Nilima Srivastava, Noida V. ITO, New Delhi

ITA 2389/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6770 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 03-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources
• Section: 143(3); 234B; 131

Judgement Text

1 ITA NO. 2389/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-3, NEW DELHI BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO.2389/DEL/2015 : ASSTT. YEAR : 2010-11 NILIMA SRIVASTAVA FLAT NO. 183, 8 TH FLOOR, WINDSOR GREENS, F-28, SECTOR-50 NOIDA AHGPS9253C VS ITO WARD 22(03), NEW DELHI ASSESSEE BY : SH. SALIL KAPOOR, ADV REVENUE BY : SH. ANIL SHARMA, SR. DR DATE OF HEARING : 03.11.2016 DATE OF PRONOUNCEMENT : 08.11.2016 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 17/03/2015 PASSED BY CIT (A)-XIII, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THAT THE ASSESSMENT ORDER PASSED U/S 143(3) AND THE ADDITIONS MADE ARE ILLEGAL, BAD IN LAW AND WITHOU T JURISDICTION. 2. THAT THE ADDITION/DISALLOWANCE MADE ARE UNJUST , ARBITRARY AND ARE NOT BASED ON ANY MATERIAL ON RECORD. THE TO TAL 2 ITA NO. 2389/DEL/2015 INCOME OF THE APPELLANT HAS BEEN WRONGLY AND ILLEGA LLY ASSESSED AT RS. 25,84,470/- AS AGAINST INCOME DECLA RED AT RS. 7,81,470/- 3. THAT THE APPELLANT PRAYS THAT THE ADDITION OF RS . 18,03,000/- MADE BY THE AO AND CONFIRMED BY CIT(APP EAL) UNDER THE HEAD UNDISCLOSED INCOME IS ILLEGAL, UNJ UST AND BAD IN LAW. THE ADDITION CANNOT BE JUSTIFIED BY ANY MATERIAL ON RECORD. 4. THAT THE ADDITIONS MADE AND THE OBSERVATIONS MA DE ARE UNJUST, UNLAWFUL AND BASED ON MERE SURMISES AND CONJUNCTURES. THE ADDITIONS MADE CANNOT BE JUSTIFIE D BY ANY MATERIAL ON RECORD. 5. THAT THE EXPLANATION GIVEN EVIDENCE PRODUCED, MA TERIAL PLACED AND AVAILABLE ON RECORD HAS NOT BEEN PROPERL Y CONSIDERED AND JUDICIALLY INTERPRETED AND THE SAME DO NOT JUSTIFY THE ADDITIONS/ ALLOWANCES MADE. 6. THAT WITHOUT PREJUDICE AND IN THE ALTERNATIVE A DDITION CANNOT BE MADE OF THE TOTAL AMOUNT IN THE HAND OF T HE APPELLANT WHEN ADMITTEDLY THERE ARE THREE JOINT HOL DER OF THE ACCOUNT THE ADDITION MADE IS UNLAWFUL AND IS HI GHLY EXCESSIVE. 7. THAT THE INTEREST U/S 234B AND 234C HAS BEEN WRO NGLY AND ILLEGALLY CHARGED AND IS WRONGLY WORKED OUT. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER AND OR MODIFY THE GROUNDS OF APPEAL OF THE SAID APPEAL. 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE CONFIRMATION OF ADDITION OF RS.18,03,000/- MADE BY THE A.O. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FI LED THE RETURN OF INCOME ON 30/3/2011 DECLARING AN INCOME OF RS.7,81, 470/- WHICH 3 ITA NO. 2389/DEL/2015 WAS PROCESSED U/S 143 (1) OF THE INCOME-TAX ACT, 19 61(HEREINAFTER REFERRED TO AS THE ACT) . LATER ON, THE CASE WAS S ELECTED FOR SCRUTINY. THE A.O DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT IN THIS CASE INFORMATION WAS RECEIVED WITH RESPECT TO CASH DEPOSITS OF RS.1,01,03,000/- IN THE JOINT BANK ACCOUNT MAINT AINED WITH KARUR VYSYA BANK LTD., NOIDA BRANCH IN WHICH THE AS SESSEE WAS THE THIRD JOINT HOLDER AND THE ACCOUNT WAS OPENED U NDER THE SCHEME OF FORMER OR SURVIVOR. THE A.O MADE THE ADD ITION OF RS.18,03,000/- BY OBSERVING AS UNDER:- SUMMONS U/S 131 OF THE IT ACT WERE ISSUED ON 8/3/2 013 TO ASSESSEE AND HER HUSBAND SH. MANOJ SRIVASTAVA AND T HEIR STATEMENTS WERE RECORDED ON 15/3/2013. SH. MANOJ SRIVASTAVA IN HIS STATEMENT INTER ALIA STATED THAT HE WAS OPERATING THE ACCOUNT NO. 6910 THROUGH HIS LATE FAT HER IN LAW AND THAT OUT OF CASH DEPOSIT OF RS.1,01,03,000/-, H E HAD DEPOSITED CASH TO THE TUNE OF RS.60 LAKH IN THE ACC OUNT WHICH HE HAS ALREADY SURRENDERED BEFORE THE ACIT, CENTRAL CIRCLE, NOIDA DURING ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2010-11 AND PRODUCED A COPY OF ASSESSMENT ORDER 30/12/2011 U/S 153A/143(3) OF THE I.T ACT. THE ASS ESSEE IN HER STATEMENT SHOWED IGNORANCE OF FINANCIAL TRANSAC TION OF THE ACCOUNT ON THE GROUND THAT SHE WAS NOT OPERATING TH E ACCOUNT AND WAS MERELY A THIRD JOINT HOLDER. FURTHER, SHE CONFIRMED SURRENDER OF RS. 60 LAKH BEFORE THE I.T DEPARTMENT BY HER HUSBAND AND OFFERED HER EXPLANATION IN RESPECT OF T HE REMAINING CASH DEPOSIT OF RS.41,03,000/- ALONG WITH DOCUMENTARY EVIDENCES OUT OF THE AMOUNT OF R.41.03 LACS AN AMOUNT OF RS.7 LACS EACH HAS BEEN RECEIVED BY THE A SSESSEE AND HER FATHER LT. SH. GOPAL KRISHAN IN CASH AS PER COPY OF AGREEMENTS SUBMITTED WHICH HAS BEEN DEPOSITED IN TH E BANK ACCOUNT AND RS. 9 LACS HAS BEEN STATED TO BE DEPOSI TED OUT OF CASH WITHDRAWN FROM THE SAME BANK ACCOUNT. ON DETA ILED EXAMINATION OF THE FACTS AND RECORDS, IT IS SEEN TH AT A SUM OF 4 ITA NO. 2389/DEL/2015 RS.18,03,000/- REMAINS UNEXPLAINED AND LACKS ANY DOCUMENTARY SUBSTANTIATION. HENCE, THE SAME IS HER EBY ADDED BACK TO THE INCOME OF THE ASSESSEE AS INCOME FROM U NDISCLOSED SOURCES. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD.CIT(A) AND FURNISHED THE WRITTEN SUBMISSIONS WHI CH HAS BEEN INCORPORATED IN PARA 4.2 OF THE IMPUGNED ORDER FOR THE COST OF REPETITION, THE SAME IS NOT REPRODUCED HEREIN. THE LD.CIT(A), HOWEVER, CONFIRMED THE ADDITION BY OBSERVING IN PAR A 4.3 OF THE IMPUGNED ORDER AS UNDER:- 4.3. THE REASON GIVEN BY A.O AND THE SUBMISSION OF THE APPELLANT ARE CONSIDERED. THE SAVING ACCOUNT WAS OPERATED BY APPELLANTS HUSBAND AND FATHER. THE APPELLANT WAS THE OWNER OF THE ACCOUNT UNDER THE SCHEME OF FORMER OR SURVIV OR. AFTER THE DEATH OF HER FATHER, SHE BECAME THE OWNER OF THE AC COUNT AS SHE WAS THE SURVIVOR. HALF THE CASH DEPOSITED IS AGREE D BY THE OTHER HOLDER OF THE ACCOUNT AS UNACCOUNTED INCOME A ND THUS BY ALL MEANS THE OTHER HALF IS ALSO UNACCOUNTED INCOME THAT SHOULD BE TAXED IN THE HANDS OF THE APPELLANT. IT IS NOT A CASE OF LEGAL HEIR AS WAS VERY MUCH A PART OF THE SAVINGS BANK AC COUNT WHERE THE CASH WAS DEPOSITED AND PLEADING IGNORANCE WILL NOT ABSOLVE HER FROM THE LEGAL IMPLICATIONS. THE FACT REGARDING DEPOSIT OF UNACCOUNTED INCOME IS ESTABLISHED BY TAX ATION OF RS. 60 LAKH IN THE CASE OF OTHER JOINT OPERATOR. AFTER THE DEATH OF HER FATHER, THE APPELLANT BECAME THE OPERATOR OF THE AC COUNT. IN VIEW OF THIS, THE ADDITION MADE IS CONFIRMED AND TH E GROUNDS OF APPEAL ARE DISMISSED. 5. NOW, THE ASSESSEE IS IN APPEAL. 5 ITA NO. 2389/DEL/2015 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMI TTED THAT THE JOINT ACCOUNT WAS IN THE NAME OF THE ASSESSEE, HER HUSBAND AND HER FATHER WHICH WAS OPENED UNDER THE SCHEME FORMER OR SURVIVOR. IT WAS STATED THAT THE ASSESSEES NAME WAS THIRD AN D OTHER TWO JOINT HOLDERS WERE HER LATE FATHER AS FIRST HOLDER AND HE R HUSBAND AS SECOND HOLDER. IT WAS FURTHER STATED THAT AFTER TH E DEATH OF THE ASSESSEE HER HUSBAND BECAME FIRST HOLDER, THEREFORE , THE ADDITION IF ANY, WAS TO BE MADE IN THE HANDS OF THE FIRST HOLDE R OF THE JOINT ACCOUNT AND NOT IN THE HANDS OF THE ASSESSEE. 7. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SU PPORTED THE IMPUGNED ORDER AND REITERATED THE OBSERVATIONS MADE BY THE LD.CIT(A) IN PARA 4.3 OF THE IMPUGNED ORDER. 8. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE JOINT BANK ACCOUNT WAS OPENED UNDER THE SCHEME OF FORMER OR SURVIVOR. THE FIRST HOLDER OF THE JOINT BANK ACCOUNT WAS DECEASED FATHER OF THE A SSESSEE, SECOND HOLDER WAS HER HUSBAND AND THE ASSESSEE WAS THE THI RD HOLDER. AS SUCH, AFTER THE DEATH OF HER FATHER, THE HUSBAND OF THE ASSESSEE BECAME FORMER IN THE JOINT BANK ACCOUNT AND THE NAM E OF THE ASSESSEE WAS APPEARING AFTER THE NAME OF HER HUSBAN D. THEREFORE, AFTER CONSIDERING THE TOTALITY OF THE FACTS, I AM O F THE VIEW THAT THE ADDITION IF ANY WAS TO BE MADE ON ACCOUNT OF CASH D EPOSITS IN THE BANK ACCOUNT, WAS REQUIRED TO BE MADE IN THE HANDS OF THE FORMER HOLDER OF THE BANK ACCOUNT AND NOT THE LATER. IN T HE PRESENT CASE, 6 ITA NO. 2389/DEL/2015 HUSBAND OF THE ASSESSEE WAS THE FORMER AND THE ASSE SSEE WAS THE LATER. THEREFORE, THE ADDITION MADE IN THE HANDS O F THE ASSESSEE WAS NOT JUSTIFIED PARTICULARLY WHEN NOTHING WAS BRO UGHT ON RECORD TO SUBSTANTIATE THE AMOUNT WAS DEPOSITED BY THE ASS ESSEE AND NOT BY HER HUSBAND. IT IS ALSO RELEVANT TO POINT OUT T HAT THE A.O HIMSELF MENTIONED IN THE ASSESSMENT ORDER THAT THE ASSESSEE WAS NOT HAVING THE CAPACITY TO OPERATE THE ACCOUNT BECAUSE SHE WAS THIRD JOINT HOLDER AND THE ACCOUNT WAS OPENED UNDER THE S CHEME OF FORMER OR SURVIVOR. ACCORDINGLY, THE ADDITION MADE BY THE A.O AND SUSTAINED BY THE LD.CIT(A) IS DELETED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. (ORDER PRONOUNCED IN THE COURT ON 08/11/2016) SD/- (N. K. SAINI) ACCOUNTANT MEMBER DATED: 08/11/2016 *R.NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 7 ITA NO. 2389/DEL/2015 ASSISTANT REGISTRAR ITAT, NEW DELHI DATE INITIAL 1. DRAFT DICTATED ON 03.11.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 04.11.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 8.11.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 8.11.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 8 ITA NO. 2389/DEL/2015