Feroz Alibhai Jeevani, Hyderabad V. ITO, Ward 8(2), Hyderabad

ITA 1718/HYD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74468 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S RAVI
• Keywords: Gift
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 1718/HYD/2012 ASSESSMENT YEAR: 2008-09 FEROZ ALIBHAI JEEVANI, HYDERABAD. PAN AHNPJ 2934 L VS. INCOME TAX OFFICER, WARD 8 (2), HYDERABAD. APPELLANT RESPONDENT ASSESSEE BY: SRI S. RAVI REVENUE BY: SRI SOLGY JOSE T. KOTTARAM DATE OF HEARING: 08/01/2014 DATE OF PRONOUNCEMENT: 08/01/2014 O R D E R PER CHANDRA POOJARI, AM: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDERS OF THE CIT(A)-III, HYDERABAD DATED 28/09/201 2 FOR THE ASSESSMENT YEAR 2008-09 WHEREIN THE ASSESSEE HAS RA ISED THE FOLLOWING GROUNDS OF APPEAL: THE ACTION OF THE CIT(A) IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IS CONTRARY TO LAW AND FACTS. THE CIT(A) OUGHT TO HAVE SEEN THAT THE APPELLANT HA S FURNISHED COMPLETE DETAILS OF THE CREDITS ADDED BY THE ASSESSING OFFICER. THE CIT(A) FAILED TO CONSIDER THE AMOUNTS RECEIVED BY WAY OF BANK TRANSFERS AMOUNTING TO RS. 16,72,524/- AND ERR ED IN MAKING THE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) FAILED TO NOTE THAT THE DEBITS IN THE BA NK ACCOUNT ARE OUT OF THE BALANCE AVAILABLE WITH HIM IN THE BA NK ACCOUNT. I.T.A. NO. 1718/HYD/2012 FEROZ ALIBHAI JEEVANI 2 THE CIT(A) FAILED TO OBSERVE THAT THE CASH DEPOSITS IN THE BANK ACCOUNT ARE OUT OF THE EARLIER WITHDRAWALS. 2. THE ONLY ISSUE IN APPEAL RELATES TO THE ADDITION OF RS. 28,09,975/- U/S 69 OF THE ACT. THE FACTS ARE THAT T HE ASSESSEE TRADES IN PROVISIONS AND ALSO POSSESSES AGRICULTURA L LAND. THE ASSESSING OFFICER ISSUED NOTICES IN RESPONSE TO WHI CH THE ASSESSEE STATED THAT HE HAD FILED HIS RETURNS U/S 44F AS HE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT. THE ASSESSING OFFICER FOUND T HAT THE ASSESSEE WAS HAVING A BANK ACCOUNT IN THE DEVELOPME NT CREDIT BANK, HYDERABAD WITH A/C NO. 02710300003134. DURING THE PERIOD 01/04/2007 TO 31/03/2008 THE ASSESSEE HAD MADE HUGE DEPOSIT INTO HIS BANK ACCOUNT. FINDING THAT THE DEPOSITS WERE PR IMARILY UNEXPLAINED, THE ASSESSING OFFICER MADE THE ABOVE A DDITION. 3. ON APPEAL, BEFORE THE CIT(A) IT WAS STATED THAT ALL THE DEPOSITS DURING THE CURRENT YEAR EMANATED OUT OF TH E DEPOSITS AND WITHDRAWALS OF THE EARLIER YEAR AND, THEREFORE, NO ADDITIONS WERE CALLED FOR. THE ASSESSEE FILLED WRITTEN SUBMISSIONS BEFORE THE CIT(A), WHICH WERE EXTRACTED BY THE CIT(A) IN THE I MPUGNED ORDER FROM PAGES 4 TO 6. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSE E, THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R BY HOLDING THAT THE ASSESSEE HAS MERELY ROUTED HIS OWN MONEY T HROUGH THE BANK ACCOUNT OF HIS SON, TO GIVE THE IMPRESSION THA T AMOUNTS HAVE BEEN RECEIVED AS LOANS FROM CLOSE RELATIVES AND IN FACT THERE IS NO EVIDENCE REGARDING LOANS. HIS OWN MONEY IS BEING RO UTED THROUGH VARIOUS ACCOUNTS TO DECEIVE THE REVENUE. HE FURTHER HELD THAT NONE OF THE EXPLANATIONS GIVEN BY THE ASSESSEE ARE CORRE CT AND THERE IS NO SUPPORT TO THE ARGUMENTS EITHER THROUGH EVIDENCE OR THROUGH HUMAN PROBABILITY. I.T.A. NO. 1718/HYD/2012 FEROZ ALIBHAI JEEVANI 3 5. AS REGARDS THE AMOUNT OF RS. 5,97,524/- RECEIVED BY WAY OF US DOLLAR TRANSFER ON 20/02/2008, THE CIT(A) HELD T HAT THOUGH THIS CONTENTION IS CORRECT, HOWEVER, THE FACT THAT SOME AMOUNT HAS BEEN TRANSFERRED FROM OVERSEAS DOES NOT MAKE IT TAX FREE MONEY AND THERE IS NO EVIDENCE TO SHOW THAT THIS TRANSFER DID NOT REFLECT IN COME OF THE ASSESSEE AS THERE IS NO EVIDENCE OF A F OREIGN LOAN OR A FOREIGN GIFT. 6. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US. 7. BEFORE US, THE ASSESSEE FILED A WRITTEN SUBMISSI ONS WHEREIN IT WAS STATED AS FOLLOWS: FROM THE BANK STATEMENT ISSUED BY DCB, HYDERABAD, T HE APPELLANT WAS HAVING A CREDIT BALANCE OF RS. 6,31,6 37.35 ON 01/04/2007. THE APPELLANT ADVANCED A SUM OF RS. 3.00 LAKHS BY C HEQUE NO. 700725 TO MR. RAHIM NARSINGANI AS A TEMPORARY L OAN WHICH WAS DEBITED TO THE ACCOUNT OF THE APPELLANT O N 30/07/2007. THIS SUM OF RS. 3.00 LAKHS WAS RETURNED BY MR. RAHI M BY CASH AND DEPOSITED IN THE BANK ACCOUNT BY THE APPEL LANT ON 08/08/2007. ON THE DAY THE HAND LOAN OF RS. 3.00 LA KHS GIVEN TO MR. RAHIM, THE APPELLANT WAS HAVING A BANK BALAN CE OF RS. 4,38,446.35. ONCE AGAIN A SUM OF RS. 3.00 LAKHS WAS ADVANCED TO MR. RAHIM BY CHEQUE NO. 700727 WHICH WAS DEBITED TO THE BANK ACCOUNT OF THE APPELLANT ON 18/08/2007. THIS SUM OF RS. 3.00 LAKHS WAS RETURNED BY MR. RAHI M BY CASH ON 03/09/2007 AND THE SAME WAS DEPOSITED ON TH E SAME DAY IN THE ACCOUNT OF THE APPELLANT. A SUM OF RS. 10.00 LAKHS WAS WITHDRAWN ON 13/09/200 7 AND GIVEN TO A REAL ESTATE AGENT FOR PROCURING A HOUSE SITE. SINCE THE BROKER WAS NOT ABLE TO FIND A SUITABLE HOUSE SI TE, THE APPELLANT DEMANDED REFUND OF THE ADVANCE AND THE RE FUND RECEIVED FROM THE REAL ESTATE AGENT FORM TIME TO TI ME WAS DEPOSITED IN THE BANK ACCOUNT. I.T.A. NO. 1718/HYD/2012 FEROZ ALIBHAI JEEVANI 4 A SUM OF RS. 3.00 LAKCS WAS DEPOSITED ON 17/01/2008 AND A SIMILAR SUM WAS WITHDRAWN ON 19/12/2007. 8. THE LEARNED DR, ON THE OTHER HAND RELIED UPON TH E ORDERS OF THE REVENUE AUTHORITIES. 9. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES, PERUSED THE RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE HAS STATED THAT ON 30/07/2007 AN AMOUNT OF RS. 3.00 LAKHS WAS GIVEN TO MR. RAHIM AND THE SAME WAS RETURNED BACK IN CASH ON 08/08/2007 AND WAS IMMEDIATELY GIVE N AGAIN TO MR. RAHIM AS LOAN. WE FIND THAT THERE IS NO EVIDENCE T O SHOW THAT MR. RAHIM HAS REPAID THE AMOUNT AS CLAIMED AND THERE IS NO CONFIRMATION FROM MR. RAHIM AS ALSO THERE IS NO EVI DENCE TO INDICATE THAT CASH OF RS. 3.00 LAKHS DEPOSITED BY T HE ASSESSEE ON 08/08/2007 WAS RETURNED BY MR. RAHIM. 9.1 AS REGARDS THE EXPLANATION OF THE ASSESSEE THAT RS. 10,00,000/- WITHDRAWN ON 13/09/2007 AND GIVEN TO A REAL ESTATE AGENT FOR PROCURING A HOUSE SITE AND SUBSEQUENTLY R ECEIVED BACK IN VARIOUS INSTALMENTS, TO BE DEPOSITED BACK IN CASH I S ALSO DEVOID OF ANY EVIDENCE AND BELIES HUMAN PROBABILITY. THE SO C ALLED REAL ESTATE AGENT HAS NOT BEEN IDENTIFIED BY THE ASSESSE E AND EVEN THE NAME HAS NOT BEEN PROVIDED. NO DETAILS OF PROPERTY HAVE BEEN GIVEN. IT IS ALSO AGAINST ALL HUMAN PROBABILITY THA T SOMEONE WOULD JUST HAND OVER A HUGE AMOUNT OF MONEY TO A PERSON W ITHOUT ANY RECEIPT, WITHOUT EVEN BEING ABLE TO IDENTIFY THE PE RSON AND WITHOUT BEING EVEN CLEAR ABOUT WHICH PROPERTY IS TO BE PURC HASED. 9.2 THE NEXT EXPLANATION OF ASSESSEE THAT RS.3,00,0 00/- WAS DEPOSITED ON 17/01/2008 BECAUSE IT WAS WITHDRAWN EA RLIER HAS NO EVIDENTIARY VALUE. WE ARE OF THE VIEW THAT HE HAS T O CORRELATE THE WITHDRAWALS WITH THE DEPOSITS GIVING COGENT PROOF-B ASED REASONS TO ESTABLISH THAT THE TWO PERTAIN TO THE SAME MONEY. I.T.A. NO. 1718/HYD/2012 FEROZ ALIBHAI JEEVANI 5 9.3 AS REGARDS THE AMOUNT OF RS. 8,00,000/-, WHICH WAS TRANSFERRED FROM THE BANK ACCOUNT OF MR. SALIM FERO Z JEEVANI ON 22/08/2007 AND RS. 2,75,000/- FROM THE SAME ACCOUNT ON 28/01/2008 CLAIMED THAT THESE ARE LOANS GIVEN BY HI S SON TO HIM, ON PERUSAL OF RECORD WE FIND THAT THE ASSESSEE HIMSELF DEPOSITED RS. 8,00,000/- CASH AND RECEIVED THE CHEQUE FROM HIS SO N. 9.4 AS REGARDS THE AMOUNT OF RS. 5,97,524/- RECEIVE D ON 20/02/2008 BY WAY OF US DOLLAR TRANSFER, THERE IS N O EVIDENCE TO SHOW THAT THIS TRANSFER DID NOT REFLECT THE INCOME OF THE ASSESSEE NOR ANY EVIDENCE THAT IT IS A FOREIGN LOAN OR A FOR EIGN GIFT. 9.5 WE FIND THAT THE CIT(A) BEFORE CONFIRMING THE A DDITION MADE BY THE ASSESSING OFFICER HAS EXAMINED THE ISSUE WIT H THE BANK STATEMENTS PROVIDED BY THE ASSESSEE AND HELD THAT T HE ARGUMENTS ADVANCED BY THE ASSESSEE HAVE NOT BEEN SUPPORTED BY ANY EVIDENCE OR THOUGH HUMAN PROBABILITY. EVEN BEFORE U S, THE ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM BY WAY OF DOCUMENTARY EVIDENCE OR PROPER EXPLANATION. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS. 28,09,975/- MADE BY THE ASSESSING OFFICER U/S 69 OF THE IT ACT AND, HENCE, THE SAME IS HEREBY BY HELD DISMISSING THE GROUNDS RAISE D BY THE ASSESSEE IN THIS REGARD. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. PRONOUNCED IN THE OPEN COURT ON 08/01/2014 SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 08/01/2014. KV I.T.A. NO. 1718/HYD/2012 FEROZ ALIBHAI JEEVANI 6 COPY FORWARDED TO: 1. FEROZ ALIBHAI JEEVANI, 2-4-65/D, ROSHINI BUILDIN G, UPPERPALLI, RAJENDRA NAGAR, RR DIST., HYDERABAD 2. ITO, WARD 8 (2), HYDERABAD 3. CIT(A)-III, HYDERABAD 4. CIT-II, HYDERABAD. 5. THE DR, ITAT, HYDERABAD