I T O WD 3(4), LATUR, Latur V. SMT ANITA UDHAVRAO SALUNKE,

ITA 165/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56477 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 28-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHITGOPEKAR M NARA YANRAO
• Keywords: Income from undisclosed sources
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO 165/PN/2010 (ASSTT. YEAR 2005-06) INCOME-TAX OFFICER, .. APPELL ANT WARD 3(4) LATUR VS. SMT ANITA UDHAVRAO SALUNKE, .. RESPONDENT BABALSUR, PO: NARANGWADI, TAL OMERGA PAN BTOPS9380M APPELLANT BY: SHRI SANTOSH K UMAR RESPONDENT BY: SHRI CHITGOPEKAR M NARA YANRAO DATE OF HEARING : 20.09.2011 DATE OF PRONOUNCEMENT : 27.09.2011 ORDER PER G.S. PANNU, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), AURANGABA D DATED 01.10.2009, WHICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 OF THE INCOME-T AX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. IN THIS CASE, ASSESSMENT HAS BEEN FINALIZED UNDER SECTIO N 144 OF THE ACT BY THE ASSESSING OFFICER HOLDING THAT THE DEPOSITS IN TH E SAVINGS BANK ACCOUNT AMOUNTING TO RS 34 LAKHS HAVE REMAINED UNEXPLAINED. TH E COMMISSIONER OF INCOME-TAX (APPEALS) HAS SINCE DELETED THE SAID ADDITION BY INFERRING THAT THE 2 SAVINGS BANK ACCOUNT DID NOT BELONG TO THE ASSESSEE WHEREIN THE ASSESSEE WAS MERELY A NAME LENDER AND AS SUCH THE MONEY DEPOSITED D ID NOT BELONG TO THE ASSESSEE. ACCORDINGLY, THE ADDITION OF RS 34 LAKHS MADE BY TH E ASSESSING OFFICER HAS BEEN DELETED. 3. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATI VE POINTED OUT THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS DELETED THE AD DITION ON A WRONG PREMISE. ACCORDING TO HIM, IT WAS UNDENIABLE THAT THE ASSESSEE HAD OPENED THE BANK ACCOUNT IN HER NAME AND IT STOOD ESTABLISHED THAT THE ACCOUNT OPENING FORM WAS ALSO SIGNED BY THE ASSESSEE. IT WAS ALSO SUBMITTED THAT THE CHEQUE BOOKS WERE ISSUED BY THE BANK UNDER THE SIGNATURES OF THE ASSESSE E AND, UNDER THESE CIRCUMSTANCES, THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS N OT JUSTIFIED IN HOLDING THAT THE BANK ACCOUNT DID NOT BELONG TO THE A SSESSEE AND THAT THE ASSESSEE WAS MERELY A NAME LENDER. ON THIS BASIS, THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS SOUGHT TO BE ASSAIL ED. 4. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE R ESPONDENT-ASSESSEE HAS REFERRED TO WRITTEN SUBMISSIONS PLACED BEFORE THE BENCH SUPPORTING THE CONCLUSION DRAWN BY THE COMMISSIONER OF INCOME-TAX (APPEA LS). IT HAS BEEN EXPLAINED BY THE RESPONDENT THAT ONE LATE SHRI ASHOK N ARAYAN DUKE AND HIS FAMILY MEMBERS HAD OPENED A BENAMI SAVINGS BANK ACCOUNT IN THE NAME OF THE ASSESSEE AND THE TRANSACTIONS IN THE SAID ACCOUNT WERE CARRIED OUT BY THE SAID FAMILY. IT WAS SUBMITTED THAT DURING THE COURSE OF HEA RING BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) ON THE BASIS OF TH E ENQUIRIES CONDUCTED, IT STOOD ESTABLISHED THAT THE TRANSACTIONS IN THE SAID BAN K ACCOUNT WERE CARRIED OUT AT THE INSTANCE OF LATE ASHOK NARAYAN DUKRE AND HIS F AMILY MEMBERS EITHER THEMSELVES OR THROUGH THEIR EMPLOYEES, DRIVERS AND FRIE NDS. IN THIS CONNECTION, IT WAS POINTED OUT THAT THE COMMISSIONER OF INCOME-TAX (AP PEALS) HAS RELIED UPON THE ENQUIRIES CONDUCTED BY THE BANK AUTHORITIES AS ALSO TH E REPORT OF THE ASSESSING OFFICER SUBMITTED TO THE COMMISSIONER OF INCOME -TAX (APPEALS) IN 3 RESPONSE TO THE REMAND PROCEEDINGS. IN PARTICULAR, IT H AS BEEN POINTED OUT THAT IN THE COURSE OF THE ENQUIRY CONDUCTED BY THE BANK, THE TH EN BRANCH MANAGER CONFIRMED THAT THOUGH THE ASSESSEE HAD ACCOMPANIED LATE SHRI ASHOK NARAYAN DUKRE TO OPEN THE IMPUGNED BANK ACCOUNT, BUT THE INITIA L DEPOSIT OF RS 10,000/- WAS FURNISHED BY THE SAID LATE SHRI ASHOK NARAYAN DUKRE . IT IS ALSO POINTED OUT THAT VARIOUS DEPOSITS MADE IN THE SAVINGS BANK ACCOUNT WE RE ON THE BASIS OF PAY-IN-SLIPS FILLED IN EITHER BY THE DRIVER OF LATE S HRI ASHOK NARAYAN DUKRE, HIS FAMILY MEMBERS OR OTHER EMPLOYEES OR FRIENDS. IT WAS SUB MITTED THAT IN THE REMAND PROCEEDINGS, THE ASSESSING OFFICER HAD OBTAINED E NQUIRY REPORT FROM THE BANK AUTHORITIES AND THE SAME WAS FURNISHED TO THE COMMI SSIONER OF INCOME-TAX (APPEALS) ON THE BASIS OF WHICH THE COMMISSIONER OF INCO ME-TAX (APPEALS) HAS CONCLUDED THAT THE SAID BANK ACCOUNT DID NOT BELONG TO T HE ASSESSEE AND THAT SHE WAS A MERE NAME LENDER. IN THIS MANNER, THE CONCLUSI ON OF THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS BEEN SOUGHT TO B E DEFENDED. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. THE ASSESSEE BEFORE US HAS NOT BEEN ASSESSED TO TAX PREVIOUSLY. THE IMPUGNED ASSESSMENT HAS RESULTED ON ACCOUNT OF INFORMATION GATHERED BY THE IN COME-TAX OFFICER (CIB), NASHIK WHICH REVEALED THAT ASSESSEE WAS OPERATING A SAVINGS BANK ACCOUNT WITH STATE BANK OF HYDERABAD, NALDURG, TAL. UMERGA, DIST. OSMANABAD IN WHICH THERE WERE TRANSACTIONS TO THE TUNE OF RS 34 LAKHS DURI NG THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. O N BEING ASKED TO EXPLAIN THE SOURCE OF INCOME FOR THE CASH DEPOSITS, THE ASSESSEE DI D NOT RESPOND TO ANY OF THE NOTICES ISSUED AND ACCORDINGLY, THE ASSESSING OFFICER P ASSED A BEST JUDGMENT ASSESSMENT UNDER SECTION 144 OF THE ACT TREATIN G THE DEPOSITS IN THE SAVINGS BANK ACCOUNT AMOUNTING TO RS 34 LAKHS AS UNEXPLAIN ED. IN THE COURSE OF APPEAL PROCEEDINGS BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), THE ASSESSEE EXPLAINED THAT SHE HAD SIGNED THE ACCOUNT OPENING FORM, BUT THE SAID ACCOUNT WAS BEING OPERATED BY SHRI ASHOK NARYAN DUKRE AND HIS FAMILY AND THAT THE CASH DEPOSITS OF RS 34 LAKHS MADE IN SUCH ACCOUNT DID NOT BELONG TO HER AND 4 INSTEAD, THEY REPRESENTED UNACCOUNTED INCOME OF DUKRE FAM ILY. IT TRANSPIRES THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) CALLED FOR A RE MAND REPORT FROM THE ASSESSING OFFICER ON MORE THAN ONE OCCASION. THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS ALSO EXPLAINED THAT ON AN ASSESSEES PLEA, T HE CHIEF GENERAL MANAGER OF STATE BANK OF HYDERABAD HAD MADE ENQUIRIE S REGARDING THE IMPUGNED BANK ACCOUNT AND SUCH ENQUIRY REVEALED THAT THE IMPUGNED BANK ACCOUNT WAS MAINTAINED AS A BENAMI ACCOUNT OF DUKRE FAMILY . THE COMMISSIONER OF INCOME-TAX (APPEALS) ALSO REQUIRED THE A SSESSING OFFICER TO EXAMINE THE ENQUIRIES CONDUCTED BY THE BANK AND THEREU PON, SUCH REPORT WAS OBTAINED BY THE ASSESSING OFFICER AND SUBMITTED TO THE COMMISSIONER OF INCOME- TAX (APPEALS). IT ALSO EMERGES FROM THE ORDER OF THE C OMMISSIONER OF INCOME-TAX (APPEALS) THAT IN THE REMAND PROCEEDINGS, THE ASSESSING OF FICER ALSO EXAMINED SOME FAMILY MEMBERS OF DUKRE FAMILY AND ALSO SOME OTHER S, WHO ARE SAID TO HAVE OPERATED SUCH BANK ACCOUNT. ON THE BASIS OF ALL SUCH MATERIAL, THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS SINCE HELD THAT THE ASSESSEE WAS RIGHT IN CANVASSING THAT THE IMPUGNED SAVINGS BANK ACCOU NT WAS MERELY OPENED IN THE NAME OF THE ASSESSEE, BUT IT WAS INDEED OPERATED BY SHRI ASHOK NAYAN DUKRE AND FAMILY. THE COMMISSIONER OF INCOME-TAX (APPE ALS) HAS APPRECIATED THE MATERIAL ON RECORD AND HAS CONCLUDED AS UNDER: I HAVE CONSIDERED FACTS OF THE CASE, SUBMISSION O F THE APPELLANT, INTERNAL AUDIT REPORT OF CHIEF GENERAL MANAGER OF SBH AND AOS REP ORTS. IN MY OPINION, THE APPELLANT DESERVES TO SUCCEED. THERE IS NO DENIAL OF THE FACT THAT THE FINANCIAL C ONDITION OF THE APPELLANTS FAMILY IS VERY PRECARIOUS. THE APPELLANT IS PRESENTLY STAY ING WITH HER HUSBAND AT VILLAGE BABALSUR ABOUT 60 KMS. FROM THE BRANCH OF THE SBH. ALL THE E VIDENCES COLLECTED BY THE AO AS WELL AS REFLECTED IN THE INTERNAL AUDIT REPORT OF THE BA NK CLEARLY INDICATE THAT THE ACCOUNT WAS OPERATED AS A BENAMI ACCOUNT BY THE DUKRE FAMILY. IT IS UNBELIEVABLE THAT A LADY STAYING 60 KMS AWAY FROM THE BRANCH WILL MAINTAIN S/.B ACCO UNT AND TRANSACT REGULARLY. DURING THE COURSE OF INTERNAL ENQUIRY BY THE BANK, IT WAS CONFIRMED BY THE THEN BANK MANAGER MR SAYYAD PASHA THAT THE APPELLANT HAD COME TO THE BRA NCH WITH MR ASHOKRAO DUKRE AND THE INITIAL DEPOSIT OF RS 10,000/- WAS MADE BY SHRI ASHOK DUKRE. A PERUSAL OF DEPOSIT VOUCHERS AND BEARER CHEQUES CL EARLY INDICATE THAT PERSONS WITHDRAWING THE MONEY AS WELL AS DEPOSITING HE MONE Y ARE OTHER THAN THE APPELLANT AND BENEFICIARIES OF THESE PAYMENTS ARE PERSONS UNRELAT ED TO THE APPELLANT. IN FACT MOST OF THE BENEFICIARIES ARE DIRECTLY OR INDIRECTLY CONNEC TED WITH THE DUKRE FAMILY. ONE OF THE BENEFICIARIES, SHRI SAYYAD SIKANDER LATIF, PURCHASE D A PLOT OF LAND JUST IN FRONT OF THE HOUSE OF DUKRE FAMILY. SIMILARLY, AN AMOUNT OF RS 6 ,30,000/- WAS WITHDRAWN FROM THE APPELLANTS BANK ACCOUNT AND THE SAME WAS UTILIZED FOR OBTAINING A TERM DEPOSIT OF RS 6 LAKH IN THE NAME OF MRS ARCHANA DUKRE. IT WAS ALSO CONFIRMED BY THE BANK AUTHORITY 5 DURING THE COURSE OF ITS INTERNAL ENQUIRY THAT AT T HE TIME OF CLOSING OF BANK ACCOUNT, THE APPELLANT WAS ACCOMPANIED WITH MRS ARCHANA DUKRE AN D HER SON SHRI SWAPNIL DUKRE. DURING THE COURSE OF SUBSEQUENT ENQUIRY BY THE AO, SHRI SWAPNIL DUKRE SON OF SMT ARCHANA DUKRE HAS AGREED TO SIGN THE FORM OF DE POSIT OF RS 6 LAKH DATED 25.4.2005 IN THE S/B ACCOUNT OF THE APPELLANT. THE AFORESAID FACT CLEARLY INDICATES THAT THE APPELLANT WAS TAKEN FOR A RIDE AND THE BANK ACCOUNT WAS MAINT AINED AND OPERATED BY THE DUKRE FAMILY IN THE BENAMI CAPACITY. THE APPELLANT HAD NO SOURCE OF WHATSOEVER NATURE FOR GENERATING SUCH A HUGE CASH. THE ENTIRE OPERATION W AS ORCHESTRATED BY THE DUKRE FAMILY TO LAUNDER THEIR UNACCOUNTED INCOME. THE APPELLANT WAS MERELY USED AS TOOL IN ENTIRE SCHEME OF EVADING TAX ON UNACCOUNTED INCOME OF RS 3 4 LAKH. THE PERSONS WITHDRAWING THE MONEY ARE CLOSELY RELATED AND CONNECTED WITH TH E DUKRE FAMILY THOUGH SOME OF THEM LIKE MR LAXMAN KISAN CHAVAN TRIED TO MISLEAD THE EN QUIRY BY CLAIMING THAT HE WITHDREW THE MONEY ON BEHALF OF APPELLANTS HUSBAND SHRI JEE VANRAO SURYAWANSHI AND ALSO CLAIMED THAT HE IS CLASSMATE OF APPELLANTS HUSBAND BUT UTTERLY FAILED IN HIS ATTEMPT BY HIS ACT OF NOT RECOGNIZING MR JEEVANRAO SURYAWANSHI, WH EN HE WAS ASKED BY THE BANK OFFICIALS TO ACCOMPANY THEM TO THE HOUSE OF THE APP ELLANT. THE CONDUCT OF VARIOUS PERSONS CONNECTED WITH THIS CASE CLEARLY INDICATES THAT BANK ACCOUNT WAS OPERATED BY THE DUKRE FAMILY AND THEY ARE MAKING FALSE AVERMENT THA T THEY ARE NOT CONNECTED WITH THE TRANSACTIONS REFLECTED IN THE AFORESAID BANK ACCOUN T. AFTER PERUSING EVIDENCES COLLECTED BY THE BANK AUTH ORITIES DURING THE COURSE OF INTERNAL ENQUIRY AND ITO, WARD-3(4), LATUR IN THE C OURSE OF APPELLATE PROCEEDINGS, I AM OF THE OPINION THAT THE APPELLANT IS MERELY A NAME-LEN DER AND MONEY DEPOSITED IN THE ABOVE REFERRED BANK ACCOUNT DOES NOT BELONG TO HER. I, TH EREFORE, DELETE THE ADDITION OF RS 34 LAKH MADE BY THE AO. 6. NOTABLY, BEFORE US, NONE OF THE FINDINGS OF THE C OMMISSIONER OF INCOME- TAX (APPEALS) EXTRACTED ABOVE, WHICH ARE BASED ON THE A PPRECIATION OF MATERIAL AND EVIDENCE BEFORE HIM, ARE STATED TO BE DEVOID OF F ACTUAL SUPPORT. THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS CONCLUDED THAT TH E IMPUGNED BANK ACCOUNT WAS OPERATED AS A BENAMI ACCOUNT OF DUKRE FAMILY A ND THIS HAS BEEN SOUGHT TO BE COUNTERED BY THE LEARNED DEPARTMENTAL RE PRESENTATIVE BY POINTING OUT THAT IT WAS THE ASSESSEE WHO HAD SIGNED THE ACCOUNT OP ENING FORM AS ALSO REQUEST FOR THE CHEQUE BOOKS. IN OUR CONSIDERED OPINION, THE AFORESAID PLEA OF THE LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DI STRACT FROM THE FACTUAL APPRECIATION BROUGHT OUT BY THE COMMISSIONER OF INCOME -TAX (APPEALS) WHO HELD THAT THE IMPUGNED ACCOUNT WAS OPERATED AS A BENAMI ACCOU NT BY DUKRE FAMILY. IN FACT, AT NO STAGE HAS THE REVENUE ESTABLISHED THE SOU RCE OF INCOME OF THE ASSESSEE, IF ITS PLEA WAS TO BE UPHELD THAT THE IMPUGNED BANK DEPOSITS BELONGED TO HER. MOREOVER, THERE IS NO NEGATION TO THE FACT TH AT THE BANK ENQUIRIES HAS CONFIRMED THAT EVEN AT THE TIME OF OPENING OF THE BA NK ACCOUNT THE INITIAL DEPOSIT OF RS 10,000/- WAS GIVEN BY DUKRE FAMILY AND NOT THE ASS ESSEE HERSELF. SECONDLY IT IS ALSO PERTINENT THAT EVEN AT THE TIME OF CLOSURE O F THE ACCOUNT, ALMOST THE 6 ENTIRE AMOUNT WITHDRAWN WAS KEPT AS TERM DEPOSIT RECEI PTS (TDR) IN THE NAME OF SMT ARCHANA ASHOK DUKRE AND DID NOT COME TO THE ASSESS EE. THE AFORESAID ASPECTS, COUPLED WITH FACTUAL APPRECIATION BROUGHT OUT B Y THE COMMISSIONER OF INCOME-TAX (APPEALS) ON THE BASIS OF THE ENQUIRY REPORT OF THE BANK AUTHORITIES CLEARLY SUPPORT THE ASSESSEES PLEA THAT SHE WAS MERELY A N AME LENDER AND THAT THE MONEY DEOSITED IN THE IMPUGNED BANK ACCOUNT INDEED DID NOT BELONG TO HER. IN THIS BACKGROUND OF THE MATTER, WE FIND NO REASONS TO INTERFERE WITH THE CONCLUSION DRAWN BY THE COMMISSIONER OF INCOME-TAX (APPEA LS) WHICH WE HEREBY AFFIRM. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSE D. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (I C SUDHIR) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER PUNE: DATED: 27 TH SEPTEMBER, 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT(A), AURANGABAD 4. THE CIT, AURANGABAD 5. THE D.R, B BENCH, PUNE 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE 7