ITO, Ward - 38(2), Kolkata, Kolkata V. Smt. Neera Jhunjhunwala, Kolkata

ITA 148/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8094 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2012
• Court: TRIBUNAL
• Department Lawyers: D K RAKSHIT
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , ! /AND ' #!' , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] !$ !$ !$ !$ / I.T.A NO. 148/KOL/2012 #%& '( #%& '( #%& '( #%& '(/ // / ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER, WD-38(2), KOLKATA. VS. SMT. N EERA JHUNJHUNWALA (PAN: AETPJ4416L) (*+ /APPELLANT ) (,*+/ RESPONDENT ) DATE OF HEARING: 18.10.2012 DATE OF PRONOUNCEMENT: 19.10.2012 FOR THE APPELLANT: SHRI D. K. RAKSHIT FOR THE RESPONDENT: SHRI RAJEEVA KUMAR - / ORDER PER MAHAVIR SINGH, JM ( ' #!' ' #!' ' #!' ' #!', , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXIV, KOLKATA IN APPEAL NO.779/CIT(A)-XXIV/38(2)/10-11 DATED 11.11.2011. AS SESSMENT WAS FRAMED BY ITO, WD- 38(2), KOLKATA U/S.143(3) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORDER DATED 07.12. 2010. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY AO ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT BEING CASH DEPOSIT IN SBA/C NO. 004201023549 MAINTAINED WITH I CICI BANK LTD. AMOUNTING TO RS.11,39,007/-. 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THERE HAS BEEN CASH DEPOSI TING IN SB A/C. NO. 004201023549 MAINTAINED WITH ICICI BANK LTD. TO THE TUNE OF RS.2 2,69,500/-. THE AO REQUIRED TO EXPLAIN THE CASH DEPOSIT VIDE ORDER SHEET NOTING DATED 20.10.20 10 AND ALSO REPEATED OPPORTUNITIES WERE PROVIDED AND FINALLY ISSUED SHOW CAUSE NOTICE AS TO EXPLAIN THE ABOVEMENTIONED CASH DEPOSIT TO THE TUNE OF RS.22,69,500/-. THE ASSESSEE EXPLAINED THE PART DEPOSITS MADE IN THE BANK ACCOUNT AND IN TURN THE AO ISSUED FURTHER SHOW CAUSE NOTICE DATED 29.11.2010 WHEREBY ASSESSEE WAS ASKED TO EXPLAIN REMAINING BALANCE OF CASH DEPOSIT TO THE TUNE OF RS.16,89,107/-. THE ASSESSEE GAVE GENERAL REPLY AND AO, THEREFORE, TREATED THE A MOUNT OF RS.5,80,393/- AND A SUM OF 2 ITA 148/K/2012 SMT. NEERA JHUNJHUNWALA. A.Y.08-09 RS.11,39,007/- AS UNEXPLAINED CASH DEPOSIT, WHICH T HE ASSESSEE FAILED TO EXPLAIN AND HE MADE ADDITION BY GIVING FOLLOWING FINDING: THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE HAS FAILED TO DISCHARGE HER ONUS AND HAS ALSO FAILED TO EXPLAIN THE CASH DEPOSITS IN SAVINGS BANK A/C NO. 004201023549 MAINTAINED WITH ICICI BANK LTD. TO THE TUNE OF RS.1689107/- AN D HENCE THE SAME IS TREATED AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE I. T. ACT, 1 961 AND ADDED TO THE INCOME OF THE ASSESSEE. 4. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT (A), WHO DELETED THE ADDITION OF RS.5,01,000/- BEING SHORT TERM ADVANCE IN CASH FROM 31 PARTIES AS THE ASSESSEE HAS FILED PAN AND OTHER DETAILS WHICH WERE VERIFIED BY AO. HE AL SO DELETED THE ADDITION OF RS.11,39,007/- AND THE RELEVANT FINDING RECORDED BY CIT(A) IN PARA 2.4 READS AS UNDER: AS REGARDS THE DEPOSITS OF RS.11,39,007/- OUT OF CASH WITHDRAWALS FROM BANK, THE ASSESSING OFFICER HAS NOT GIVEN ANY ADVER SE FINDING IN THE REMAND REPORT. ON PERUSAL OF THE BANK ACCOUNT, IT IS FOUND THAT THE M ONEY WAS WITHDRAWN FROM HER BANK ACCOUNT ON DIFFERENT DATES AND SUBSEQUENTLY THE MON EY WAS AGAIN DEPOSITED IN HER BANK ACCOUNT. IN VIEW OF IT THE ADDITION OF RS.11,39,00 7/- U/S. 68 RELATING TO THE AMOUNTS DEPOSITED OUT OF CASH WITHDRAWAL IS DELETED. IN BR IEF, THE ADDITION OF RS.16,89,107/- (RS.11,39,007 +RS.5,01,000/-) IS DELETED. THE APPE LLANT GETS RELIEF OF RS.16,89,107/-. ACCORDINGLY, GROUND NOS. 1, 2 & 3 ARE ALLOWED. AGGRIEVED AGAINST THE DELETION OF ADDITION OF RS.11 ,39,007/-, REVENUE IS NOW IN APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SHRI RAJEEV A KUMAR TRIED TO EXPLAIN THE DEPOSITS VIDE SB ACCOUNT NO. 004201023549 MAINTAINED WITH ICICI B ANK LTD. THE ASSESSEE HAS FILED COMPLETE COPY OF STATEMENT OF ACCOUNT AT PAGES 8, 9 AND 10 OF ASSESSEES PAPER BOOK. THE ASSESSEE CLAIMED THAT THIS ACCOUNT WAS FILED BEFORE AO AS WELL AS BEFORE CIT(A). IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE CIT(A) H AS PLENARY POWERS IN DISPOSING OF APPEAL. SCOPE OF HIS POWER IS COTERMINOUS WITH THAT OF AO A ND HE CAN DO WHAT THE AO COULD DO AND CAN ALSO DIRECT THE LATTER TO DO WHAT THE LATTER FA ILED TO DO SO. THE CIT(A) NEED NOT TO CONFINE ITSELF ONLY TO THE MATERIAL ON RECORD AT THE TIME O F ASSESSMENT AND HE CAN MAKE SUCH ENQUIRIES AS IT THINKS FIT BUT HE CANNOT TRAVEL OUTSIDE THE RECO RDS I.E. TO SAY THE RETURN MADE BY THE ASSESSEE AND THE ASSESSMENT ORDER PASSED BY THE OFFICER. HE RE, IN THE PRESENT CASE CIT(A), EVEN THOUGH THE MATTER WAS SENT FOR VERIFICATION TO THE AO AND AO WITHOUT GIVING ANY COMMENT HAS GIVEN HIS REMAND REPORT, DELETED THE ADDITION. THIS IS N OT CALLED FOR. WE ARE OF THE VIEW THAT THE CIT(A) SHOULD HAVE MADE ENQUIRIES QUA THE DEPOSITS AND WITHDRAWALS MADE BY THE ASSESSEE WHETHER THERE EXISTS ANY NEXUS OR NOT. FURTHER, AS REGARDS TO DEPOSIT, THE SOURCE SHOULD HAVE BEEN EXPLAINED BY THE ASSESSEE. IN TERMS OF THIS, WE DIRECT THE CIT(A) TO RE-EXAMINE THE ISSUE 3 ITA 148/K/2012 SMT. NEERA JHUNJHUNWALA. A.Y.08-09 IN ENTIRETY AND DECIDE AFTER CONSIDERING THE FACTS OF THE CASE. APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN OPEN COURT ON 19 TH OCT., 2012. SD/- SD/- , ' #!' ' #!' ' #!' ' #!' , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 19TH OCTOBER, 2012 /0 #%12 #3 JD.(SR.P.S.) 4 ITA 148/K/2012 SMT. NEERA JHUNJHUNWALA. A.Y.08-09 - 4 ##5 65'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ITO, WARD-38(2), KOLKATA. 2 ,*+ / RESPONDENT SMT. NEERA JHUNJHUNWALA, 65B, PATHUR IA GHAT STREET, KOLKATA-700 006. 3 . #-% ( )/ THE CIT(A), KOLKATA 4. #-% / CIT, KOLKATA 5 . >#? #% / DR, KOLKATA BENCHES, KOLKATA ,5 #/ TRUE COPY, -%/ BY ORDER, ' !2 /ASSTT. REGISTRAR .