESCAPED INCOME. HE HAS TO ONLY FORM A PRIMA FACIE OPINION BEFORE ISSUE OF NOTICE. HE HAS FORMED THAT OPINION. 7. I HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GON E THROUGH THE RECORD CAREFULLY. NO DOUBT CASH DEPOSITED IN T HE BANK ACCOUNT SIMPLICITOR CANNOT BE CONSTRUED AS ESCAPED INCOME, BECAUSE AN ASSESSEE COULD HAVE MANY SOURCE FOR AVAILABILITY OF CASH. IF AN ASSESSEE HAS EXPLAINED SOURCE OF CASH AND THAT WAS DEPOSITED THEN IT WOULD NOT BE AN ESCAPED INCOME. FOR EXAMPL E, THE ASSESSEE HAS SOLD THE LAND. HE HAS THE CASH AND HE DEPOSITED THE SAME IN THE BANK ACCOUNT. IT DOES NOT MEAN THAT IT WILL BE BECOME ESCAPED INCOME AUTOMATICALLY; BUT THE QUESTI ON HERE IS HOW TO VERIFY THAT FACT. THE ASSESSEE HAS NOT FILE D HIS RETURN OF INCOME. TAKING EXAMPLE GIVEN ABOVE FURTHER, THE SA LE PROCEEDS OF LAND COULD HAVE BEEN CONSIDERED BY THE ASSESSEE IN THE CAPITAL GAIN UNDER NORMAL AND THEREAFTER EXEMPTION UNDER SE CTION 54, 54F ETC., COULD BE CLAIMED. IN THAT CASE THE ASSES SEE CAN PLEAD THAT; LOOK I HAVE ALL THE DETAILS/INFORMATION WHICH CAN BE COMPARED, AND ONLY THEREAFTER A PRIMA FACIE OPINION COULD BE ITA NO.1216/AHD/2015 4 FORMED. THE CASE LAWS REFERRED BY THE ASSESSEE ARE THOSE CASES WHERE ORIGINAL RETURNS WERE FILED. UNDER THESE CIRC UMSTANCES, IN SOME CASES, COURTS CAME TO THE CONCLUSION THAT SIMPLICITOR DEPOSITS OF CASH MAY NOT BE CONCLUDED THAT INCOME H AS ESCAPED, AND DID NOT CONCUR WITH THE VIEW OF THE AO FOR REOP ENING OF THE ASSESSMENT. HOWEVER, THE FACTS BEFORE ME, ARE RATH ER QUITE DISTINGUISHABLE. THE ASSESSEE HAS NOT FILED THE RE TURN OF INCOME. THERE WAS NO MECHANISM OR OPPORTUNITY AVAILABLE WIT H THE AO TO VERIFY THE SOURCE OF CASH AVAILABLE WITH THE ASSESS EE I.E. WHETHER THE DEPOSITS WERE MADE FROM EXPLAINED SOURCE OR UNE XPLAINED SOURCE. HE HAS TO FORM A PRIMA FACIE OPINION ABOUT THE NATURE OF DEPOSITS, AND HE HAS MADE THAT PRIMA FACIE OPINION THAT INCOME HAS ESCAPED ASSESSMENT. I DO NOT FIND ANY ERROR ON THIS ISSUE, HENCE, THIS FOLD OF GRIEVANCE OF THE ASSESSEE IS RE JECTED. ACTION OF THE LD.REVENUE AUTHORITIES IS UPHELD. 8. IN THE NEXT FOLD OF GRIEVANCE, THE ASSESSEE HAS SUBMITTED THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDI TION OF RS.9,43,500/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE BANK ACCOUNT. THE LD.COUNSEL FOR THE ASSESSEE COMPILED THE DETAILS IN TABULAR FORM. LET ME TAKE NOTE OF THESE DETAILS, W HICH READS AS UNDER: RS. ASSTT.ORDER PARA APPEARED BUT DENIAL HAVING GIVEN LOAN 1. KHUMANBHAI B. AHIR 1,37,000 3.1 131 DENIED 2. MAHESH A. PATEL 1,69,900 131 DENIED 3. BHARAT JADVI (KTCHHI) 1,00,000 131 DENIED 4. DIPAK PATEL 10,000 ADDRESS NOT KNOWN 5. JAYARAM G. FATAK 1,50,000 ADDRESS NOT ITA NO.1216/AHD/2015 5 KNOWN 6. PARMAR FAMILY 1,35,000 9,43,500 3.3 9. A PERUSAL OF THE ABOVE DETAILS WOULD INDICATE TH AT THE ASSESSEE HAS EXPLAINED THE SOURCE FROM THE ABOVE PE RSONS. NOTICES WERE SENT TO THEM, AND THREE PERSONS HAVE D ENIED OF GIVING ANY LOAN TO THE ASSESSEE. REST THREE COULD NOT BE TRACED. THE ASSESSEE WAS BOUND TO GIVE EXPLANATION OF THE S OURCE OF DEPOSITS, WHICH HE MISERABLY FAILED. THE LD.COUNSE L FOR THE ASSESSEE MADE REFERENCE TO THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE ANANDMAN TIMBER AND KISHANCHAND VS. CIT, 125 ITR 713 AND SUBMITTED THAT NO CROSS-EXAMINATION WAS GIVEN TO THE ASSESSEE QUA THESE PERSONS. 10. IT IS PERTINENT TO OBSERVE THAT THEY ARE THE WI TNESSES OF THE ASSESSEE. IT IS FOR THE ASSESSEE TO BRING POSITIVE EVIDENCE ON RECORD DEMONSTRATING THE IDENTITY OF THE PERSON FRO M WHOM HE HAS TAKEN LOANS. THEIR CREDIT-WORTHINESS AND GENUINENE SS OF THE TRANSACTIONS. HE FAILED TO FULFILL ANY OF THE INGR EDIENTS. THE BRANCH MANAGER HAS JUST GIVEN COPY OF BANK STATEMENT , WHICH IS A FACT. THE ASSESSEE HAS NOT DENIED THE FACT THAT TH IS ACCOUNT DOES NOT BELONG TO HIM, AND HE HAS NOT DEPOSITED MONEY I N THE ACCOUNT. THE LD.COUNSEL FOR THE ASSESSEE FURTHER C ONTENDED THAT THE LD.CIT(A) DID NOT PERMIT HIM TO PRODUCE ADDITIO NAL EVIDENCE. WHAT ADDITIONAL EVIDENCE ASSESSEE WANTS TO PRODUCE ? HAD HE COLLECTED CONFIRMATION THESE PERSONS OR HOW THEY HA VE TAKEN U- TURN OF THEIR DENIAL ? THERE IS NO EVIDENCE PRODU CED BY THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. THE CASE LA WS REFERRED BY HIM IN THE CHART ARE NOT ON THE POINT, RATHER THESE ARE BEING REFERRED ONLY FOR THE SAKE OF REFERENCE. I DO NOT WISH TO MAKE ITA NO.1216/AHD/2015 6 UNNECESSARY DISCUSSION ON THESE CASE LAWS, SIMPLY F OR THE REASONS THAT THE ASSESSEE HAS MADE REFERENCE OF THEM WITHOU T ANY RELEVANCY TO THE CONTROVERSY IN HAND. 11. NEXT CHALLENGE MADE BY THE ASSESSEE IS WITH REG ARD TO THE LEVY OF INTEREST UNDER SECTION 234. IT IS CONSEQUE NTIAL IN NATURE, AND THIS FOLD OF GRIEVANCE IS ALSO REJECTED. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH MARCH, 2019. SD/- (RAJPAL YADAV) JUDICIAL MEMBER