Kalpana Sanjay Mantri, Pune V. Income-tax Officer,

ITA 1339/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1517 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.1339/PN/2016 / ASSESSMENT YEAR : 2008-09 SMT. KALPANA SANJAY MANTRI, 682/1/5, GODAVARI CHAMBERS, DECCAN GYMKHANA PUNE -411 004 PAN NO.ABHPM0097K . / APPELLANT V/S ITO, WARD - 3(2), PUNE . / RESPONDENT / APPELLANT BY : SHRI BHARAT SHAH / RESPONDENT BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 02-03-2016 OF THE CIT(A)-III, PUNE RELATING TO THE ASSESSMENT YEAR 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A DIRECTOR IN SANJAY MANTRI FINANCIAL CONSULTANCY PVT. LTD. AND FILED HER R ETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 10-03-2009 DECLARING TOTAL INCOME OF RS.94,850/-. IN THIS CASE, AIR INFORMATION W AS RECEIVED ACCORDING TO WHICH THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.14,15,000/- IN THE SAVINGS BANK ACCOUNT MAINTAINED WITH AXIS BANK LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE IN RESPONSE TO THE QUERY RAISED BY THE AO SUBMITTED TH AT THE SAVINGS BANK ACCOUNT AT DECCAN GYMKHANA BRANCH WAS OPERATED BY HER HUSBAND SHRI SANJAY R. MANTRI SINCE 2004 WHO WAS A SHAR E BROKER / DATE OF HEARING :28.07.2016 / DATE OF PRONOUNCEMENT:29.07.2016 2 ITA NO.1339/PN/2016 AND REGULARLY FILES HIS RETURN AND THE CASH DEPOSITED WA S OUT OF HIS REGULAR BUSINESS TRANSACTIONS. 3. HOWEVER, THE AO REJECTED THE ABOVE EXPLANATION OF T HE ASSESSEE ON THE GROUND THAT THE CASH RELATED TO HIS REGULAR BUS INESS SHOULD HAVE BEEN DEPOSITED IN HIS OWN ACCOUNT AND NOT IN THE J OINT ACCOUNT BY ASSESSEES HUSBAND. SINCE THE SOURCE OF THIS CASH D EPOSIT REMAINED UNEXPLAINED BY THE ASSESSEE THE AO ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME U/S.69A OF THE I.T. ACT. HE ALSO REWORKED THE CAPITAL GAIN ON ACCOUNT OF SALE OF FLAT AT AKURDI. 4. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). HOWEVER , SINCE THERE WAS NON-COMPLIANCE FROM THE SIDE OF THE ASSESSEE T O THE VARIOUS NOTICES ISSUED BY THE OFFICE OF THE CIT(A), THE LD.CIT(A) PASSE D AN EXPARTE ORDER AND UPHELD THE ACTION OF THE AO IN MAKING ADDITION U/S.69A AND REWORKING OF CAPITAL GAIN. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEA L BEFORE THE TRIBUNAL WITH THE FOLLOWING GROUNDS : 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISION S OF LAW THE AUTHORITIES BELOW ERRED IN MAKING AN ADDITION OF RS. 1415000/- ON ACCOUNT OF CASH DEPOSITED IN THE SAVING ACCOUNT OF TH E APPELLANT. THE EXPLANATION GIVEN BY THE APPELLANT FOR THIS PURPOSE H AS BEEN SUMMARILY REJECTED WITHOUT VERIFYING THE SAME. THE ADDITION SO MADE BE KINDLY DELETED. 2. WITHOUT PREJUDICE TO GROUND OF APPEAL NO. 1 ON F ACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF LAW IT BE HE LD THAT THERE IS NO CASE TO APPLY THE DEEMING PROVISIONS OF SECTION 69A OF THE INCOME TAX ACT AS THE APPELLANT HAS SATISFACTORILY EXPLAINED THE NATURE AND SOURCE FOR THE CASH DEPOSITS OF RS. 14,15,000/- MADE IN HER SAVING S BANK ACCOUNT. WHILE MAKING THIS ADDITION THERE IS NO FINDING THAT T HE APPELLANT IS THE OWNER OF CASH DEPOSITED. IN FACT THE SAVING ACCOUNT IS USED ONLY AS A CONDUIT BY THE HUSBAND OF THE APPELLANT WHICH SHOULD HAVE BEEN VERIFIED FROM THE BOOKS OF ACCOUNTS MAINTAINED BY HIM. THE ADD ITION SO MADE MAY KINDLY BE DELETED AS PROVISIONS OF SECTION 69A ARE NOT APPLICABLE ON THE FACTS OF THE CASE. 3 ITA NO.1339/PN/2016 3. THE AUTHORITIES BELOW ON FACTS AND CIRCUMSTANCES PRE VAILING IN THE CASE ERRED IN APPLYING THE PROVISIONS OF SEE 50C(1) WITHOUT CONSIDERING THE PROVISIONS OF SEE 50C (2) OF THE INCOME TAX ACT AN D THEREBY DEEMING THE SALE CONSIDERATION AT RS. 15,07,330/- IN RESPECT OF THE FLAT AT AKURDI INSTEAD OF RS. 12,00,000/- FOR COMPUTING THE CAPITAL GAIN AND THEREBY MAKING AN ADDITION OF RS. 3,07,330/- TO THE RETURNED CAPITAL GAIN. THE ADDITION SO MADE .NAY KINDLY BE DELETED. 4. THE APPELLANT PRAYS TO BE ALLOWED TO ADD, AMEND, MODIFY, RECTIFY, DELETE, RAISE ANY GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. 6. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PA PER BOOK FILED ON BEHALF OF THE ASSESSEE. I FIND THE AO IN THE INSTANT CA SE MADE ADDITION OF RS.14,15,000/- U/S.69A OF THE I.T. ACT AND ALSO R EWORKED THE CAPITAL GAIN AT RS.3,38,963/-. I FIND SINCE THE ASSESSEE DID NOT APPEARED BEFORE THE LD.CIT(A) HE PASSED AN EXPARTE ORDE R DISMISSING THE APPEAL FILED BY THE ASSESSEE AND UPHOLDING THE ADDITION S MADE BY THE AO. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE A SSESSEE THAT GIVEN AN OPPORTUNITY THE ASSESSEE CAN EXPLAIN THE CASE PROPERLY. CONSIDERING THE TOTALITY OF THE FACTS AND IN THE INTEREST O F JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CI T(A) WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HER CASE. THE CIT(A) SHALL DECIDE THE ISSUE AFRESH AND IN A CCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSE SSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 29-07-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED :29 TH JULY, 2016. 4 ITA NO.1339/PN/2016 '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // // TRUE COPY // // $ % //UE &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - I, NASHIK 4. THE CIT-I, NASHIK 5. $ %%* , * , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 2 / GUARD FILE.