Smt. Pushpa Santosh Parvatrao,., Bangalore V. Income Tax Officer, Ward-2(1), Bijapur

ITA 141/PAN/2014

• Counselvise Citation: 14124114 RSA 2014
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-03-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL DESH
• Assessee Lawyers: ASHOK A KULKARNI
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA N O . 141 /PNJ/201 4 : (A.Y 2010 - 11 ) SMT. PUSHPA SANTOSH PARVATRAO M.M. EXTENSION, BELGAUM PAN : AOYPP3668R ( APPELLANT) VS. INCOME TAX OFFICER, WARD - 2(1), BELGAUM (RESPONDENT) ASSESSEE BY : ASHOK A. KULKARNI, ADV. REVENUE BY : SUNIL DESHPANDE, LD. DR DATE OF HEARING : 10 / 03 /201 5 DATE OF ORDER : 20 / 03 /201 5 O R D E R PER P.K. BANSAL : 1. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DT. 6.2.2013 BY TAKING THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL : 2. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE ADDITIONS MADE BY INVOKING PROVISIONS OF SECTION 69A AND SECTION 69 ARE NOT IN ACCORDANCE WITH LAW. 3. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ACCEPTED THE EXPLANATION OF THE APPELLANT RELATING T O DEPOSIT OF FUNDS IN THE APPELLANTS BANK ACCOUNT. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT APPRECIATING TH E MATERIAL PLACE ON RECORD CAME TO THE CONCLUSION THAT THERE IS NO NEXUS BETWEE N THE AMOUNT WITHDRAWN AND THE SUBSEQUENT DEPOSIT OF THE S AME FUNDS IN THE SAID BANK ACCOUNT. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER THAT THE APPELLANT FAILED TO PROVE THE CREDIT WORTHINESS OF HER HUSBAND AND HER MOTHER. 2 ITA NO. 141/PNJ/2014 (A.Y : 2010 - 11) 2. GROUND NOS. 1 & 6 ARE GENERAL IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION. 3. GROUND NOS. 2 - 4 RELATE TO THE COMMON ISSUE RELATING TO SUSTENANCE OF THE ADDITION AMOUNTING TO RS. 17,71,200/ - BY THE CIT(A), ADDED BY THE AO U/S 69A OF THE INCOME TAX ACT. THE BRIEF FACTS OF THIS ADDITION ARE THAT THE AO NOTED FROM THE BANK ACCOUNT OF THE ASSESSEE BEARING NO. 64012018088 WITH STATE BANK OF MYSORE THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS. 17,71,200/ - DURING THE PERIOD 2009 - 10 ON DIFFERENT DATES FROM 13.4.2009 TO 8.2.2010 AS DETA ILED AT PG. 2 OF THE ASSESSMENT ORDER. THE ASSESSEE SUBMITTED THAT THE SAID AMOUNT HAS BEEN DEPOSITED OUT OF CASH WITHDRAWAL DURING THE YEAR 2008 - 09 OUT OF SALE PROCEEDS OF HER FATHER S ANCESTRAL PROPERTY SOLD FOR RS. 15 LACS ON 29.3.2008 AND BALANCE OF THE CASH WAS DEPOSITED OUT OF THE CASH WITHDRAWALS FROM THE STATE BANK ACCOUNT AND THE SAVINGS FROM HER CURRENT INCOME. THE AO TREATED THE EXPLANATION GIVEN BY THE ASSESSEE TO BE TOO CASUAL AND WITHOUT ANY PRECISE EVIDENCE AND THEREFORE HE MADE THE ADDITION U/S 69A OF THE INCOME TAX ACT. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) THE ASSESSEE REITERATED THE SUBMISSION ALONGWITH THE EVIDENCES AND THE SALARY STATEMENT OF THE ASSESSEE. CIT(A) AFTER HEARING THE SUBMISSI ONS MADE BY THE ASSESSEE SUSTAINED THE ADDITION BY HOLDING AS UNDER : 6.1 IT APPEARS THAT THE A.O HAS NOT EXAMINED THE ISSUE OF TAXABILITY OF RS.15,00,000/ - RECEIVED BY THE APPELLANT ON SALE OF PLOT. SINCE, THIS ISSUE PERTAINS TO THE A.Y.2008 - 09 AND NOT TO THE A.Y. UNDER CONSIDERATION, THE A.O MAY EXAMINE THIS ISSUE INDEPENDENTLY. 6.2 AS REGARDS THE ADDITIONS OF RS. 5,15,000/ - AND 4,50,000/ - MADE BY THE AO, THE ASSESSEE HAD FAILED TO PROVE THE CREDIT WORTHINESS OF HER HUSBAND SHRI. SANTOSH PARVATRAO AND HER MOTHER SMT. SUCHETA PARVATRAO. THESE TWO AMOUNTS HAVE BEEN DEPOSITED IN THEIR RESPECTIVE ACCOUNTS JUST BEFORE THE ISSUE OF CHEQUES TO THE APPELLANT. THE APPELLANT WAS NOT ABLE TO PROVE THE CREDIT WORTHINESS OF THESE TWO CREDITORS BEFORE THE AO. IN APPE LLATE PROCEEDINGS ALSO THE ASSESSEE HAS NOT BEEN 3 ITA NO. 141/PNJ/2014 (A.Y : 2010 - 11) ABLE TO PROVE THE CREDIT WORTHINESS OF THESE TWO CREDITORS. THE APPELLANT HAS MERELY FIND BANK STATEMENTS ETC. SHOWING MEAGER SALARY WHICH DOES NOT MATCH WITH THE HUGE CASH DEPOSITS OF RS. 5,15,000/ - AND RS. 4,50,000/ - . THE APPELLANT HAS NOT BEEN ABLE TO MAKE OUT A CASE FOR ACCUMULATION OF SUCH BIG AMOUNTS BEFORE THE DEPOSITS. AFTER ALL THE APPELLANT'S FAMILY NEEDS MONEY FOR HOUSEHOLD PURPOSES ALSO AND IT CANNOT POSSIBLY SAVE ALL ITS INCOMES. THE PROOF SUBMI TTED BY THE APPELLANT DOES NOT JUSTIFY THE APPELLANT'S SUBMISSIONS THAT THESE AMOUNTS ARE OUT OF PAST SAVINGS. SIMILARLY THE APPELLANT HAS NOT BEEN ABLE TO PROVE THE SOURCE OF RS.20,606/ - , THE FOURTH ADDITION MADE BY THE A.O. THEREFORE THE ADDITIONS OF RS. 5,15,000/ - , 4,50,000/ - AND 20,606/ - MADE BY THE A.O ARE CONFIRMED. 4 . WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE HAVE ALSO EXAMINED THE SALE DEED DT. 25.3.2008 REGISTERED WITH THE SUB - REGISTRAR FOR SALE OF THE IMMOVEABLE PROPERTY FOR A SUM OF RS. 15 LACS. OUT OF RS. 15 LACS, SUM OF RS. 1 LAC WAS RECEIVED BY THE FATHER OF THE ASSESSEE ON 13.2.2008 AND RS. 14 LACS VIDE CHEQUE NO. 021907 DT. 25.3.2008 DR AWN ON STATE BANK OF INDIA. FROM THE COPY OF THE BANK STATEMENT FILED BY THE ASSESSEE, WHICH IS AVAILABLE AT PG. 10, WE NOTED THAT THE ASSESSEE GOT CREDIT OF RS. 14 LACS ON 29.3.2008 IN HER BANK ACCOUNT WITH STATE BANK OF MYSORE BEARING NO. 64012018088 AN D OUT OF THE SAID ACCOUNT THE ASSESSEE MADE THE WITHDRAWAL AS UNDER : 2.4.2008 - RS. 7,50,000/ - 4.4.2008 - RS. 3,00,000/ - 23.4.2008 - RS. 2,00,000/ - 9.6.2008 - RS. 1,00,000/ - 30.6.2008 - RS. 2,00,000/ - RS. 15,50,000/ - THUS, DURING THE A.Y 2009 - 10 THE ASSESSEE HAS WITHDRAWN A SUM OF RS.15,50,000/ - IN CASH OUT OF THE SAID SAVINGS ACCOUNT BEARING NO. 64012018088. THE ASSESSEE HAS SUBSEQUENTLY DEPOSITED CASH IN SUBSEQUENT ASSESSMENT YEAR AMOUNTING TO RS. 17,71,200/ - ON DIF FERENT DATES IN THE A.Y 4 ITA NO. 141/PNJ/2014 (A.Y : 2010 - 11) 2010 - 11 I.E. F.Y 2009 - 10. THE ASSESSEES HUSBAND HAD SALARY AMOUNTING TO RS.6,01,200/ - WHICH WAS NOT DENIED BY THE LD. AR. WE DO NOT FIND ANY COGENT MATERIAL OR EVIDENCE BEING BROUGHT ON RECORD BY THE REVENUE WHICH MAY PROVE THAT THE ASSESSEE HAS SPENT THE MONEY WHICH HAS ALREADY BEEN WITHDRAWN BY HER DURING THE FINANCIAL YEAR 2008 - 09. ONCE THE ASSESSEE WITHDREW THE MONEY EITHER THE ASSESSEE WILL INVEST IT SOMEWHERE OR WILL KEEP IT AS CASH IN HAND. WE DO NOT FIND THAT THERE IS AN Y STATUTORY PROVISION AGAINST KEEPING CASH IN HAND IF THE SOURCE OF THE MONEY IS DULY EXPLAINED. UNDER THESE CIRCUMSTANCES, BOTH THE AO AS WELL AS THE CIT(A) HAVE NOT APPRECIATED THE FACTS PROPERLY BUT HAVE MERELY REJECTED THE EXPLANATION OF THE ASSESSEE WHICH WAS BASED ON THE EVIDENCE FILED BY THE ASSESSEE ON PRESUMPTION AND ASSUMPTION AND WITHOUT GOING THROUGH THE QUANTUM OF MONEY WITHDRAWN BY THE ASSESSEE. THE OBSERVATION OF THE AO ARE NOT CORRECT THAT THE ASSESSEE HAS WITHDRAWN VERY LITTLE AMOUNT IN C ASH DURING THE YEAR 2008 - 09 . THIS ITSELF PROVES THE ATTITUDE OF THE AO AND IF THE AO WOULD HAVE ANALYSED THAT THE ASSESSEE HAS WITHDRAWN RS.15,50,000/ - DURING THE A.Y 2008 - 09 IN ADDITION TO VARIOUS OTHER WITHDRAWALS THROUGH CHEQUE WHICH ARE AROUND RS. 3,5 0,000/ - , NO ADDITION WOULD HAVE BEEN MADE BY HIM. THE EXPLANATION SUBMITTED BY THE ASSESSEE, IN OUR OPINION, IS A PLAUSIBLE ONE. WE ACCORDINGLY DELETE THE ADDITION OF RS. 17,71,200/ - . THUS, GROUND NOS. 2 TO 4 STAND ALLOWED. 5 . GROUND NO. 5 RELATES TO S USTENANCE OF ADDITION OF RS. 5,15,000/ - . THE BRIEF FACTS OF THIS GROUND ARE THAT THE AO NOTED THAT WHEN THE ASSESSEE WAS ASKED FOR THE INVESTMENT MADE BY THE ASSESSEE FOR THE PURCHASE OF THE PROPERTY THE ASSESSEE EXPLAINED THAT SHE RECEIVED A SUM OF RS. 5 LACS FROM SMT. SUCHETA PARVATRAO, MOTHER - IN - LAW OF THE ASSESSEE. FROM THE BANK PASSBOOK OF SMT. SUCHETA PARVATRAO IT WAS NOTED BY THE AO THAT THERE WAS A CASH DEPOSIT OF RS.4,50,000/ - AND SHE WAS RECEIVING PENSION @ RS. 4,400/ - PER MONTH. THE ASSESSEE C OULD NOT ADDUCE ANY EVIDENCE IN RESPECT OF THE SAID SUM BUT KEEPING 5 ITA NO. 141/PNJ/2014 (A.Y : 2010 - 11) IN VIEW THE PENSION RECEIVED, THE AO TREATED RS. 4,50,000/ - TO BE UNEXPLAINED INCOME. SIMILARLY, IN RESPECT OF THE AMOUNT DEPOSITED IN ASSESSEES HUSBANDS ACCOUNT THE AO NOTED THAT SUM O F RS. 1 LAC WAS DEPOSITED IN THE ACCOUNT BY THE ASSESSEE AND THEREFORE THE AO TREATED THE SAME TO BE UNEXPLAINED AND ULTIMATELY SUSTAINED THE ADDITION OF RS. 5,15,000/ - . WHEN THE MATTER WENT BEFORE CIT(A), CIT(A) CONFIRMED THE ADDITION BY OBSERVING AS UND ER : 6.2 AS REGARDS THE ADDITIONS OF RS. 5,15,000/ - AND 4,50,000/ - MADE BY THE AO, THE ASSESSEE HAD FAILED TO PROVE THE CREDIT WORTHINESS OF HER HUSBAND SHRI. SANTOSH PARVATRAO AND HER MOTHER SMT. SUCHETA PARVATRAO. THESE TWO AMOUNTS HAVE BEEN DEPOSITED IN THEIR RESPECTIVE ACCOUNTS JUST BEFORE THE ISSUE OF CHEQUES TO THE APPELLANT. THE APPELLANT WAS NOT ABLE TO PROVE THE CREDIT WORTHINESS OF THESE TWO CREDITORS BEFORE THE AO. IN APPELLATE PROCEEDINGS ALSO THE ASSESSE E HAS NOT BEEN ABLE TO PROVE THE CREDIT WORTHINESS OF THESE TWO CREDITORS. THE APPELLANT HAS MERELY FIND BANK STATEMENTS ETC. SHOWING MEAGER SALARY WHICH DOES NOT MATCH WITH THE HUGE CASH DEPOSITS OF RS. 5,15,000/ - AND RS. 4,50,000/ - . THE APPELLANT HAS NO T BEEN ABLE TO MAKE OUT A CASE FOR ACCUMULATION OF SUCH BIG AMOUNTS BEFORE THE DEPOSITS. AFTER ALL THE APPELLANT'S FAMILY NEEDS MONEY FOR HOUSEHOLD PURPOSES ALSO AND IT CANNOT POSSIBLY SAVE ALL ITS INCOMES. THE PROOF SUBMITTED BY THE APPELLANT DOES NOT JUS TIFY THE APPELLANT'S SUBMISSIONS THAT THESE AMOUNTS ARE OUT OF PAST SAVINGS. SIMILARLY THE APPELLANT HAS NOT BEEN ABLE TO PROVE THE SOURCE OF RS.20,606/ - , THE FOURTH ADDITION MADE BY THE A.O. THEREFORE THE ADDITIONS OF RS.5,15,000/ - , 4,50,000/ - AND 20,606/ - MADE BY THE A.O ARE CONFIRMED. 6. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDER OF THE TAX AUTHORITIES BELOW. THE LD. AR BEFORE US EVEN THOUGH VEHEMENTLY CONTENDED THAT IT IS NOT A FIT CASE FOR MAKING ADDITION U/ S 69 AND THAT THE ASSESSEE HAS DULY PROVED THE SOURCE OF THE INVESTMENT MADE BY THE ASSESSEE COULD NOT ADDUCE ANY COGENT MATERIAL OR EVIDENCE BEFORE US WHICH MAY COMPEL US TO REVERSE THE FINDING GIVEN BY THE CIT(A). UNDER THESE CIRCUMSTANCES, IN OUR OPINI ON, IT IS NOT A FIT CASE WHICH WARRANTS OUR INTERFERENCE. WE ACCORDINGLY CONFIRM THE ORDER OF CIT(A) SUSTAINING THE ADDITION OF RS. 5,15,000/ - . THUS, GROUND NO. 5 STANDS DISMISSED. 6 ITA NO. 141/PNJ/2014 (A.Y : 2010 - 11) 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. 8 . ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 /03/2015. S D / - (D.T.GARASIA) JUDICIAL MEMBER S D / - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 2 0 /03/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER ,