The ITO, Ward-2(1), Bhavnagar V. Shri Sabjaali Hajibhai Kesariya, Bhavnagar

ITA 1407/AHD/2012

• Counselvise Citation: 140720514 RSA 2012
• Duration Of Justice: 3 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 27-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D V SINGH
• Assessee Lawyers: S N DIVATIAAR
• Keywords: Unexplained investment; Peak credit

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER ./ ITA NO. 1407/AHD/2012 / ASSESSMENT YEAR: 2008-09 ITO, WARD-2(1), BHAVNAGAR VS. SHRI SABJALI HAJIBHAI KESARIYA, C/O. BHARAT COCONUT, OPP:PATHIKA ASHRAM, BHAVNAGAR PAN : ADCPK 3698 K / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI D.V. SINGH, SR. D.R. ASSESSEE(S) BY : SHRI S.N. DIVATIA, A.R. !' # $%&/ // / DATE OF HEARING : 10/08/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 14/08/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XX, AH MEDABAD DATED 04.04.2012 FOR ASSESSMENT YEAR 2008-09. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER:- 1. THE LD. CIT(A)-XX, AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS OF RS.11,99,000/- U/S 68 OF THE I T ACT. ITA NO.1407/AHD/2012 ITO VS. SABAJALI HAJIBHAI KESARIYA FOR AY 2008-09 2 1.2 THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FA CT THAT THE ASSESSEE HIMSELF HAD ADMITTED TO THE UNDISCLOSED NATURE OF S UCH DEPOSITS. 1.3 THE LD. CIT(A) OUGHT TO HAVE SUSTAINED THE ADD ITION ATLEAST TO THE EXTENT OF RS.6,58,300/- ADMITTED BY THE ASSESSEE. 3. THE FACTS OF THE CASE ARE THAT THERE WAS A JOINT ACCOUNT IN THE NAME OF THE ASSESSEE AND HIS BROTHER HASANALI HAJIB HAI WITH BHAVNAGAR NAGRIK SAHAKARI BANK LTD. THE ASSESSING OFFICER FOUND THE DEPOSITS IN SUCH BANK ACCOUNT TO BE UNEXPLAINED . ACCORDINGLY, HE MADE THE ADDITION OF RS.11,99,000/- FOR UNEXPLAINED DEPOSITS IN THE SAID BANK ACCOUNT. BEFORE THE CIT(A), IT WAS CONTE NDED BY THE LD. COUNSEL THAT THE BANK ACCOUNT MAINLY BELONGS TO THE ASSESSEES BROTHER. IT WAS ALSO POINTED OUT THAT IN THE BANK ACCOUNT THERE WERE SEVERAL TRANSACTIONS FOR PURCHASE AND SALE OF SHARE S. THE ASSESSEE ALSO PRODUCED THE COPY OF CONTRACT BILLS ISSUED BY THE M ARWADI SHARES AND FINANCE LTD. SUCH BILLS WERE IN THE NAME OF THE A SSESSEES BROTHER. IT WAS, THEREFORE, CONTENDED THAT THE BANK ACCOUNT SHO ULD NOT BE CONSIDERED IN THE CASE OF THE ASSESSEE. IT WAS ALTE RNATIVELY REQUESTED THAT SINCE THE PEAK DEPOSIT WAS RS.6,58,300/-, THER EFORE, IF AT ALL THE ADDITION IS TO BE MADE, THEN IT CAN BE OF THIS PEA K DEPOSIT AMOUNT ONLY AND NOT OF THE ENTIRE DEPOSIT IN THE BANK ACCOUNT. THE CIT(A), AFTER CONSIDERING THE FACTS AND CALLING FOR THE REMAND RE PORT FROM THE ASSESSING OFFICER, ACCEPTED THE ASSESSEES CONTENTI ON THAT THE BANK ACCOUNT BELONGED TO THE ASSESSEES BROTHER. THE RE VENUE, AGGRIEVED WITH THE ORDER OF THE CIT(A) IS IN APPEAL BEFORE US IN WHICH THE MAIN CONTENTION OF THE REVENUE IS FOR SUSTAINING THE ENT IRE ADDITION OF RS.11,99,000/- WHICH IS GROUND NO.1 OF THE REVENUE S APPEAL AND THEN ITA NO.1407/AHD/2012 ITO VS. SABAJALI HAJIBHAI KESARIYA FOR AY 2008-09 3 BY GROUND NO.1.3, THERE IS AN ALTERNATIVE REQUEST O F THE DEPARTMENT THAT AT LEAST THE ADDITION TO THE EXTENT OF RS.6,58 ,300/-, AS ADMITTED BY THE ASSESSEE BEFORE THE CIT(A), SHOULD HAVE BEEN SU STAINED. 4. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IT WAS CONTENDED BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE ASSESSEES BRO THER WAS NOT ASSESSED TO INCOME-TAX FOR THE YEAR UNDER CONSIDERA TION. MOREOVER, FROM THE DETAILS OF BANK ACCOUNT AS GIVEN BY THE AS SESSEE IN THE PAPER- BOOK, IT IS EVIDENT THAT ONLY FEW TRANSACTIONS ARE RELATED TO THE SHARE TRANSACTIONS WITH MARWADI SHARES AND FINANCE LTD; T HEREFORE, THE REMAINING TRANSACTIONS WERE CERTAINLY BELONGING TO THE ASSESSEE. IT WAS, THEREFORE, CONTENDED BY THE LD. DEPARTMENTAL R EPRESENTATIVE THAT AT LEAST PART OF THE ADDITION SHOULD HAVE BEEN SUST AINED. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, REITER ATED SIMILAR SUBMISSIONS AS MADE BY HIM BEFORE THE CIT(A). AFTE R CONSIDERING THE FACTS OF THE CASE AND ARGUMENTS OF BOTH THE SIDES, WE ARE OF THE OPINION THAT THE VIEWS OF THE CIT(A) THAT THE BANK ACCOUNT BELONGS TO THE ASSESSEES BROTHER IN ITS ENTIRETY CANNOT BE ACCEPT ED. THE BANK ACCOUNT IS A JOINT BANK ACCOUNT IN WHICH THE FIRST NAME IS OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE CANNOT SATISFACTORILY EXPLAIN IF THE BANK ACCOUNT BELONGED TO THE ASSESSEES BROTHER INDIVIDU ALLY THEN WHY IT IS OPENED IN THE JOINT NAME THAT TOO WITH THE ASSESS EES NAME APPEARING AS FIRST NAME. MOREOVER, IN THE BANK ACCOUNT THERE ARE LARGE NUMBER OF TRANSACTIONS AND ONLY PART OF THE TRANSACTIONS ARE RELATING TO PURCHASE AND SALE OF SHARES THROUGH MARWADI SHARES AND FINAN CE LTD. IN VIEW OF ABOVE, WE ARE OF THE OPINION THAT CONSIDERING TH E FACTS OF THE CASE, IT ITA NO.1407/AHD/2012 ITO VS. SABAJALI HAJIBHAI KESARIYA FOR AY 2008-09 4 WOULD BE MORE APPROPRIATE TO HOLD THAT THE BANK ACC OUNT IN THE JOINT NAME OF BOTH BROTHERS WAS ACTUALLY THE JOINT BANK A CCOUNT OF BOTH THE BROTHERS AND THEREFORE, IT IS THE RESPONSIBILITY OF BOTH THE BROTHERS TO EXPLAIN THE PEAK CREDIT. SINCE NO SPECIFIC EXPLANA TION HAD GIVEN EITHER BY THE ASSESSEE OR BY THE ASSESSEES BROTHER FOR TH E SOURCE OF INVESTMENT IN THE JOINT BANK ACCOUNT; IN OUR OPINIO N, IT WOULD MEET THE ENDS OF JUSTICE IF 50% OF THE PEAK CREDIT IS ADDED IN THE HANDS OF THE ASSESSEE. WE, THEREFORE, PARTLY REVERSE THE ORDER OF THE CIT(A) AND HELD THAT THE SUM OF RS.3,29,150/-, I.E., 50% OF TH E PEAK CREDIT OF RS.6,58,300/- BE ADDED AS INCOME OF THE ASSESSEE FO R UNEXPLAINED INVESTMENT IN THE BANK ACCOUNT. 5. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 14 TH AUGUST, 2015 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 14/08/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNE D CIT 4. !- ( ) / THE CIT(A) 5. +01 $ , , / DR, ITAT, AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD