The ITO, Ward-3(4), Surat V. Smt. Vaishaliben R.Damnia, Surat

ITA 2389/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89352 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Gift; Opportunity of being heard; Peak credit
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHRI SHAILENDRA KR. YADAV, JUDICI AL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITO WARD - 3 SURAT (APPELLANT) VS SMT. VAISHALIBEN RAJESHBHAI DAMANIA, 1303, JUPITAR, RAJ HANS CAMPUS, OPP. ASHRAM, PAL ROAD, ADAJAN, SURAT- 395010 PAN: AFBPD5495G (RESPONDENT) REVENUE BY: SMT. SONIA KUMAR, SR.D.R. ASSESSEE BY: NONE DATE OF HEARING : 28-04-2015 DATE OF PRONOUNCEMENT : 30-04-2015 / ORDER PER : SHAILENDRA KR. YADAV, JUDICIAL MEMBER:- THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER OF LD. CIT(A)-II, SURAT DATED 19 TH JULY, 2011 FOR A.Y. 2008-09 ON FOLLOWING GROUND:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-II, SURAT HAS ERRED IN DELETING THE ITA NO. 2389/AHD/2011 ASSESSMENT YEAR 2008-09 I.T.A NO. 2389/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. VAISHALIBEN RAJESHBHAI DAMANIA 2 ADDITION OF RS. 16,77,284/- TOWARDS UNEXPLAINED BAN K DEPOSITS EVEN THROUGH, DESPITE SEVERAL OPPORTUNITY OF BEING HEARD, PROVIDED TO THE ASSESSEE, SHE FAILED T O DISCHARGE THE ONUS CAST ON HER AS PER LAW FOR EXPLA INING THE SOURCES OF CASH AND TO PROVE THE GENUINENESS OF THE CLAIM. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAS SHOWN INCOME FROM TRADING OF GIFT ARTICLE, GREE TING CAR ETC AND ALSO FROM STICHING. ASSESSING OFFICER NOTICED THAT ASSESSEE HAVING A BANK ACCOUNT NO. SB-011644 WITH PRIME CO-OPERATIVE BANK BARODA BRANCH, SURAT IN HER MINOR DAUGHTERS NAME, MISS DIVYA RAJESH DAMANIA. HE ACC ORDINGLY CALLED FOR DETAILS OF ABOVE BANK ACCOUNT FOR PERIOD FROM 01-04- 2007 TO 03-01-2008 U/S. 133(6) OF THE ACT FROM THE BANK. ON RECEIPT OF THE STATEMENT OF ACCOUNTS FOR ABOVE PERI OD, THE ASSESSING OFFICER FOUND THAT FROM 17-04-2007 TO 28- 01-2008 THERE WERE 20 ENTRIES OF CASH DEPOSITS AGGREGATING TO RS. 12,05,500/- IN THE SAID ACCOUNT. SIMILARLY, FROM 1 6-04-2007 TO 07-03-2008 THERE WERE 10 ENTRIES OF CHEQUE DEPO SIT AGGREGATING TO RS. 4,71,789/- AND WITHDRAWALS EXCEE DING 10,000/- REVEALED THAT ASSESSEEE HAD MADE INVESTMEN TS IN SHARES AND SECURITIES ON DIFFERENT DATES THROUGH CH EQUES AND ALSO MADE PAYMENT TO SOME PARTIES FROM SAID ACCOUNT . THEREFORE, ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF ABOVE DEPOSITS AND WHEN NO SUCH DETAILS W ERE GIVEN, HE ALSO SHOW CAUSED THE ASSESSEE AS TO WHY AMOUNT O F ABOVE DEPOSITS MAY NOT BE ADDED TO HER INCOME. IN RESPON SE TO THE SAME, CERTAIN DETAILS WERE FILED ON BEHALF OF THE A SSESSEE AND I.T.A NO. 2389/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. VAISHALIBEN RAJESHBHAI DAMANIA 3 HAVING CONSIDERED THE SAME, ASSESSING OFFICER HELD THAT DEPOSITS OF RS. 60,77,284/- MADE IN HER ABOVE ACCOU NT WAS UNEXPLAINED AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 2.1 THE MATTER WAS CARRIED BEFORE THE FIRST APPELL ATE AUTHORITY WHEREIN VARIOUS ADDITIONS WERE RAISED ON BEHALF OF ASSSESSEE AS DETAILED IN PARA 3 OF THE CIT(A) AND H AVING CONSIDERED THE SAME, CIT(A) DIRECTED THE ASSESSING OFFICER TO TAKE THE PEAK OF DEPOSIT IN BANK ACCOUNT OF MINOR D AUGHTER OF ASSESSEE WITH THE PRIME CO-OPERATIVE BANK DURING TH E YEAR UNDER CONSIDERATION AND AFTER DEDUCTING THE AMOUNT OF RUPEES OF OPENING BALANCE IN ABOVE ACCOUNT AT THE REMAININ G AMOUNT TO THE ASSESSEE AS HER UNDISCLOSED INCOME DURING TH E YEAR. SAME HAS BEEN OPPOSED ON BEHALF OF THE ASSESSEE INT ERALIA SUBMITTING CIT(A) ERRED IN DELETING OF RS. 16,77,28 4/- TOWARDS UNEXPLAINED BANK DEPOSIT AS ASSESSEE FAILED TO DISC HARGE THE ONUS CAST ON HER AS PER LAW FOR EXPLAINING THE SOUR CE OF CASH AND TO PROVE THE GENUINENESS OF THE CLAIM SO REQUES TED TO SET ASIDE THE ORDER OF CIT(A) ON THE ISSUE AND RESTORE THAT OF THE ASSESSING OFFICER. ON THE OTHER HAND, NONE APPEARE D ON BEHALF OF ASSESSEE. SO, THE MATTER IS BEING DECIDE D ON THE BASIS OF ARGUMENTS OF LD. DR AND MATTER ON RECORD. 2.2 AFTER GOING THROUGH RIVAL SUBMISSION AND MATERI AL ON RECORD, WE FIND THAT CIT(A) FOLLOWING IDENTICAL ISS UE FOR A.Y. I.T.A NO. 2389/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. VAISHALIBEN RAJESHBHAI DAMANIA 4 2007-08 IN CASE OF ASSESSEE HAS DECIDED THE ISSUE I N FAVOUR OF ASSESSEE AND IT WAS POINTED OUT BEFORE US THAT SAID ORDER OF CIT(A) HAS BEEN CONFIRMED BY ITAT IN ITA NO. 2077/A HD/2010 FOR A.Y. 2007-08 VIDE ORDER DATED 12-07-2013 WHEREI N TRIBUNAL HAS SET ASIDE THE ISSUE TO CIT(A) WITH FOL LOWING DIRECTION BY OBSERVING AS UNDER: 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE APPELLANT HAD NOT EXPLAINED THE ENTRIES BEFORE THE A.O. AND HE HAS NOT DISCLOSED TH E PURCHASE OF SHARE AND DIVIDEND INCOME EARNED ON IT BEFORE THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDING . THE ASSESSEE'S THEORY OF PEAK CREDIT IS NOT ACCEPTABLE WHEN HARDLY THERE IS A CASH WITHDRAWAL MADE FROM THAT BA NK ACCOUNT. BUT THE ASSESSEE INVESTED IN SHARES AND SECURITIES FROM THIS ACCOUNT. THEREFORE, ALL THE EV IDENCES ARE REQUIRED TO FILE BY THE APPELLANT. AFTER COLLEC TING THE EVIDENCES, THE CIT(A) SHOULD GIVE THE SPECIFIC FIND ING IN THE MATTER. THEREFORE, THE MATTER IS RESTORED BACK TO I D. CIT(A) FOR ADJUDICATION. 2.3 NOTHING IS CONTRARY ON BEHALF OF THE REVENUE, F ACTS BEING SIMILAR SO, FOLLOWING SAME REASONING MATTER IS REST ORED TO CIT(A) WITH SIMILAR DIRECTION AS DONE BY TRIBUNAL I N A.Y. 2007- 08. 3. AS A RESULT, APPEAL OF REVENUE IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE I.E. 30/04/2015 SD/- SD/- (ANIL CHATURVEDI) (SHAIL ENDRA KR. YADAV) ACCOUNTANT MEMBER JUDI CIAL MEMBER AHMEDABAD : DATED 30/04/2015 AK I.T.A NO. 2389/AHD/2011 A.Y. 2008-09 PAGE NO ITO VS. SMT. VAISHALIBEN RAJESHBHAI DAMANIA 5 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,