Shashikant Rambhau Kank, Bhor V. Income-tax Officer, Ward - 7(2), Pune

ITA 2722/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9872 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-12-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 21-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: PRAMOD JADHAV
• Keywords: Unexplained investment; Salary income; Set aside
• Section: 69

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO. 2722/PUN/2017 / ASSESSMENT YEAR : 2009-10 SHRI SHASHIKANT RAMBHAU KANK, PUNE ZILLA MADHYAWARTI BANK LTD. BHOR BRANCH NO.2, BHOR. PAN : ABUPK6608D ....... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD-7(2), PUNE. / RESPONDENT ASSESSEE BY : SHRI PRAMOD JADHAV REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 02.04.2019 / DATE OF PRONOUNCEMENT : 03.04.2019 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF LD. CIT(APPEALS)-4, PUNE DATED 03.07.2017 FOR THE ASSESSMENT YEAR 2009-10 AS PER GROUNDS OF APPEAL ON RECORD. 2. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSEE I S EMPLOYED WITH PUNE DISTRICT CENTRAL CO-OP. BANK LTD., BHOR AND DERIVES INCOME FROM SALARY. THE 2 ITA NO. 2722/PUN/2017 A.Y.2009-10 RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 22.07.2009 DECLARING TOTAL INCOME OF RS.2,27,272/-. THE CASE WAS SELECTE D FOR SCRUTINY UNDER CASS FOR CHECKING CASH DEPOSIT TRANSACTION IN THE BANK ACCOUNT AFFECTED BY THE ASSESSEE DURING THE FINANCIAL YEAR UNDER CONSIDERATION. AS PER THE EXTRACT OF BANK ACCOUNT, IT IS REVEALED THAT DURING T HE FINANCIAL YEAR 2008- 09, CASH OF RS.27,43,404/- WAS DEPOSITED IN UNEVEN INSTALLMEN TS. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE INFORMED THAT HE H AD ACTED AS MIDDLEMEN IN LAND SALE TRANSACTION OF CERTAIN FARMERS WHO HA D NO BANK ACCOUNTS AND DID NOT KNOW ABOUT THE FORMALITIES TO BE CO MPLETED WHILE SELLING THE LAND. THE ASSESSMENT U/S.143(3) OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') WAS COMPLETED ON 26.12.2011 MA KING ADDITION OF RS.19,30,404/- ON ACCOUNT OF CONCEALMENT OF INCOME. 3. WITH REGARD TO THE CASH DEPOSIT IN THE ASSESSEES B ANK ACCOUNT OF RS.27,43,404/-, IT WAS OBSERVED AND HELD BY THE LD. CIT(APPEALS) AS FOLLOW S: 3.3 I DO NOT FIND ANY MERIT IN THE SUBMISSION AND C ONTENTION OF THE APPELLANT. I FIND FROM THE ASSESSMENT ORDER THAT TH E AO NOTICED THE CASH DEPOSITS IN APPELLANT'S PDCC BANK ACCOUNT DURING TH E YEAR OF RS.27,43,404/-. THE AO ASKED TO EXPLAIN THE SOURCES WITH NECESSARY EVIDENCES. THE APPELLANT, INSTEAD OF FURNISHING THE SOURCES OF EACH ENTRY OF CASH DEPOSIT WITH THE SAID BANK HAD CONTENDED TH AT HE ACTED AS A MIDDLEMAN IN SALE OF LAND AND THE TRANSACTIONS PERT AINED TO CERTAIN FARMERS. WHEN THE PROOF IN RESPECT OF THE SAME WAS ASKED BY THE AO, THE APPELLANT PRODUCED ONE SMT, ASHABAI SHIVAJI BALGUDE , WHO SIMPLY STATED THAT SHE HAD NO BANK ACCOUNT IN HER NAME BUT SHE ALLOWED THE ASSESSEE TO DEAL WITH THE SALE OF HER AGRICULTURAL LAND AND THE ASSESSEE HAD PAID RS.4,00,000/- IN VARIOUS INSTALLMENT TO HE R. EVEN THE DETAILS REGARDING THE PAYMENTS MADE BY THE ASSESSEE TO HER TO THE EXTENT OF RS.4,00,000/- THOUGH STATED TO HAVE BEEN RECEIVED I N VARIOUS INSTALLMENTS, HAD NOT BEEN SUBMITTED BEFORE THE AO. IT IS ALSO REQUIRED TO BE EMPHASIZED THAT THE SAID LADY HAD DEPOSED OF GET TING RS.4,00,000/- FROM THE APPELLANT, WHICH IN NO CASE COULD ESTABLIS H THE SOURCES OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE APPELLANT. PAYME NTS MADE TO THE SAID LADY BY THE APPELLANT EVEN FOR ARGUMENT SAKE, BE CO NSIDERED AS GENUINE (DO NOT ACCEPTED, THE SAME IN NO CASE CAN EXPLAIN T HE DEPOSITS IN THE ASSESSEE'S BANK ACCOUNT). THEREFORE, THIS ARGUMENT OF THE APPELLANT HAS NO LOGIC AND HENCE IS NOT ACCEPTABLE AND HAD RIGHTL Y BEEN REJECTED BY THE AO. FURTHER, THE APPELLANT PRODUCED 9 PERSONS INCLU DING SHRI BABU KONDU KOKARE AND SHRI GAURU DAGDU RANJANE CLAIMING THAT HE ACTED FOR THE LAND TRANSACTIONS OF THE SAID PERSONS. THE APPE LLANT COULD FURNISH THE POWER OF ATTORNEY IN THE CASES OF ONLY AFORESAID TW O PERSONS AND NONE OF 3 ITA NO. 2722/PUN/2017 A.Y.2009-10 THE OTHER 7 PERSONS BEFORE THE AO. THE AFORESAID TW O PERSONS, HAD CONFIRMED OF PERFORMING IN THE DEALINGS OF SALE OF LAND AND HAD PAID SALE PROCEEDS IN CASE TO THE EXTENT OF RS.3,50,000/-. THE AO ALLOWED THE EXTENT OF RS.3,50,000/- AS EXPLAINED SOURCE. IN RES PECT OF OTHER 7 PERSONS, NO SUCH PROOFS COULD BE FURNISHED BEFORE T HE AO. THE AO ALSO ACCEPTED THE EXPLANATION RELATING TO LOAN TAKEN FRO M THE BHOR SANGMITRA NARARI SAH. PATSANSTHA LTD. AND CONSEQUENTLY DEPOSI TS OF' THE SAME TO THE EXTENT OF RS.4,63,000/- AS EXPLAINED. UNDER THE AFORESAID FACTS, I FIND THAT THE AO HAD GIVEN ADEQUATE LEVERAGES IN AL LOWING THE AMOUNT OF RS.8,13,000/- OUT OF TO TAL CASH DEPOSITS OF RS.27,43,404/-, DESPITE OF HAVING FURNISHED PROOFS PAR TLY REGARDING THE SAME BEFORE THE AO. THE AO, I FIND FROM THE FACTS IN THE CASE OF THE APPELL ANT, HAS RIGHTLY TREATED THE AMOUNT OF RS.19,50,404/- AS ASSESSEE'S CONCEALED INCOME, WHICH WAS UNEXPLAINED INVESTMENT IN THE BANK FROM UNDISCL OSED INCOME U/S. 69 OF THE ACT. 4. THE FACTS ON RECORD THEREFORE, DEMONSTRATE THAT THE ASSESSEE HAS PRODUCED 9 PERSONS BEFORE THE ASSESSING OFFICER CLAIMING TH AT HE ACTED AS A MIDDLEMAN FOR THE LAND TRANSACTIONS OF THE SAID PERSONS. THE ASSESSEE COULD FURNISH THE POWER OF ATTORNEY IN THE CASES OF ONLY TWO P ERSONS AND NONE IN RESPECT OF THE OTHER 7 PERSONS BEFORE THE ASSESSING OFFI CER. THESE TWO PERSONS, HAD CONFIRMED OF PERFORMING OF THE ASSESSEE IN TH E DEALINGS OF SALE OF LAND AND HAD PAID SALE PROCEEDS TO THE EXTENT OF RS.3,50,0 00/-. THE ASSESSING OFFICER ALLOWED THE EXTENT OF RS.3,50,000/- AS EXPLA INED SOURCE. THE ASSESSEE WAS UNABLE TO PROVIDE SUCH PROOF WITH RESP ECT OF OTHER 7 PERSONS AND BECAUSE OF WHICH EVEN THE LD. CIT(APPEALS) HA S UPHELD THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 5. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE VE HEMENTLY ARGUED THAT RELEVANT POWER OF ATTORNEY IN RESPECT OF OTHER 7 P ERSONS WERE SUBMITTED BEFORE THE LD. CIT(APPEALS). THE LD.AR FURTHER SUBMITTED THAT THIS MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(APPEALS) FO R RE-ADJUDICATION IN VIEW OF THE FACT THAT RELEVANT DOCUMENTARY EVIDENCES IN R ESPECT OF ALL THE PERSONS FOR WHOM, THE ASSESSEE HAS ACTED AS MIDDLEMAN FO R LAND TRANSACTION HAVE BEEN SUBMITTED BEFORE THE LD. CIT(APPEALS). 4 ITA NO. 2722/PUN/2017 A.Y.2009-10 6. THE LD. DR CONCEDED TO THE PRAYER OF THE LD. AR FO R RESTORING THE MATTER BACK TO THE FILE OF THE LD. CIT(APPEALS). 7. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS. IN THE PAPER BOOK FILED BEFORE US FROM PAGE NO. 21 TO 25 ARE SUBMISSIONS MADE BEFORE THE LD. CIT(APPEALS) BY THE ASSESSEE WHEREIN IT HAS BEEN STATED THAT ALL DOCUMENTS ALONG WITH ENGLISH TRANSLATIONS HAS BEEN ENCLO SED ALONG WITH SUBMISSIONS. WE FIND THAT REVENUE AUTHORITY HAS ACCEPTED THE CONTENTIONS OF THE ASSESSEE TO THE EXTENT OF POWER OF ATTORNEY FURNISH ED BEFORE THEM. THE TRANSACTIONS WITH RESPECT TO OTHER 7 PERSONS FOR WHOM POWER OF ATTORNEY WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER, WERE NOT FOUND JUSTIFIED AND WERE DISALLOWED. NOW BEFORE US, LD. AR OF THE ASSESSEE HAS SUBMITTED THA T THEY HAVE PROVIDED ALL THE RELEVANT DOCUMENTS AND EVIDENCES BEFORE THE LD. CIT (APPEALS) AND HAS PRAYED THAT ONE OPPORTUNITY MAY BE GIVEN SO T HAT THE LD. CIT(APPEALS) MAY RE-ADJUDICATE THE MATTER CONSIDERING THE SE DOCUMENTS WHICH ARE ALREADY FILED BEFORE HIM. 8. IN VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE FOR RE-ADJUDICATION OF THE ISSUE OF CASH DEPOSITS TAKING INTO CONSIDERATION OF THE RELEVANT DOCUME NTS/EVIDENCES PRODUCED BEFORE HIM BY THE ASSESSEE AFTER PROVIDING REA SONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, GROUND NO.1 RAISED IN APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO. 2722/PUN/2017 A.Y.2009-10 9. GROUND NO.2 OF APPEAL IS ALSO RESTORED BACK TO THE FILE OF THE LD. CIT(APPEALS) SO THAT THE LD. CIT(APPEALS) MAY DECIDE THE ISS UE IN ITS TOTALITY. IN THE INTEREST OF JUSTICE, BOTH THE GROUNDS OF APPEAL AR E RESTORED BACK TO THE FILE OF THE LD. CIT(APPEALS) AS PER DIRECTIONS HEREINABOVE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED ON 3 RD DAY OF APRIL, 2019. SD/- SD/- ANIL CHATURVEDI PA RTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 3 RD APRIL, 2019. SB '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-4, PUNE. 4. THE PR. CIT-3, PUNE. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 6 ITA NO. 2722/PUN/2017 A.Y.2009-10 DATE 1 DRAFT DICTATED ON 02 .0 4 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 02 .0 4 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER