SMT. SHOBHNA DAS, BHILAI(CG) V. DY.. C.I.T.-1, BHILAI(CG)

ITA 122/BIL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7771 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 11-08-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: S R RAO
• Keywords: Opportunity of being heard; Revised return
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH , RAIPUR BEFORE S HRI N.K. BILLAIYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 122 /RPR /20 1 5 ASSESSMENT YEAR: 2010 - 11 SMT. SOBHNA DAS, PROP. M/S SOBHNA DAS, 6/B, STREET - 69, SECTOR - 6, BHILAI (C.G.) PAN: AIYPD 7141F VS. THE DY. COMMISSIONER OF INCOME TAX - I, 32/32 - BUNGALOWS, AMDI NAGAR, HUDCO, BHILAI, DISTT - DURG (CG) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.R. RAO ( ADVO C ATE ) REVENUE BY : SHRI D.K. JAIN (DR ) DATE O F HEARING: 08 /03 /201 8 DATE OF PRONOUNCEMENT: 06 / 06 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 24.03.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II , RAIPUR , FOR THE A S S ESSMENT YEAR 2010 - 11 , WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED BY THE AO U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. BRIEF FACTS OF THE CASE ARE THAT TH E ASSESSEE DERIVING INCOME FROM TRADING OF IMFL AND COUNTRY LIQUOR IN THE NAME OF M/S SOBHNA DAS FILED REVISED RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 12,18,310/ - . SINCE, THE CASE WAS SELECTED FOR SCRUTINY NOTICE U/S 143 (2) WAS ISSUED AND IN RESPONSE THEREOF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND FILED THE WRITTEN REPLY AND SUBMITTED THE 2 ITA NO. 122 / RPR /201 5 ASSESSMENT YEAR: 20 10 - 1 1 BOOKS OF ACCOUNT. THE AO INTER ALIA MADE ADDITION OF RS. 20,05,000/ - U/S 69 OF THE ACT TREATING THE SAME AS UNEXPLAINED INVE STMENT OF THE ASSESSEE AND ADDITION OF RS. 10,196/ - ON ACCOUNT OF INTEREST INCOME EARNED THEREON THEREBY DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 34,33,510/ - . IN THE FIRST APPEAL, THE LD. CIT (A) CONFIRMED THE SAID ADDITION S . THE ASSESSEE IS IN A PPEAL AGAINST THE FINDINGS OF THE LD. CIT (A). 3. T HE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) BY RAISING THE FOLLOWING EFFECTIVE GROUNDS: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME - TAX (APP EALS) IS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS. 20,05,000/ - MADE ON ACCOUNT OF PURPORTED FAILURE ON THE PART OF APPELLANT TO EXPLAIN SOURCE OF CASH DEPOSITED IN HER BANK ACCOUNT. 2. THE LD. ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ADDITION OF RS. 10 ,196/ - ON ACCOUNT OF BANK INTEREST ON THAT AMOUNT. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPELLANT HAS TWO SAVING BANK ACCOUNTS IN AXIS BANK I.E., A/C NO 4620101000350551 (FIRST ACCOUNT) AND 214010100133784 (SECOND ACCOUNT) . THE SAID ACCOUNTS ARE NOT RELATED TO THE LIQUOR BUSINESS OF THE ASSESSEE. THE SECOND ACCOUNT WAS OPENED WITH INITIAL DEPOSIT OF RS. 5,000/ - ON 12. 05.2009 AND DEPOSITS OF RS. 6,00,000/ - AND 20,00,000/ - WERE MADE BY TRANSFER FROM THE FIRST ACCOUNT ON 29.12 2009. THE ASSESSEE WITHDREW RS. 6,00,000/ - ON THE SAME DAY AND RS. 20,00,000/ - WAS WITHDRAWN ON 13.02.2010. SO FAR AS THE SOURCE OF THE SAID DEPOSITS IS CONCERNED, THE ASSESSEE HAD WITHDRAWN THE SAID AMOUNT FROM THE 3 ITA NO. 122 / RPR /201 5 ASSESSMENT YEAR: 20 10 - 1 1 ACCOUNT M/SHOBHAN DASS. THE LD. COUNSEL FURTH ER SUBMITTED THAT SINCE, THE SAID ACCOUNTS ARE NOT RELATED TO THE BUSINESS OF THE ASSESSEE THE ASSESSEE WAS NOT REQUIRED TO INCLUDE THESE ACCOUNTS IN THE TAX AUDIT REPORT OF M/S SHOBHANA DASS. THEREFORE, THE LD. CIT(A) HAS WRONGLY CONFIRMED THE ADDITION IN QUESTION. 5. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENTATIVE RELYING ON THE CONCURRENT FINDINGS OF THE AUTHORITIES BELOW, SUBMITTED THAT SINCE, THE ASSESSEE HAD NOT INCLUDED THESE ACCOUNTS IN THE BALANCE SHEET AND THE DETAILS WERE FILED ONLY DURING THE ASSESSMENT PROCEEDINGS WHEN THE AO A S KED THE ASSESSEE TO DO SO, THE LD. CIT(A) HAS RIGHTLY AFFIRMED THE FINDINGS OF THE AO. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE RIVAL SUBMISSIONS. VIDE FIRST GROUND OF APPEAL, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF 20,05,000/ - MADE ON ACCOUNT OF FAILURE ON THE PART OF APPELLANT TO EXPLAIN SOURCE OF CASH DEPOSITED IN HER BANK ACCOUNT. BEFORE US, THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT LD. CIT(A) HAS WRONGLY CONFIRMED THE ADDITION AS THE ACTION OF THE AO IS NOT JUSTIFIED. HE AO HAS MADE ADDITION ONLY ON THE GROUND THAT THE ASSESSEE DID NOT INCLUDE THE BANK ACCOUNTS IN THE AUDITED BALANCE SHEET. THE CONTENTIO N OF THE LD. COUNSEL IS THAT SINCE ASSESSEE HA D REFLECTED THE PARTICULARS OF THE SAID BANK ACCOUNTS IN HER PERSONAL BALANCE SHEET AND CAPITAL ACCOUNT , THE ASSESSEE WAS NOT REQUIRED TO MENTION THE SAME IN THE P &L ACCOUNT OF THE BUSINESS OF THE ASSESSEE. RE GARDING THE SOURCE THE LD. COUNSEL CONTENDED THAT THE AMOUNT IN THE SECOND ACCOUNT WAS DEPOSITED BY WITHDRAWING THE AMOUNT FROM THE FIRST ACCOUNT. THE AUTHORITIES BELOW HAVE NOT DISPUTED THE SAID FACTS. NOW THE QUESTION 4 ITA NO. 122 / RPR /201 5 ASSESSMENT YEAR: 20 10 - 1 1 ARISES REGARDING THE DEPOSIT IN THE FIRST BANK. AS PER THE ASSESSEE THE AMOUNT IN THE FIRST BANK WAS DEPOSITED BY WITHDRAWING THE AMOUNT FROM THE ACCOUNT IN THE NAME OF M/S SHOBHANA DASS. THE AUTHORITIES BELOW HAVE NOT VERIFIED THIS FACT. IF THE AMOUNT WAS WITHDRAWN BY THE ASSESSEE FROM HER DISCLOSED ACCOUNT THEN NO ADDITION CAN BE MADE U/S 69 OF THE ACT. HENCE, IN OUR CONSIDERED OPINION THIS ASPECT IS REQUIRED TO BE VERIFIED BY THE AO. WE THEREFORE, SET ASIDE THE FINDINGS OF THE LD CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSEE TO VERIFY THE FACTS IN THE LIGHT OF THE PLEA TAKEN BY THE ASSESSEE AND DECIDE THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. SO FAR AS THE SECOND GROUND OF APPEAL IS CONCERNED, SINCE THE SAME IS CONSEQUENTIAL , WE RESTORE THI S GROUND ALSO TO THE FILE OF THE AO. I N THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 20 1 0 - 11 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JUNE , 2018 . SD/ - SD/ - ( N.K. BILLAI YA) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAIPUR, DATED: 06 / 06 / 201 8 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 5 ITA NO. 122 / RPR /201 5 ASSESSMENT YEAR: 20 10 - 1 1 3. ( ) / THE CIT(A) - 4. / CIT 5. , , RAIPUR / DR, ITAT, RAIPUR 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) / PS , RAIPUR / ITAT, RAIPUR