Brijesh Kumar Singhal, Hyderabad V. Income Tax Officer, Ward-12(3), Hyderabad

ITA 1869/Hyd/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2417 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 20-02-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 15-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Keywords: Unexplained cash credit; Gift; Source of fund; Application of stay; Additional evidence
• Section: 142(1); 143(1); 144

Judgement Text

ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO.1869/HYD/2017 & SA NO.33/HYD/2019 (ASSESSMENT YEAR: 2010-11) SHRI BRIJESH KUMAR SINGHAL HYDERABAD PAN: AHOPB7911J VS INCOME TAX OFFICER WARD 12(3) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.C. DEVDAS FOR REVENUE : SHRI NILANJAN DEY, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. ITA NO.1869/HYD/2017 THIS IS ASSESSEES APPEAL FOR THE A.Y 2010-11 AGAIN ST THE ORDER OF THE CIT (A)-8 HYDERABAD, DATED 12/09/2 017. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A N INDIVIDUAL AND AN EMPLOYEE OF M/S. MFC TRANSPORT PV T. LTD, FILED HIS RETURN OF INCOME FOR THE A.Y 2010-11 ON 02.07.2 010 DECLARING AN INCOME OF RS.7,16,750/-. THE RETURN WAS INITIALL Y PROCESSED U/S 143(1) AND SUBSEQUENTLY IT WAS SELECTED FOR SCR UTINY UNDER CASS. NOTICES U/S 143(2) AND 142(1) WERE ISSUED. HO WEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE, T HE ASSESSMENT WAS COMPLETED U/S 144 OF THE I.T. ACT AS PER THE IN FORMATION DATE OF HEARING : 20.02.2019 DATE OF PRONOUNCEMENT : 13.03.2019 ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 2 OF 7 AVAILABLE ON RECORD. ON VERIFICATION OF THE BANK ST ATEMENT OF THE ASSESSEE, THE AO OBSERVED THAT THE ASSESSEE HAD MAD E CASH DEPOSITS OF RS.22,21,000/- IN AXIS BANK, DILSUKHNAG AR BRANCH WITH A/C NO.235010100067209 AND AN AMOUNT OF RS.9,5 1,000/- IN ICICI BANK, HIMAYATNAGAR BRANCH WITH A/C NO./018301508872. FURTHER, THE AO ALSO OBSERVED THA T THE ASSESSEE HAS PURCHASED A FLAT VIDE REGISTERED DOCUM ENT NO.1527/2009 FOR A CONSIDERATION OF RS.31,76,000/- AND HAD PAID A SUM OF RS.2,38,200/- TOWARDS STAMP DUTY IN CASH. THE ASSESSEE WAS THEREFORE, ASKED TO EXPLAIN THE SOURCES FOR CAS H DEPOSITS MADE INTO THE ABOVE BANK A/CS AND ALSO THE PAYMENT OF STAMP DUTY AND THE CREDIT CARD PAYMENT. FURTHER, AS PER T HE CREDIT STATEMENT OF THE ICICI BANK, THERE WERE CASH PAYMEN TS OF RS.2,57,250. HOWEVER, NO INFORMATION WAS FILED BY T HE ASSESSEE, AND THEREFORE, THE AO TREATED THE TOTAL SUM OF RS.3 4,29,250/- AS UNEXPLAINED CASH CREDIT AND BROUGHT IT TO TAX. SINC E THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THIS CASH PAYMENT, THE SAME WAS ALSO BROUGHT TO TAX. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT (A). THE ASSESSEE EXPLAINED THE SOURCES FOR CAS H DEPOSITS TO THE TUNE OF RS.31,72,000/- INTO THE BANK A/C AS UND ER: I) GIFT FROM SMT. SAROJ SINGHAL RS.13,25,000/- II) CASH WITHDRAWN AND REDEPOSITED RS.9,18,000/- III) TRANSPORT COMMISSION EARNED OF RS.9,29,000/- 4. AS REGARDS THE SOURCES OF SMT. SAROJ SINGHAL, TH E ASSESSEES MOTHER WAS CONCERNED, IT WAS STATED TO B E AGRICULTURAL INCOME EARNED DURING THE YEAR OF RS.3,35,000/- AND THE SALE OF JEWELLERY DURING FEBRUARY AND MARCH, 2009 OF RS.9,9 1,440/-. IN ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 3 OF 7 SUPPORT OF THE AGRICULTURAL INCOME, AN AFFIDAVIT OF SMT. SAROJ SINGHAL WAS FILED STATING THAT SHE HAD TAKEN 29 ACR ES OF AGRICULTURAL LAND ON LEASE IN RAJASTHAN FROM ONE MR S. SONU DEVI AND HAS EARNED THE AGRICULTURAL INCOME. A CONFIRMAT ION LETTER FROM SMT. SONU DEVI OF HAVING GIVEN LAND ON LEASE W AS FILED. WITH REGARD TO THE SALE OF JEWELLERY, THE ASSESSEE FILED COPIES OF CASH MEMOS IN THE FORM OF ESTIMATE FROM ONE SRI GITA J EWELLER, VASUNDHARA, GHAZIABAD, UP AND AN AFFIDAVIT FROM SRI SUBHAS STATED TO BE OWNER OF M/S. GITA JEWELLERS CONFIRMIN G THE SALE OF JEWELLERY WAS ALSO FILED. 5. THE CIT (A) THEREFORE, CALLED FOR A REMAND REPOR T FROM THE AO AND THE AO OBSERVED THAT WITH REGARD TO THE CASH DEPOSITS, OUT OF WITHDRAWALS MADE EARLIER, THE ASSESSEES SUB MISSION APPEARS TO BE REASONABLE. WITH REGARD TO THE CLAIM OF TRANSPORT COMMISSION EARNED OF RS.9,29,000, THE AO SUBMITTED THAT NO SUCH INCOME WAS DECLARED IN THE RETURNS FILED BY TH E ASSESSEE. AS REGARDS THE CASH PAYMENT OF CREDIT CARD EXPENSES, T HE AO STATED THAT THE ASSESSEE HAS NOT SUBMITTED ANY EXPLANATION AND FURTHER THAT THESE PAYMENTS ARE NOT REFLECTED IN THE CASH B OOK. WITH REGARD TO THE PAYMENT OF STAMP DUTY OF RS.2,38,200/ -, THE AO STATED THAT A CREDIT IN THIS REGARD WAS MADE IN THE CASH BOOK ON 24.06.2009. WITH REGARD TO THE GIFT FROM HIS MOTHER , THE AO ENQUIRED FROM SRI SUBASH OF M/S. GITA JEWELLERS, GH AZIABAD, UP REGARDING SALE OF JEWELLERY AND IN RESPONSE TO THE LETTER MR. SUBHASH SUBMITTED THAT HE WAS NOT INVOLVED AND WAS NOT AWARE OF ANY GOLD TRANSACTION AND HIS SHOP WAS NOT FUNCTI ONAL DURING THE PERIOD MENTIONED IN THE QUERY AS IT CAME INTO E XISTENCE IN THE YEAR 2012 ONLY. WHEN THE ASSESSEE WAS CONFRONTED WI TH THIS ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 4 OF 7 INFORMATION, THE ASSESSEE REITERATED THE SUBMISSION S MADE EARLIER. AS REGARDS AGRICULTURAL INCOME, HE OFFERED THE ADDI TIONAL SUM OF RS.6,48,000 UNDER THE HEAD INCOME FROM OTHER SOURC ES. THE ASSESSEE THEREAFTER FILED A LETTER DATED 13.04.2015 CONFIRMING THE SALE OF JEWELLERY BY HIS MOTHER AND THAT HE HAS VOL UNTARILY OFFERED THE ADDITIONAL INCOME OF RS.6,48,000 AND RS.2,50,00 0 ON ACCOUNT OF CASH PAYMENS FOR THE CREDIT CARD TOTALING ABOUT RS.9,00,000/-. THEREAFTER, THE ASSESSEE FILED ANOTHER LETTER DATED 25.01.2016 ENCLOSING THE AFFIDAVITS OF SHRI PAWAN SINGHAL AND VIKAS SINGAL, THE YOUNGER BROTHERS OF THE ASSESSEE AND RESIDENTS OF GHAZIABAD, UP STATING THAT ALL THE FAMILY MEMBERS HAVE JOINTLY TAKEN A DECISION TO DISPOSE OF STRIDHAN/GOLD JEWELLERY BELO NGING TO THEIR MOTHER, SMT. SAROJ SINGHAL AND HANDED OVER THE SALE PROCEEDS TO THEIR ELDER BROTHER FOR ENABLING HIM TO MEET HIS FA MILY AND PERSONAL OBLIGATIONS. HE FURTHER FILED ANOTHER LETT ER DATED 25.01.2016, FURTHER SUBMISSIONS ALONG WITH ADDITION AL GROUNDS OF APPEAL THAT THE AO HAD WRONGLY CONCLUDED THAT THE D EPOSITS MADE INTO THE BANK ACCOUNTS HAVE NO SOURCES AND THAT THE SOURCES ARE AVAILABLE WITH THE ASSESSEE AS CASH GIFTS RECEIVED FROM HIS MOTHER AND ALSO COMMISSION DERIVED BY THE ASSESSEE FROM WH ICH THE STAMP DUTY AND ALSO CREDIT CARD PAYMENTS ARE MADE. THE CIT (A) ADMITTED THE ADDITIONAL EVIDENCE AND AFTER PERUSAL OF THE MATERIAL FILED BY THE ASSESSEE, HELD THAT THE ASSESSEE HAS B EEN CHANGING HIS STANDS AND TRIED TO CREATE A WEB OF EVIDENCES T O EXPLAIN THE CASH DEPOSITS INTO HIS BANK ACCOUNT CASH PAYMENTS. HE HELD THAT A MOTHER WOULD NOT SELL HER STRIDHAN FOR DEPOSITING THE CASH IN THE BANK A/C OF HER SON AND THEREFORE, IT IS NOT BE LIEVABLE. AS REGARDS THE TRANSPORT COMMISSION EARNED, HE HELD TH AT NO SUCH INCOME WAS OFFERED DURING THE YEAR UNDER CONSIDERAT ION AND NO ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 5 OF 7 EVIDENCE OR DETAILS ARE FURNISHED WITH REGARD TO PA YMENT OF COMMISSION EARNED. THEREFORE, HE DISALLOWED THE COM MISSION ALSO. ACCORDINGLY, HE CONFIRMED THE ENTIRE ADDITION MADE BY THE AO. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US BY RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT (A)-8 HYDERABAD CONFIRMING THE ADDITION OF RS.34,29,250 BEING CASH DEPOSITS IN AXI S BANK AT RS.22,21,000, RS.9,51,000 IN ICICI BANK AND CASH PAYMENTS FOR CREDIT CARD TRANSACTIONS AT RS.2,57,25 0 IS WHOLLY UNSUSTAINABLE BOTH IN FACT AND IN LAW AS BEI NG TOTALLY CONTRARY TO THE FACTS AND EVIDENCE ON RECOR D. 2. THE CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS.2,38,200 BEING REGISTRATION CHARGES PAID TOWARDS PURCHASE OF FLAT WHICH WERE FROM EXPLAINED SOURCES OF INCOME/FUNDS. 3. ANY OTHER GROUNDS THAT MAY ARISE AT THE TIME OF HEARING. 6. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE AFFIDAVIT FILED BY THE ASSESSEE AND THE ADDITIONAL EVIDENCE FILED THEREWITH. IN THE AFFIDAVIT, IT IS STATED THAT THE ASSESSEE, DUE TO HIS EMPLOYMENT, WA S DEPUTED TO DIFFERENT LOCATIONS IN INDIA TO EXECUTE TURN-KEY PR OJECTS OF THE COMPANY AND THEREFORE, WAS NOT AVAILABLE IN HYDERAB AD MOST OF THE TIME AND THE INCOME TAX PRACTITIONER TO WHOM HE HAD HANDED OVER THE CASE HAD NOT APPEARED AT THE TIME OF HEARI NG AND AT THE TIME OF THE APPEAL BEFORE THE CIT(A), THE CHARTERED ACCOUNTANT HAD MISLED HIM TO GIVE FALSE EVIDENCE AND THEREFORE , THE CIT (A) HAS CONFIRMED THE ADDITIONS. HE SUBMITTED THAT THE ASSESSEE HAD INCOME INCLUDING THE INCOME OF RS.24,00,455 OF HIS WIFE FOR THE PRECEDING 4 YEARS, AS PER THE ENCLOSURES TO THE AFF IDAVIT. THEREFORE, HE PRAYED THAT THE ADDITIONAL EVIDENCE E XPLAINING THE SOURCES BE ADMITTED AND VERIFIED. ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 6 OF 7 7. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AO AND SUBMITTED THAT THE ASSESSEE HA S ALL ALONG BEEN CHANGING HIS STAND. HE SUBMITTED THAT THE ASSE SSEE DID NOT APPEAR BEFORE THE AO AND THE EXPLANATION FOR NON-FU RNISHING OF THE DETAILS HAS BEEN THAT THE RELEVANT MATERIAL WAS WITH HIS REPRESENTATIVE, THE I.T. PRACTITIONER, BUT THE ASSE SSEE DID APPEAR BEFORE THE CIT (A) AS WELL, FILED THE RELEVANT EVID ENCE THROUGH HIS C.A. IT WAS SUBMITTED THAT THE AO, IN THE REMAND RE PORT, HAS CLEARLY BROUGHT OUT THAT THE RELEVANT EVIDENCE IS N OT ACCEPTABLE AND THEREFORE, THE CIT (A) HAS CONFIRMED THE ADDITI ON. HE SUBMITTED THAT THE ASSESSEES CLAIM THAT HE WAS MIS LED BY THE CHARTERED ACCOUNTANT IS NOTHING BUT CHANGING OF STA ND AND AT THIS STAGE, SUCH EXPLANATION SHOULD NOT BE ENTERTAI NED. 8. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE ASSESSEE DID NOT APPEAR BEFORE THE AO AND BEFORE THE CIT (A), BUT HAS FILED THE EVIDENCE EXPLAINING THE SOURCES FOR THE CASH DEPOSITS. THE CIT (A) HAD CALL ED FOR A REMAND REPORT AND THE AO HAD CONDUCTED NECESSARY INQUIRIES AND FOUND THE EVIDENCE TO BE NOT GENUINE. THE ASSESSEE IS NOW STATING THAT THE C.A. HAS MISLED HIM. HOWEVER, WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE ASSESSEE BECAUSE THE EVIDENCE FIL ED BY THE ASSESSEE WAS RELATING TO HIS MOTHER AND BROTHERS. E VEN THE CASH MEMO SUBMITTED BY THE ASSESSEE FROM ONE SRI GEETA J EWELLERS, GHAZIABAD HAS BEEN FOUND TO BE NOT GENUINE SINCE TH E SAID SHOP WAS NOT IN EXISTENCE DURING THE RELEVANT A.Y. THERE FORE, WE ARE NOT INCLINED TO ACCEPT THE ASSESSEES PLEA OF THE ADDIT IONAL EVIDENCE BECAUSE IT WAS CLEARLY A CHANGE OF STAND BY THE ASS ESSEE WHICH ITA NO 1869 OF 2017 & SA NO.33 BRIJESH KUMAR SINGHA L HYDERABAD. PAGE 7 OF 7 CANNOT BE ENTERTAINED AT THE STAGE OF SECOND APPEAL . THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER O F THE CIT (A). 9. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. SA NO.33/HYD/2019 10. SINCE THE APPEAL HAS BEEN DISPOSED BY ORDER EVE N DATED, THE STAY APPLICATION HAS BECOME INFRUCTUOUS. THUS, THE STAY APPLICATION IS REJECTED. 11. TO SUM UP, BOTH THE APPEAL AND STAY APPLICATION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MARCH, 2019. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 13 TH MARCH, 2019. VINODAN/SPS COPY TO: 1 SHRI BRIJESH KUMAR SINGHAL, FLAT NO.214, H.NO.3-5 -1083, SRI TARAJEET RESIDENCY, NARAYANGUDA, HYDERABAD 2 ITO WARD 12(3) AAYAKAR BHAVAN, FATEH MAIDAN ROAD, HYDERABAD 3 CIT (A)-8 HYDERABAD 4 PR. CIT 1, HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER