Smt. Rukhsana Riyazuddin Saiyed, Navsari V. The Income Tax Officer, Ward-4, Navsari

ITA 1891/AHD/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0033 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-10-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 18-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment
• Section: 142(1); 133(6); 147; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO. 1891/AHD/2016 / ASSESSMENT YEAR : 2007-08 SMT. RUKHSANA RIYAZUDDIN SAIYED, PROP. OF BADRA PETROLEUM PRODUCTS, 4/201, KADRI MANZIL, MOTHWAD STREET, NAVSARI-396445 PAN : ABNPS 6806 N VS INCOME-TAX OFFICER, WARD-4, NAVSARI / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI RAJESH UPADHYAY, AR REVENUE BY : SHRI PRASOON KABRA, SR DR / DATE OF HEARING : 05/10/2016 / DATE OF PRONOUNCEMENT: 11/11/2016 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), VALSAD DATED 16.05.2016 FOR AY 2007-08. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APP EAL:- 1. LD. CIT(A), VALSAD HAS ERRED IN LAW AND ON FACTS TO UPHELD AOS ACTON OF REOPENING THE ASSESSMENT U/S 147 OF THE ACT AND ISS UE OF NOTICE U/S 148 OF THE ACT. 2. THE AO HAS ERRED IN LAW AND ON FACTS TO PASS SPEAKI NG ORDER ON APPELLANTS OBJECTION FOR REOPENING OF ASSESSMENT. LD. CIT(A), VALSAD HAS ERRED IN UPHOLDING AOS ACTION AND HELD THAT REOPENING AND R EASSESSMENT PROCEEDINGS ARE VALID IN LAW. 3. LD. CIT(A), VALSAD HAS ERRED IN LAW AND ON FACTS TO UPHELD ADDITION OF RS.47,70,431/- MADE BY THE AO OVERLOOKING ADMISSION OF SMT. BILKISHBANU M. SAIYED WHO IS ASSESSED TO TAX, FILING ROI AND HO LDER OF PAN. ITA NO.1891/AHD/2016 SMT. RUKHSANA R. SAIYED VS. ITO AY : 2007-08 2 3. THE FACTS OF THE CASE ARE THAT THE RETURN OF INC OME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 31.10.2007 DECLARING TOT AL INCOME OF RS.3,68,756/- AND THE SAID RETURN WAS PROCESSED U/S 143(1) OF THE ACT, ACCEPTING THE INCOME RETURNED. THEREAFTER, THE CASE WAS SELECTED MANUALLY FOR SCRUTINY ON THE BASIS OF AIR INFORMATION. ACCORDINGLY, NOTICE U/S 148 WAS ISSUED ON 12.03.2014 WHICH WAS DULY SERVED UPON THE ASSESSEE ON 15.03.2014. SUBSEQUENTLY, NOTICE U/S 142(1) OF THE ACT ALONGWIT H QUESTIONNAIRE WAS ISSUED ON 01.05.2014 AND DULY SERVED UPON THE ASSES SEE ON 06.05.2014. ALL THE NOTICES WERE DULY ATTENDED BY THE ASSESSEE FROM TIME TO TIME. 3.1 IN THIS CASE, THE ASSESSEE RUNS A PROPRIETARY C ONCERN IN THE NAME AND STYLE OF M/S. BADRA PETROLEUM, A DEALER OF SKO OF I NDIAN OIL CORPORATION LTD. AND IS ENGAGED IN THE BUSINESS OF TRANSPORTATI ON. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THE ASS ESSEE WAS HAVING SAVINGS BANK ACCOUNT NO. 020601503038 WITH ICICI BANK, WHIC H WAS NOT REFLECTED IN HER REGULAR BOOKS OF ACCOUNT MAINTAINED FOR THE YEA R UNDER CONSIDERATION. LETTERS U/S. 133(6) WERE ISSUED TO THE BANK AND THE BANK HAS FURNISHED DETAILED BANK STATEMENT FOR THE PERIOD UNDER CONSID ERATION. IT WAS ALSO NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH AGGREG ATING TO RS.47,70,431/- IN THE SAID BANK ACCOUNT. ON BEING ASKED VIDE LETTER D ATED 04.03.2015, THE ASSESSEE VIDE HIS LETTER DATED 26.03.2015 EXPLAINED AS UNDER:- 'I, THE UNDERSIGNED, MRS. RUKHSANA RIYAZUDDIN SAIYA D, HAVE TO OBJECT REOPENING MY ASSESSMENT FOR A.Y.2007-08 FOR THE GRO UND STATED BY YOU IN YOUR LETTER DATED 04.03.2015 THE 'YOU HAVE DEPOSITE D CASH AMOUNTING TO RS.47,70431/- IN ICICI BANK.' THE REASON GIVEN BY Y OU IS INCORRECT IN LIGHT OF FOLLOWING FACTS: YOU HAVE NOT PROVIDED DATE WISE DETAILS OF CASH DEP OSITED IN ICICI BANK ACCOUNT. FURTHER, EVEN BRANCH OF THE BANK AND ACCOU NT NUMBER ARE ALSO NOT MENTIONED IN YOUR REOPENING STATEMENT. IT MAY POSSIBLE THAT YOUR CONCERN IS WITH S.B. ACCO UNT NUMBER 020601503038 WITH ICICI BANK, ROCKIES APPT., SAYAJI ROAD, NAVSARI- 396445. THE SAID ACCOUNT IS OPERATED BY MRS. BILKIS BANU M. SAIYED FOR HIS LPG GAS TRADING BUSINESS UNDER THE NAME AND STYLE ' FALCON AGENCIES'. SHE ITA NO.1891/AHD/2016 SMT. RUKHSANA R. SAIYED VS. ITO AY : 2007-08 3 HAS DEPOSITED CASH GENERATED OUT OF HER TRADING BUS INESS IN THE SAID ACCOUNT, WHICH STANDS IN MY NAME. HER PAN IS ADJPS0013P AND SHE IS ASSESSED TO TAX AT ITO, WARD-1, NAVSARI. I AM ENCLOSING HEREWIT H COPY OF ROI AND AUDITED ACCOUNTS FOR A.Y.2007-08, IN SUPPORT, SHE H AS SHOWN TRANSACTION IN HER RETURN, APPEARING IN THE SAID ICICI BANK ACCOUN T. THEREBY THE BANK ACCOUNT AS WELL AS ALL TRANSACTIONS ARE DISCLOSED B EFORE THE I. T. AUTHORITIES THROUGH HER ROI. UNDER THE ABOVE CIRCUMSTANCES, THERE IS NO CASE OF ESCAPEMENT OF INCOME WITHIN THE MEANING OF SEC. 147 OF THE ACT, AS SUCH NOTICE U/S. 148 OF THE ACT NEEDS TO BE WITHDRAWN, YOUR GOODSELF IS ALSO REQUE STED TO KINDLY DROP FURTHER PROCEEDINGS UNDER THE ACT.' 3.2 THE WRITTEN EXPLANATION OF THE ASSESSEE WAS CO NSIDERED. IT WAS NOTED BY THE ASSESSING OFFICER THAT THE CASH WERE DEPOSIT ED IN THE SAVINGS BANK ACCOUNT NO. 020601503038 HELD WITH ICICI BANK, WHIC H IS NOT SHOWN IN THE ASSESSEE'S BOOKS OF ACCOUNT. THE ASSESSEE HAS HERSE LF STATED THAT THE ALLEGED BANK ACCOUNT STANDS IN HER INDIVIDUAL NAME, I.E. IN THE NAME OF MRS. RUKHSANA R. SAIYED, WHICH WAS USED BY SMT. BILKISBA NU M. SAIYED, RUNNING PROPRIETARY CONCERN NAMELY 'FALCON AGENCY'. SMT. BI LKISBANU M. SAIYED HAS ALSO CONFIRMED THAT THE SAID ACCOUNT WAS REFLECTED IN HER BOOKS OF ACCOUNT AND ALSO IN AUDIT REPORT, WHEREAS ON GOING THROUGH THE COPY OF AUDIT REPORT SUBMITTED ON 26.03.2015 OF M/S. FALCON AGENCIES, NA VSARI, THE ASSESSING OFFICER OBSERVED THAT THAT THERE WAS ONLY ONE ACCOU NT OF ICICI BANK, VALSAD BRANCH BEARING NO. 05347, PROVING THAT ASSESSEE AND SMT. BILKISBANU M. SAIYED HAVE GIVEN FALSE STATEMENT THAT THE AFORESAI D CASH DEPOSITS TRANSACTIONS WERE DISCLOSED BEFORE THE I.T. AUTHORI TIES. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE TRANSACTIONS OF ALLEGED A CCOUNT OF ICICI BANK HAS NOT ACCOUNTED FOR IN BOOKS OF ACCOUNT EITHER OF THE ASSESSEE OR SMT. BILKISBANU M. SAIYED. THEREFORE, A SHOW CAUSE NOTIC E DATED 26.03.2015 WAS ISSUED ASKING THE ASSESSEE TO SHOW-CAUSE AS TO WHY THE CASH DEPOSITED AMOUNTING TO RS.47,70,431/- SHOULD NOT BE DISALLOWE D AND ADDED TO HER RETURNED INCOME IN ABSENCE OF DETAILS CALLED FOR. THE ASSESSEE DID NOT RESPOND TO THE NOTICE; THEREFORE, AFTER CONSIDERING THE FACTS AND ITA NO.1891/AHD/2016 SMT. RUKHSANA R. SAIYED VS. ITO AY : 2007-08 4 CIRCUMSTANCES OF THE CASE AND THE AFORESAID WRITTEN EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER MADE THE ADDITION O F RS.47,70,431/- BEING UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. 4. AGGRIEVED BY THE AFORESAID ORDER OF THE ASSESSIN G OFFICER, ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE CIT(A) WHO, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DISMISSED THE APPEAL O F THE ASSESSEE BY OBSERVING AS UNDER:- I HAVE GIVEN MY CAREFUL THOUGHTS TO THE RIVAL SUBM ISSIONS. THE UNDISPUTED FACTS ARE THAT THE SB ACCOUNT WITH ICICI BANK UNDER REFERENCE STANDS IN THE NAME OF THE APPELLANT ALONE. IN THE AUDITED REPORT FILED WITH THE RETURN OF INCOME THE SISTER OF THE APPELLANT MRS. BILKISBANU M. SAIYED HAS NO SUCH ACCOUNT AS CLAIMED BY THE APPELLANT. HERE THE APPEL LANT RELIES ON THE LEDGER ACCOUNTS OF M/S FALCON GAS AGENCIES MAINTAINED IN R ESPECT OF THE SB ACCOUNT UNDER REFERENCE AS WELL AS THE LEDGER ACCOU NT OF PURCHASES MADE FROM HPCL LTD. INTERESTINGLY, IF IT IS CLAIMED THAT THE TRANSACTIONS OF THE BUSINESS OF THE APPELLANT'S SISTER HAS BEEN ROUTED THROUGH T HE SB ACCOUNT OF THE APPELLANT THEN WHAT PREVENTED HER TO SHOW IN THE BA LANCE SHEET AND IN THE AUDITED REPORT FILED BY HER ALONG WITH THE RETURN O F INCOME. AFTER CONSIDERING THESE FACTS I AM OF THE CONSIDERED OPINION THAT THE EXPLANATION GIVEN BY THE APPELLANT IS AN AFTERTHOUGHT WITHOUT ANY EVIDENCE A ND THERE IS A TOTAL FAILURE ON THE PART OF THE APPELLANT TO EXPLAIN THE SOURCE OF UNEXPLAINED CASH DEPOSIT MADE BY HER IN HER SB ACCOUNT MAINTAINED WITH ICICI BANK WHERE UNEXPLAINED CASH DEPOSIT TO THE EXTENT OF RS.47,70, 431/- HAS BEEN MADE. SO IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADD ITION MADE BY THE ASSESSING OFFICER OF RS.47,70,431/- BY TREATING THE CASH DEPOSIT AS UNEXPLAINED IS UPHELD AND BOTH THE GROUNDS OF APPEA L OF THE APPELLANT ARE DISMISSED. 4. AGGRIEVED BY THE AFORESAID ORDER OF THE LD. CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 5. BEFORE US, THE APPELLANT HAS FILED A DETAILED PAPER -BOOK WHICH HAS BEEN CONSIDERED UNDER RULE 18(6) OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES AND MRS. BILKISHBANU M. SAIYED, PROPRIETOR OF FALCON AGENCIES HAS CONFIRMED THE FACTS STATED BY MRS. RUKSHAN M. SAIYE D AND IT WAS FURTHER STATED THAT THE SAID ICICI BANK ACCOUNT WAS OPERATE D AND USED BY MRS. ITA NO.1891/AHD/2016 SMT. RUKHSANA R. SAIYED VS. ITO AY : 2007-08 5 BILKISHBANU M. SAIYED FOR LPG GAS BUSINESS STYLED A S FALCON AGENCIES AND THE SAID ACCOUNT WAS REFLECTED IN HER BOOKS OF ACCO UNT AND ALSO IN THE AUDIT REPORT FOR AY 2007-08. THE COPY OF THE SAME WAS A LSO FILED BEFORE THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. 6.1 SO FAR AS THE FIRST GROUND IS CONCERNED, THE SA ME HAS NOT BEEN PRESSED BY THE APPELLANT; HENCE DISMISSED AS NOT PRESSED. 6.2 WITH REGARD TO OTHER GROUNDS, IT IS UNDISPUTED FACT THAT THE ASSESSING OFFICER STATED THAT THE BANK ACCOUNT WITH ICICI BAN K IS IN THE NAME OF MRS. RUKHSANA R. SAIYED. IT WAS USED BY HER SISTER BILK ISHBANU SAIYED WHO IS THE PROPRIETOR OF M/S. FALCON GAS AGENCIES. THE SAI D FACT IS ACCEPTED BY BOTH THE LADIES AND BOTH THE AUTHORITIES BELOW HAVE GIVEN THE FINDING THAT THE SAID BANK ACCOUNT WAS NOT APPEARING IN THE RETU RN OF INCOME OF MRS. BILKISHBANU M. SAYED AND IN HER RETURN, THERE WAS O NLY ONE BANK ACCOUNT APPEARING, I.E., ICICI BANK, VALSAD BRANCH BEARING NO. 05347. IF ANY OF THE RELATION IS HELPING THE OTHER RELATION FOR MANAGING THE BUSINESS IS NOT A CRIME. SO FAR AS THE BANK ACCOUNT OF MRS. RUKHSANA R. SAIYED IS CONCERNED, SHE HAS ADMITTED THAT SHE IS MAINTAINING A BANK ACC OUNT OF HER SISTER AND CERTAIN PAYMENTS/DDS WERE ISSUED FROM HER ACCOUNT T O HPCL LTD/GOVT. OWNED PETROLEUM COMPANIES AND IN SUPPORT OF HER CLA IM, THE ASSESSEE HAS FILED VOLUMINOUS BANK STATEMENTS. THEREFORE, CONS IDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ORDER O F THE CIT(A) AND REMIT THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER FO R DECIDING THE SAME AFRESH. THE ASSESSING OFFICER WILL CHECK THE DETAILS OF THE BANK ACCOUNT AND RETURN OF INCOME OF ASSESSEES SISTER AND WHETHER ANY NEXU S BETWEEN THE BANK ACCOUNT AND INCOME RETURNED IN THE CASE OF ASSESSEE S SISTER FOR DOING HER ITA NO.1891/AHD/2016 SMT. RUKHSANA R. SAIYED VS. ITO AY : 2007-08 6 BUSINESS IN THE NAME AND STYLE OF FALCON AGENCIES A ND IF THE SAME ARE REFLECTING IN THE RETURN OF INCOME AND AUDITED BALA NCE-SHEET, THEN THE ADDITION WILL BE DELETED. THE ASSESSING OFFICER WIL L GIVE A PROPER NOTICE TO THE ASSESSEE AND WILL DECIDE THE MATTER AS PER LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 11 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- N.K. BILLAIYA (ACCOUNTANT MEMBER) MAHAVIR PRASAD (JUDICIAL MEMBER) AHMEDABAD; DATED 11/11/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD