Smt. Dollyben Jayeshbhai Shah, Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 1605/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5876 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 08-07-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 13-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P R GHOSH
• Assessee Lawyers: M K PATEL
• Keywords: Reopening of assessment; Unexplained investment; Gift
• Section: 133A; 143(1); 147; 148

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BEFORE SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER SMT. DOLLYBEN JAYESHBHAI SHAH, 110, SANTOK APARTMENT, VARACHHA ROAD, SURAT. VS. INCOME-TAX OFFICER, WD-9(1), SURAT. (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI M. K. PATEL, AR REVENUE BY:- SHRI P. R. GHOSH, DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED CONFIRMING THE ACTION OF THE AO ISSUING NOTICE U/S 148 OF THE ACT AND REOPEN ING THE ASSESSMENT. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF RS.35,722/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF RS.30,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED DEPOSITS IN BANK. 2. THE RETURN OF INCOME WAS FILED ON 31.12.2003 FOR ASST. YEAR 2003- 04 SHOWING TOTAL INCOME OF RS.82,500/-. THE SAME WA S PROCESSED U/S ITA NO.1605/AHD/2010 ASST. YEAR :2003-04 2 143(1) OF THE INCOME-TAX ACT, 1961. THE CASE WAS RE OPENED U/S 147 OF THE IT ACT BY ISSUING NOTICE U/S 148 OF THE ACT DAT ED 28.03.2008 WHICH WAS DULY SERVED UPON THE ASSESSEE. ON THE BASIS OF THE SURVEY ACTION U/S 133A WAS CARRIED OUT IN THE CASE OF SHRI PANKAJ DAN AWALA, C.A. BY THE DDIT (INV)-II, SURAT ON 11.03.2005. ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SURVEY AT THE PREMISES OF SHRI PANKAJ DANAWALA IT WAS NOTICED BY THE AO THAT BOGUS PROFIT AND LOSS ACCOUNT, CAPITAL ACCOUNT AND BALANCE SHEET WERE PREPARED FROM YEAR T O YEAR BY SHOWING INCOME LIKE AGRICULTURAL INCOME, SMALL GIFTS AND IN COME FROM INTEREST, BROKERAGE, COMMISSION ETC. AND THUS CREATING SUBSTA NTIAL CAPITAL. THE ASSESSEE BELONGED TO ONE SHRI MOHAN DHANJI PATEL GR OUP WHERE ALSO SURVEY UNDER SECTION 133A WAS CARRIED OUT AND IT WA S FOUND THAT SHRI PANKAJ DANAWALA HAD CREATED 163 FILES FOR THE BENEF IT OF THIS GROUP BY CREATING FICTITIOUS CAPITAL AND TRANSFERRING IT INT O THE ACCOUNTS OF BENEFICIARIES AND ADJUSTING IT AGAINST UNACCOUNTED MONEY GENERATED BY THE GROUP IN THE BUSINESS. IN THE CASE OF PRESENT A SSESSEE SHRI PANKAJ DANAWALA BUILT UP CAPITAL ACCOUNT AND BALANCE SHEET FOR THE ASST. YEAR 1999-2000 IN THE IMPOUNDED FILE NO.3028. IN ASST. Y EAR 1999-2000 OPENING CAPITAL OF RS.13,53,745/- HAS BEEN SHOWN WH ICH WAS SUBSEQUENTLY FURTHER BUILT UP BY SHOWING FICTITIOUS INCOME. THE AO NOTICED THAT ASSESSEE HAD A DEPOSIT OF RS.35,722/- IN HIS BANK ACCOUNT WHICH WAS TREATED AS UNEXPLAINED. ON THIS BASIS HE REOPENED THE ASSESSMENT AND NOT FINDING ANY EXPLANATION FROM THE ASSESSEE HE MADE THIS ADDITION. FURTHER HE FOUND THAT TWO CASH DEPOS ITS OF RS.15,000/- EACH ON 30.01.2003 AND 31.01.2003 WERE MADE IN THE BANK ACCOUNT WHICH WERE ALSO COULD NOT BE EXPLAINED TO THE SATISFACTIO N OF THE AO AND THUS HE ADDED RS.30,000/- TO THE TOTAL INCOME OF THE ASSESS EE. 3 3. THE LD. CIT(A) CONFIRMED THE REOPENING OF ASSESS MENT AS WELL AS ADDITIONS AS NO EXPLANATION WAS FURNISHED BEFORE HI M. 4. I HAVE HEARD THE LD. AR AND THE LD. DR ON THE IS SUE. IN MY CONSIDERED VIEW, REOPENING OF ASSESSMENT WAS JUSTIF IED BECAUSE ASSESSEE HAS NOT FURNISHED ANY EXPLANATION EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A). THUS A PRIMA FACIE SATISFACTION IS CORRECTL Y ARRIVED AT BY THE AO AS TO THE ESCAPEMENT OF ASSESSMENT. ALL THE THREE I NGREDIENTS FOR ISSUANCE OF NOTICE UNDER SECTION 148(1) ARE SATISFIED. THE A O NOTICED THAT ASSESSEE HAD A DEPOSIT OF RS.35,722/- IN HIS BANK ACCOUNT WH ICH WAS NOT EXPLAINED. ON THIS BASIS HE REOPENED THE ASSESSMENT AND NOT FINDING ANY EXPLANATION FROM THE ASSESSEE HE MADE THIS ADDITION . FURTHER HE NOTICED THAT ASSESSEE HAD ALSO MADE DEPOSIT OF RS.30,000/- WHICH WAS ALSO NOT EXPLAINED. THERE IS NO DOUBT ABOUT ASSESSEE AND ASS ESSMENT YEAR AND SIMILARLY THERE IS ALSO A CHARGE OF ESCAPEMENT OF A SSESSMENT TO THE EXTENT OF RS.35,722/- AND RS.30,000/- BEING THE CASH DEPOS ITS IN THE BANK AND REMAINED PRIMA FACIE UNEXPLAINED AT THE POINT OF TI ME OF RE-OPENING OF ASSESSMENT. EVEN BEFORE ME THERE IS NO EXPLANATION IN RESPECT OF ADDITIONS PROPOSED BY THE AO AND SUSTAINED BY LD. C IT(A). ACCORDINGLY, I UPHOLD THE ORDER OF THE LD. CIT(A). THUS ALL THE THREE GROUNDS RAISED BY THE ASSESSEE ARE REJECTED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 8/7/2010 SD/- (D.C.AGRAWAL) ACCOUNTANT MEMBER AHMEDABAD, DATED : 8/7/2010 4 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD