Smt. Sushma Naik, Pune V. Income-tax Officer,

ITA 2163/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9161 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKAR A RAO, AM . / ITA NO.2163/PUN/2016 / ASSESSMENT YEAR : 2010-11 SMT. SUSHAMA NAIK, 190/2, LEELA APARTMENT, GANJAWE CHOWK, NAVI PETH, PUNE 411 030 PAN : AEVPN6506R . /APPELLANT VS. INCOME-TAX OFFICER, WARD-3(1), PUNE . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI AJAY MODI, JCIT / DATE OF HEARING : 19.03.2018 / DATE OF PRONOUNCEMENT: 23.03.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF C IT(A)-5, PUNE, DATED 17-06-2016 FOR THE ASSESSMENT YEAR 2010-11. 2. GROUNDS RAISED BY THE ASSESSEE READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.6,00 ,000/- OUT OF TOTAL ADDITION MADE BY THE A.O. OF RS.12,00,000/- U/S.69A OF THE A CT. IT BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE SUSTAINED ADDITION OF RS.6,00,000/- BY THE LD.CIT(A) ORIGINAL LY MADE BY THE A.O. UNDER S. 69A WAS ALSO NOT JUSTIFIED SINCE THE PROVISIONS OF S. 69A ARE NOT APPLICABLE TO THE FACTS OF THE CASE. THE SUSTAINED ADDITION BE DELETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) WAS ALSO NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS .3,41,000/- MADE BY THE A.O. RECEIVED BY THE ASSESSEE FROM HER HUSBAND. THE A.O. HAD MADE THE ADDITION UNDER S.69A OF THE ACT. THE PROVISIONS OF S. 69A ARE NOT APPLICABLE TO THE FACTS OF THIS CASE. THE ADDITION CONFIRMED BY L D.CIT(A) BE DELETED. 2 4. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTE R ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT TH E ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM GIVING TUITIONS TO THE STU DENTS. ASSESSEE FILED THE RETURN OF INCOME ON 19-03-2012 DECLARIN G TOTAL INCOME OF RS.2,75,800/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.143(3) OF THE ACT, AO NOTICED FROM THE BANK ACCOUNT STATEMENTS O F THE ASSESSEE THE FACT OF DEPOSITING OF CASH AMOUNTING TO RS.19,42,000/-. ASS ESSEE SUBMITTED THAT THE SOURCE OF THIS CASH INCLUDES THE SALE PROCEEDS OF A ROW HOUSE LOCATED AT AVDHOOT ARCADE, VADGAON, PUNE, TUITION F EE, WITHDRAWALS FROM THE BANK ACCOUNT OF HER SPOUSE. ACCORDING TO THE ASSESSEE, THE SAID ROW HOUSE WAS SOLD FOR A SUM OF RS.35 LAKHS AND THE SAME IS REFLECTED IN THE RETURN OF INCOME OF THE ASSESSEES SPOUSE SHRI SHAILE SH NAIK. RELEVANT SUBMISSIONS OF THE ASSESSEE AS MENTIONED IN PARA NO.3 OF T HE ASSESSMENT ORDER ARE EXTRACTED AS UNDER : THE ASSESSEE HAS SUBMITTED THAT THE CASH OF RS.13, 75,000/- OUT OF WHICH THE CASH OF RS.1,75,000/- IS RECORDED IN THE AGREEM ENT TO SALE WHICH HAS ALREADY BEEN DISCLOSED BY THE ASSESSEE HUSBAND. TH E BALANCE CASH OF RS.12,00,000/- WAS CLAIMED TO BE RECEIVED FROM SHRI MADHUMKAR DATTATRAY NIMBALKAR AND HER WIFE SMT. CHAYA MADHUKAR NIMBALKA R WHICH WAS CLAIMED TO BE RETURNED BACK TO THEM IN CASH BY THE ASSESSEE AFTER GETTING THE DD OF RS.12,00,000/- ON 01-01-2010 IN THE BANK ACCO UNT. THUS, IT WAS CONTENDED THAT THE AGREEMENT PRICE OF THE ROW HOUSE IS CORRECT AND ONLY THE CASH WAS TAKEN AND THEN RETURNED BACK. THUS, RS.12 LAKHS IS RECEIVED FROM THE BUYER OF THE ROW HO USE. FURTHER, AS PER THE AGREEMENT TO SALE, RS.1,75,000/- IS THE CASH RECE IVED BY THE ASSESSEE. THAT TOTALS TO RS.13.75 LAKHS. THAT LEAVES TH E DIFFERENCE AMOUNT OF RS.5,67,000/- TO BE EXPLAINED (RS.19,42,000 RS.13,75,000). IN THIS REGARD, ASSESSEE EXPLAINED THAT RS.2,26,000/- WAS EARNED FROM GIVING TUITION LEAVING THE BALANCE OF RS.3,41,000/- TO BE EXPLAINED. THIS AMOUNT OF CASH WAS RECEIVED FROM HER HUSBAND SHRI SHAILESH NAIK. BANK ACCOUNT STATEMENT OF SHRI SHAILESH NAIK WAS FURNISHED TO SUPPORT THE SAME. 3 HOWEVER, TO VERIFY THE CLAIM OF RECEIPT OF RS.12 LAKHS, AO IN VOKED THE PROVISIONS OF SECTION 131 OF THE ACT IN THE CASE OF MS. CHA YA MADHUKAR NIMBALKAR. REJECTING THE EXPLANATION OF THE ASSESSEE REG ARDING THE SOURCE OF CASH OF RS.12 LAKHS, THE AO INVOKED THE PROVISIONS OF SE CTION 69A OF THE ACT AND MADE ADDITION OF RS.15,41,000/- TO THE INCOME RETU RNED BY THE ASSESSEE. THE ASSESSED INCOME IS DETERMINED AT RS.18,16,800/-. 4. DURING THE FIRST APPELLATE PROCEEDINGS, ASSESSEE FILED TH E WRITTEN SUBMISSIONS AND SUBMITTED THAT THEY RECEIVED CASH ADVAN CE OF RS.12 LAKHS ON 02-07-2009, 04-08-2009 AND 18-08-2009 RESPECTIVELY . THE SAID AMOUNTS WERE DEPOSITED IN THE BANK ACCOUNT. ONCE THE DEED OF ASSIGNMENT DATED 06-11-2009 WAS FINALIZED, ASSESSEE RETURNED THE SA ME MONEY AFTER SWAPPING WITH THE DEMAND DRAFT FOR EQUIVALENT AMOUNT. THE REPAYMENT OF RS.12 LAKHS BY WAY OF CHEQUES WAS EVIDENCED BY THE ASS ESSEE DURING THE FIRST APPELLATE PROCEEDINGS. CONTENTS OF PARA NO.4.3 ARE R ELEVANT. ON CONSIDERING THE ASSESSEES SUBMISSIONS, FOR WANT OF CERTAIN DETAILS FROM THE BANK, THE CIT(A) GAVE RELIEF TO THE EXTENT OF RS.6 LAKHS AND CONFIRMED THE BALANCE OF RS.6 LAKHS. REGARDING THE CASH OF RS.3,41,000/- RECEIVED BY THE ASSES SEE FROM HER HUSBAND SHRI SHAILESH NAIK, OUT OF HIS WITHDRAWALS FROM THE BANK ACCOUNT, WHICH FORMED PART OF THE AFORESAID ADDITION (I.E., RS.1 5,41,000 () RS.12,00,000), THE CIT(A) REJECTED THE ASSESSEES EXPLAN ATION AND CONFIRMED THE ADDITION MADE BY THE AO. 5. AGGRIEVED WITH THE PART RELIEF GIVEN BY THE CIT(A), THE A SSESSEE IS IN APPEAL BEFORE US WITH THE GROUNDS RAISED ABOVE. 6. THE UNDISPUTED FACTS INCLUDE THAT THE ASSESSEE DEPOS ITED CASH OF RS.19.42 LAKHS IN HER BANK ACCOUNT. THE DETAILS OF THE SOU RCES FOR THE SAID CASH DEPOSITS ARE TABULATED AS UNDER : 4 TOTAL CASH DEPOSITS RS.19,42,000 LESS : I. CASH RECEIVED FROM THE BUYER RS.12,00,000 II. CASH RECEIVED AS PER AGREEMENT TO SA LE RS.1,75,000 III. CASH RECEIVED FROM HER HUSBAND RS.3, 41,000 IV. CASH RECEIVED FROM TUITION RS.2,26,00 0 OUT OF THE ABOVE, AO DECIDED TO ADD THE ITEMS AT SL.NO.(I) AND (III) IN THE ASSESSMENT. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A ) GRANTED RELIEF TO THE EXTENT OF RS.6 LAKHS AND CONFIRMED THE BALANCE OF RS.6 LAKHS FOR WANT OF DETAILS. REGARDING OTHER ADDITION OF RS.3,41,000/- ALSO, IT IS THE CASE OF THE CIT(A) THAT THE ASSESSEE RECEIVED ONLY RS.31,000/- IN HER BANK ACCOUNT FROM HER SPOUSE. HOWEVER, HE DID NOT COMMENT ON THE U SE OF THE CASH WITHDRAWN BY HER SPOUSE. WE SHALL TAKE UP THESE TWO ISS UES RAISED BY THE ASSESSEE IN THE GROUNDS. 7. IN CONNECTION WITH GROUND NOS.1 & 2 RELATING TO THE CO NFIRMING OF ADDITION OF RS.6 LAKHS, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.6 LAKHS ON THE GROUND THAT THE CHEQUES INVOLVED ARE MERELY SELF-CHEQUES AND THE ASSES SEE FAILED TO SUBSTANTIATE THAT THE SAID CASH WAS REPAID TO MS. CHAYA MADHUKAR NIMBALKAR. ACCORDING TO THE CIT(A), THERE IS NO EVIDENCE WITH THE ASSESSEE TO DEMONSTRATE THAT THE BUYER HAS WITHDRAWN THE RELEV ANT CASH OF RS.6 LAKHS AT HER END. 8. ON HEARING BOTH THE PARTIES ON THIS ISSUE, WE ARE OF TH E OPINION THAT THE ONUS HAS SHIFTED. ASSESSEE HAS DISCHARGED HER ONUS IN GIVING SUFFICIENT EXPLANATION AND THE DETAILS OF CHEQUES ALONG WITH DATES AN D THE DETAILS OF THE BANK. AT THIS STAGE, IT IS FOR THE AO TO DISCHARGE TH E ONUS TO DEMONSTRATE THAT THE AMOUNT WAS NOT WITHDRAWN BY THE BUYER. IN OUR VIEW, THE AO HAS FAILED TO BRING ANY EVIDENCE TO DEMONSTR ATE THAT THE AMOUNT WAS NOT WITHDRAWN BY THE BUYER. THEREFORE, IN OU R VIEW, THE 5 CONFIRMATION OF ADDITION BY THE CIT(A) IS NOT ONLY PREMATURE BUT ALSO UNWARRANTED. ACCORDINGLY, GROUND NOS. 1 AND 2 RAISED BY THE ASSESSEE ARE ALLOWED AND DECIDED IN FAVOUR OF THE ASSESSEE. 9. REGARDING GROUND NO.3 RELATING TO THE CONFIRMATION OF ADD ITION OF RS.3,41,000/- BY THE CIT(A), THE CIT(A) VIDE THE SUMMARY OF HIS DISCUSSION GIVEN AT PARA NOS. 6.1 TO 6.3, DISMISSED THE EXPLANATION OF THE ASSESSEE AND CONFIRMED THE ADDITION. CIT(A) DISCUSSED THE FACT THAT THER E ARE DIRECT REMITTANCES FROM THE ASSESSEES ACCOUNT TO THE EXTENT OF RS.31,000/-. CIT(A) ALSO IGNORED THE FACT THAT HER HUSBAND HAS CASH W ITHDRAWALS TO EXPLAIN ADVANCING OF THE AMOUNT OF RS.3,41,000/- TO THE ASS ESSEE. CIT(A) DID NOT DEAL WITH THE ASSESSEES CLAIM OF CASH WITHDRAWAL B Y HER HUSBAND ON THE SOURCE OF CASH OF RS.3,41,000/-. 10. AFTER HEARING BOTH THE SIDES, WE ARE OF THE OPINION THA T THE APPROACH OF THE CIT(A) IS HYPERTECHNICAL AND HIS DECISION FOR REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE IS UNSUSTAINABLE. IN ANY CASE, IT IS NOT THE CASE OF THE REVENUE THAT THE CASH WITHDRAWN BY HER HUSBAND IS UTILIZED ELSEWHERE BY HIM. THEREFORE, WE ARE OF THE VIEW THAT THE EXPLANATION GIVEN BY THE ASSESSEE CONSTITUTES A POSSIBLE EXPLANATION. REVENUE HAS NOT BROUGHT TO RECORD ANY ADVERSE MATERIAL TO PROVE THE CONTRARY. TH EREFORE, GROUND NO.3 RAISED BY THE ASSESSEE IS ALSO REQUIRED TO BE ALLOWED IN FA VOUR OF THE ASSESSEE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 23 RD DAY OF MARCH, 2018. SD/- SD/- (SUSHMA CHOWLA) (D.KARUNAKAR A RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; DATED : 23 RD MARCH, 2018. SATISH 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A)-5, PUNE 4. / THE CIT-5, PUNE 5. , , / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE