Smt. Amishi Swapnil Shah, Ahmedabad V. ITO, Ward-5(2)(3), Ahmedabad

ITA 1923/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3712 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B P SRIVASTAVA
• Keywords: Corroborative evidences
• Section: 147; 68; 148; 143(3); 5(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , SM C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER ./ ITA NO .1923/AHD/2018 / ASSTT. YEAR : 2010 - 2011 SMT AMISHI SWAPNIL SHAH , 11, GOKUL ROW HOUSE , NR.SHYAMAL ROW HOUSE , SATELLITE, AHMEDABAD - 380015 PAN: BAXPS8977C VS . INCOME TAX OFFICER , WAR D - 5(2) (3) , AHMED A BAD . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI ARTI N. SHAH , A.R REVENUE BY : SHRI B.P. SRIVASTAVA , SR. DR / DATE OF HEARING : 11 / 01 / 201 9 / DATE OF PRONOUNCEMENT: 01 /02 /2 01 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - A [CIT(A) IN SHORT] VIDE APPEAL NO. CIT(A) - 5/ITO.WD.5(2)(3)/10216/2017 - 18 , DATED 18 / 07 / 2018 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DATED 08/08 /201 7 RELEVANT TO ASSESSMENT YEAR (AY) 2010 - 11 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 5, AHMEDABAD HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ADDITION OF ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 2 RS.31,99,000/ - MADE BY THE ASSESSING OFFICER U/S.68 OF THE I.T. ACT TOWARDS UN EXPLAINED CASH DEPOSIT. 2. YOUR APPELLANT PRAYS TO RESERVE THE RIGHT TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY OF THE GROUNDS OF APPEAL. 3. THE SOLITARY ISSUE RAISED BY THE ASSESSEE IS THAT LD.CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 31,99 ,000/ - U/S 68 OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAD NO TAXABLE INCOME BEING A HOUSEWIFE. T HEREFORE SHE DID NOT FILE HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. 5. HOWEVER, THE AO FOUND THAT THERE WAS HUGE CASH DEPOSITED IN HER SAVING BANK ACCOUNT BEARING NO. 02950100928 MAINTAINED WITH ICICI BANK . A CCORDINGLY , THE AO ISSUED NOTICE UNDER SECTION 148 OF THE ACT TO THE ASSESSEE TO FILE THE RETURN OF INCOME U/S 147 OF THE ACT. THE ASSESSEE IN RESPONSE TO SUCH NOTICE FILED HER RETURN OF INCOME DECLARING NIL INCOME . 5.1 THE ASSESSEE FURTHER SUBMITTED THAT THE BANK ACCOUNT WHERE THE CASH WAS DEPOSITED WAS JOINTLY HELD WITH HER HUSBAND NAMELY SWAPNIL B. SHAH. WHATEVER CASH WAS DEPOSITED IN THE BANK ACCOUNT WAS TRANSFERRED TO ANOTHER BANK ACCOUNT OF HER HUSBAND JOINT LY HELD W ITH HIS MOTHER. THE ASSESSEE AL S O FURNISHED THE COPY OF THE PAN OF HER HUSBAND TO THE AO. 5.2 HOWEVER , THE AO DISAGREED WITH THE SUBMISSION OF THE ASSESSEE BY OBSERV ING THAT THE ASSESSEE BEING FIRST ACCOUNT HOLDE R IS LIABLE TO EXPLAIN THE SOURCE OF CASH DEPOSIT ED IN THE BANK ACCOUNT. OTHERWISE , IT SHALL BE PRESUMED THAT THE CASH DEPOSITED BELONG S TO HER ( THE ASSESSEE ) . ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 3 5.3 THE AO ALSO OBSERVED THAT THERE WAS NO REASON TO DEPOSIT THE CASH AND AFTER THAT TRANSFER T O THE ACCOUNT OF HER HUSBAND . ACCORDINGLY, THE AO TREATED THE CASH DEPOSIT S AS UNEXPLAINED CA SH CREDIT U/S 68 OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 6. THE AGGRIEVED AS SESSEE PREFERRED AN APPEAL TO L D.CIT(A). THE ASSESSEE BEFORE LD.CIT (A) AGAIN SUBMITTED THAT THE CASH DEPOSITED IN THE BANK ACCOUNT BELONG S TO HER HUSBAND. THE ASSESSEE IN SUPPORT OF HER CONTENTION ALSO FURNISHED THE A FFIDAVIT OF HER HUSBAND. 7. HOWEVER, THE LD.CIT (A) DISREGARDED THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HER BANK ACCOUNT . A CCOR DINGLY THE LD.CIT (A) CONFIRMED THE ORDER OF THE AO. 8. BEING AGGRIEVED BY THE ORDER OF THE LD.CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 9. THE LD.AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 31 AND SUBMITTED THAT THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE BELONG TO HER HUSBAND . THIS FACT WAS BROUGHT TO THE NOTICE TO THE AUTHORITIES BELOW. BUT NONE OF THE AUTHORITIES BELOW VERIFIE D THE CONTENTION OF THE ASSESSEE THOUGH THE PAN OF THE HUSBAND WAS AVAILABLE WITH THEM. 9.1 THERE WAS A DEPOSIT OF CASH IN THE BANK ACCOUNT WHICH WAS SUBSEQUENTLY TRANSFERRED TO HER HUSBAND BANK ACCOUNT LE AVING A NEGLIGIBLE BALANCE IN THE BANK ACCOUNT . T HEREFORE AN INFERENCE CAN BE DRAWN THAT THERE WAS NO INCOME EARNED BY THE ASSESSEE OUT OF SUCH CASH DEP OSIT IN THE BANK ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 4 ACCOUNT. THE LD.AR, REITERATED THE SUBMISSION AS MADE BEFORE THE AUTHORITIES BELOW. 10. ON THE OTHER HAND LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PRECEDING DISCUSSION, WE NOTE CERTAIN UNDISPUTED FACTS AS DETAILED UNDER: I. THE A SSESSEE DEPOSITED THE CASH IN THE BANK ACCOUNT JOINTLY HELD WITH HER HUSBAND. II. THE ONUS LIES ON THE ASSESSEE TO JUSTIFY THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT UNDER THE PROVISIONS OF SECTION 68 OF THE ACT. III. THE AF FIDAVIT WAS FILED BY THE HUSBAND OF THE ASSESSEE ADMITTING THAT THE CASH WAS DEPOSITED IN THE IMPUGNED BANK ACCOUNT BY HIM. IV. THE A SSESSEE DID NOT FILE THE AFFIDAVIT BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. AS SUCH THE AFFIDAVIT WAS FILED AFTER THE COMPLETION OF THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. 11.1 REGARDING THE AFFIDAVIT FILED BY THE HUSBAND OF THE ASSESSEE, WE NOTE THAT THE HUSBAND DID NOT FILE HIS INCOME TAX RETURN. THE FACT OF NON - FILING OF THE INCOME TAX RE TURN BY THE HUSBAND OF THE ASSESSEE CAN BE VERIFIED FROM THE DETAILS AVAILABLE ON RECORD. THUS THE QUESTION OF EXPLAINING THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT BY THE HUSBAND OF THE ASSESSEE IS UNDER THE DOUBT . ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 5 IN ADDITION TO THE ABOVE, WE ALSO NOTE THAT THE HUSBAND OF THE ASSESSEE HAS SUBMITTED THAT HE HAS ACTED ONLY AS ENTRY PROVIDER. AS SUCH THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE BELONGS TO THE PERSONS AS DETAILED BELOW: 1. SHRI LAXMI KANT KHEMKA 2. LAXMI KANT KHEMKA (HUF) 11.2 AS SUCH IT WAS CLAIMED BY THE HUSBAND OF THE ASSESSEE THAT HE HAS TAKEN CASH FROM THE PARTIES MENTIONED ABOVE AND ISSUED CHEQUES TO THE PARTIES AGAINST SUCH CASH . 11.3 A PERUSAL OF THE ABOVE DETAILS REVEALS THE FACT THAT THE HUSBAND OF THE ASSESSEE HAS FURN ISHED CONTRADICTORY STATEMENTS. ON THE ONE HAND, HE IS SAYING THAT HE HAS DEPOSITED THE CASH AND ON THE OTHER HAND HE IS SAYING THAT THE CASH BELONGS TO OTHER PARTIES AS DISCUSSED ABOVE. IN OUR CONSIDERED VIEW ALL THE INFORMATION SHOULD HAVE BEEN DISCLOSED BY THE HUSBAND OF THE ASSESSEE IN THE AFFIDAVIT. AS SUCH THE ASSESSEE HAS DISCLOSED PART OF THE INFORMATION IN THE AFFIDAVIT AND PART OF THE INFORMATION SEPARATELY TO HIDE THE FACTS REGARDING THE DEPOSIT OF CASH. 11.4 IN VIEW OF THE ABOVE, WE ARE RELUCTANT TO PLACE OUR RELIANCE ON THE AFFIDAVIT FURNISHED BY THE HUSBAND OF THE ASSESSEE. IN HOLD ING SO , WE FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF M/S SUKHWINDER PAL BIPAN KUMAR AND OTHERS V. STATE OF PUNJAB & OTHERS IN ( 1982 AIR 65 ) WHEREIN IT WAS HELD AS UNDER: UNDER ORDER XIX, RULE 3, OF THE CODE OF CI VIL PROCEDURE, 1908, IT WAS INCUMBENT UPON THE DEPONENT TO DISCLOSE THE NATURE AND SOURCE OF HIS KNOWLEDGE WITH SUFFICIENT PARTICULARITY. ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 6 11.5 THUS AFTER CONSIDERING THE FACTS IN TOTALITY WE REJECT THE ARGUMENT OF THE ASSESSEE THAT THE CASH BELONGS TO HER HUSBAND IN THE ABSENCE OF SUFFICIENT DOCUMENTARY EVIDENCE. 11.6 WE ALSO NOTE THAT THE ASSESSEE CANNOT BE ABSOLVED FROM THE ONUS IMPOSED UNDER SECTION 68 OF THE ACT FOR EXPLAINING THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT MERELY BY THE AFFIDAVIT OF THE HUSBAND. IT IS BECAUSE THERE IS NO MATERIAL OR SUPPORTING EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE TO JUSTIF Y THAT THE CASH BELONGS TO HER HUSBAND OTHER THAN THE HUSBAND. 11.7 THE PRIMARY ONUS IS ON THE ASSESSEE TO JUSTIFY THE SOURCE OF CASH. THUS THE UTILIZATION OF CASH HAS NO RELEVANCE IN THE GIVEN FACTS AND CIRCUMSTANCES. AS SUCH THE QUESTION OF UTILIZATIO N OF THE CASH BECOMES SECONDARY. THUS WE HOLD THAT IT WAS THE DUTY OF THE ASSESSEE TO JUSTIFY THE SOURCE OF CASH DEPOSIT ON THE BASIS OF DOCUMENTARY EVIDENCE. ACCORDINGLY, AT THIS STAGE, THE REFERENCE TO THE UTILIZATION OF CASH IS OF NO SIGNIFICANCE I.E. D EPOSIT IN THE BANK ACCOUNT OF THE HUSBAND OF THE ASSESSEE. 11.8 IT IS AN UNDISPUTED FACT THAT THE IMPUGNED BANK ACCOUNT BELONGS TO THE ASSESSEE AND HER HUSBAND. THUS THE QUESTION ARISES WHETHER THE UNEXPLAINED SOURCE OF CASH DEPOSIT NEEDS TO BE ADDED UND ER SECTION 68 OF THE ACT IN BOTH THE HANDS. IN THIS REGARD, WE NOTE THAT THE 1 ST NAME IN THE BANK ACCOUNT IS OF THE ASSESSEE. ACCORDINGLY, THE LOWER AUTHORITIES DREW A PRESUMPTION THAT THE IMPUGNED CASH BELONGS TO THE ASSESSEE ONLY. CONSIDERING THE FACTS I N TOTALITY, WE FIND NO INFIRMITY IN THE FINDING OF LOWER AUTHORITIES. ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 7 11.9 REGARDING THE ARGUMENT OF THE ASSESSEE THAT THE BANK STATEMENT DOES NOT CONSTITUTE THE BOOKS OF ACCOUNTS, WE NOTE THAT THE ASSESSEE HAS RELIED ON THE FOLLOWING JUDGMENTS : 1. SMT. R AMILABEN B PATEL VS. ITO (100 TAXMANN.COM 325) 2. SMT. MANASI MAHENDRA PITKAR VS. ITO (73 TAXMANN.COM 68) 3. CIT VS. BHAICHAND N GANDHI (11 TAXMAN 59) 12. HOWEVER, IN THIS REGARD, WE FIND THIS TRIBUNAL IN CASE OF SHRI RAJUBHAI S. PATEL VS. ITO IN ITA NO. 888/AHD/2011 HELD THAT ADDITION UNDER 68 COULD BE MADE EVEN ON ACCOUNT OF DEPOSIT OF CASH IN THE BANK ACCOUNT. IT IS PERTINENT TO MENTION HERE THAT IN THE SAID CASE ALSO THE COUNSE L FOR ASSESSEE RELI ED ON THE JUDGMENT OF BOMBAY HIGH COURT IN CASE OF CIT VS. BHAICHAND N GANDHI(SUPRA) AND JUDGMENT WAS GIVEN AFTER CONSIDERING THAT CASE (SUPRA) . THE RELEVANT EXTRACT OF THE SAID ORDER IS REPRODUCED AS UNDER : REGARDING SECOND PLEA OF THE ASSESSEE, THAT THE ASSESSEE NEVER MAINTAINED THE BOOKS OF ACCOUNTS AND THEREFORE, THE ADDITION UNDER SECTION 68 CAN NOT BE MADE , IS ALSO NOT TENABLE AS THE HON BLE KERALA HIGH COURT, IN A LATEST DECISION IN THE CASE OF SMT. INDIRA RANI - VS - CIT REPORTED IN 211 ITR 346 (KER.), HAS HELD THAT IN ABSENCE OF PROPER EXPLANATION, ADDITION UNDER SECTION 68 CAN BE MADE FOR THE CREDIT IN BANK ACCOUNT. THE LD. CIT(A) ALSO FOLLOWED THE DECISION OF THE HON BLE RAJASTHAN HIGH COURT IN THE CASE OF INDIAN WOOLLEN CARPET FACTORY VS - ITAT REPORTED IN 260 ITR 658 (RAJ.). THEREFORE, I AM OF THE VIEW THAT ADDITION OF RS.1,50,000/ - WAS RIGHTLY MADE BY THE AO AND CONFIRMED BY THE LD .CIT(A), IN THE IMPUGNED ORDER. 12.1 WE ALSO FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF ITAT BANGALORE IN THE CASE OF SHRI S. R. RAJENDRA KUMAR V. ITO IN ITA NO. 1092/BANG/2014 WHEREIN IT WAS HELD THAT IF ADDITION ON ACCOUNT OF CASH DEPOSITED IN BANK ACCOUNT CANNOT BE MADE UNDER SECT ION 68 THEN THE ADDITION WILL BE MADE UNDER 69 OF THE ACT. THE RELEVANT EXTRACT OF THE ORDER IS AS UNDER: ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 8 NO DOUBT IN THE JUDGMENT OF HON BLE MUMBAI HIGH COURT IN THE CASE OF BHAICHAND H. GANDHI (SUPRA), AS WELL AS THAT OF HON BLE PUNJAB & HARYANA HIGH CO URT IN THE CASE OF SHANTA DEVI (SUPRA), IT HAS BEEN HELD THAT SECTION 68 OF THE ACT WOULD BE ATTRACTED ONLY WHEN AN AMOUNT IS CREDITED IN THE BOOKS OF THE ASSESSEE. PASSBOOKS ARE MAINTAINED BY THE BANK AND CANNOT BE CONSIDERED AS BOOKS OF TH E ASSESSEE. HOWEVER IN THE CASE BEFORE US, THERE IS NO DISPUTE THAT ASSESSEE WAS NOT ABLE TO GIVE ANY REASONABLE EXPLANATION FOR THE CREDITS IN THE BANK ACCOUNT. JUST BECAUSE THE AO MENTIONED SECTION 68 OF THE ACT FOR MAKING THE ADDITION WOULD NOT , IN OUR OPINION , ABSOLVE THE ASSESSEE FROM ITS DUTY TO EXPLAIN THE SOURCE OF THE DEPOSITS . WHEN MONEY IS DEPOSITED IN A BANK ACCOUNT , IT IS CERTAINLY AN INVESTMENT MADE AND WHEN INVESTMENTS ARE NOT RECORDED IN THE BOOKS OF ACCOUNT AND WHERE ASSESSEE HAS NOT OFFERED ANY PLAUSIBLE EXPLANATION, IN OUR OPINION EVEN IF SECTION 68 OF THE ACT CANNOT BE APPLIED, SECTION 69 WILL AUTOMATICALLY COME INTO PLAY . JUST BECAUSE AO MENTIONED SECTION 68 IN THE ASSE SSMENT ORDER, IT WOULD NOT MEAN THAT ASSESSEE CAN GO SCOT - FREE WITHOUT EXPLAINING THE SOURCE OF INVESTMENTS. 12.2 IN VIEW OF THE ABOVE, WE HOLD THAT THE ASSESSEE FAILED TO DISCHARGE HER PRIMARY ONUS AS SPECIFIED UNDER SECTION 68 OF THE ACT. ACCORDINGLY, AFTER CONSIDERING THE FACTS IN TOTALITY, WE ARE NOT INCLINED TO DISTURB THE FINDING OF THE AUTHORITIES BELOW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED . O RDER PRONOUNCED IN THE COURT ON 01 /02 / 2019 AT AHMEDABAD. - SD - - SD - ( RAJPAL YADAV ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 01 / 02 /2019 MANISH ITA NO .1923/AHD/2018 ASSTT. YEAR 2010 - 11 9 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , / DR, ITAT, 6. / GUARD FILE .