Shri Dank Kailash Chandraprakash, Ahmednagar V. Income-tax Officer, Ward - 4, Ahmednagar

ITA 1908/PUN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2165 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: HARI KRISHAN
• Keywords: Unexplained cash credit
• Section: 68; 69; 144

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 1908 /P U N/201 7 / ASSES SMENT YEAR : 20 08 - 09 SHRI DANK KAILASH CHANDRAPRAKASH KOLHAR BK, TAL SHRIRAMPUR, DIST AHMEDNAGAR - 413710 . / APPELLANT PAN: A BJPD5995K VS. THE INCOME TAX OFFICER , WARD 4 , AHMEDNAGAR . / RESPONDENT / APPELLANT BY : SHRI HARIKRISHAN / RESPONDENT BY : S HRI M.K. VERMA / DATE OF HEARING : 1 0 . 1 0 .201 8 / DATE OF PRONOUNCEMENT: 15 . 1 1 .201 8 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FI LED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - 2 , PUNE , DATED 20 . 04 .20 1 7 RELATING TO ASSESSMENT YEAR 20 08 - 09 AGAINST ORDER PASSED UNDER SECTION 144 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS FILED REVISED GROUNDS OF APPEAL , WHICH READ AS UNDER : - THE FOLLOWING GROUNDS OF APPEAL ARE TAKEN INDEPENDENTLY AND WITHOUT PREJUDICE TO ONE ANOTHER. ITA NO. 1908 /P U N/20 1 7 SHRI DANK KAILASH CHANDRAPRAKASH 2 2 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING AND ENHANCING THE ADDITION ON ACCOUNT OF PROFIT ON THE SALES NOT INCL UDED IN THE TOTAL SALES. THE ADDITION OF RS.14,945/ - MADE BY THE ASSESSING OFFICER HAS BEEN ENHANCED TO RS.44,008/ - BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 3 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.4,24,102/ - OUT OF THE ADDITION OF RS.4,25,136/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DEPOSITS IN ASSESSEES BANK ACCOUNTS. 4 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.45,000/ - MADE BY THE ASS ESSING OFFICER ON ACCOUNT OF LOW WITHDRAWALS FOR HOUSEHOLD EXPENSES. 3. THE ASSESSEE HAS NOT RAISED ANY GROUND OF APPEAL NO.1. THE GROUNDS OF APPEAL NO.2 AND 4 RAISED HAVE NOT BEEN PRESSED AND HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. 4. THE ONLY IS SUE RAISED REMAINING IS VIDE GROUND OF APPEAL NO.3 AGAINST ADDITION OF 4,24,102/ - . 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME OF 1,00,140/ - . THE CASE OF ASSESSEE WAS PICKED UP FOR SCRUTINY. THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER AND HE NCE, CERTAIN INFORMATION WAS COLLECTED BY ASSESSING OFFICER THROUGH BANK STATEMENT FROM URBAN CO - OP. BANK LTD. AND NOTED THAT THERE WERE CASH DEPOSITS IN THE SAID BANK ACCOUNT I.E. TOTALING 33,53,467/ - . THE ASSESSEE HAD DECLARED SALES AT 28,69,480/ - , CREDIT FOR WHICH WAS ALLOWED AND BALANCE WAS TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AT 4,83,987/ - . BEFORE MAKING ADDITION, THE ASSESSEE WAS GIVEN SHOW CAUSE NOTICE. HOWEVER, NONE APPEARED ON BEHALF OF ASSESSEE. FURTHER, THE AS SESSING OFFICER NOTED THAT THE ASSESSEE HAD SHOWN LIABILITY ON ACCOUNT OF GOLD LOAN S IN THE BALANCE SHEET OF 4 LAKHS AND 4,66,800/ - . THE ASSESSING ITA NO. 1908 /P U N/20 1 7 SHRI DANK KAILASH CHANDRAPRAKASH 3 OFFICER FURTHER OBSERVED THAT OUT OF TOTAL DEPOSITS IN BANK ACCOUNT OF 33,53,467/ - , DEPOSIT OF 8,66, 000/ - WAS BY WAY OF GOLD LOANS AND HENCE WERE SHOWN AT 28,69,480/ - . THE ASSESSING OFFICER FURTHER OBTAINED COPIES OF GOLD LOANS FROM THE BANK AND IT WAS OBSERVED THAT FIRST GOLD LOAN OF 4 LAKHS WAS CLEARED INCLUDING INTEREST OF 4,24,102/ - ON 18.02.2 008 BY TRANSFERRING IT TO ANOTHER GOLD LOAN ACCOUNT AND HENCE, THERE WAS NO OUTSTANDING LIABILITY AS ON 31.03.2008. FURTHER, EVEN ON 18.02.2008, AS PER BANK STATEMENT, OUTSTANDING LOAN WAS 4,41,664/ - , WHEREAS THE ASSESSEE HAD SHOWN OUTSTANDING LOAN OF 4,66,800/ - , THEREFORE BOGUS / FICTITIOUS LIABILITY OF 4,25,136/ - WAS ADDED TO THE TOTAL INCOME UNDER SECTION 69 OF THE ACT. 6. THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER OF ASSESSING OFFICER AND ALSO FURNISHED DETAILED EXPLANATION AGAINST SO - CAL LED LIABILITY OF 4,25,136/ - . HOWEVER, THE CIT(A) DID NOT ACCEPT THE PLEA OF ASSESSEE AND ALSO ISSUED ENHANCEMENT NOTICE TO THE ASSESSEE. AFTER ANALYZING CASH DEPOSITS IN VARIOUS BANK ACCOUNTS AND EXPLANATION OF SOURCES OF CASH DEPOSITS, THE CIT(A) VIDE PARA 9.2 OBSERVED THAT SUM OF 6,00,013/ - REMAINED TO BE EXPLAINED BY THE ASSESSEE , O UT OF WHICH, SUM OF 4,24,102/ - REPRESENTED REPAYMENT OF LOAN BY HIS BROTHER IN CASH UNDER A FAMILY SETTLEMENT. SINCE THERE WAS NO WRITTEN AGREEMENT IN THIS REGARD, CO NTENTION OF ASSESSEE WAS NOT ACCEPTED AND ADDITION OF 4,24,102/ - WAS ADDED IN THE HANDS OF ASSESSEE, AGAINST WHICH THE ASSESSEE HAS RAISED GROUND OF APPEAL NO.3. 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE HAS FURNISHED COMPLETE EXPLANATION IN THIS REGARD, WHICH IS INCORPORATED ON THE BACK SIDE OF PAGE 6 OF APPELLATE ORDER. THE ASSESSEE EXPLAINED THAT GOLD LOAN WAS PAID BY HIS BROTHER SHRI AJAY CHANDRAPRAKASH ITA NO. 1908 /P U N/20 1 7 SHRI DANK KAILASH CHANDRAPRAKASH 4 DANK, WHO IN TURN, HAD TAKEN GOLD LOAN OF 4,22,00 0/ - , WHICH WAS TRANSFERRED TO HIS SAVING ACCOUNT ON 18.02.2008 AND THE SAID SUM OF 4,22,000/ - WAS WITHDRAWN FROM THE SAID BANK ACCOUNT AND THE GOLD LOAN BELONGING TO ASSESSEE OF 4,24,102/ - WAS PAID BY HIM, IN VIEW OF FAMILY SETTLEMENT BETWEEN FAMILY ME MBERS. THE ASSESSEE ALSO FILED AN AFFIDAVIT OF HIS BROTHER AND ALSO SUBMITTED COPY OF GOLD LOAN ACCOUNT. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 9. ON PERUSAL OF RECORD AND AFTER HEARING BOTH THE LEARNED AUTHORIZED REPRESENTATIVES, THE LIMITED ISSUE WHICH ARISES VIDE GROUND OF APPEAL NO.3 IS AGAINST ADDITION OF 4,24,102/ - . THE ASSESSEE HAD DEPOSITED CASH IN HIS BANK ACCOUNT AND INFORMATION WAS SOUGHT FROM THE A SSESSEE TO EXPLAIN THE SOURCE OF SAID CASH DEPOSITS. THE ASSESSEE FURNISHED INFORMATION BUT TO THE EXTENT OF 4,24,102/ - , THE EXPLANATION FILED BY ASSESSEE WAS NOT ACCEPTED. THE ASSESSEE POINTED OUT THAT THE SAID GOLD LOAN WAS CLEARED BY HIS BROTHER AS PART OF FAMILY SETTLEMENT. THE ASSESSEE ALSO FILED EVIDENCE OF SAID BOTHER HAVING TAKEN GOLD LOAN OF 4,22,000/ - , WHICH WAS TRANSFERRED TO HIS SAVINGS ACCOUNT ON 18.02.2008 AND THEN THE SAID AMOUNT WAS WITHDRAWN AND ADJUSTED AGAINST GOLD LOAN LIABILITY OF ASSESSEE. THE SAID EXERCISE WAS CARRIED OUT BECAUSE OF FAMILY SETTLEMENT AND ALSO FURNISHED AFFIDAVIT OF HIS BROTHER IN THIS REGARD. THERE IS MERIT IN THE PLEA OF ASSESSEE AND SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT OF ASSESSEE TO THE EXTENT OF 4,22,000/ - STANDS EXPLAINED. ACCORDINGLY, THE PLEA OF ASSESSEE TO THE EXTENT OF 4 ,22,000/ - IS ACCEPTED. HOWEVER, SOURCE OF BALANCE SUM OF 2,102/ - HAS NOT BEEN PROPERLY EXPLAINED ITA NO. 1908 /P U N/20 1 7 SHRI DANK KAILASH CHANDRAPRAKASH 5 BY ASSESSEE, HENCE THE SAME IS ADDED TO THE INCOME OF ASSESSEE. THE GRO UNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, PARTLY ALLOWED. 1 0 . IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF NOVEMBER , 201 8 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 15 TH NOVEMBER , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 2 , PUNE ; 4. THE PR. CIT - 1 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE