Shri Ramkumar Singh, SILVASSA V. The Income Tax Officer, Vapi Ward-3, Vapi

ITA 1390/AHD/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1913 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 18-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: SURESH KUMAR KABRA
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.1390/AHD/2015 (ASSESSMENT YEAR : 2006-07) SHRI RAMKUMAR SINGH, F- 201, TIRUPATI RESIDENCY, B/H. BALAJI TEMPLE, AMILI, SILVASA, VS. ITO,WARD -3, VAPI. [PAN NO. BIPPS 3953 L] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI SURESH KUMAR KABRA, A.R. RESPONDENT BY : MS. ANUPAMA SINGLA, SR.D.R. DATE OF HEARING 22/11/2018 DATE OF PRONOUNCEMENT 20/12/2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 27.03.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- VALSAD, ARISING OUT OF THE ASSESSMENT ORDER DATED 17.02.2014 FOR THE ASSESSMEN T YEAR 2006-07 PASSED BY THE ITO, VAPI WARD-3, VAPI UNDER SECTION 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT) WITH THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN PASSING ASSESSMENT MADE U/S 148 OF THE ACT. - 2 - ITA NO.1390/A/15 SHRI RAMKUMAR SINGH VS. ITO ASST.YEAR 2006-07 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING ADDITION OF RS.7,65,000/- AS UNDISCLOSED INCOME. 3. IT IS PRAYED THAT ABOVE ADDITION/DISALLOWANCE MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME TAX (APPEAL S) MAY PLEASE BE DELETED. 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 2. IN THIS PARTICULAR CASE THE ASSESSEE ADMITTEDLY HAS NOT FILED HIS RETURN OF INCOME FOR A.Y. 2006-07. UPON RECEIVING INFORMATION THAT THE A SSESSEE HAS DEPOSITED AN AMOUNT OF RS.11,65,000/- IN SAVING BANK ACCOUNT HELD WITH HDF C BANK, SILVASA, THE CASE WAS REOPENED U/S 147 OF THE ACT. ULTIMATELY THE SAME WA S FINALIZED U/S 144 R.W.S. 147 OF THE ACT AT RS.12,29,930/- AFTER MAKING ADDITION OF RS.1 1,65,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE IN THE ABSENCE OF ANY DETAILS AND/OR E XPLANATION TOWARDS THE SOURCE OF THE SAID CASH FURNISHED BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED BY THE REVENUE. IN APPEAL UPON PERUSAL OF THE REMAND REPORT AS SUBMITT ED BY THE LEARNED AO, THE LEARNED CIT(A) CONFIRMED THE SAID ADDITION. HENCE, THE INST ANT APPEAL. 3. THE CASE OF THE ASSESSEE IS THIS THAT THE AMOUNT IN QUESTION DEPOSITED IN THE SAVING BANK ACCOUNT BELONGS TO ONE OF THE RELATIVES OF THE ASSESSEE NAMELY SHRI RAMADHAR SINGH. THE AMOUNT SO DEPOSITED WAS FOR NO OTHER PUR POSE BUT TO RETURN THE SAME TO THE SAID SHRI RAMADHAR SINGH. DURING THE APPELLATE PROC EEDING, THE ASSESSEE HAS FURTHER SUBMITTED AN AFFIDAVIT STATING THAT THE OWNER OF TH E MONEY I.E. SHRI RAMADHAR SINGH CAME TO SILAVASA FOR THE PURPOSE OF MAKING SUITABLE INVE STMENT. SINCE THE DEAL WAS NOT MATERIALIZED THE MONEY WAS GIVEN IN MUTUAL TRUST TO THE ASSESSEE TO KEEP IT IN HIS CUSTODY AND THUS THE SAME WAS DEPOSITED IN THE ACCOUNT OF T HE ASSESSEE FOR SAFETY PURPOSE. IT WAS FURTHER CONTENDED IN THE SAID AFFIDAVIT THAT THE SA ID AMOUNT WAS ULTIMATELY RETURNED BACK - 3 - ITA NO.1390/A/15 SHRI RAMKUMAR SINGH VS. ITO ASST.YEAR 2006-07 TO THE SAID SHRI RAMADHAR SINGH AS PER HIS INSTRUCT ION THROUGH VARIOUS BANK ACCOUNTS DETAILS WHEREOF WERE ALSO ATTACHED WITH THE SAID AF FIDAVIT. THE AFFIDAVIT SO GIVEN BY THE SAID SHRI RAMADHAR SINGH AS SUBMITTED BY THE ASSESS EE BEFORE THE APPELLATE AUTHORITY WAS PARTLY ACCEPTED BY THE LEARNED AO. IN THE REMAND PR OCEEDING; THE AMOUNT TO THE TUNE OF RS.4 LACS SO DEPOSITED DIRECTLY IN THE BANK ACCOUNT OF THE SAID SHRI RAMADHAR SINGH BY THE ASSESSEE WAS ACCEPTED; REMAINING PART WHICH WAS PAID THROUGH TRANSFER FROM THE ACCOUNT OF THE ASSESSEE TO ONE SHRI RAVINDRA KUMAR SINGH TO THE TUNE OF RS.5,16,000/- WAS NOT ACCEPTED. THE ASSESSEES CASE IS THIS THAT THE SAID AMOUNT OF RS.2,81,000/- AND RS.2,35,000/- TOTALING TO RS.5,16,000/- SO PAID TO THE SAID SHRI RAVINDRA KUMAR SINGH WAS UNDER THE INSTRUCTION OF THE SAID SHRI RAMADHAR SINGH. APART FROM THAT PAYMENT OF CASH TO THE TUNE OF RS.41,500 + 80,000 + 90,000 TOT ALING TO RS.2,11,500/- WAS ALSO NOT ACCEPTED BY THE LEARNED AO WHICH IS REFLECTED FROM THE REMAND REPORT SUBMITTED BY HIM BEFORE LEARNED CIT(A). ON THE BASIS OF THE REMAND R EPORT CARRYING THE NEGATIVE VIEW OF THE ASSESSMENT OFFICER THE LEARNED CIT(A) CONFIRMED THE SAID ADDITION MADE BY THE LEARNED AO. 4. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE AMOUNT OF RS. 11,65,000/- DOES NOT BELONG TO HIS CLIENT. THE AMOUNT WAS KEPT WITH HIS CLIENT BY THE SAID SHRI RAMADHAR SINGH FOR THE REASON HAS ALREADY BEEN DISCUSSED HEREINABOVE. IT W AS FURTHER CONTENDED BY HIM THAT THE ENTIRE AMOUNT KEPT WITH THE ASSESSEE WAS RETURNED B ACK TO THE SAID SHRI RAMADHAR SINGH. APART FROM RS.4,00,000/- WHICH WAS DIRECTLY TRANSFE RRED TO THE ACCOUNT OF THE SHRI RAMADHAR SINGH, THE AMOUNT TO THE TUNE OF RS.2,81,0 00/- AND RS.2,35,000/- WERE ALSO TRANSFERRED TO THE ACCOUNT BEARING NO. 032410000248 00 OF SHRI RAVINDRA KUMAR SINGH; BALANCE AMOUNT OF RS.2,11,500/- WAS FURTHER RETURNE D IN CASH TO THE SAID SHRI RAMADHAR - 4 - ITA NO.1390/A/15 SHRI RAMKUMAR SINGH VS. ITO ASST.YEAR 2006-07 SINGH. THE ENTIRE DETAILS OF THOSE TRANSACTION WAS CLEARLY EVIDENT FROM THE AFFIDAVIT SO FILED BY THE SAID SHRI RAMADHAR SINGH DURING THE AP PELLATE PROCEEDING WHICH WAS FAILED TO HAVE BEEN BE TAKEN INTO CONSIDERATION IN ITS PRO PER PROSPECTIVE BY THE LEARNED CIT(A) WHILE CONFIRMING THE ADDITION MADE BY THE LEARNED A O. THE LEARNED CIT(A) ACCEPTED THE REPAYMENT OF RS.4,00,000/- WHICH WAS DIRECTLY T RANSFERRED TO THE ACCOUNT OF SHRI RAMADHAR SINGH AGREEMENT UPON THE OBSERVATION MADE BY THE LEARNED ASSESSING OFFICER. REST OF THE AMOUNT WHICH WAS REPAID EITHER IN CASH DIRECTLY TO SHRI RAMADHAR SINGH OR BY WAY OF BANK TRANSACTION TO SHRI RAVINDR A KUMAR SINGH WAS NOT ACCEPTED BY THE LEARNED CIT(A) WHICH IS CONTRARY TO THE RATIO L AID DOWN BY THE JUDGEMENT PASSED BY THE LEARNED ITAT, PUNE BENCH IN THE CASE OF DHANVARSHA BUILDERS & DEVELOPERS PVT. LTD.-VS-DCIT, SR-2, AURANGABAD AND ITAT, DELHI BENCH PASSED IN THE MATTER OF BIR BAHADUR SINGH SIJWALI VS. ITO, WARD-1, HALDW ANI REPORTED IN [2015] 53 TAXMANN.COM 366 (DELHI TRIB.). ON THE OTHER HAND, LEARNED DR SUBMITTED BEFORE US THAT THE NAME OF THE SAID SHRI RAVINDRA KUMAR SINGH THROUGH WHOM THE AMOUNT SO CLAIMED TO HAVE BEEN RETURNED BY THE ASSESSEE TO TH E SAID SHRI RAMADHAR SINGH IS NOT REFLECTED IN THE AFFIDAVIT SO FILED BY THE SAID RAM ADHAR SINGH BEFORE THE APPELLATE AUTHORITY. NEITHER THE RELATIONSHIP BETWEEN THE SAI D RAVINDRA KUMAR SINGH AND SHRI RAMADHAR SINGH WAS ESTABLISHED BY THE ASSESSEE BEFO RE THE AUTHORITIES BELOW IN ORDER TO ESTABLISH THE GENUINENESS OF THE TRANSACTION. 5. HEARD THE LEARNED COUNSEL APPEARING FOR PARTIES, PERUSED THE MATERIALS AVAILABLE ON RECORD. THE DETAILS OF THE ENTIRE BANK TRANSACTI ON RELATING TO THE PAYMENT SO CLAIMED TO HAVE BEEN MADE BY THE ASSESSEE FROM HIS ACCOUNT EIT HER TO SHRI RAMADHAR SINGH OR TO RAVINDRA KUMAR SINGH HAS BEEN MADE AVAILABLE TO US. THE SAME IS THE ANNEXURE OF THE PAPER BOOK. IT IS CLEARLY EVIDENT FROM THE BANK STA TEMENT OF RAM KUMAR SINGH APPEARING - 5 - ITA NO.1390/A/15 SHRI RAMKUMAR SINGH VS. ITO ASST.YEAR 2006-07 AT PAGE NO.11 OF THE PAPER BOOK THAT THE FUNDS OF R S.2,35,000/- AND RS.2,81,000/- WERE DULY TRANSFERRED ON 13.10.2005 AND 22.10.2005 RESPE CTIVELY TO THE A/C NO. 03241000024800 AT SILVASA. PAGE 9 OF PAPER BOOK BEI NG THE BANK STATEMENT OF RAVINDRA KUMAR SINGH HAVING THE SAME A/C NO. 03241000024800 SHOWS RECEIVING OF THE SAID AMOUNT, WHICH WAS NOT ACCEPTED BY THE AUTHORITIES B ELOW. NEEDLESS TO MENTION THAT PAGE NO.12 OF THE PAPER BOOK REFLECTS THE TRANSFER OF FU NDS TO THE TUNE OF RS.4,00,000/- TO THE ACCOUNT OF SAID SHRI RAMADHAR SINGH WHICH WAS NOT D ISPUTED BY REVENUE. THUS, IT APPEARS THAT THE CONTENTION AS MADE BY THE DEPONENT OF THE AFFIDAVIT BEING THE OWNER OF THE MONEY NAMELY RAMADHAR SINGH HAS BEEN PARTLY ACC EPTED BY THE REVENUE AND THE AMOUNT WHICH WAS SENT TO RAVINDRA KUMAR SINGH UNDER IS INSTRUCTION HAS BEEN DENIED TO BE ACCEPTED. FURTHER THAT, THE CASH PAYMENT AS ALSO CLAIMED TO HAVE BEEN MADE BY THE ASSESSEE HAS BEEN DENIED TO BE ACCEPTED BY THE REVE NUE. WE FIND THAT SINCE THE ASSESSEE HAS DEPOSITED TO THE TUNE OF RS.11,65,000/- IN HIS BANK ACCOUNT, THE SAME WAS ONLY ACCEPTED TO THE EXTENT OF PAYMENT OF RS.4,00,000/- BY THE REVENUE WHEREAS BALANCE AMOUNT HAS BEEN DISPUTED SINCE THE SAME IS DISADVAN TAGEOUS TO THE DEPARTMENT. IT IS A SETTLED PRINCIPLE OF LAW THAT IF A DOCUMENT IS TO B E RELIED UPON IT HAS TO BE READ AND RELIED UPON AS A WHOLE AND DEDUCTION FOR THE EXPENDITURE I NCURRED SHOULD BE GIVEN TO THE ASSESSEE WHILE COMPUTING UNDISCLOSED INCOME WAS CON CERNED THE SEIZED DOCUMENT SHOULD BE READ AS A WHOLE IF IT HAS TO BE RELIED UP ON. THEREFORE, THE DOCUMENT SHOULD BE INTERPRETED AS A WHOLE, IT CANNOT BE READ ONLY TO T HE EXTENT IT IS ADVANTAGEOUS TO THE REVENUE. THIS PARTICULAR RATIO HAS ALREADY BEEN DEC IDED BY THE JUDGEMENT PASSED BY ITAT, PUNE BENCH IN THE MATTER OF DHANVARSHA BUILDE RS & DEVELOPERS PVT. LTD. (SUPRA) AS RIGHTLY RELIED UPON BY THE LEARNED AR BEFORE US. FURTHER THAT, IN THE INSTANT CASE BOTH THE AUTHORITIES BELOW HAS PROCEEDED ON FALLACIOUS A SSUMPTION THAT BANK DEPOSITS CONSTITUTED UNDISCLOSED INCOME AND THE CASE WAS REO PENED ON THE GROUND THAT THERE WAS - 6 - ITA NO.1390/A/15 SHRI RAMKUMAR SINGH VS. ITO ASST.YEAR 2006-07 AN ESCAPEMENT OF INCOME IGNORING THAT THE FACT THAT THE SOURCE OF DEPOSIT NEED NOT NECESSARILY BE INCOME OF THE ASSESSEE WHICH IS THE GUIDING FACTOR AS DECIDED BY THE OTHER JUDGMENT OF DELHI BENCH IN THE MATTER OF BIR BAHAD UR SINGH SIJWALI (SUPRA). WE, THEREFORE, DO NOT HESITATE TO CONCLUDE THAT THE ASS ESSEE HAS BEEN ABLE TO ESTABLISH THE REPAYMENT MADE TO OWNER OF THE DISPUTED AMOUNT TO T HE TUNE OF RS.9.16 LACS PAID THROUGH BANKING CHANNEL. IN THAT VIEW OF THE MATTER, WE SET ASIDE THE ORDER PASSED BY THE AUTHORITIES BELOW WITH THE DIRECTION UPON THE LEARN ED AO TO RECALCULATE THE ASSESSMENT TAKING INTO CONSIDERATION THE REPAYMENT MADE BY THE ASSESSEE TO THE TUNE OF RS.9.16 LACS AND TO PASS THE ORDERS IN ACCORDANCE WITH LAW. 6. IN THE RESULT, ASSESSEES APPEAL IS THUS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/12/2018 SD/- SD/- ( AMARJIT SINGH ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/12/2018 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-VALSAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD