Shri Vijaykant Bhagvanlal Padia, Baroda V. The Income Tax Officer, Ward-5(3), Baroda

ITA 2747/AHD/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5862 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: S N DEVATIA
• Keywords: Unexplained cash credit; Unexplained investment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.2747/AHD/2014 (ASSESSMENT YEAR : 2009-10) SHRI VIJAYKANT BHAGVANLAL PADIA, 3, MAHARSHI ARVIND SOCIETY, R. V. DESAI ROAD, NEAR KHANDERAO TEMPLE, VADODARA 390 001. VS. INCOME TAX OFFICER, WARD 5(3), VADODARA. [PAN NO. ACOPP 1560 E] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SMT S. N. DEVATIA, A.R. RESPONDENT BY : SHRI S. K. DEV, SR. D.R. DATE OF HEARING 06/02/2019 DATE OF PRONOUNCEMENT 30/04/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 18.07.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- V, BARODA ARISING OUT OF THE ASSESSMENT ORDER DATED 24.02.2014 PASSED BY THE ITO , WARD-5(3), BARODA UNDER SECTION 143 (3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED AS TO THE ACT) FOR THE ASSESSMENT YEAR 2009-10. 2. THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE CONFIRMATION OF ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF RS.4,51,461/- MADE BY THE INCOME TAX OFFICER. - 2 - ITA NO.2747/A/14 SHRI VIJAYKANT BHAGVANLAL PADIA VS. ITO ASST.YEAR 2009-10 3. THE BRIEF FACTS LEADING TO THE CASE IS THIS THAT THE ASSESSEE BEING AN INDIVIDUAL HAS NOT FILED HIS RETURN OF INCOME FOR THE A.Y. 2009-10 IN TERMS OF THE PROVISIONS OF SECTION 139(1) OF THE ACT. A NOTICE U/S 148 OF THE ACT DATE D 09.04.2012 WAS ISSUED DIRECTING THE ASSESSEE TO FILE ITS RETURN OF INCOME FOR A.Y. 2009 -10 WITHIN 30 DAYS PURSUANT TO WHICH ON 26.12.2013 DECLARING NET TAXABLE INCOME AT RS.93 ,925/-, THE ASSESSEE BEFORE US FILED THE RETURN OF INCOME. NOTICE U/S 143(2) AND U/S 142 (1) OF THE ACT ALONG WITH THE DETAILED QUESTIONNAIRE WAS ISSUED UPON THE ASSESSEE. IN TERMS OF THE ANNUAL INFORMATION RETURN, IT WAS N OTICED THAT DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDER ATION AN AMOUNT OF RS.12,55,357/- CASH WAS DEPOSITED BY THE ASSESSEE WITH THE SAVING BANK ACCOUNT LYING WITH THE BANK OF BARODA, R. V. DESAI ROAD, BARODA. SOURCE OF SUCH CA SH DEPOSITED IN THE ACCOUNT WAS, THEREFORE, DIRECTED TO BE FURNISHED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDING ALONG WITH THE SUPPORTING DOCUMENTARY EVIDENCE. WHE REUPON, THE ASSESSEE SUBMITTED AS FOLLOWS: 'DURING THIS FINANCIAL YEAR, MY SON ALPIT PADIA SEN T MONEY FROM AUSTRALIA, THROUGH UAE EXCHANGE WHICH I RECEIVED THROUGH VARIOUS AGENCIES AND CASH CREDITED IN MY BANK OF BARODA ACCOUNT. COPY OF MY SON 'S LETTER AND COPY O F RECEIPT OF PAYMENTS ARE ATTACHED. DURING THE FINANCIAL YEAR, SIMMS ENGINEERING PVT. L TD., PORBANDAR, WERE HAVING MAINTENANCE CONTRACT OF 66 KV S/S OF SUZLON SEZ, WA GHODIA ROAD, BARODA. THE ENGINEER-IN-CHARGE LEFT IN 2008 DECEMBER, HENCE ON REQUEST FROM SIMMS ENGG, I WAS LOOKING AFTER THAT JOB FROM DEC. 2008 TO MARCH, 200 9. SOME CASH TRANSACTIONS WERE DONE IN MY ACCOUNT FOR SALARY AND EXPENDITURE. IN MARCH, 2009, TWO PERSONS FROM SAURASHTRA SIDE MET ELECTRICAL ACCIDENT AND WERE ADMITTED IN M ETRO HOSPITAL, BARODA. TO MEET DAY IN DAY EXPENSES, CASH WERE DEPOSITED IN MY ACCOUNT ON VARIOUS DATES IN MARCH, 2009. BOTH THE CASES FAILED. A LETTER OF CASH DEPOSITED I N MY A/C. BY SIMMS ENGINEERING PVT. LTD., IS ATTACHED. THIS WAS DONE ON HUMANATIVE GROU ND TO HELP THE SUFFERING PEOPLE. FROM BOTH THESE LETTERS, YOU CAN SEE THAT ALMOST AL L THE CASH DEPOSITED IN YOUR 1 ST NOTICE IS MATCHING. - 3 - ITA NO.2747/A/14 SHRI VIJAYKANT BHAGVANLAL PADIA VS. ITO ASST.YEAR 2009-10 4. SUBSEQUENTLY, A FRESH OPPORTUNITY VIDE OFFICE QU ESTIONNAIRE DATE 03.02.2014 WERE ALSO SERVED UPON THE ASSESSEE, WHEREUPON FOLLOWING FACTS WERE ALSO PLACED: '1. ON PERUSAL OF THE BANK STATEMENT OF BANK OF BARODA (A/C. NO.01990100008084), IT IS SEEN THAT YOU HAVE DEPOSITED CASH AGGREGATING TO RS .12,55,357/- DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION . PLEASE FURNISH SOURCE OF CASH DEPOSITS MADE WITH SUPPORTING DOCUMENTARY EVIDENCE. 2. PHASE FURNISH EXPLANATION FOR ALL THE DE BIT AND CREDIT ENTRIES AS APPEARING IN THE ABOVE STATEMENTS. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS HELD BEFORE THE ITO. WARD-7(3), BARODA, YOU HAVE EXPLAINED THAT OUT OF THE CASH DEPOSITED O F RS.12,55,357/-, A SUM OF RS.4,28,397/-ARE DEPOSITED BY SIMMS ENGINEERING PVT . LTD. DIRECTLY IN YOUR ABOVE BANK ACCOUNT FOR SALARY AND MEDICAL EXPENSES FOR ELECTOR AL ACCIDENT OF EMPLOYEE HOSPITALIZED AT METRO HOSPITAL, BARODA. PLEASE FURNISH DOCUMENTA RY EVIDENCE TO PROVE YOUR CLAIM. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS HELD BEFORE THE ITO, WARD 7(3), BARODA, YOU HAVE SUBMITTED A CONFIRMATION FROM YOUR SON SHR I ALPIT VIJAYKANT PADIA ANDIN HIS CONFIRMATION HE HAS STATED THAT HE HAS TRANSFERRED FUNDS TO YOU TOTALING TO RS.7,94,604/- ON VARIOUS DATES. PLEASE PROVE THE SAME. IN HIS LAT TER, HE HAS FURTHER STATED THAT HE HAS ATTACHED HIS APPOINTMENT LETTER AND ALSO FEW SALARY SLIPS FROM A.Y. 2008-09. HOWEVER, YOU HAVE NOT FURNISHED THE SAME. PLEASE FURNISH THE SAME. 5. ON 07.02.2014, THE ASSESSEE FURTHER SUBMITTED BE FORE THE LEARNED AO THAT THE SOURCE OF INCOME HAS ALREADY BEEN SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ALONG WITH COGENT DOCUMENT. IT WAS FURTHER CONTENDE D THAT HIS SON WANTED TO INVEST AND HENCE SENT TAX PAID MONEY THROUGH UAE EXCHANGE, MON EY GRAM, MONEY TRANSFER. THE ASSESSEE ALSO STATED THE FACTS OF TRANSFERRING MONE Y DIRECTLY BY M/S. SIMMI ENGINEERING PVT. LTD. TO THE ACCOUNT OF THE ASSESSEE FOR LABOUR PAYMENT AND FOR TREATMENT OF TWO PERSONS ADMITTED IN METRO HOSPITAL. THE SUBMISSION MADE BY THE ASSESSEE WAS PARTLY ACCEPTED TOWARDS CASH DEPOSIT BY M/S. SIMMI ENGINEE RING PVT. LTD. OF RS.4,28,397/-. HOWEVER, AS REGARDS THE BALANCE CASH DEPOSIT OF RS. 5,71,961/- PAYMENTS WHEREOF WERE CLAIMED TO HAVE BEEN RECEIVED FROM HIS SON, WORKING ABROAD WAS NOT FOUND GENUINE AND THE SAME WAS CONSIDERED AS UNEXPLAINED INVESTMENT B Y THE ASSESSEE FROM UNDISCLOSED SOURCES AND THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL, AN AMOUNT - 4 - ITA NO.2747/A/14 SHRI VIJAYKANT BHAGVANLAL PADIA VS. ITO ASST.YEAR 2009-10 OF RS.1,20,500/- WAS FOUND EXPLAINED AND THUS DELET ED BY THE LEARNED CIT(A). HENCE, THE INSTANT APPEAL BEFORE US. 6. AT THE TIME OF HEARING OF THE INSTANT APPEAL, TH E LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE IS A SALARIED PERSON; THE SALARY CERTIFICATE IN SUPPORT OF THE SAME IS ALSO PART OF THE PAPER BOOK BEFORE US. APART FROM THAT THE CONFIRMATION BEING A LETTER DATED 14.06.2013 WRITTE N BY THE SON OF THE ASSESSEE TO THE TAX COMMISSIONER, BARODA CONFIRMING SUCH TRANSFER OF FU NDS ALONG WITH SUPPORTING DOCUMENTS AS ALSO ON RECORD. IN VIEW OF SUCH CONFIR MATION THE ADDITION MADE BY THE AUTHORITIES BELOW IS NOT SUSTAINABLE IN THE EYE OF LAW AS ALSO CONTENDED BY THE LEARNED AR BEFORE US. ON THE CONTRARY, THE LEARNED DR RELIED UPON THE ORD ER PASSED BY THE LEARNED AO. HE, FURTHER RELIED ON THE ORDER PASSED BY THE HONB LE GUJARAT HIGH COURT IN THE CASE OF BHAGWANDAS D. VACHHANI-VS-ACIT REPORTED IN [2015] 5 6 TAXMANN.COM 284 (GUJARAT). 7. WE HAVE HEARD THE LEARNED COUNSEL APPEARING FOR THE RESPECTIVE PARTIES AND ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. IT APPEARS FROM THE RECORDS THAT THE CONFIRMATION BY WAY OF LETTER DATED 14.06.2013 HAS BEEN DULY SUBMITTED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES WHICH THE AUTHORITIE S BELOW FAILED TO CONSIDER IN ITS PROPER PROSPECTIVE. THE DETAILS OF CASH FLOW STATEMENT WAS ALSO PLACED ON RECORD BEFORE LEARNED CIT(A) WHICH IS BEING PART OF THE RECORD BEFORE US. IT IS EVIDENT ON RECORD THAT THE APPELLANT SUBMITTED THE RECEIPTS OF THE MONEY RECEI VED FROM THOMAS COOK, MONEY GRAM AND UAE EXCHANGE BEFORE THE AUTHORITIES BELOW AS AL SO THE CASH FLOW STATEMENT SHOWING CASH RECEIPT AND DEPOSITED BY HIM IN THE BANK AS PE R THE INSTRUCTION OF HIS SON BEFORE THE AUTHORITIES BELOW. HOWEVER, SOME AMOUNT OF MONEY WA S KEPT AT HOME WHICH WAS - 5 - ITA NO.2747/A/14 SHRI VIJAYKANT BHAGVANLAL PADIA VS. ITO ASST.YEAR 2009-10 DEPOSITED IN PIECES AS AND WHEN REQUIRED BY THE ASS ESSEE FOR INVESTMENT IN THE SHARES AS PER THE UNDERSTANDING BETWEEN THE ASSESSEE AND HIS SON. THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.7,94,615/- OUT OF WHICH RS.5,71,961/- WAS CLAIMED TO HAVE BEEN DEPOSITED IN THE BANK OF BARODA. APART FROM THAT THE FOLLOWIN G DETAILS HAS ALSO BEEN PLACED BEFORE US BY THE ASSESSEE: TOTAL CASH DEPOSITED IN BANK RS.12,55,357/- LESS: CASH RECEIVED FROM COMPANY REMITTANCE FROM SON AT AUSTRALIA (49,999 + 1,00,000 + 1,05,000) RS.4,28,397/- RS.2,54,357/- RS.6,83,396/- BALANCE TREATED UNEXPLAINED BY AO 5,71,961/- CASH DEPOSITS OUT OF REMITTANCE AS PER CHART TOTAL RS.33,500 CREDITED IN BANK ON 19.06.2008 P/44 RS.44,000/- CREDITED IN BANK ON 04.07.2008 P/45 CREDITED IN BANK ON 31.07.2008 P/45 RS.40,000 CREDITED IN BANK ON 30.07.2008 P/45 RS.50,000 CREDITED IN BANK ON 23.08.2008 P/45 RS.99,000 CREDITED IN BANK ON 10.09.2008 P/46 RS.50,000 CREDITED IN BANK ON 04.10.2008 P/46 RS.50,000/- CREDITED IN BANK ON 07.03.2009 P/49 33500 44000 101024 40000 50000 99000 50000 50000 4,67,524 BALANCE RS.1,04,437/- WE FIND THAT ONLY AN AMOUNT OF RS.1,04,437/- REMAIN S UNEXPLAINED BY THE ASSESSEE TOWARDS DEPOSITS WITH THE SAVING BANK ACCOUNT LYING WITH THE BANK OF BARODA. WE HAVE ALSO CAREFULLY CONSIDERED THE JUDGMENTS RELIED UPON BY THE LEARNED DR, PASSED BY THE - 6 - ITA NO.2747/A/14 SHRI VIJAYKANT BHAGVANLAL PADIA VS. ITO ASST.YEAR 2009-10 JURISDICTIONAL HIGH COURT WHEREIN WE FIND THAT FACT UALLY THE CASE IS NOT IDENTICAL TO THAT OF THE MATTER IN HAND BEFORE US. WE DO NOT FIND ANY RE ASON AS TO WHY SUCH JUDGMENT IS APPLICABLE TO THE INSTANT CASE. THUS, UPON CONSIDER ING THE ENTIRE ASPECT OF THE MATTER INCLUDING THE DETAILS AS SUBMITTED BEFORE US AND ON THE BASIS OF THE DISCUSSION IN THE FOREGOING PARAGRAPH, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS BEEN ABLE TO JUSTIFY THE SOURCE OF HIS DEPOSITS EXCEPT TO THE TU NE OF RS.1,04,437/- AND HENCE WE RESTRICT THE ADDITION TO SUCH SUM OF RS.1,04,437/-. WE THUS PARTLY ALLOW THE APPEAL PREFERRED BY THE ASSESSEE. 8. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 30/04/2019 SD/- SD/- ( AMARJIT SINGH ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY AHMEDABAD; DATED 30/04/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-V, BARODA. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD