Shri Kishor Bachuram Kapdi, Ahmedabad V. The Income Tax Officer, Ward-8(4), Ahmedabad

ITA 2097/AHD/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7372 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 30-01-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 15-07-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UMESH KUMAR AGARWAL
• Section: 143(3)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 2097/AHD/2015 ( ASSESSMENT YEAR : 2011-12) SHRI KISHOR BACHURAM KAPDI C/O. A. P. SANDESARA & CO. 104, MAURYA COMPLEX, NEAR C.U.SHAH COLLEGE, OFF. ASHRAM ROAD, AHMEDABAD 38009 / VS. INCOME TAX OFFICER WARD -8(4), AHMEDABAD ./ ./ PAN/GIR NO. : AGGPK3897B ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KALPESH DOSHI, A.R. / RESPONDENT BY : SHRI UMESH KUMAR AGARWAL, SR. D.R. DATE OF HEARING 30/01/2020 !'# / DATE OF PRONOUNCEMENT 31/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-8, AHMEDABAD (CIT(A) IN SHORT), DATED 0 5.06.2015 ARISING IN THE ASSESSMENT ORDER DATED 26.03.2014 PA SSED BY THE ITA NO. 2097/AHD/15 [SHRI KISHOR BACHURAM KAPDI VS. ITO] A.Y. 2011-12 - 2 - ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOM E TAX ACT, 1961 (THE ACT) CONCERNING AY 2011-12. 2. AS PER GROUNDS OF APPEAL, THE ASSESSEE HAS CHALL ENGED THE ACTION OF THE CIT(A) IN SUSTAINING THE ADDITIONS OF RS.19 LAKHS TOWARDS CASH DEPOSITS UNDER S.69 OF THE ACT ALLEGIN G UNSATISFACTORY EXPLANATION OF SOURCE OF CASH DEPOSI TS. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEA RNED AR FOR THE ASSESSEE REFERRED TO THE CASH BOOK (PAGE NO.20 & 21 OF PAPER BOOK) MAINTAINED BY THE ASSESSEE AND POINTED OUT TH AT THE CASH HAS BEEN WITHDRAWN FROM THE BANK BY THE ASSESSEE FR OM TIME-TO- TIME AND THEREAFTER RE-DEPOSITED IN THE BANK. IN T HE CIRCUMSTANCES, THE SOURCE OF CASH DEPOSIT IS FULLY EXPLAINABLE. IT WAS POINTED OUT THAT THE AO HAS DISBELIEVED THE GAP BETWEEN THE WITHDRAWALS FROM THE BANK AND RE-DEPOSIT IN THE BANK. THE AO HAS NOT ACCEPTED THE CASH WITHDRAWALS PRIOR TO T HE CASH DEPOSIT TO BE THE PROPER SOURCE OF CASH DEPOSIT MAI NLY ON THE GROUND THAT THE CASH WITHDRAWALS HAVE BEEN USED FOR ACQUISITION OF IMMOVABLE PROPERTY AND FOR PAYMENT OF UNACCOUNTE D STAMP DUTY THEREON AMOUNTING TO RS.3,10,000/- DURING THE YEAR. IT IS ALLEGED THAT THE CASH WITHDRAWALS WAS USED AS ON-MO NEY FOR INVESTMENT IN IMMOVABLE PROPERTY, ADDITION AND ALTE RATION IN THE PROPERTY AND OTHER PERSONAL EXPENSES AND TOWARDS PA YMENT OF STAMP DUTY AND THEREFORE COULD NOT BE PLOUGHED BACK IN THE BANK AT THE FAG END OF THE FINANCIAL YEAR AS CLAIME D. THE LEARNED AR SUBMITTED THAT THE PAYMENT FOR IMMOVABLE PROPERTY ACQUIRED FOR A CONSIDERATION OF RS.63,39,500/- WAS MADE ITA NO. 2097/AHD/15 [SHRI KISHOR BACHURAM KAPDI VS. ITO] A.Y. 2011-12 - 3 - THROUGH CHEQUE AND THEREFORE, THE APPLICABILITY OF CASH IN HAND CANNOT BE DISBELIEVED. 4. THE LEARNED DR FOR THE REVENUE, ON THE OTHER HAN D, SUBMITTED THAT THE ASSESSEE HAS FAILED TO EXPLAIN T HE SOURCE OF CASH DEPOSIT AND THEREFORE THE ONUS IN THIS REGARD WAS NOT DISCHARGED AT ALL. THE LEARNED DR RELIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED THAT TO AVAIL THE SOURCE OF CA SH DEPOSIT AS CLAIMED, THE ASSESSEE WAS REQUIRED TO DISCLOSE ALL THE FACTS WITHIN HIS KNOWLEDGE. THE REASONS AND OCCASION FOR LARGE WITHDRAWAL WERE NOT PROVIDED BY THE ASSESSEE AND TH EREFORE, ROTATION OF FUNDS CANNOT BE INFERRED BY IMPLICATION . 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE A SSESSEE SEEKS RELIEF TOWARDS CASH DEPOSIT ON THE GROUNDS OF SIMIL AR WITHDRAWAL OF CASH FROM BANK IN THE EARLIER PART OF THE YEAR. A PERUSAL OF THE CASH SUMMARY FILED BY THE ASSESSEE SHOWS THAT A SSESSEE HAD WITHDRAWN MONEY AT REGULAR INTERVAL MAINLY IN INITI AL PART OF THE YEAR WHICH WERE RE-DEPOSITED IN THE LATER PART OF T HE YEAR. 6. THE REASONS FOR CASH WITHDRAWAL EARLIER IS NOT K NOWN. THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF PAYMEN T OF STAMP DUTY AND THEREFORE, UTILIZATION OF CASH TO THE EXTE NT OF RS.3,10,000/- REMAINS UNEXPLAINED. HOWEVER, THE BE NEFIT OF DOUBT REQUIRES TO GO IN FAVOUR OF THE ASSESSEE FOR THE REMAINING AMOUNT IN VIEW OF THE FACT THAT THE WITHDRAWALS AS WELL AS DEPOSITS ARE NOT ONLY CONTINUOUS BUT GAP BETWEEN TH E WITHDRAWALS AND DEPOSITS CANNOT ALSO BE REGARDED AS QUITE LONG. ITA NO. 2097/AHD/15 [SHRI KISHOR BACHURAM KAPDI VS. ITO] A.Y. 2011-12 - 4 - THE PRESUMPTION DRAWN BY THE REVENUE AUTHORITIES AR E IN THE REALM OF SUSPICION AND SURMISES. THEREFORE, WHOLE OF THE ADDITION CANNOT BE SUSTAINED. WE THEREFORE ALLOW T HE APPEAL OF THE ASSESSEE TO THE EXTENT OF RS.15,90,000/-. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 31/01/2020 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 31/01/202 0