Anant Chunilal Kate, Dhule V. Deputy Commissioner of Income-tax,

ITA 1328/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1537 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO.1328/PN/2015 ' ' / ASSESSMENT YEAR : 2011-12 ANANT CHUNILAL KATE, H.NO.1595, LANE NO.6, DHULE- 424001 . / APPELLANT PAN: ANAPD5826D VS. DCIT, CIRCLE-3(1), DHULE . RESPONDENT / APPELLANT BY : SHRI SUNIL GANOO / RESPONDENT BY : SHRI SUHAS KULKARNI, JCIT DATE OF HEARING : 18.07.2016 / DATE OF PRONOUNCEMENT: 22 .07.2016 / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-I, NASHIK DATED 12.08.2015 RELATING TO ASSESSMENT YEAR 2011-12 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE ADDITION OF RS.5,00,000/- MADE U/S.68 OF THE I.T. ACT, 1961, ON ACCOUNT OF THE SO CALLED UNEXPLAINED DEPOSITS IN CA SH IN THE BANK ACCOUNT, BY REJECTED THE EXPLANATION THAT THE SAME W AS DEPOSITED OUT OF THE CASH AVAILABLE WITH THE ASSESSEE OUT OF THE EARLI ER WITHDRAWALS FROM THE SAME BANK, SHOULD BE DELETED FULLY. 2. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND/DEL ETE ANY OF THE GROUNDS OF APPEAL. ITA NO.1328/PN/2015 ANANT CHUNILAL KATE 2 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST THE ADDITION OF RS.5 LAKHS U/S.68 OF THE ACT. BRIEFLY, IN THE FACT S OF THE CASE, THE ASSESSEE HAD FURNISHED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.18,75,552/-. DURING THE YEAR UNDER CONSIDERATIO N, THE ASSESSEE HAD FURNISHED INCOME FROM SALARY, CAPITAL GAINS AND INC OME FROM OTHER SOURCES. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE AO VERIFIED THE CONTENTION OF THE ASSESSEE WITH REGARD TO THE WORKI NG OF THE LONG TERM CAPITAL GAINS AND MADE ADDITION OF RS.10,23,352/-. ANOTHER ADDITION MADE IN THE HANDS OF THE ASSESSEE WAS ON ACCOUNT OF DEPO SIT OF CASH OF RS.5 LAKHS IN THE SAVINGS ACCOUNT. THE ASSESSEE EXPLAIN ED THAT IT HAD DEPOSITED THE SAID CASH IN HASTI BANK SAVINGS ACCOU NT ON 26-03-2011 OUT OF THE CASH WITHDRAWAL FROM HIS SAVI NGS ACCOUNT ONLY. THE ASSESSEE CLAIMED THAT IT HAD RECEIVED RS.10 LAKHS B Y CHEQUE FROM M/S. DREAM HOUSE BUILDERS ON 13-11-2009 AND THE AMOUNT T HEREAFTER WAS WITHDRAWN IN CASH, I.E. RS. 6 LAKHS + RS.3,45,000/- FROM HIS SAVINGS BANK ACCOUNT. OUT OF THESE WITHDRAWALS, HE HAD RE-DEPOS ITED RS.5 LAKHS IN CASH ON 26-03-2011. THE AO REJECTED THE EXPLANATION OF THE ASSESSEE AND MADE AN ADDITION OF RS.5 LAKHS U/S.68 OF THE ACT. 4. THE CIT(A) ALLOWED THE FIRST CLAIM OF THE ASSESS EE, I.E. WITH REGARD TO THE COMPUTATION OF INCOME FROM LONG TERM CAPITAL GA INS. HOWEVER, IN RESPECT OF THE SECOND CLAIM OF THE ASSESSEE, I.E. S OURCE OF CASH DEPOSIT OF RS.5 LAKHS, THE CIT(A) UPHELD THE ORDER OF THE AO, AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LIMITED ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE SOURCE OF CASH OF RS.5 LAKHS DEPOSITED IN THE SAVIN GS BANK ACCOUNT BY THE ASSESSEE. HE WAS MAINTAINING A SAVINGS BANK ACCOUN T WITH HASTI BANK AND ON 26-03-2011 HAD DEPOSITED RS.5 LAKHS IN CASH IN THE SAID SAVING ITA NO.1328/PN/2015 ANANT CHUNILAL KATE 3 ACCOUNT. THE ASSESSEE CLAIMS THAT IT HAD RECEIVED RS.10 LAKHS BY CHEQUE FROM M/S. DREAM HOUSE BUILDERS ON 13-11-2009 WHICH WAS DEPOSITED IN THE BANK AND OUT OF THE SAID BANK ACCOUNT HAD WITHD RAWN RS.50,000/- EACH ON 01-01-2010 AND 25-02-2010. THEREAFTER, HE CLAIM S THAT HE HAD WITHDRAWN RS. 5 LAKHS ON 16-04-2010. FURTHER, BETW EEN THE PERIOD JUNE 2010 TO OCTOBER 2010 HE HAD FURTHER WITHDRAWN A SUM OF RS.3,45,000/- IN CASH FROM THE SAID ACCOUNT. 6. THE QUESTION ARISING IN THE PRESENT APPEAL IS TH AT WHETHER WHERE THE ASSESSEE HAD EARLIER MADE SUCH CASH WITHDRAWALS FRO M HIS OWN SAVING BANK ACCOUNT AND AT THE CLOSE OF THE YEAR DEPOSITED PART OF THE CASH IN THE SAID SAVINGS ACCOUNT ITSELF, CAN THE ASSESSEE TAKE THE BENEFIT OF THE EARLIER WITHDRAWALS MADE BY HIM IN CASH. ON PERUSAL OF THE RECORD, I FIND THAT BOTH THE AUTHORITIES BELOW HAVE FAILED TO BRING ON RECOR D ANY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD INVESTED THE SAID A MOUNT IN ANY ASSET OR SPENT THE SAME ON ANY EXPENDITURE. IN THE ABSENCE OF THE SAME AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND MERIT I N THE PLEA OF THE ASSESSEE IN THIS REGARD. IN CASE I DISREGARD THE OTHER CASH WITHDRAWALS MADE BY THE ASSESSEE, THE WITHDRAWAL OF RS.5 LAKHS ON 16-04-201 0 ITSELF IS SUFFICIENT TO TAKE CARE OF THE SOURCE OF CASH DEPOSITED ON 26-03- 2011, I.E. WITHIN THE FINANCIAL YEAR. ACCORDINGLY, THE ADDITION MADE BY THE AO AT RS.5 LAKHS IS DELETED. GROUND OF APPEAL RAISED BY THE ASSESSEE I S THUS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED ORDER PRONOUNCED ON THIS 22 ND DAY OF JULY, 2016. SD/- (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 22 ND JULY, 2016 . SATISH ITA NO.1328/PN/2015 ANANT CHUNILAL KATE 4 $ %'( )( / COPY OF THE ORDER IS FORWARDED TO : THE APPELLANT; THE RESPONDENT; ' () THE CIT(A)-I, NASHIK; ' THE CIT-I, NASHIK % ((), ), , - / DR SMC, ITAT, PUNE; 0 / GUARD FILE. / BY ORDER % ( // TRUE COPY // 23 ( ) / SR. PRIVATE SECRETARY ) , ITAT, PUNE