Late Shri Manoj M. Waghela, Baroda V. The ITO, Ward-5(4), Vadodara

ITA 1242/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2602 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 22-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Additional evidence; Corroborative evidences
• Section: 143(3); 133(6); 69

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 1242/AHD/2017 / ASSESSMENT YEAR: 2011-12 LATE SHRI MANOJ M. WAGHELA (LEGAL HEIR MANJULABEN M. WAGHELA B-215, PRAMUKH SWAMI NAGAR WARASIA RING ROAD BARODA 390 022 PAN : ADYPY 3946 R VS ITO, WARD-5(4) BARODA. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI PARIN SHAH, AR REVENUE BY : SHRI VIRENDRA SINGH, SR.DR / DATE OF HEARING : 06/03/2019 /DATE OF PRONOUNCEMENT : 8/03/2019 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF THE LD.CIT(A)- 4, VADODARA DATED 21.12.2015 PASSED FOR THE ASSTT.YEAR 2011-12. 2. ASSESSEE HAS TAKEN FIVE GROUNDS OF APPEAL, HOWEV ER, HIS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE VIZ. THE LD.CIT(A) H AS ERRED IN CONFIRMING ADDITION OF RS.27,11,544/- MADE BY THE AO WITH AID OF SECTION 69A OF THE INCOME TAX ACT ON ACCOUNT OF UNEXPLAINED MONEY DEPO SITED IN THE BANK ACCOUNT. ITA NO.1242/AHD/2017 - 2 - 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WA S WORKING AS A LABOUR CONTRACTOR. HE HAS FILED HIS RETURN OF INCOME ON 2 .9.2011 DECLARING TOTAL INCOME AT RS.1,59,620/-. ON SCRUTINY OF THE ACCOUN TS, IT REVEALED TO THE AO THAT THE ASSESSEE WAS MAINTAINING A BANK ACCOUNT WITH DENA BANK WHEREIN HE HAS DEPOSITED CASH ON VARIOUS DATES. BY EXERCISING POWER UNDER SECTION 133(6) OF THE INCOME TAX ACT, THE LD. AO HAS CALLED FOR THE DETAILS FROM THE BANK AND CONFRONTED THE ASSESSEE T O SHOW THE SOURCE OF SUCH DEPOSITS. ACCORDING TO THE AO, THE ASSESSEE F AILED TO PRODUCE ANY DETAILS AND FAILED TO EXPLAIN SOURCE. THUS, HE PAS SED ASSESSMENT ORDER ACCORDING TO HIS BEST JUDGMENT UNDER SECTION 143(3) R.W.S. 144 OF THE INCOME TAX ACT. HE MADE ADDITION OF RS.47,11,554/- . ON APPEAL, THE LD.CIT(A) HAS RE-APPRECIATED CIRCUMSTANCES AND DELE TED THE ADDITION BY A SUM OF RS.20 LAKHS. THE FINDING RECORDED BY THE LD.CIT(A) IS WORTH TO NOTE. IT READS AS UNDER: 3.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE LEAR NED AUTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFIC ER I AM UNABLE TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE CAS E OF THE APPELLANT IS COVERED BY ANY JUDICIAL DECISION. THIS IS A UNIQUE CASE AND THERE IS NO SUPPORTING EVIDENCE TO PROVE THE CONTENTIONS OF THE LD. AUTHORIZED REPRESENTATIVE. EVEN IF IT IS ASSUMED THAT THE CASH WAS DEPOSITED FOR VISA PURPOSE, THE SOURCE OF SUCH DEPOSIT HAS TO BE EXPLAINED BY THE ASSESSEE ONLY. WHO ARE THE PERSONS WHO ADVANCED SUC H HUGE SUMS TO THE ASSESSEE IN CASH. HOW AND WHEN THIS CASH WAS RETURN ED TO THOSE PERSONS. WHEN AND HOW THE VISA WAS APPLIED FOR ? WHERE ARE T HE PAPERS ? ALL THESE QUESTIONS MAKE THE CASE OF THE APPELLANT UNIQ UE AND THIS CANNOT BE COMPARED WITH ANY OTHER CASE. THE APPELLANT HAS FAI LED TO SATISFACTORILY EXPLAIN THE SOURCE OF DEPOSIT MADE ON 27.07.2010 FO R RS.20,00,000/- IN HIS DENA BANK, PADRA ACCOUNT. OUT OF THE ABOVE DEPO SITS, APPELLANT HAD WITHDRAWN CASH OF RS.20,00,000/- ON VERY NEXT DAY I .E. 28.07.2010 LEAVING BALANCE OF RS.1,500/-. ON 10.12.2010 APPELL ANT HAD DEPOSITED RS.8,00,000/-, RS.7,00,000/- AND RS.7,00,000/- TOTA LING TO RS.22,00,000/- . OUT OF THIS, ONLY A SUM OF RS. 20 LAKHS MAY BE TR EATED AS DEPOSITED OUT OF WITHDRAWAL OF RS.20 LAKHS MADE ON 28.07.2010. TH OUGH, THERE IS A GAP OF MORE THAN 4 MONTHS WHICH THE APPELLANT HAS NOT P ROPERLY EXPLAINED ITA NO.1242/AHD/2017 - 3 - BUT AT THE SAME TIME, ASSESSING OFFICER HAS ALSO NO T BROUGHT ON RECORD ANY OTHER USER OF THE CASH WITHDRAWAL ON 27.07.2010 . THE ASSESSING OFFICER HAS GIVEN SUFFICIENT OPPORTUNITIES TO THE A SSESSEE TO EXPLAIN THE SOURCE OF THESE DEPOSITS BUT HE NEVER GAVE ANY PLAU SIBLE EXPLANATION. THINGS ARE NOT MADE ANY MORE CLEAR EVEN DURING THE APPEAL PROCEEDINGS WHERE INCOMPLETE EXPLANATION HAS BEEN FILED BY THE APPELLANT. IN THE CASE OF P.K. NOORJAHAN (SUPRA), THE APEX COURT HAS HELD THAT IT IS AGAINST HUMAN PROBABILITY THAT A YOUNG LADY OF 20 YEARS WIL L BE ABLE TO EARN SUBSTANTIAL MONEY AND ACCEPTED HER EXPLANATION THAT IT WAS INHERITED FROM THE STEP FATHER LD. AUTHORIZED REPRESENTATIVE HAS NOT FILED THE DECISION OF OTHER RELIED UPON CASES I.E., GUJARAT H IGH COURT'S DECISION IN CASE OF PRAMOD K PATEL IN TAX APPEAL NO. 1939 OF 20 10 DATED 10.01.2012 BUT FROM HIS OWN SUBMISSION, IT APPEARS THAT IN THI S CASE, THE ASSESSEE HAD DULY EXPLAINED THE SOURCES OF EACH DEPOSITS WITH CO NFIRMATION AND OTHER DETAILS WHICH ARE MISSING IN THE PRESENT CASE. UNDE R THESE CIRCUMSTANCES, WHEN ASSESSEE HAS MISERABLY FAILED TO EXPLAIN SOURC E OF ANY SINGLE CASH DEPOSIT IN HIS BANK ACCOUNT, I AM UNABLE TO ACCEPT THE CONTENTION OF THE APPELLANT THAT ALL CASH DEPOSITS ARE EXPLAINED AND HOLD THAT APPELLANT HAS FAILED TO SATISFACTORILY EXPLAIN THE SOURCE OF DEPO SIT MADE ON 27.07.2010 FOR RS.20,00,000/- IN HIS DENA BANK, PADRA ACCOUNT. THIS ADDITION IS, THEREFORE, CONFIRMED. OUT OF THE ABOVE DEPOSITS, AP PELLANT HAD WITHDRAWN CASH OF RS.20,00,000/- ON VERY NEXT DAY I.E. 28.07. 2010 LEAVING BALANCE OF RS.1,500/-. ON 10.12.2010 APPELLANT HAD DEPOSITED R S.8,00,000/-, RS.7,00,000/- AND RS.7,00,000/- TOTALING TO RS.22,0 0,000/-. OUT OF THIS, ONLY A SUM OF RS. 20 LAKHS IS TREATED AS DEPOSITED OUT OF WITHDRAWAL OF RS.20 LAKHS MADE ON 28.07.2010. THOUGH, THERE IS A GAP OF MORE THAN 4 MONTHS WHICH THE APPELLANT HAS NOT PROPERLY EXPLAIN ED BUT AT THE SAME TIME, ASSESSING OFFICER HAS ALSO NOT BROUGHT ON REC ORD ANY OTHER USER OF THE CASH WITHDRAWAL ON 27.07.2010. HON'BLE ITAT, AH MEDABAD IN THE CASE OF (TO WARD-7(L) AHMEDABAD VS. M/S MURLIDHAR IC ECREAM & SWEET PARLOUR IN ITA NO.531/AHD/2012 (A.Y. 2008-09) HAS HE LD AS UNDER :- '4.1. THE FINDING OF THE ID.CIT(A) THAT THERE WERE T RANSACTIONS OF CASH DEPOSIT AND WITHDRAWAL. THIS FACT IS NOT CONTR OVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. WE ARE OF THE CONSIDERED VIEW WHERE THERE ARE DEPOSIT AND WITHDRA WAL ENTRIES INTO THE BANK ACCOUNT, IT WOULD BE PRESUMED THAT TH E AMOUNT WITHDRAWN WAS AVAILABLE WITH ASSESSEE FOR DEPOSITIN G THE SAME. THEREFORE, IT CANNOT BE CONCLUDED THAT THE ENTIRE D EPOSITS WERE FROM UNEXPLAINED SOURCE. WE DO NOT SEE ANY REASON TO INT ERFERE WITH THE ITA NO.1242/AHD/2017 - 4 - FINDING OF THE ID.CIT(A), THE SAME IS HEREBY UPHELD . THUS, THIS GROUND OF REVENUE'S APPEAL IS REJECTED. ON THE ISSUE OF GAP BETWEEN CASH WITHDRAWAL AND RED EPOSIT IN THE BANK ACCOUNT, ITAT, DELHI IN THE CASE OF GORDHAN VS (TO VIDE THEIR ORDER DATED 19.10.2015 IN ITA NO, 811/DEL/2015 (AY: 2011- 12) HAS HELD THAT MERELY BECAUSE CASH IS RE DEPOSITED AFTER A GAP OF 5 MONTHS FROM THE DATE OF WITHDRAWAL OF CASH, THE ASSESSING OFFICER CANNOT MAKE ADDITION OF SAME AMOUNT. SIMILARLY, ITAT, DELHI IN THE CASE OF ACIT VS BALDEV RAJ CHARLA 121 TTJ 366 (DEL.) HAS HELD AS UNDER: 'WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD AND HAVE GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. WE FIND THAT THIS EXPLANATION OF THE ASSESSEE WAS FOUND CORRECT THAT AGAINST THESE FIVE DEPOSITS ON D ATED 14TH JUNE, 1996, RS. 31,000; 21ST JULY, 1997, RS. 1,27,000,19TH SEPT, 1997, RS. 22,000; 4TH OCTOBER, 1997, RS. 26,000 AND ON 7 TH NOVEMBER, 1997, RS. 52,000/THERE WERE SUFFICIENT CASH WITHDRA WALS FROM AWI AND FROM SBL MAYAPURI, BUT THIS ADDITION HAS BEEN C ONFIRMED BY ID. CIT(A) ON THE BASIS THAT THERE IS TIME GAP BETWE EN THE ASSESSEE'S WITHDRAWALS FROM HIS OWN PARTNERSHIP M/S AWI OR FROM HIS OWN BANK. THERE IS FINDING RECORDED BY THE ID. AO OR BY THE ID. CIT(A) THAT APART FROM DEPOSITING THESE CASH INTO BA NK AS EXPLAINED BY THE ASSESSEE, THERE WAS ANY OTHER USER BY THE ASSESSEE OF THESE AMOUNTS AND IN THE ABSENCE OF THAT, SIMPLY BECAUSE THERE WAS A TIME GAP, THE EXPLANATION OF THE ASSESSEE CAN NOT BE REJECTED AND HENCE THE ADDITION CONFIRMED BY THE LD. CIT(A) I S NOT CORRECT. WE, THEREFORE, DELETE THE SAME. THIS GROUND OF THE ASSESSEE IS ALLOWED.' IN RESPECT OF CASH DEPOSITED BY THE ASSESSEE IN STA TE BANK OF INDIA, HARNI ROAD, BARODA, NO RELIEF CAN BE GRANTED TO THE ASSES SEE AS IT CAN BE SAFELY PRESUMED THAT THE ENTIRE CASH WITHDRAWALS MADE BY T HE ASSESSEE WERE EXHAUSTED FOR MEETING DAY TO DAY HOUSE HOLD EXPENSE S, ADDITION FOR WHICH IS ARE NOT SEPARATELY MADE. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WRITTEN SUBMISSIONS FILED BEFORE ME, D ISCUSSION MADE IN PARA ABOVE AND JUDICIAL DECISIONS CITED SUPRA, THE ADDIT ION MADE BY THE ASSESSING OFFICER AMOUNTING TO RS.27,11,544/- IS CO NFIRMED AND ADDITION OF RS.20,00,000/- IS DELETED AS DISCUSSED ABOVE. T HE SOLE GROUND OF APPEAL IS PARTLY ALLOWED. ITA NO.1242/AHD/2017 - 5 - 4. THE LD.COUNSEL FOR THE ASSESSEE FILED AN APPLICA TION FOR PERMISSION TO SUBMIT ADDITIONAL EVIDENCE. IN THIS APPLICATION HE HAS SOUGHT TO PLACE ON RECORD COPY OF VISA OBTAINED BY HIS SON, AMIT MA NOJBHAI VAGHELA FOR EDUCATION PURPOSE. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THIS EVIDENCE BE TAKEN ON RECORD AND THE MATTER BE REMIT TED TO THE FILE OF THE AO FOR RE-ADJUDICATION. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDER OF THE REVENUE AUTHORITIES. 5. THE LD.COUNSEL FOR THE ASSESSEE FURTHER PUT RELI ANCE UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. SMT. P.K. NOORJAHAN, 237 ITR 570 (SC) AS WELL AS JUDGMENT OF HONBLE GUJARAT HIGH COURT IN TAX APPEAL NO.1939 OF 2010 IN THE CAS E OF CIT VS. PRAMOD K. PATEL DATED 10.1.2012. HE HAS PLACED ON RECORD COPIES OF THESE DECISIONS. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. AS FAR AS THE APPLICATION OF THE ASSESSEE FOR PERMISSION TO FILE ADDITIONAL EVIDENCE IS CONCERNED, WE DO NOT FIND ANY MERIT IN THIS APPLICATION, BECAUSE THIS EVIDENCE IS NOT VERY RELE VANT EVIDENCE IN WHOSE ABSENCE IT COULD BE CONSTRUED THAT THE APPEAL CANNOT BE DECIDED JUSTIFIABLY. THE CASE OF THE ASSESSEE IS THAT IN ORDER TO AVAIL VISA, MONEY IN THE BANK WAS TO BE MOBILIZED. IT WAS ARRANGED B Y VISA-AGENT. SINCE HIS SON GOT THE VISA, THEREFORE, IT WOULD GOAD TO P RESUMPTION THAT MONEY WAS ARRANGED BY THE VISA AGENT. TO OUR MIND, THIS IS JUST A BALD STATEMENT. AS PER SECTION 68, THE ASSESSEE SHOULD FULFILL THREE INGREDIENTS VIZ. (A) IDENTITY OF THE LENDER, (B) GENUINENESS OF THE TRANSACTION, AND (C) CREDIT-WORTHINESS OF THE LENDER. SIMILARLY, SECTIO N 69 CONTEMPLATES, WHAT IS UNEXPLAINED INVESTMENT. HERE THE ASSESSEE MADE DEPOSITS IN THE BANK ITA NO.1242/AHD/2017 - 6 - ACCOUNT WHICH IS UNEXPLAINED INVESTMENT UNLESS ITS NATURE AND SOURCE IS BEING EXPLAINED BY THE ASSESSEE TO THE SATISFACTION OF THE AO. THE QUESTION BEFORE THE AO WAS THAT, WHAT IS THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT, QUA THAT THE ASSESSEE HAS NOT PRODUCED ANY MATERIAL. THE STAND OF THE ASSESSEE IS THAT VISA AGENT ON BEHALF OF THE ASSESSEES SON HAS ARRANGED THIS AMOUNT IS CONCERNED, IT CAN BE A CORR OBORATIVE CIRCUMSTANCES, BUT SHOULD BE SUPPORTED WITH EVIDENC E. HE HAS TO PIN POINT FROM WHERE MONEY WAS OBTAINED, HOW IT WAS OBT AINED, AND THEN HOW IT WAS DEPOSITED. NO CONFIRMATION FROM THE LEN DER HAS BEEN FILED. EVEN NAME OF LENDER HAS NOT BEEN DISCLOSED. AS FAR AS JUDGMENT IN THE CASE OF SMT.P.K. NORRJAHAN (SUPRA) AND OTHER DECISI ON OF HONBLE GUJARAT HIGH COURT ARE CONCERNED, THEY ARE NOT APPL ICABLE IN THE PRESENT CASE. SMT.P.K. NORRJAHAN IS A LADY FROM WHOM IT CO ULD NOT BE ASSUMED THAT SHE HAS ANY SOURCE OF INCOME, AND IN THAT BACK GROUND EXPLANATION WAS ACCEPTED. HERE, THE ASSESSEE IS LABOUR CONTRAC TOR, FILING RETURN SHOWING INCOME. IT WAS NOT ALLEGED THAT THE ASSESS EE WAS NOT AN ABLE- BODIED PERSON WHO COULD NOT EARN INCOME. THE LD.CI T(A) HAS CONSIDERED JUDGMENT OF THE HONBLE SUPREME COURT AS WELL AS OTHER CIRCUMSTANCES IN THE FINDING EXTRACTED (SUPRA). WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD.CIT(A). HENCE, THIS APPEAL IS REJECTED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. PRONOUNCED IN THE OPEN COURT ON 8 TH MARCH, 2019. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 8/03/2019