ITO, Nashik V. SMT SANGEETA BHUPENDRA SHAH, Nashik

ITA 1543/PUN/2012

• Counselvise Citation: 154324514 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VERMA
• Assessee Lawyers: V L JAIN
• Keywords: Unexplained cash credit; Search and seizure
• Section: 143(3); 153A; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1543 /PN/201 2 ASSESSMENT YEAR : 2004 - 05 INCOME - TAX OFFICER (CENTRAL) - I, N ASHIK VS. SMT. SANGEETA BHUPENDRA SHAH, 9 - 10 GYMKHANA SHOPPING CENTRE, SHIVAJI ROAD, NASHIK (APPELLANT) (RESPONDENT) PAN NO. CMMPS3667M APPELLANT BY: SMT. M.S. VERMA RESPONDENT BY: SHRI V.L. JAIN DATE OF HEARING : 28 - 10 - 2013 DATE OF PRONOUNCE MENT : 28 - 11 - 2013 ORDER P ER R.S. PADVEKAR , JM : - IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT(A) - I, NASHIK, DATED 30 - 04 - 2012 FOR THE A.Y. 2004 - 05. THE REVENUE HAS TAKEN FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.15,75,000/ - ON ACCOUNT OF UNEXPLAINED CREDIT U/S. 68. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN GIVING FINDING THAT ADD ITION CANNOT BE MADE UNDER SECTION 153A IN THE ABSENCE OF INCRIMINATING MATERIAL, WITHOUT APPRECIATING THAT, AS PER PROVISION OF THIS SECTION THE ASSESSING OFFICER CAN ASSESS AND REASSESS THE INCOME OF THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN IGNORING THE EVIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIAL ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS, RENDERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORD. 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THERE WAS A SEARCH AND SEIZURE ACTION AGAINST THE ASSESSEE ON 08 - 02 - 2008 U/S. 2 ITA NO. 1543/PN/2012, SMT. SANGEETA BHUPENDRA SHAH, NASHIK 132(1) OF THE INCOME - TAX ACT. IN CONSEQUENCE OF SEARCH AND SEIZURE ACTION, THE ASSESSING OFFICER ISSUED NOTICE TO THE ASSESSEE U/S. 153A ON 30 - 05 - 2008 REQUIRING HER TO FILE THE RETURN OF INCOME. THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO SAID NOTICE FOR THE A.Y. 2004 - 05 DECLARING TOTAL INCOME OF RS.93,000/ - , WHICH WAS ALREADY DECLARED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME FILED FOR THE A.Y. 2004 - 05 ON 29 - 10 - 2004. AS NOTED BY THE ASSESSING OFFICER THE ASSESSEE HAD SHOWN THE LOAN TO THE EXTENT OF RS.15,75,000/ - IN THE LIABILITY SIDE OF THE BALANCE SHEET UNDER THE HEAD LOANS AND ADVANCES WHICH DETAIL S AS NOTED IN THE ASSESSMENT ORDER ARE AS UNDER: NAME OF THE PERSONS AMOUNTS 1. SHRI AADHAV FRANSIS RS.1,75,000/ - 2. SHRI BHINGARE PAULAS RS.1,75,000/ - 3. SHRI BHANDARE SURESH RS.1,75,000/ - 4. SHRI BHAGTILAK BABURAO RS.1,75,000/ - 5. SHRI BENJAMIN VIVEK RS.1,75,000/ - 6. SHRI CHANDEKAR DEVID RS.1,75,000/ - 7. SMT. DALAL VIJAYA RS.1,75,000/ - 8. SMT. KAMBLE LATA RS.1,75,000/ - 9. SHRI LOKHANDE SUBHASH RS.1,75,000/ - TOTAL RS.15,75,000/ - 3. THE ASSESSEE EXPLAINED THAT THE SAID ADVANCES WERE RECEIVED IN CASH AGAINST THE AGREEMENT TO SALE OF PLOTS OF LAND TO THE ABOVE PERSONS AND AMOUNTS SHOWN AS LIABILITY ARE GENUINE ONE. AS NOTED BY THE ASSESSING OFFICER ORIGINAL AGREEMENT WAS NOT PRODUCED BY THE ASSESSEE AND ONLY A XEROX COPY OF THE AGREEMENT WAS PRODUCED . THE ASSESSING OFFICE R WAS NOT CONVINCED WITH THE EXPLANATION OF THE ASSESSEE AND AS PER THE REASONS RECORDED BY THE ASSESSING OFFICER AS PER THE COPY OF THE AGREEMENT PRODUCED BY THE ASSESSEE WHICH WAS NOTARIZED AND AS PER THE AGREEMENT THE ABOVE PERSONS HAVE PAID THE AMOUNT OF RS.15,75,000/ - ON 31 - 03 - 2004 I.E. THE DATE ON WHICH THE AGREEMENT WAS EXECUTED BUT IN 3 ITA NO. 1543/PN/2012, SMT. SANGEETA BHUPENDRA SHAH, NASHIK THE CASH BOOK , THE ASSESSEE HAS CREDITED SAID AMOUNTS ON 01 - 02 - 2004. THE ASSESSING OFFICER ALSO NOTED THAT IN SPITE OF ENTIRE CONSIDERATION OF RS.15,75,000/ - RECEIVED BY THE ASSESSEE IN RESPECT OF THE LAND TRANSACTION EVEN AFTER LAPSE OF 5 YEARS , THE PROPERTY WAS NOT HANDED OVER TO THOSE PERSONS. THE ASSESSING OFFICER ALSO NOTED THAT THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SAID TRANSACTION AS CLAIMED BY THE ASSESSEE WERE NOT PROVED. THE ASSESSING OFFICER, THEREFORE, MADE THE ADDITION OF RS.15,75,000/ - U/S. 68 OF THE ACT AS UNEXPLAINED CASH CREDITS. 4. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT(A) AND LD. CIT(A) DELETED THE ADDITION. THE ASSESS EE CONTENTED THAT THE ASSESSEE HAS BEEN REGULARLY ASSESSED TO TAX FOR LAST MANY YEARS AND THE TRANSACTIONS IN QUESTION HAVE BEEN DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. IT WAS ALSO CONTENTED THAT NO INCRIMINATING EVIDENCE WAS FOUND TO SHOW THAT THOSE ENTRIES ARE BOGUS. THE ASSESSEE ALSO CONTENDED THAT IN THE CASE OF HUSBAND OF THE ASSESSEE I.E. SHRI BHUPENDRA SHAH FOR THE A.Y. 2003 - 04 I T WAS NEVER ADMITTED THAT THE SAID ADVANCES RECEIVED WERE NOT GENUINE. IT WAS ALSO CONTENDED THAT THE ADD ITION IS MADE ON THE BASIS OF THE ENTRIES IN THE REGULAR BOOKS OF ACCOUNT WHICH WERE SUBJECTED TO VERIFICATION IN REGULAR ASSESSMENT MADE U/S. 143(3) OF THE ACT. THE LD. CIT(A) DELETED THE ADDITION. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEA RD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE SEARCH ACTION IN THE PRESENT CASE WAS ON 08 - 02 - 2008 . T HERE IS NO DISPUTE ABOUT THE FACT THAT THE ADDITION IS BASED ON THE ENTRIES FOUND IN THE BALANCE SHEET WHICH WAS OTHERWISE ALSO FILE D BY THE ASSESSEE ALONGWITH REGULAR RETURN FOR THE A.Y. 2004 - 05. N O INCRIMINATING MATERIAL WAS ALSO FOUND IN THE SEARCH. IN OUR OPINION, ON 4 ITA NO. 1543/PN/2012, SMT. SANGEETA BHUPENDRA SHAH, NASHIK THE FACTS OF THIS CASE THE SCOPE OF THE ASSESSING OFFICER FOR COMPLETING THE ASSESSMENT U/S. 153A IS LIMITED. 6 . SO FAR AS A.Y. 2004 - 05 IS CONCERNED THE ENTRIES ARE ALREADY MADE IN THE REGULAR BOOKS OF ACCOUNT AND THE ASSESSEE HAD DISCLOSED THE SAID TRANSACTIONS WHILE FILING THE ORIGINAL RETURN OF INCOME IN THE BALANCE SHEET. NOTHING IS ON RECORD TO SUGGEST THAT A NYTHING WAS FOUND IN THE COURSE OF SEARCH WHICH GOES AGAINST THE ASSESSEE IN RESPECT OF THE TRANSACTIONS SHOWN IN THE BALANCE SHEET. IN OUR OPINION, THE ASSESSING OFFICER MADE THE ADDITION BEYOND THE PERMISSIBLE SCOPE U/S. 153A AND THE LD. CIT(A) HAS RIGH TLY DELETED THE ADDITION . A S WE HAVE CONFINED OUR FINDING TO THE SCOPE OF THE ADDITION U/S. 153A , W E DO NOT EXPRESS ANYTHING ON OTHER OBSERVATIONS OF THE LD. CIT(A). ACCORDINGLY, GROUNDS TAKEN BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE REVENUE S APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 28 - 11 - 2013 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 28 TH NOVEMBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I, NASHIK 4 THE CIT - I, NASHIK 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE