Sh. Krishan Kumar Sharma, Agra V. I.T.O., Ward-1(1), Agra

ITA 183/AGR/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67420 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Peak credit; Revised return
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 183/AGRA/2013 ASSTT. YEAR : 2009-10 SHRI KRISHAN KUMAR SHARMA, VS. INCOME-TAX OFFICER , 51/214E/3, DASHRATH KUNJ, WARD 1(1), AGRA. WEST ARJUN NAGAR, AGRA. (PAN : AIVPS 1380 E) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 07.08.2013 DATE OF PRONOUNCEMENT OF ORDER : 14.08.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-I, AGRA DATED 31.01.2013 FOR THE ASSESSMENT YEAR 2009- 10 ON THE FOLLOWING GROUNDS : 1. THAT THE LD. CIT(APPEALS) WAS WRONG AND UNJUST IN CONFIRMING THE ADDITION MADE BY THE LD. ASSESSING O FFICER OF RS.14,05,912/- UNDER SECTION 69A OF THE IT ACT, 196 1, BEING THE PEAK BALANCE IN AXIS BANK ACCOUNT ON SUBSTANTIVE BASIS W ITHOUT PROPERLY APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CAS E. 2. THAT THE LD. A.O. WHILE MAKING AFORESAID ADDITI ON FAILED TO APPRECIATE THE FACTS THAT THE SAID ACCOUNT WAS RELA TED TO THE WIFE OF APPELLANT SMT. MANJU SHARMA AND THE SAID ACCOUNT WA S SHOWN IN HER RETURN. ITA NO. 183/AGRA/2013 2 3. THAT THE LD. AO WHILE MAKING AFORESAID ADDITION ALSO FAILED TO APPRECIATE THE FACTS THAT THE CASE OF WIFE OF TH E APPELLANT FOR AY 2009-10 WAS COMPLETED UNDER SECTION 143(3) OF THE I NCOME TAX ACT, 1961 AND THE SAID BANK ACCOUNT WAS PRESENTED BEFORE THE LD. A.O. AND CONSIDERED BY HIM WHILE CONCLUDING ASSESSMENT OF SM T. MANJU SHARMA UNDER SECTION 143(3) OF THE IT ACT, 1961. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS I NDIVIDUAL AND FILED RETURN OF INCOME SHOWING AN INCOME OF RS. 3,30,200/- ON 09.03 .2010. APART FROM OTHER ISSUES, THE AO ALSO CONSIDERED THE ISSUE OF DEPOSIT MADE IN THE AXIS BANK, AGRA, WHICH IS THE SOLE ISSUE INVOLVED IN ALL THE ABOVE G ROUNDS OF APPEAL. IT WAS NOTICED THAT THERE IS A BANK ACCOUNT IN THE JOINT NAME OF A SSESSEE AND HIS WIFE, SMT. MANJU SHARMA WITH AXIS BANK, AGRA HAVING SAVING BANK ACCO UNT NO. 086010100237772. THE COPY OF THE BANK STATEMENT OF AXIS BANK, AGRA WAS RECEIVED BY ISSUING NOTICE U/S. 133(6) OF THE IT AC T. THE ASSESSEE ALSO FILED REPLY ALONG WITH HIS AFFIDAVIT STATING THEREIN THAT HE HA S A JOINT ACCOUNT WITH HIS WIFE SMT. MANJU SHARMA WITH AXIS BANK, AGRA BEARING THE ABOVE ACCOUNT NUMBER. THIS ACCOUNT IS SHOWN IN HIS WIFES INCOME-TAX RETURN, W HO IS OLD REGULAR INCOME TAX ASSESSEE AND IS ASSESSED WITH DIFFERENT WARD OF INC OME-TAX OFFICER, AGRA. THE AO FOUND THAT THOUGH THIS ACCOUNT IS JOINTLY HELD BY T HE ASSESSEE AND HIS WIFE, BUT THE ASSESSEE IS FIRST ACCOUNT HOLDER, HENCE, THE ACCOUN T MAINTAINED IN AXIS BANK, AGRA IS RELATED TO THE ASSESSEE AND ALL THE ENTRIES SHOW N IN THE ACCOUNT WILL BE ACCOUNTED FOR IN HIS HANDS. THE AO ALSO NOTED THAT DURING THE YEAR UNDER CONSIDERATION, THE ITA NO. 183/AGRA/2013 3 ASSESSEE HAS RECEIVED INTEREST ON SAVING BANK ACCOU NT TO RS.36,434/- WHICH HAS BEEN SHOWN BY THE ASSESSEE IN THE REVISED RETURN OF INCOME. THE DETAILS OF THE BANK DEPOSITS MADE IN CASH WITH AXIS BANK, AGRA IS REPRO DUCED AT PAGES 5 & 6 OF THE ASSESSMENT ORDER TOTALING TO RS.29,17,500/-. THE MA XIMUM BALANCE ON A PARTICULAR DAY WAS FOUND AT RS.15,85,847/- AND AT THE BEGINNIN G OF THE YEAR, THE OPENING BALANCE WAS RS.1,79,935/-. THUS, THE PEAK VALUE OF THE CASH DEPOSITED WAS RS.14,05,912/- (15,85,847 1,79,935) AND THE SAME WAS ADDED SUBSTANTIVELY IN THE HANDS OF THE ASSESSEE. THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A) AND THE SAME SUBMISSIONS WERE REITERATED THAT IT WAS AN ACC OUNT OF WIFE OF ASSESSEE SMT. MANJU SHARMA, WHICH IS DISCLOSED IN HER RETURN OF I NCOME AND REGULAR ASSESSMENT HAS BEEN FRAMED U/S. 143(3) FOR THE SAME ASSESSMENT YEAR, 2009-10 AND ACCOUNT HAS BEEN ACCEPTED IN HER HAND. THE LD. CIT(A) CALLE D FOR THE REMAND REPORT FROM THE AO AND DIRECTED TO ASCERTAIN THE DEPOSITS IN TH E AXIS BANK, AGRA BELONGS TO WHOM. THE STATEMENT OF WIFE OF THE ASSESSEE SMT. MA NJU SHARMA WAS RECORDED ON OATH, WHICH IS REPRODUCED IN THE APPELLATE ORDER AN D IN ANSWER TO QUESTION NO. 9 SHE HAS ADMITTED THE ACCOUNT IN QUESTION WITH AXIS BANK, AGRA BELONGS TO HER AND IS BEING USED FOR BUSINESS PURPOSES. THE ASSESSEE R EITERATED HIS STAND IN THE REJOINDER AND SUBMITTED THAT SMT. MANJU SHARMA, HAS NOT DENIED THE OWNERSHIP OF THE ABOVE ACCOUNT AND ALL THE BANK ENTRIES ARE OWNE D UP BY HER. IT WAS, THEREFORE, SUBMITTED THAT THE ADDITION IS WHOLLY UNJUSTIFIED. THE LD. CIT(A), HOWEVER, DID NOT ITA NO. 183/AGRA/2013 4 ACCEPT THE CONTENTION OF THE ASSESSEE BECAUSE THE A SSESSEE IS THE FIRST ACCOUNT HOLDER AND WAS CONSIDERED AS OWNER OF THE BANK ACCO UNT. THE DISCREPANCIES IN THE STATEMENT OF SMT. MANJU SHARMA WERE CONSIDERED FOR THE PURPOSE OF REJECTING THE CLAIM OF ASSESSEE. SMT. MANJU SHARMA IN HER STATEME NT HAS FAILED TO SUBSTANTIATE HER CLAIM OF BEING CREDITWORTHY PERSON HAVING GENUI NE SOURCE FOR DEPOSIT IN THE BANK ACCOUNT. ACCORDINGLY, THE APPEAL OF THE ASSESS EE WAS DISMISSED ON THIS GROUND. 3. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE BANK ACCOU NT BELONG TO SMT. MANJU SHARMA, WIFE OF THE ASSESSEE. COPY OF BANK ACCOUNT IS FILED AT PAGE 12 OF THE PAPER BOOK. PB-24 IS THE LEDGER ACCOUNT OF BANK INTEREST TO SHOW RECEIPT OF INTEREST IN A SUM OF RS.36,434/- OUT OF SEVERAL OTHER BANK ACCOUN TS, BUT NO INTEREST HAS BEEN RECEIVED FROM AXIS BANK, AGRA UNDER CONSIDERATION. PB-1 AND 2 ARE THE COPIES OF RETURN OF INCOME WITH COMPUTATION IN WHICH SMT. MAN JU SHARMA HAS FILED RETURN OF INCOME SHOWING SAVING BANK INTEREST IN A SUM OF RS. 12,981/-. COPY OF HER BALANCE SHEET IS FILED AT PAGE 3 OF THE PAPER BOOK TO SHOW BALANCE WITH AXIS BANK, AGRA IN A SUM OF RS.12,02,503/-, WHICH TALLY WITH THE BANK BALANCE WITH AXIS BANK, AGRA (PB-15), JOINTLY HELD BY THE ASSESSEE AND HIS WIFE. HE HAS SUBMITTED THAT AO IN THE CASE OF SMT. MANJU SHARMA CALLED FOR THE DETAILS OF BANK DEPOSITS WITH AXIS BANK, ITA NO. 183/AGRA/2013 5 AGRA AND AFTER CONSIDERING THE REPLY OF SMT. MANJU SHARMA (PB-7) ACCEPTED HER CLAIM IN REGULAR ASSESSMENT ORDER U/S. 143(3) ON DA TED 13.07.2011 (PB-10) OF HOLDING THE BANK ACCOUNT WITH AXIS BANK, AGRA. PB-1 6 IS THE CASH BOOK WHICH SHOWS DEPOSIT MADE BY SMT. MANJU SHARMA WITH AXIS B ANK, AGRA. HE HAS, THEREFORE, SUBMITTED THAT ALL THE ABOVE EVIDENCES C LEARLY PROVE THAT SMT. MANJU SHARMA, WIFE OF ASSESSEE WAS OWNER OF THE BANK ACCO UNT IN QUESTION AND SHE OWNED UP THE SAME. HER CLAIM IS ACCEPTED BY THE AO IN REGULAR ASSESSMENT. THEREFORE, THE ADDITION IN HANDS OF THE ASSESSEE IS WHOLLY UNJUSTIFIED. 4. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE IS BENEFICIAL OWNER OF THE BANK ACCOUNT WITH AXIS BANK, AGRA IN WHICH THE NAME OF THE ASSESSEE IS APP EARING AS FIRST ACCOUNT HOLDER. THE STATEMENT OF SMT. MANJU SHARMA WAS RECORDED TO EXPLAIN THE DEPOSIT BUT SHE COULD NOT EXPLAIN THE SOURCE OF DEPOSITS. THE DISCR EPANCIES IN HER STATEMENT WERE VITAL IN NATURE WHICH HAVE BEEN CONSIDERED BY THE L D. CIT(A) FOR THE PURPOSE OF DISMISSING THE APPEAL OF THE ASSESSEE. THEREFORE, T HE APPEAL OF THE ASSESSEE HAS NO MERIT. THE SAME MAY BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD AND DO NOT FIND ANY JUSTIFICATION TO SUST AIN THE ADDITION OF RS.14,05,912/- ITA NO. 183/AGRA/2013 6 IN THE HANDS OF THE ASSESSEE. THE ASSESSEE FROM THE BEGINNING OF THE ASSESSMENT PROCEEDINGS SUBMITTED BEFORE THE AO THAT THOUGH THE ACCOUNT WITH AXIS BANK, AGRA WAS HELD JOINTLY WITH SMT. MANJU SHARMA, BUT I T WAS BANK ACCOUNT OWNED UP AND BELONGS TO HIS WIFE WHICH IS ALSO SHOWN IN HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 AND SHE HAS DISCLOSED THIS ACCOUNT WITH THE REVENUE DEPARTMENT. THE CLAIM OF THE ASSESSEE COULD NOT HAV E BEEN DISPUTED BY THE AO BECAUSE COPY OF THE RETURN FILED IN THE CASE OF SMT . MANJU SHARMA IS FILED ON RECORDS WHICH SHOWS THAT SHE HAS DISCLOSED THE ACCO UNT LYING IN AXIS BANK, AGRA IN HER BALANCE SHEET AS ON 31.03.2009 (PB-3) AND BA NK BALANCE WAS RS.12,02,503/- WHICH TALLY WITH THE BANK BALANCE AS PER THIS JOINT ACCOUNT AS ON 31.03.2009 (PB- 15). THE ASSESSING OFFICER IN THE CASE OF SMT. MANJ U SHARMA EXAMINED HER RETURN OF INCOME U/S. 143(3) AND CALLED FOR THE DETAILS OF DEPOSITS MADE WITH AXIS BANK, AGRA. COPY OF ORDER SHEET IS FILED AT PAGE 5 & 6 OF THE PAPER BOOK. THE REPLY OF SMT. MANJU SHARMA IS FILED AT PAGE 7 & 8 OF THE PAP ER BOOK, IN WHICH SHE HAS CONFIRMED HOLDING BANK ACCOUNT WITH AXIS BANK, AGRA FOR HER BUSINESS PURPOSE AND SHE CONFIRMED THAT THIS BANK ACCOUNT BELONGS TO HER. SHE HAS OWNED UP ALL THE ENTRIES CONTAINED THEREIN AND ALSO EXPLAINED IN HER REPLY (PB-9) THAT ALL CASH TRANSACTIONS HAVE BEEN SHOWN IN THE CASH BOOK MAINT AINED BY HER. THE CLAIM OF SMT. MANJU SHARMA WAS ACCEPTED IN THE ASSESSMENT OR DER U/S. 143(3) DATED 13.07.2011 (PB-10), I.E., PRIOR TO PASSING OF THE I MPUGNED ASSESSMENT ORDER IN THE ITA NO. 183/AGRA/2013 7 CASE OF ASSESSEE ON 07.12.2011. THEREFORE, THERE WA S NO MATERIAL EVIDENCE AVAILABLE WITH THE AO TO PROVE THAT THE SAID BANK A CCOUNT WITH AXIS BANK, AGRA PERTAINED TO THE ASSESSEE. THE ENTRIES FROM THE BAN K ACCOUNT ARE ALSO CONFIRMED BY RECORDING ENTRIES IN THE CASH BOOK (PB-16 TO 21). A LL THESE EVIDENCES AND MATERIAL ON RECORD CLEARLY PROVE THAT THE BANK ACCOUNT WITH THE AXIS BANK, AGRA BELONGS TO THE WIFE OF THE ASSESSEE SMT. MANJU SHARMA. THERE W AS NO OTHER EVIDENCE AVAILABLE ON RECORD TO PROVE THAT THE BANK ACCOUNT BELONGS TO THE ASSESSEE. THUS, DISCREPANCY, IF ANY, IN THE STATEMENT OF MANJU SHAR MA OR THAT THE NAME OF ASSESSEE IS APPEARING FIRST IN THE BANK ACCOUNT, WOULD NOT L EAD TO THE CONCLUSION THAT THE ASSESSEE WAS BENEFICIAL OWNER OF THE BANK ACCOUNT W ITH AXIS BANK, AGRA. SINCE THE REVENUE DEPARTMENT ACCEPTED THE CLAIM OF SMT. MANJU SHARMA IN HER REGULAR ASSESSMENT THAT THE ENTRIES CONTAINED IN THE BANK A CCOUNT WITH AXIS BANK, AGRA BELONGS TO SMT. MANJU SHARMA BY ASSESSING HER INCOM E AS PER PROFIT AND LOSS ACCOUNT AND BALANCE SHEET. THEREFORE, FINDING OF AU THORITIES BELOW COULD NOT BE SUSTAINED. FURTHER, THE AO NOTED THAT FROM ALL THE SEVEN BANK ACCOUNTS, INCLUDING BANK ACCOUNT WITH AXIS BANK, AGRA, THE ASSESSEE HAS SHOWN INTEREST OF RS.36,434/- IN THE REVISED RETURN, THEREFORE, ASSESSEE IS OWNER OF THIS BANK ACCOUNT. HOWEVER, FINDING OF THE AO ARE INCORRECT BECAUSE THE DETAILS OF INTEREST ARE FILED AT PAGE 24 OF THE PAPER BOOK TO SHOW THAT THE ASSESSEE HAS EAR NED INTEREST OF RS.36,434/- FROM SEVERAL BANK ACCOUNTS EXCEPT AXIS BANK, AGRA. THERE FORE, THE ASSESSEE HAS NOT ITA NO. 183/AGRA/2013 8 EARNED ANY INTEREST FROM AXIS BANK, AGRA. WHATEVER INTEREST IS CONSIDERED WITH THE AXIS BANK, AGRA HAS ALREADY BEEN CONSIDERED IN THE CASE OF SMT. MANJU SHARMA. THEREFORE, THIS REASON IS ALSO NOT SUFFICIENT TO HO LD THAT THE ASSESSEE WAS OWNER OF BANK ACCOUNT WITH AXIS BANK, AGRA. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES NOTED ABOVE IN THE LIGHT OF EVIDENCES ON RECORD, WE ARE OF THE VIEW THAT THE ADDITION IN THE HANDS OF THE ASSESSEE IN R ESPECT OF DEPOSITS MADE WITH THE BANK ACCOUNT OF AXIS BANK, AGRA IS NOT JUSTIFIED. W E ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDI TION OF RS.14,05,912/-. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY