Madan Pawar, Pune V. Income tax Officer,

ITA 169/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8035 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-12-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Salary income
• Section: 143(3); 69; 68

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.169/PUN/2017 / ASSESSMENT YEAR : 2009-10 MADAN PAWAR, FLAT NO.1, CHINTAMANI APARTMENTS, GHOLE ROAD, PUNE-411005. PAN : APNPP9535K ....... / APPELLANT / V/S. ITO, WARD-3(2), PUNE. / RESPONDENT ASSESSEE BY : SHRI KISHORE PHADKE REVENUE BY : SHRI S. P. WALIMBE / DATE OF HEARING : 20.12.2019 / DATE OF PRONOUNCEMENT : 15.01.2020 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-3, PUNE DATED 24.10.2016 FOR THE ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE LEARNED TAXING AUTHORITIES BELOW HAD ERRED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND ON QUESTIONS OF LAW IN MAKING AN ADDITION OF RS.7,55,000/- U/S 68 AND THE LEARNED CIT(A) HAD ERRED IN CONFIRMING THE SAME U/S 69 WITHOUT FOLLOWING THE PROCEDURE LAID DOWN IN LAW. 2. THE LEARNED TAXING AUTHORITIES BELOW HAD ERRED IN NOT FOLLOWING THE DECISION OF THE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CIT VS. BHAICHAND H. GANDHI (1983) 141 ITR 0067 (BOM). 3. THE LEARNED CIT(A) ERRED IN REFERRING TO AND INVOKING S.292BB WHICH IS NOT AT ALL APPLICABLE IN THIS CASE AND HENCE THE CONCLUSION DRAWN BY THE CIT(A) DUE TO MISTAKEN REFERENCE IS ALSO TO BE REJECTED. 4. THE APPELLANT CRAVES PERMISSION TO ADD, AMEND ALTER ANY OF THE GROUNDS OF APPEAL. ITA NO.169/PUN/2017 - 2 - 3. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE EARNED INCOME FROM SALARY AND OTHER SOURCES. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.5,53,750/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE ADDITION OF RS.7,55,000/- WAS MADE BY THE ASSESSING OFFICER AS PER DISCUSSION GIVEN IN PARA 3 OF THE ASSESSMENT ORDER. FOR THE SAKE OF COMPLETENESS, THE SAID PARA 3 OF THE ASSESSMENT ORDER IS EXTRACTED HEREUNDER :- 3. THE AIR INFORMATION/ITS DETAILS IN THIS CASE IS SALARY, CASH DEPOSIT IN SAVINGS BANK ACCOUNT OF ICICI BANK OF RS. 14,13,900/- AND TO EXAMINE THE GENUINENESS OF AGRICULTURAL INCOME. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS STATED THAT THE ASSESSEE IS HAVING AGRICULTURAL LAND OF ABOUT 10 ACRES WHICH HE HAS INHERITED FROM HIS ANCESTORS AND SOME HAVE BEEN PURCHASED BY HIM FROM HIS MATERNAL UNCLE IN 1984 AND HAS SUBMITTED 7/12 EXTRACTS/PHERFAR FOR THE SAME. THE ASSESSEE HAS ALSO SUBMITTED THAT THE AGRICULTURAL INCOME FROM THE CROPS IS RECEIVED IN CASH AND PART OF WHICH IS DEPOSITED IN HIS SAVINGS BANK ACCOUNT IN ICICI BANK. THE A.R. PREPARED A STATEMENT WHEREIN SHE HAS EXPLAINED THE CASH DEPOSITED IN SAVING BANK ACCOUNT OF ICICI BANK AS CASH WITHDRAWAL FROM THE INDAPUR URBAN CO-OPERATIVE BANK AND THE OTHER CASH RECEIPTS. THE A.R. COULD PRODUCE THE BILLS WITH RESPECT OF CASH WITHDRAWN FROM THE BANK ACCOUNTS IN THE NAME OF CHILDREN. THE A.R COULD NOT PRODUCE BILLS WITH RESPECT OF INCOME FROM BANANA BAUG OF RS.3,50,000/-, GURHAL OF RS. 1,55,000/- AND SHETMAL BHUSAR OF RS.2,50,000/- TOTALLING TO RS.7,55,000/-. MOREOVER, IT IS ALSO EVIDENT FROM A STATEMENT PREPARED BY THE ASSESSEE OF ICICI BANK ACCOUNT THAT THERE IS A DEFICIT. AS SUCH, AN AMOUNT OF RS.7,55,000/- IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED U/S.68 OF THE I.T.ACT, 1961 AS THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THIS CASH WITH SUPPORTINGS. PENALTY U/S.271(1)(C) OF THE ACT IS SEPARATELY INITIATED FOR CONCEALING & FURNISHING INACCURATE PARTICULARS OF INCOME. 4. THE CIT(A) CONFIRMED THE ABOVE ADDITION JUSTIFYING THE REASONS MADE BY THE ASSESSING OFFICER. THE CIT(A) CORRECTED THE LACUNA WITH REFERENCE TO THE USE OF SECTION 68 OF THE ACT IN PLACE OF SECTION 69 OF THE ACT. 5. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE GROUNDS EXTRACTED ABOVE. ITA NO.169/PUN/2017 - 3 - 6. BEFORE ME, LD. COUNSEL FOR THE ASSESSEE EXPLAINED THE ABOVE FACTS OF THE CASE AND ARGUED VEHEMENTLY STATING THAT THE SAID ADDITION OF RS.7,55,000/- MADE BY THE ASSESSING OFFICER IS NOT CORRECT. THE LD. COUNSEL ALSO ARGUED THAT THE CORRECTION MADE BY THE CIT(A) WITH REFERENCE TO THE USE OF SECTION 68 OF THE ACT MADE BY THE CIT(A) IS ALSO NOT CORRECT. WITHOUT GOING INTO THE MERITS OF THE LEGAL ISSUE, LD. COUNSEL MENTIONED THAT CONFIRMING PART OF ADDITION IS ALSO ACCEPTABLE. IN THIS REGARD, THE UNDISPUTED FACTS RELATING TO THE OWNERSHIP OF THE LAND, FILING OF THE RELEVANT 7/12 EXTRACTS, WHICH DEFINES THE FACT RELATES TO THE GROWTH THE BANANA BAUG, GURHAL AND SHETMAL BHUSAR ARE TOTALLY IGNORED BY THE ASSESSING OFFICER AS WELL AS THE CIT(A) WHILE CONFIRMING THE ABOVE ADDITION OF RS.7,55,000/-. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE HEAVILY RELIED ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 8. I HEARD BOTH THE SIDES AND FIND THE FACT THAT THE ASSESSEE DEPOSITED TOTAL CASH OF RS.14,13,900/-. AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER RESTRICTED THE ADDITION TO RS.7,55,000/- ONLY. THE ASSESSEE PREPARED CASH STATEMENT AND NARRATED THE SOURCES FOR THE SAME. PART OF THE CASH DEPOSITS ARE EXPLAINED BY VIRTUE OF CASH WITHDRAWAL IN THE INDAPUR URBAN CO-OPERATIVE BANK AND OTHER CASH RECEIPTS FOR WANT OF BILLS ABOUT THE SALES OF BANANA BAUG, GURHAL, SHETMAL BHUSAR ETC, THE ASSESSING OFFICER MADE ADDITION OF RS.7,55,000/-. IN MY VIEW, SUCH DECISION IS UNSUSTAINABLE IN FULL WHEN THE ASSESSEE OWNS A LAND WHICH EVIDENT FROM THE 7/12 EXTRACTS AND ALSO EVIDENT FROM THE GROWTH OF ITA NO.169/PUN/2017 - 4 - CROPS IN THE SAID LAND. CONSIDERING THE ABOVE FACTS, I AM OF THE OPINION THAT CONFIRMING OF ADDITION OF RS.2,55,000/- ON AD-HOC BASIS SHOULD BE MET THE ENDS OF JUSTICE. ACCORDINGLY, THE ASSESSEE GETS RELIEF OF RS.5,00,000/-. THUS, THE RELEVANT GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF JANUARY, 2020. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 15 TH JANUARY, 2020. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-3, PUNE; 4. THE PR. CIT-2, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE