Sh Sudershan Singh Wazir, Jammu V. The Income-tax Officer, Jammu

ITA 204/ASR/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1445 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P N ARORA
• Assessee Lawyers: R K SHARDA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (JAMMU CAMP; JAMMU ) BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S.KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A NO. 58(ASR)/2015 ASSESSMENT YEARS: 2009-10 THE ITO , WARD-1(3), JAMMU. VS. SH. SUDE RSHAN SINGH WAZIR 18A/7, TRIKUTA NAGAR, JAMMU. PAN: AAQPW6917J (APPELLANT) (RESPONDENT) I.T.A NO. 204(ASR)/2015 ASSESSMENT YEARS: 2009-10 SH. SUDERSHAN SINGH WAZIR 18A/7, TRIKUTA NAGAR, JAMMU. PAN: AAQPW6917J VS. THE ITO, WARD-1(3), JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. R.K.SHARDA (DR.) RESPONDENT BY: SH. P.N.ARORA. (ADV.) DATE OF HEARING: 02.12.2015 DATE OF PRONOUNCEM ENT: 10.12.2015 ORDER PER T.S.KAPOOR (A.M): THESE ARE CROSS APPEALS FILED BY THE REVENU E AND ASSESSEE RESPECTIVELY, AGAINST THE ORDER OF LEARNED CIT(A) DATED 10.11.201 4. THE GROUNDS TAKEN BY THE REVENUE AS WELL AS BY ASSESSEE ARE REPRODUCED B ELOW. 2. ITA NO.58 & 204 (ASR)/2015 ASST. YEAR 200 9-10 2. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE R EPRODUCED BELOW. (I) WHETHER THE COMMISSIONER OF INCOME TAX(APPEALS) , JAMMU WAS RIGHT IN LAW IN NOT GIVING ANY FINDING ON THE SOURCE OF DEPO SITS OF RS.7,00,000/- ON 23.10.2008 WHICH WAS CLAIMED TO BE RE-DEPOSITED ON 27.11.2008. (II) WHETHER THE COMMISSIONER OF INCOME TAX(APPEALS ), JAMMU HAS COMMITTED AN ERROR IN HOLDING THAT DEPOSITS OF RS.3 .5 LACS AND 1.5 LACS ON 30.01.2009 ARE RE-DEPOSITS OF THE CASH WITHDRAWN EA RLIER. 3. WHEREIN THE GROUNDS OF APPEAL TAKEN BY THE AS SESSEE ARE REPRODUCED BELOW. (I) THAT THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LEARNED CIT(APPEALS) ARE BOTH AGAINST THE FACTS OF THE CASE AND UNTENABLE IN LAW. (II) THAT THE LD. CIT(APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.5,00,000/- MADE BY THE AO ON ACCOUNT OF AMOUNT D EPOSITED ON 14/08/2008. THAT THE AUTHORITIES BELOW DID NOT APPR ECIATE THAT THE SAID AMOUNT OF RS.5,00,000/- WAS DEPOSITED ON 14/08/2008 , OUT OF THE OPENING CASH AND VARIOUS INCOME EARNED DURING THE Y EAR. SO THERE WAS NO JUSTIFICATION IN CONFIRMING THE ADDITION OF RS.5,00 ,000/- AS THIS IS A GENUINE DEPOSIT THE ADDITION AND THE ADDITION CONFI RMED BY THE LD. CIT(APPEALS) MAY BE DELETED. ALTERNATIVELY, THE ADDITION CONFIRMED BY THE LD.CIT (A) (APPEALS) IS VERY HIGH & EXCESSIVE. (III) THAT THE LD. CIT(APPEALS) HAS GROSSLY ERRED I N CONFIRMING THE 1/10 TH DISALLOWANCE AT RS.1184/- OUT OF PRINTING & STATION ERY EXPENSES CLAIMED AT RS. 11840/-. THE AUTHORITIES BELOW DID NOT APPRE CIATE THAT ALL THESE EXPENSES RELATED TO BUSINESS AND THE SAME SHOULD HA VE BEEN ALLOWED IN TOTO. THAT NO SPECIFIC DEFECT HAS BEEN POINTED OUT AND THE ADDITION HAS BEEN MADE ONLY FOR THE SAKE OF ADDITION WITHOUT PLA CING ANY MATERIAL ON THE RECORD & WITHOUT PIN POINTING OUT ANY DEFECT AN D AS SUCH THE DISALLOWANCE CONFIRMED BY THE LD. CIT(APPEALS) IS N OT CALLED FOR AND THE SAME MAY BE DELETED. ALTERNATIVELY THE ADDITION MADE IS VERY HIGH & EXCE SSIVE. (V) THAT THE LD. CIT(APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE 1/10 TH DISALLOWANCE MADE BY THE AO AT RS.10070/- OUT OF TH E TRAVELLING & CONVEYANCE EXPENSES. THE AUTHORITIES BELOW DID NOT APPRECIATE THAT ALL THESE EXPENSES RELATED TO BUSINESS AND THE SAME SHO ULD HAVE BEEN ALLOWED IN TOTO. THAT NO SPECIFIC DEFECT HAS BEEN P OINTED OUT AND THE ADDITION HAS BEEN MADE ONLY FOR THE SAME OF ADDITIO N WITHOUT PLACING ANY MATERIAL ON THE RECORD AND WITHOUT PIN POINTING OUT ANY DEFECT AND AS SUCH 3. ITA NO.58 & 204 (ASR)/2015 ASST. YEAR 200 9-10 THE DISALLOWANCE CONFIRMED BY THE LD. CIT(APPEALS) IS NOT CALLED FOR AND THE SAME MAY BE DELETED. ALTERNATIVELY THE ADDITION MADE IS VERY HIGH & EXCE SSIVE. (VI) THAT THE LD. CIT(APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE 1/10 TH DISALLOWANCE MADE BY THE AO AT RS.16490/- UNDER THE HEAD MISC. CHARGES. THE AUTHORITIES BELOW DID NOT APPRECIATE T HAT ALL THESE EXPENSES RELATED TO BUSINESS AND THE SAME SHOULD HAVE BEEN A LLOWED IN TOTO. THAT NO SPECIFIC DEFECT HAS BEEN POINTED OUT AND THE ADD ITION HAS BEEN MADE ONLY FOR THE SAKE OF ADDITION WITHOUT PLACING ANY M ATERIAL ON THE RECORD & WITHOUT PIN POINTING OUT ANY DEFECT AND AS SUCH THE DISALLOWANCE CONFIRMED BY THE LD. CIT(APPEALS) IS NOT CALLED FOR AND THE SAME MAY BE DELETED. ALTERNATIVELY THE ADDITION MADE IS HIGH & EXCESSIVE . 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HIS CASE WAS SELECTED FOR SCRUTINY. DURING THE ASSESSME NT PROCEEDINGS, THE ASSESSING OFFICER MADE AN ADDITION OF RS.17 LACS ON ACCOUNT OF DEPOSITS IN HDFC BANK ON VARIOUS DATES AS DETAILED BELOW. 1. ON 14.8.2008 RS.5,00,000/- 2. ON 27.11.2008 RS.7,00,000/- 3. ON 30.01.2009 RS.3,50,000/- 4. ON 30.1.2009 RS.1,50,000/- THE ASSESSING OFFICER ALSO MADE CERTAIN ADDITIONS O UT OF STAFF WELFARE TRAVELLING AND MISCELLANEOUS EXPENSES. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), THE LEARNED CIT(A) OUT OF ADDITION OF RS.17 LACS ALLOWED RELIEF TO THE EXTENT OF RS.12 LACS AND UPHE LD THE ADDITION OF RS. 5 LACS. HE ALSO UPHELD THE ADDITION ON ACCOUNT OF DISALLOWA NCE OUT OF EXPENSES. AGGRIEVED BOTH THE PARTIES ARE IN APPEAL BEFORE US. 5. THE LEARNED DR, AT THE OUTSET, SUBMITTED THAT TH E ASSESSING OFFICER HAD RIGHTLY MADE AN ADDITION OF RS.17 LACS ON ACCOUNT O F UNEXPLAINED DEPOSITS IN 4. ITA NO.58 & 204 (ASR)/2015 ASST. YEAR 200 9-10 HDFC, BANK WHICH THE ASSESSEE HAD MADE ON VARIOUS D ATES AND LEARNED CIT(A) HAD WRONGLY ALLOWED THE RELIEF TO THE EXTENT OF RS. 12 LACS. 6. ON THE OTHER HAND, THE LEARNED AR SUBMITTED THAT THE ASSESSEE DURING THE APPELLATE PROCEEDINGS HAD CO-RELATED THE DEPOSI TS IN BANK WITH THE EARLIER WITHDRAWALS OUT OF WHICH THE DEPOSITS WERE MADE, TH EREFORE, THE LEARNED CIT(A) HAS RIGHTLY DELETED THE ADDITION. 7. THE LEARNED AR IN THIS RESPECT INVITED OUR ATTEN TION TO THE FINDING OF LEARNED CIT(A) AT PARA 4 AND SUBMITTED THAT THE ENT RIES OF DEPOSITS WERE FULLY EXPLAINED AND LEARNED CIT(A) HAS PASSED A SPEAKING ORDER. 8. ARGUING THE ASSESSEES APPEAL THE LEARNED AR SU BMITTED THAT WHILE GIVING RELIEF THE ASSESSING OFFICER HAS NOT CONSIDERED THE EXPLANATION OF ASSESSEE FOR RS.5 LAC WHICH WAS DEPOSITED ON 14.08.2008 AND WHIC H WAS OUT OF OPENING BALANCE AND THEREFORE, THE ASSESSEE SHOULD HAVE BEE N ALLOWED RELIEF FOR THE SAME. 9. AS REGARDS THE DISALLOWANCE OF EXPENSES, THE LEA RNED AR SUBMITTED THAT THE DISALLOWANCE WAS NOT WARRANTED AS THE BOOKS OF ACCOUNTS WERE PRODUCED AND IN THE ALTERNATIVE, HE SUBMITTED THAT THE ADDIT IONS WAS EXCESSIVE AND APPROPRIATE RELIEF MAY BE ALLOWED. 10. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED TH AT FOR THE CLAIM OF OPENING BALANCE OF CASH OF 5 LACS, THE ASSESSEE HAD NO EVIDENCE AND THEREFORE, THE LEARNED CIT(A) HAS RIGHTLY UPHELD THE ADDITIONS . 5. ITA NO.58 & 204 (ASR)/2015 ASST. YEAR 200 9-10 11. AS REGARDS THE DISALLOWANCE OF EXPENSES HE SUBM ITTED THAT THE ASSESSEE HAD NOT PRODUCED THE VOUCHERS OF EXPENSES AND THERE FORE, THE LEARNED CIT(A) HAS CONFIRMED THE DISALLOWANCE OF PART EXPENSES AS THE SAME WERE QUITE REASONABLE. 12. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE LEARNED CIT(A) I N HIS ORDER HAS MADE A FINDING OF FACT REGARDING EXPLANATION OF RS.17 LACS WHICH WAS DEPOSITED IN HDFC BANK AND ON THE BASIS OF ANALYSIS OF BANK STAT EMENT HE HAS HELD THAT DEPOSITS IN BANK MADE ON 27.11.2008 AND 30.1.2009 A MOUNTING TO RS.12 LACS WERE MADE OUT OF EARLIER WITHDRAWALS BY THE ASSESSE E WHEREAS RS.5 LAC WHICH WAS DEPOSITED ON 14.08.2008 WAS NOT EXPLAINABLE. TH E FINDINGS AS CONTAINED IN PARA 4.2 & 4.3 OF LEARNED CIT ARE REPRODUCED BELOW. 4.2 GROUND OF APPEAL NO.2 & 3 RELATED TO ADDITION OF RS.17,00,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. IT IS OBSERVED THAT T HERE ARE FOUND ENTRIES IN THE BANK OF THE APPELLANT DEPICTING CASH DEPOSITS WHICH ARE AS UNDER. 1. ON 14.8.2008 RS.5,00,000/- 2. ON 27.11.2008 RS.7,00,000/- 3. ON 30.01.2009 RS.3,50,000/- 4. ON 30.1.2009 RS.1,50,000/- REGARDING THE ENTRY NO.2, THE APPELLANT HAS SUBMITT ED THAT HE HAS WITHDRAWN AN AMOUNT OF RS.7,00,000 FROM THE SAME BANK ACCOUNT ON 23.10.2008 AND THIS AMOUNT WAS RE-DEPOSITED IN THE ACCOUNT OF 27.11.200 8 AS THE SAME WAS NOT UTILIZED. THE AO HAS CONTENDED THAT IF THIS CASH WA S LYING WITH HIM AFTER WITHDRAWAL FROM THE BANK THEN WHY HE WITHDREW MORE CASH FROM THE SAME BANK IN BETWEEN THE DATES MENTIONED BY THE APPELLANT. HO WEVER, ON GOING THROUGH THE BANK STATEMENT, IT IS FOUND THAT THERE WERE NO SUCH FURTHER WITHDRAWALS BETWEEN 23.10.2008 AND 27.11.2008 AS MENTIONED BY THE AO IN THE ASSESSMENT ORDER. THE ENTRY OF RS.5,00,000/- ON 24.10.2011 IS A CHEQU E RETURN ENTRY AND TWO ENTRIES OF RS.50,000 EACH ON 19.11.2008 AND 20.11.2 008 ARE TRANSFER ENTRIES FOR MUTUAL FUND PURCHASE. THE PLEA OF THE APPELLANT IN RESPECT OF RS.7,00,000 IS THEREFORE, ACCEPTED AND ALLOWED. 6. ITA NO.58 & 204 (ASR)/2015 ASST. YEAR 200 9-10 4.3. REGARDING THE ENTRY NO 3&4, THE APPELLANT HAS SUBMITTED THAT HE HAS WITHDRAWN AN AMOUNT OF RS.5,00,000 FROM THE SAME BA NK ACCOUNT ON 27.01.2009 AND THIS AMOUNT WAS RE-DEPOSITED IN THE ACCOUNT BY DEPOSITING RS.3,50,000/- ON 30.01.2009 & RS.1,50,000 ON 31.01. 2009 AS THE SAME WAS NOT UTILIZED. THE AO HAS CONTENDED THAT BEFORE DEPOSITI NG THESE AMOUNTS, THE APPELLANT HAS DEPOSITED CASH OF RS.5,00,000 & RS.4, 00,000 ON 29.01.2009 & 31.01.2009. HOWEVER, ON GOING THROUGH THE BANK STAT EMENT, IT IS FOUND THAT THERE WERE NO SUCH CASH DEPOSITS ON THE DATED MENTIONED B Y THE AO IN THE ASSESSMENT ORDER. THE ENTRY OF RS.5,00,000 ON 29.01.2009 & RS. 4,00,000 ON 31.01.2009 ARE IN FACT CHEQUES DEPOSITED AND NOT CASH DEPOSITS. TH E PLEA OF THE APPELLANT IN RESPECT OF RS. 5,00,000/- IS THEREFORE, ACCEPTED AN D ALLOWED. REGARDING THE ENTRY NO 1 IN RESPECT OF CASH DEPOSIT S OF RS. 5,00,000 ON 14.08.2008, THE APPELLANT SUBMITTED THAT THE AMOUNT WAS DEPOSITED OUT OF OPENING CASH AND HIS VARIOUS INCOMES DURING THE YEA R. HOWEVER, THE APPELLANT COULD NOT PRODUCE AND DOCUMENTARY EVIDENCE TO ESTAB LISH OR PROVE HIS CLAIM. THE PLEA OF THE APPELLANT COULD NOT BE ACCEPTED MERELY ON HIS STATEMENT AND ACCORDINGLY THIS ARGUMENT OF THE APPELLANT IS REJEC TED. THIS GROUND OF APPEAL IS PARTLY ALLOWED AND A RELIE F OF RS. 12,00,000/- IS ALLOWED. GROUND OF APPEAL NO 3 TO 7 RELATE TO ADHOC DISALLOW ANCES OUT OF VARIOUS EXPENSES TOTALING RS. 14,498/- ON ACCOUNT OF NON PRODUCTION OF VOUCHERS. THE APPELLANT HAS ARGUED THAT THE AO HAS MENTIONED IN THE ASSESSMENT ORDER THAT THE BOOKS OF ACCOUNT WERE PRODUCED AND CHECKED BY THE AO AND THE REFORE SUCH ADDITION COULD NOT BE MADE. IT IS OBSERVED THAT THE AO HAS NOT MAD E THE ADDITION ON ACCOUNT OF NON PRODUCTION OF BOOKS OF ACCOUNTS BUT THE ADDITIO N HAS BEEN MADE ON ACCOUNT OF NON-PRODUCTION OF CERTAIN VOUCHERS PERTAINING TO EXPENSES. THE PLEA OF THE APPELLANT IS NOT ACCEPTABLE AND ACCORDINGLY THIS GR OUND OF APPEAL IS DISMISSED. GROUND OF APPEAL NO 8 & 9 ARE GENERAL IN NATURE, RE QUIRE NO ADJUDICATION AND ACCORDINGLY DISMISSED WE FIND THAT THE LEARNED CIT(A) HAS PASSED A REASON ED AND A SPEAKING ORDER AND HAS UPHELD A PART OF ADDITIONS AND HAS ALLOWED THE RELIEF FOR PART ADDITIONS WHICH IS BASED ON THE ENTRIES OF DEPOSITS AND WITHD RAWAL IN THE BANK ACCOUNT. THE LEARNED DR COULD NOT CONTROVERT THE FINDINGS RE CORDED BY LEARNED CIT(A), THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF LEARNED CIT(A). THE 7. ITA NO.58 & 204 (ASR)/2015 ASST. YEAR 200 9-10 LEARNED AR ALSO COULD NOT PRODUCE ANY EVIDENCE IN S UPPORT OF HIS CLAIM OF RS.5,00,000/- BEING OPENING BALANCE. 13. AS REGARDS THE CONFIRMATION OF ADDITION ON ACCO UNT OF EXPENSES, WE FIND THAT THROUGH THE ASSESSEE HAD PRODUCED THE BOOKS OF ACCOUNT BUT VOUCHERS OF EXPENSES WERE NOT PRODUCED AND THEREFORE, THE LEARN ED CIT(A) HAS RIGHTLY CONFIRMED THE ADDITIONS WHICH IS 10% OF THE UNVOUCH ED EXPENSES. WE FIND THAT THE DISALLOWANCE CONFIRMED BY THE LEARNED CIT(A) IS REASONABLE AND WE DO NOT FIND ANY INFIRMITY IN THE SAME. 14. IN VIEW OF THE ABOVE, THE APPEALS FILED BY THE REVENUE AS WELL AS BY ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH DECEMBER, 2015. SD/- SD/- (A.D.JAIN) (T.S.KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10.12.2015 PK/PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.