Rajeshkumar Bhajanlal Gupta, Pune V. Income-tax Officer,

ITA 141/PUN/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2454 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 02-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Income from undisclosed sources; Peak credit; Additional evidence; Reasonable cause
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 1 41 /PN/201 5 / ASSESSME NT YEAR : 20 09 - 1 0 RAJESHKUMAR BHAJANLAL GUPTA, FLAT NO.403, BALADOOR ATHENA, BEHIND HUTCHINS HIGH SCHOOL, TALEGAON DABHADE, PUNE 410507 . / APPELLANT PAN: A LHPG6838N VS. THE INCOME TAX OFFICER , WARD 8 ( 2 ), PUNE . / RESPONDENT / APPELLANT BY : SHRI M.R. BHAGWAT / RESPONDENT BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 28 . 0 3 .201 6 / DATE OF PRONOUNCEMENT: 31 . 0 3 .201 6 / ORDER PE R SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - V , PUNE , DATED 2 2 . 1 0 .20 1 4 RELATING TO ASSESSMENT YEAR 20 09 - 1 0 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSE E HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) THE LEARNED COMMISSIONER (APPEALS) ERRED IN HOLDING THAT THE RELEVANT ASSESSMENT ORDER WAS PASSED WITHIN THE TIME AND NOT BARRED BY LIMITATION. ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 2 2) THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING ADD ITION OF RS.11,72,733/ - MADE TO ASSESSEES TOTAL INCOME AS INCOME FROM UNDISCLOSED SOURCES. 3) THE ASSESSMENT ORDER BE HELD AS INVALID BEING BARRED BY LIMITATION. 4) THE ADDITION OF RS.11,72,733/ - BE DELETED AND THE ASSESSEES INCOME BE REDUCED TO THAT E XTENT. 5) SUCH OTHER ORDERS BE PASSED AS DEEMED FIT AND PROPER. 3. THE GROUNDS OF APPEAL NO.1 RAISED BY THE ASSESSEE IS NOT PRESSED , HENCE THE SAME IS DISMISSED AS NOT PRESSED. 4. THE ISSUE IN GROUNDS OF APPEAL 2 TO 4 RAISED BY THE ASSESSEE IS AGAINST A DDITION OF RS.11,72,733/ - . 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,67,680/ - ON 12.11.2009 . THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY AND THE ASSESSEE WAS ASKED TO PRODUCE HIS BANK PASS BOOK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE STATED THAT IT WAS CARRYING ON THE BUSINESS ON A SMALL SCALE AND HAD NOT MAINTAINED BOOKS OF ACCOUNT. THE ASSESSING OFFICER ON GOING THROUGH THE BANK STATEMENT OF SAVINGS BANK ACCOU NT WITH ING VYASHYA BANK LTD. , BIJAPUR BRANCH, KARNATAKA, NOTED VARIOUS DEPOSITS AND WITHDRAWALS FROM THE SAID BANK ACCOUNT. THE ASSESSEE IN THIS REGARD STATED THAT THE DEPOSITS / WITHDRAWALS FROM THE SAID BANK ACCOUNT WERE NOT TAKEN INTO ACCOUNT WHILE FI LING RETURN OF INCOME FOR THE CAPTIONED ASSESSMENT YEAR. THE ASSESSEE FURTHER EXPLAINED THAT IN THE SAID BANK ACCOUNT, THERE WERE DEPOSITS AS WELL AS WITHDRAWALS IN CASH AND ALSO WITHDRAWALS BY TRANSFER FOR FDRS AND DEPOSITS OF MATURITY ACCOUNT OF FDRS. THE ASSESSEE FURTHER POINTED OUT THAT THE STATEMENT SHOWING MAXIMUM SHORTFALL OF CASH DE POSITS OF RS.10,15,000/ - HAS BEEN FILED AND DEPOSITS IN THE SAID SAVINGS ACCOUNT WERE WITHDRAWN AND ROTATED AND THE ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 3 MAXIMUM SHORTFALL COMES TO RS.10,15,000/ - . THE ASSE SSEE IN THIS REGARD FURTHER EXPLAINED THAT THE FAMILY OF ASSESSEE AND HIS PARENTS WERE JOINT AT BIJAPUR AND THERE WAS ORAL PARTITION OF FAMILY ASSETS AND CASH IN ASSESSMENT YEAR 2001 - 02 AND CONSEQUENTLY, THE ASSESSEE WAS IN RECEIPT OF AMOUNT AT THE TIME OF SAID PARTITION. THE ASSESSEE FURTHER PLEADED THAT HE WAS OF THE VIEW THAT THE SA VINGS ACCOUNT WAS NOT SHOWN IN THE RETURN OF INCOME PREPARED , AS HE WAS UNDER THE IMPRESSION THAT THE PROPERTY BEING ANCESTRAL PROPERTY, HAD NO CONNECTION WITH HIS PERSONAL S TATEMENT OF INCOME. HOWEVER, HE WAS UNABLE TO PRODUCE ANCESTRAL PROPERTY DETAILS IN THIS REGARD AND ALSO BECAUSE THE PARTITION WAS ORAL. THE ASSESSING OFFICER REJECTED THE CLAIM OF ASSESSEE IN THE ABSENCE OF ANY EVIDENCE HAVING BEEN FILED TO SHOW THAT TH ERE WAS PARTITION OF JOINT FAMILY IN ASSESSMENT YEAR 2001 - 02 . THE ASSESSEE WAS ASKED TO EXPLAIN THE DETAILS OF IMMOVABLE / MOVABLE PROPERTIES RECEIVED ON PARTITION OF JOINT FAMILY, WHICH THE ASSESSEE COULD NOT GIVE. FURTHER, THE ASSESSEE WAS UNABLE TO PR OVE THAT IT HAD RECEIVED QUANTUM OF CASH ON PARTITION OF JOINT FAMILY. ON PERUSAL OF THE SAID BANK ACCOUNT, THE ASSESSING OFFICER NOTED THAT THERE WERE CASH DEPOSITS FROM TIME TO TIME AND THERE WERE ALSO WITHDRAWALS FROM TIME TO TIME DURING THE FINANCIAL YEAR 2008 - 09 AND THE HIGHEST PEAK CREDIT WAS ON 12.08.2011 OF RS.11,72,133/ - , WHICH WAS ADDED AS UNEXPLAINED INCOME AND TAXED IN THE HANDS OF ASSESSEE. 6. BEFORE THE CIT(A), THE ASSESSEE FURNISHED CERTAIN ADDITIONAL EVIDENCES AND POINTED OUT THAT AT THE TIME OF ASSESSMENT, IT HAD CLAIMED THAT THE AMOUNT WAS RECEIVED AT THE TIME OF PARTITION OF HIS FATHER HUF. HOWEVER, THE SAME WAS FACTUALLY INCORRECT AS THE PROPERTY WAS RECEIVED ON SUCCESSION ON DEATH OF HIS FATHER IN 2001 AND NO MONEY WAS RECEIVED. TH E SAID MONEY WAS CLAIMED TO BE RECEIVED AS ON - MONEY FROM SALE OF LAND. THE CIT(A) FORWARDED THE ADDITIONAL ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 4 EVIDENCES TO ASSESSING OFFICER, WHO I N TURN, SUBMITTED REMAND REPORT, COPY OF WHICH WA S GIVEN TO THE ASSESSEE, WHO IN TURN, REPLIED TO THE SAME. TH E CIT(A) VIDE PARA 12 AT PAGE 12 OF THE APPELLATE ORDER AFTER CONSIDERING ALL THE ABOVE SAID REPLIES AND REMAND REPORT OBSERVED THAT THE DOCUMENTS IN NO WAY SUPPORTED THE CASE OF THE ASSESSEE REGARDING SOURCE OF CASH DEPOSITED. FURTHER , AS THE DOCUMENTS W ERE LYING IN BIJAPUR , THE CIT(A) OBSERVED THAT IT COULD BE SAID THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE IN NOT PRODUCING THE SAME BEFORE THE ASSESSING OFFICER . THE SAID DOCUMENTS WERE ADMITTED UNDER RULES 46A(1)( B ) OF THE INCOME TAX RULES, 196 2 AND COMING TO THE MERITS OF ISSUE, THE CIT(A) HELD THAT IN THE ABSENCE OF ANY EVIDENCE OF ON - MONEY RECEIVED IN RESPECT OF SALES MADE, THERE WAS NO MERIT IN THE CLAIM OF ASSESSEE. FURTHER, THE CIT(A) NOTED THAT THE ASSESSEE HAD SOLD THE LAND FOR RS. 1,50, 000/ - AND RS.26,000/ - VIDE AGREEMENTS DATED 02.01.2009 AND 07.03.2009 AND IN RESPECT OF THIS SALE OF LAND, THE ASSESSEE CLAIMS THAT RS.10 LAKHS WAS RECEIVED IN CASH AS ON - MONEY, WHICH IN TURN, WAS NOT SUPPORTED BY ANY EVIDENCE AND IT FAILS THE TEST OF PROB ABILITY AS CLAIMED BY THE ASSESSEE , AS , IN ANY CASE, ON - MONEY @ 85% WAS NOT ACCEPTABLE . THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE CIT(A) AND ADDITION WAS CONFIRMED. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) . 8. IT WAS STRESSED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE ASSESSEE WAS A PETTY CONTRACTOR AND HIS NATIVE LAND WAS IN BIJAPUR, KARNATAKA. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT SINCE NO COHERENT EXPLANATION WAS FILED BEFO RE THE ASSESSING OFFICER REGARDING CASH DEPOSITS IN BIJAPUR BRANCH , THE PEAK OF THE SAID BANK ACCOUNT WAS ADDED IN THE HANDS OF ASSESSEE AND THERE WAS NO ISSUE AS FAR AS THE CALCULATION OF PEAK IS CONCERNED. BEFORE THE CIT(A), THE ASSESSEE POINTED ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 5 OUT THA T IT HAD RAISED A NEW PLEA THAT IT HAD RECEIVED ON - MONEY AGAINST THE SALE OF AGRICULTURAL LAND, WHICH WAS DEPOSITED IN THE SAID BANK ACCOUNT. THE ADDITIONAL EVIDENCE OF SALE DEED WAS FILED BEFORE THE CIT(A), WHO IN TURN, ACCEPTED THE ADDITIONAL EVIDENCE. IN THIS REGARD, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT CIRCUMSTANTIAL EVIDENCE HAD TO BE SEEN IN ORDER TO ADJUDICATE THE ISSUE OF A VAILABILITY OF CASH IN THE HANDS OF ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE A SSESSEE POINTED OUT THAT THE LAND WAS IN BIJAPUR AND THE TOTAL LANDHOLDING WAS ABOUT THREE ACRES, WHICH WAS FINALLY SOLD FOR RS.1,76,000/ - , WHICH WAS ADMITTED LY THE STAMP DUTY VALUATION OF THE SAID PROPERTY. HOWEVER, THE ASSESSEE HAD RECEIVED ON - MONEY OF RS.10 LAKHS, WHICH IN TURN, WAS DEPOSITED IN THE BANK ACCOUNT. IT WAS STRESSED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE ASSESSEE DID NOT HAVE THE MEANS TO DEPOSIT THE SAID AMOUNT AND WHERE THE AGRICULTURAL LAND WAS SITUATED IN AN AREA BEYOND EIGHT KILOMETERS FROM MUNICIPAL LIMITS, THE GAIN ARISING ON SUCH SALE OF AGRICULTURAL LAND, WAS NOT TAXABLE IN THE HANDS OF ASSESSEE. FOR PLACING RELIANCE ON CONSIDERATION OF CIRCUMSTANTIAL EVIDENCE, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE RELIED UPON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN CIT VS. SMT. P.K. NOORJAHAN (1999) 237 ITR 570 (SC) . 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE O THER HAND, POINTED OUT THAT PERUSAL OF BANK ACCOUNT ITSELF WOULD REFLECT THAT THERE WERE VARIOUS CASH DEPOSITS AND FURTHER, SALE DEED OF THE SAID PROPERTY WAS EXECUTED IN JANUARY, 2 009 AND MARCH, 2009 AND THE CASH DEPOSIT WAS MADE IN SEPTEMBER, 2008. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD . THE ASSESSEE IS IN APPEAL AGAINST THE ADDITION OF RS.11,72,733/ - , WHICH WAS THE ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 6 PEAK CREDIT IN THE BANK ACCOUNT IN ING VYASHYA BANK AT BIJAPUR. THE ASSESSEE BELONGED TO THE SAID DISTRICT AND ALSO OWNED AGRICULTURAL LAND IN THE SAID DISTRICT. THE CLAIM OF THE ASSESSEE BEFORE US WAS THAT IT HAD SOLD CERTAIN AGRICULTURAL LAND DURING THE YEAR UNDER CONSIDERATION AND THE ON - MONEY RECEIVED ON THE SAID SALE OF AGRICULTURAL LAND WAS DEPOSITED IN THE BANK ACCOUNT IN CASH. IT WAS FURTHER STRESSED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US WAS THAT THE ASSESSEE HAD NO MEANS TO DEPOSIT THE SAID CASH IN HAND AND THE SAID CASH WAS GENERATED FROM SALE OF AGRICULTURAL LAND. FURTHER, IT WAS POINTED OUT BY HIM THAT IN ANY CASE, NO CAPITAL GAIN WAS ASSESSABLE IN THE HANDS OF ASSESSEE O N THE SALE OF AGRICULTURAL LAND SINCE THE LAND WAS SITUATED BEYOND EIGHT KILOMETERS FROM THE MUNICIPAL LIMITS AND HENCE, THE ASSESSEE HAD NOT DECLARED THE SAID INCOME IN ITS RETURN OF INCOME. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAD ASKED THE ASSESSEE TO PRODUCE ALL HIS BANK ACCOUNTS AND FROM PERUSAL OF BANK ACCOUNT AT BIJAPUR, KARNATAKA, THE ASSESSING OFFICER NOTED THAT THERE WERE VARIOUS CASH DEPOSITS IN THE BANK ACCOUNT AND THE PEAK O F THE SAID DEPOSITS WORKED OUT TO RS.11,72,733/ - . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS FAIRLY ACCEPTED THAT THERE WAS NO DISPUTE IN THE WORKING OF SAID PEAK. HOWEVER, WITH REGARD TO DEPOSIT MADE ON 12.09.2008 OF RS.9,99,000/ - , THE C LAIM OF THE ASSESSEE BEFORE US WAS THAT THE SAME WAS OUT OF ON - MONEY RECEIPT ON SALE OF LAND AT RS.10 LAKHS. FIRST OF ALL, THE ASSESSEE HAD SOLD THE SAID PIECE OF LAND VIDE SALE DEED DATED 02.01.2009 FOR RS.1,50,000/ - AND DATED 07.03.200 9 FOR RS.26,000/ - . THE ASSESSEE HAS FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE TO ESTABLISH THAT IT HAD RECEIVED ON - MONEY ON THE SALE OF SAID PROPERTY. 11. THE SECOND ASPECT OF THE ISSUE IS THAT THE SALE OF LAND WAS MADE ON 02.01.2009 AND 07.03.2009 RESPECTIVELY . HOWEV ER, THE ASSESSEE HAS FAILED TO ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 7 PRODUCE ANY EVIDENCE TO ESTABLISH THAT NEGOTIATIONS FOR THE SALE OF SAID PROPERTY STARTED EARLIER AND IN LIEU THEREOF, IT H AD RECEIVED CASH OF RS.10 LAKHS, WHICH ADMITTEDLY, WAS DEPOSITED BY THE ASSESSEE ON 12.09.2008 IN THE BANK ACCOUNT. FURTHER, THE SAID AMOUNT OF ON - MONEY WORKS OUT TO 85% OF THE TOTAL SALE CONSIDERATION , IN CASE THE CLAIM OF ASSESSEE IS ACCEPTED IN THIS BEHALF , WE DO NOT FIND ANY MERIT IN THE SAID CLAIM THAT AS AGAINST THE SALE CONSIDERATION OF RS. 1,50,000 / - AND RS.26,000/ - , THE ASSESSEE HAD RECEIVED ON - MONEY OF RS.10 LAKHS, IN THE ABSENCE OF ANY EVIDENCE HAVING BEEN FILED BY THE ASSESSEE. 12. FURTHER, ANOTHER ASPECT WHICH COMES TO OUR NOTICE THAT THE ASSESSEE THROUGHOUT THE ACCOUNTING PERIOD HAS DEPOSITED VARIOUS CASH AMOUNTS IN THE BANK ACCOUNTS, WHICH REMAINED TO BE EXPLAINED AND ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. ADMITTEDLY, THE ASSESSEE HAD NOT CONSIDERED THE ENTRIES IN THE SAID BANK ACCOUNT IN HIS REGULAR ACCOUNTS AND HAD NOT CONSIDERED THE SAME BEFORE FI LING THE RETURN OF INCOME. THE PERUSAL OF ENTRIES WOULD SHOW THAT ON FI LING THE RETURN OF INCOME. THE PERUSAL OF ENTRIES WOULD SHOW THAT ON 09.04.2008, THERE WAS DEPOSIT OF RS.25,000/ - . FURTHER, THERE WAS DEPOSIT ON 13.05.2008 OF RS.20,000/ - AND ON 14.05.2008 OF RS.80,000/ - . IN CASE, WE OMIT THE OTHER CASH DEPOSIT S O F VARIOUS DENOMINATOR S , THERE IS CASH DEPOSIT OF RS.1,15,000/ - ON 0 4.07.2008 AND RS.3,50,000/ - ON 2 6.07.2008. IT MAY BE POINTED OUT THAT TILL 26.07.2008, THERE ARE NO MAJOR CASH WITHDRAWALS AND AFTER THERE IS SELF WITHDRAWAL ON 29.07.2008 OF RS.3,25,00 0/ - . FURTHER, THERE IS CASH DEPOSIT OF RS.1 LAKH ON 01.09.2008 AND RS.9,99,000/ - ON 12.09.2008 . THE SAID SUM OF RS.10 LAKHS WAS THEN GIVEN BY CHEQUE TO RAJESHKUMAR ON 12.09.2008 . THEREAFTER, THERE ARE CERTAIN ENCASHMENTS OF FDRS, WHICH WERE DEPOSITED IN THE SAID BANK ACCOUNT AND THERE WERE CASH WITHDRAWALS OF RS.5 LAKH EACH ON 03.10.2008 AND 31.10.2008 , WHICH IN TURN, THE ASSESSEE CLAIMS THAT RS.7 LAKHS WAS DEPOSITED OUT OF THE SAME CASH ON 03.01.2009 . THE ASSESSING OFFICER HAS ITA NO. 141 /PN/20 1 5 RAJESHKUMAR B. GUPTA 8 WORKED OUT THE PEAK CREDI T TILL THE CASH DEPOSIT OF RS.9,99,000/ - ON 12.09.2008 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS ASKED TO EXPLAIN THE OTHER CASH DEPOSITS IN THE BANK AC COUNT , BUT WAS UNABLE TO EXPLAIN ANY OF THE SAID ENTRIES EXCEPT ENCASHMENT OF FDRS. IN THE ABSENCE OF THE SAME, WE FIND NO MERIT IN THE CLAIM OF ASSESSEE AND WE UPHOLD THE ADDITION OF PEAK CREDIT OF RS. 11,72,733/ - . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 1 3 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED ON THIS 31 ST DAY OF MARCH , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / ; / PUNE ; DATED : 31 ST MARCH , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESP ONDENT; 3. ( ) / THE CIT(A) - V , PUNE ; 4. / THE CIT - V , PUNE ; 5. , , , - / DR SMC , ITAT, PUNE; / BY ORDER , // TRUE COPY // / SR. PRI VATE SECRETARY , / ITAT, PUNE