The ITO, Ward-9(4), Ahmedabad V. Shri Narendrasingh Lakhubha Rana, Ahmedabad

ITA 2768/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1846 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-01-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 29-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J M TRIVEDI
• Keywords: Presumptive income
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND A.N. PAHUJA, ACCOUNTANT MEMBER) ITA NO.2768/AHD/2010 [ASSTT. YEAR : 2007-2008] THE ITO, WARD-9(4) AHMEDABAD. VS. SHRI NARENDRASINGH LAKHUBHA RANA 6, LAKMI COLONY, OPP: P.F. HIGH SCHOOL VITTHALNAGAR TEKRO, JASODANAGAR AHMEDABAD. PAN : AGRPR 8542 F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAJDEEP SINGH ASSESSEE BY : SHRI J.M. TRIVEDI O R D E R PER MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED AT THE BEHEST OF THE REVENUE, WHICH HAS EMANATED FROM THE ORDER OF THE CIT(A)-XV, AHMEDABAD DATED 20.07.2010. THE ONLY GROUND IN THIS APPEAL READS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.20,37,900/- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. 2. RELEVANT FACTS IN BRIEF AS EMERGED FROM THE CORR ESPONDING ASSESSMENT ORDER PASSED UNDER SECTION 144 OF THE INCOME TAX AC T, 1961 DATED 15.12.2009 WERE THAT THE ASSESSEE IN HIS INDIVIDUAL CAPACITY I S IN THE BUSINESS OF TRANSPORTATION. CERTAIN INFORMATION WAS GATHERED B Y THE REVENUE DEPARTMENT REFERRED AS AIR DETAILS. ON THE BASIS OF THE SAI D INFORMATION, IT WAS NOTICED THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.20,37,9 00/- IN HIS SAVING BANK ACCOUNT WITH DENA BANK. SEVERAL NOTICES WERE ISSUE D BUT REMAINED NON- COMPLIED. THE AO HAS THUS PROCEEDED EX PARTE AND HELD THAT ON ONE HAND, THE ASSESSEE HAS SHOWN NET PROFIT AS PER THE PROFIT AND LOSS ACCOUNT A SUM OF RS.2,35,399/-, HOWEVER, ON THE OTHER HAND, DEPOSITE D A SUM OF RS.20,37,900/- IN HIS BANK ACCOUNT. AS PER THE AO, THE ASSESSEE H AS NOT DISCHARGED THE ONUS TO ITA NO.2768/AHD/2010 -2- PROVE THE SOURCE OF SUCH CASH DEPOSIT IN THE BANK. FINALLY, THE SAID AMOUNT WAS TAXED IN THE HANDS OF THE ASSESSEE. 3. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLAT E AUTHORITY. THE MAIN CONTENTION OF THE ASSESSEE BEFORE THE LEARNED CIT(A ) WAS THAT SINCE THE ASSESSEE WAS OWING LESS THAN TEN VEHICLES, AS GOODS CARRIAGE AND IN THE BUSINESS AS A TRANSPORTER, THEREFORE THE RETURN WAS FILED AS PRESCRIBED UNDER SECTION 44AE OF THE ACT. IT WAS ALSO EXPLAINED TO THE LEAR NED CIT(A) THAT THE TOTAL GROSS-RECEIPTS DURING THE YEAR WERE TO THE TUNE OF RS.27,75,725/-, OUT OF WHICH, THE IMPUGNED SUM WAS DEPOSITED IN THE DENA BANK. A CCEPTING THE SAID EXPLANATION OF THE ASSESSEE, THE LEARNED CIT(A) HAS HELD THAT SINCE THE RETURN WAS FILED UNDER SECTION 44AE, BEING THE ASSESSEE AS THE TRANSPORTER AND THE GROSS RECEIPTS WERE HIGHER THAN THE IMPUGNED RECEIP TS DEPOSITED IN THE BANK, THEREFORE, THERE WAS NO REASON TO TAX THOSE DEPOSIT S AS UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE. RATHER, IT WAS ALSO NOT ED BY THE LEARNED CIT(A) THAT IN THE REMAND REPORT THE AO HAS NOT DOUBTED THOSE D EPOSITS. WITH THE RESULT, THE SAID ADDITION WAS DELETED. NOW, THE REVENUE IS BEFORE US. 4. AFTER HEARING THE SUBMISSIONS OF THE BOTH THE SI DES, WE ARE OF THE VIEW THAT IN THE LIGHT OF THE PROVISIONS OF SECTION 44AE I.E. SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF BUSINESS OF PLYING T HE GOODS CARRIAGES, THE ASSESSEE WAS NOT EXPECTED TO MAINTAIN REGULAR BOOKS OF ACCOUNTS. HOWEVER, HE IS EXPECTED TO DECLARE THE INCOME PER MONTH IN RESP ECT OF THE VEHICLES OWNED BY HIM. IN THE PRESENT APPEAL THAT INCOME OF THE AS SESSEE WAS NOT DOUBTED BY THE REVENUE DEPARTMENT. THE ONLY REASON WAS THAT O N THE BASIS OF CERTAIN INFORMATION IT WAS NOTICED THAT THERE WAS A BANK A CCOUNT AND THE ASSESSEE HAD DEPOSITED THE IMPUGNED SUM OF RS.20,37,900/-. HOWEV ER, THEREAFTER ON VERIFICATION, THE LEARNED CIT(A) HAS NOTICED THAT T HE TOTAL GROSS-RECEIPTS FROM THE TRANSPORT BUSINESS WERE HIGHER THAN THE SAID DE POSITS. EVEN DURING THE REMAND PROCEEDINGS, THE SAID EXPLANATION OF THE ASS ESSEE WAS NOT DOUBTED. EVEN BEFORE US, THE MONTHLY GROSS-RECEIPTS FROM TRA NSPORT BUSINESS HAVE BEEN ITA NO.2768/AHD/2010 -3- PLACED ON RECORD WHICH WERE STATED TO BE CASH RECEI PTS EARNED THROUGH TRANSPORT BUSINESS. FROM THE SIDE OF THE ASSESSEE A DECISION OF THE ITAT, AHMEDABAD BENCH PRONOUNCED IN THE CASE OF SHIVANI BUILDERS VS . ITO, 295 IR (AT) 281 (AHMEDABAD) HAS ALSO BEEN CITED FOR THE PROPOSITION THAT IF THE ASSESSEE IS SHOWING HIGHER INCOME THAN THE PRESUMPTIVE INCOME, THEN THERE IS NO QUESTION OF FURTHER ADDITION AND THE INCOME SO DECLARED DESE RVES TO BE ACCEPTED. THUS, TOTALITY OF THE CIRCUMSTANCES WARRANTS TO ACCEPT TH E VIEW TAKEN BY THE LEARNED CIT(A). THE REVENUES GROUND IS ACCORDINGLY DISMIS SED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 25 TH FEBRUARY, 2011. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (MUKUL KR. SHRAWAT) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 25-02-2011 COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD