The ITO, Ward-15(2), Ahmedabad V. Smt. Sumitaben J.Patel, Ahmedabad

ITA 1346/AHD/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67606 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Keywords: Peak credit
• Section: 143(3); 131

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.1346/AHD/2011 [ASSTT.YEAR : 2008-2009] ITO, WARD-15(2) AHMEDABAD. /VS. SMT. SUMATIBEN J. PATEL B-2/182,MADHURVRUND SOCIETY GHALODIA, AHMEDABAD 380 061. PAN : ABEPP 8296 Q ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 )/ REVENUE BY : SHRI J.P. JANGID, SR.DR 4& 1 2 )/ ASSESSEE BY : SHRI TUSHAR HEMANI 5 1 &(*/ DATE OF HEARING : 14 TH AUGUST, 2013 678 1 &(*/ DATE OF PRONOUNCEMENT : 23-08-2013 )9 / O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER: THIS IS REVENUE APPEAL DIRECTED AGAINST THE ORDER OF THE CI T(A)-XXI, AHMEDABAD DATED 17.2.2011 FOR THE ASSESSMENT YEAR 2008-2009. 1. ASSESSEE IS AN INDIVIDUAL RETIRED FROM GSRTC AND HAS INCOME FROM PENSION, CAPITAL GAIN AND INTEREST. SHE ELECTRONICA LLY FILED RETURN OF INCOME FOR A.Y 2007-08 ON 9.1.2009 DECLARING TOTAL INCOME OF R S.1,13,010/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 27.12.2010 AND THE TOTAL INCOME WAS DET ERMINED AT RS.32,84,000/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) ITA NO.1346/AHD/2011 -2- VIDE ORDER DATED 17.2.2011 ALLOWED THE APPEAL OF TH E ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING EFFECTIVE GROUND: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION FOR UNEXPLAINED CASH DEPOSITS OF RS.31,71,000/- U/S .68 IN HER BANK ACCOUNT. 2. ON THE BASIS OF AIR INFORMATION RECEIVED BY AO, IT WAS NOTED BY HIM THAT ASSESSEE HAD DEPOSITED CASH AGGREGATING TO RS.31,71 ,000 (DETAILS LISTED ON PAGE 2 OF THE ORDER) ON VARIOUS DAYS IN HER SAVING BANK AC COUNT MAINTAINED BY HER WITH KALUPUR COMM. BANK. HE ALSO NOTED THAT THERE WERE C REDIT ENTRIES WORTH RS.24,45,000 IN HER BANK ACCOUNT. ASSESSEE, INTERALIA SUBMITTED THAT SHE WAS IN THE PROCESS OF PURCHASING LAND IN SURROUNDING AREA AND WAS NEGOTIATING WITH VARIOUS FARMERS FOR THIS PURPOSE. SHE HAD KEPT CASH IN HAND. SHE FURTHER INFORMED THAT MONEY WAS BORROWED FROM SHRI NAVIN PATEL AND S HRI GANGARAM PATEL AND ALSO SUBMITTED THEIR ACCOUNT CONFIRMATION. SHE ALSO SUBMITTED THAT THE CASH DEPOSITED WAS FROM THE CASH BALANCE AVAILABLE WITH HER IN EARLIER YEARS. THE SUBMISSION OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE TO THE AO FOR THE REASON THAT SHRI NAVIN PATEL AND GANGARAM PATEL IN THEIR STATEM ENT RECORDED U/S 131 OF THE ACT ON OATH HAVE STATED TO HAVE SUBMITTED THAT THE AMOUNT WAS LENT TO ASSESSEE THROUGH CHEQUE AND THEREFORE ACCORDING TO THE AO TH E POSSIBILITY OF CASH TRANSACTION WAS RULED OUT. HE FURTHER NOTED THAT TH E CASH DEPOSITS IN THE BANK ACCOUNT WERE IMMEDIATELY TRANSFERRED TO THE BANK AC COUNT OF SHRI NAVIN PATEL, HIS SON IN LAW, WHO WAS ENGAGED IN THE BUSINESS OF CIVI L CONSTRUCTION, PURCHASE/SALE OF LAND. HE ACCORDINGLY CONCLUDED THAT THE SOURCE O F CASH DEPOSITS REMAINED UNEXPLAINED AND ACCORDINGLY ADDED RS.31,71,000 AS U NEXPLAINED CASH DEPOSITS. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) ALLOWED THE APPEAL OF ASSESSEE BY HOLDING AS UNDER. 6. I HAVE CONSIDERED THE FACTS OF THE CASE, ORDER PASSED BY THE AO AND THE APPELLANTS SUBMISSION. IT IS UNDISPUTED FACTS THAT THE APPELLANT MAINTAINS REGULAR BOOKS OF ACCOUNTS. THE APPELLANT DURING THE YEAR UNDER APPEAL, HAS DEPOSITED CASH AMOUNTING TO RS.31,71,00 0/- IN TO HER BANK ACCOUNT. DURING THE COURSE OF APPELLATE PROCEEDINGS , IT WAS THE CONTENTION OF THE APPELLANT THAT ENTIRE CASH AMOUNT ING TO RS.31,71,000/- HAS BEEN DEPOSITED INTO BANK ACCOUNT OUT OF AVAILAB LE CASH WITH HER. THE ITA NO.1346/AHD/2011 -3- APPELLANT, TO SUBSTANTIATE HER CLAIM, PLACED ON REC ORD BALANCE SHEET FOR IMMEDIATELY PRECEDING AY 2007-08 AND COPY OF CASH B OOK FOR THE RELEVANT AY 2008-09, WHICH IS ENCLOSED ON PAGE NOS. 16 & 17 RESPECTIVELY. ON PERUSAL OF SUCH RECORD AN BOOKS OF ACCOUNT, IT IS V ERY MUCH CLEAR THAT AS ON 1.4.2007, THE APPELLANT WAS HAVING CASH BALANCE OF RS.21,06,780/- AS MUCH AS, DURING THE YEAR UNDER CONSIDERATION ALSO, THE APPELLANT WAS HAVING SUFFICIENT CASH BALANCE SO AS TO DEPOSIT AN AMOUNT OF RS.31,71,000/- INTO BANK ACCOUNT. 7. THE APPELLANT ALSO EXPLAINED THAT DURING THE PR EVIOUS YEAR 2006- 07 AND DURING 2007-08, THE APPELLANT HAD BORROWED F ROM HER SON-IN-LAW THROUGH ACCOUNT PAYEE CHEQUE, WHICH WAS DEPOSITED I NTO BANK ACCOUNT MAINTAINED WITH HER, OUT OF WHICH CASH WERE WITHDRA WN, SO AS TO PURCHASE LAND IN DIFFERENT OUTSKIRTS OF THE AHMEDABAD CITY. HOWEVER DUE TO SUDDEN INCREASE IN PRICE, SHE COULD NOT PURCHASE LAND AND THEREFORE CASH WERE DEPOSITED INTO BANK ACCOUNT. ON PERUSAL OF CASH BOO K FURNISHED ON PAGE NO. 17, IT TRANSPIRES THAT, THE APPELLANT HAS PURCH ASED ONE PLOT AS 'SHASHWAT PLOT 41/B' FOR WHICH THE APPELLANT HAS MA DE PAYMENT OF RS.3,15,000/- IN CASH ON 28/5/2007. THEREFORE, THE REASON GIVEN BY THE APPELLANT FOR KEEPING CASH ON HAND TO PURCHASE LAND SEEMS TO BE VALID REASON. 8. HAVING REGARD TO MY ABOVE OBSERVATIONS, I HELD T HAT THE CASH AMOUNTING TO RS.31,71,000/- HAS BEEN DEPOSITED OUT OF CASH BALANCE AVAILABLE WITH HER AS MUCH AS THE SAME IS ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS MAINTAINED BY HER AND AS THE SAME IS EXPLA INED BY THE APPELLANT, ADDITION MADE BY THE AO IS REQUIRED TO BE DELETED. I ALSO HELD THAT ONCE THE CASH CREDIT ENTRY HAS BEEN EXPLAINED AS WELL AS DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS, UNDER THE CIRCUMSTANCES NO A DDITION CAN BE MADE U/S.68 AND 69 ALSO. AS I HAVE ALREADY DELETED THE ADDITION MADE BY THE LD. AO, THE ALTERNATIVE CONTENTION OF THE APPELLANT TO ADD ONLY PEAK CREDIT HAS BEEN ACADEMIC AND THEREFORE NO NEED TO TAKE INTO CO NSIDERATION. 3. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), REVE NUE IS NOW IN APPEAL BEFORE US. BEFORE US, LD D.R. SUBMITTED POINTED TO THE NOTINGS AND FINDINGS OF AO. HE SUBMITTED THAT THE SOURCE OF DEPOSITS OF CASH HA S NOT BEEN SATISFACTORILY EXPLAINED BY THE ASSESSEE. HE FURTHER POINTED TO TH E STATEMENT RECORDED OF SHRI NAVIN PATEL AND GANGARAM PATEL WHO HAS STATED TO HA VE LENT THE MONEY BY CHEQUE AND THEREFORE THE POSSIBILITY OF MONEY RECEIVED IN CASH WAS RULED OUT. HE THUS URGED THAT CIT(A) HAS FAILED TO CONSIDER THE REASON S DISCUSSED BY THE AO AND THEREFORE URGED THAT THE ORDER OF AO BE UPHELD. 4. LD.A.R. ON THE OTHER HAND SUBMITTED THAT THE CAS H HAD COME OUT OF THE CASH BOOK MAINTAINED BY THE ASSESSEE AND THEREFORE FULLY EXPLAINED. HE FURTHER ITA NO.1346/AHD/2011 -4- SUBMITTED THAT OPENING CASH BALANCE OF RS.21,06,780 AS ON 1.4.2007 WAS DULY REFLECTED IN THE BALANCE SHEET AND THE ASSESSEE HAS THUS FULLY DISCHARGED THE ONUS CAST UPON IT. HE THUS SUPPORTED THE ORDER OF CIT(A) . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE DISPUTE IN THE PRESENT CASE IS WITH RESPECT TO UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. IT IS SEEN THAT CIT(A ) WHILE DELETING THE ADDITION HAS GIVEN A FINDING THAT THE ASSESSEE MAINTAINS REG ULAR BOOKS OF ACCOUNTS AND THE CASH BOOK REVEALS THAT AS ON 1.4.2007 THE ASSESSEE WAS HAVING CASH BALANCE OF RS.21 LACS AND DURING THE YEAR ALSO THE ASSESSEE WA S HAVING SUFFICIENT CASH BALANCE SO AS TO DEPOSIT THE AMOUNT OF RS.31,71,000 INTO THE BANK ACCOUNT. HE HAS FURTHER HELD THAT DURING THE PREVIOUS YEAR 2006-07 AND 2007-08 THE ASSESSEE HAD BORROWED FROM HER SON IN LAW THROUGH ACCOUNT PAYEE CHEQUES WHICH WERE DEPOSITED INTO THE BANK ACCOUNT AND OUT OF WHICH TH E CASH WAS WITHDRAWN FOR THE PURCHASE OF LAND. HE HAS FURTHER HELD THAT THE CASH BALANCE MAINTAINED BY THE ASSESSEE HAS BEEN ACCOUNTED FOR IN THE BOOKS OF ACC OUNTS AND HAS BEEN EXPLAINED BY THE ASSESSEE. BEFORE US, THE REVENUE HAS NOT BRO UGHT ANY CONTRARY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF THE CIT(A). IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A ) AND THUS THIS GROUND OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/- SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD