Shri Dinesh Goswami, Bhopal V. The DCIT CENTRAL, Bhopal

ITA 277/IND/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2842 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-02-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 12-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: N D PATWA A RS
• Keywords: Search and seizure; Salary income
• Section: 143(3); 153A; 132

Judgement Text

[ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.277/IND/2017 ASSESSMENT YEAR: 2013-14 SHRI DINESH GOSWAMI 190-C, SARVADHARAM KOLAR ROAD BHOPAL / VS. DCIT BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. AEDPG8897A APPELLANT BY SHRI ASHISH GOYAL & SHRI N.D. PATWA, A.RS. RESPONDENT BY SMT.ASHIMA GUPTA, DR DATE OF HEARING: 26.02.2019 DATE OF PRONOUNCEMENT: 28.02.2019 / O R D E R PER V. DURGA RAO, J.M: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE CIT(A)-3, BHOPAL DATED 16.2.2017 FOR THE ASSESSMENT YEAR 2013-14. [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 2 2. FACTS ARE IN BRIEF THAT ASSESSEE IS AN INDIVIDUAL. A SEARCH ACTION WAS CARRIED OUT U/S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) IN THE BUS INESS PREMISES OF THE ASSESSEE ON 30.11.2012. THE ASSESSEE IS AN EMPLOYEE OF M/S. AMRIT GROUP HAVING SALARY INCOME FROM M/S. AMRIT HOMES PVT. LTD. AND M/S. AMRIT COLON IZER PVT. LTD. THE ASSESSEE IS WORKING AS A LIAISON OFFICE R IN M/S. AMRIT GROUP. ASSESSEE IS ALSO A MEMBER OF M/S. AMRIT GROUP, BHOPAL. THE GROUP IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. THE FLAGSHIP CONCERNS OF THE GROUP ARE M/S. AMRIT HOMES PVT. LTD. AND M/S. AMRIT COLONIZERS PVT. LTD. THE MAIN PERSONS OF THE GROUP ARE SHRI DILIP SINGH BINDRA, SHRI PRIT SINGH BI NDRA AND SHRI MAHENDRA AHUJA. SUBSEQUENT TO THE SEARCH, A NOTICE U/S 153A OF THE I.T. ACT DATED 3.6.2013 WAS IS SUED TO THE ASSESSEE TO FILE RETURNS OF INCOME FOR A.Y.S 2007-08 TO 2012-13. IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT, [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 3 THE ASSESSEE HAS FILED RETURNS OF INCOME FOR A.YS 200 7-08 TO 2013-14 ON 14.10.2014 AND REGULAR RETURN WAS FILED FOR A.Y. 2013-14 ON 29.3.2014. IN THE ASSESSMENT ORDER, THE A.O. HAS NOTED THAT DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS, IT WAS FOUND IN LOCKER NO.44, BANK OF INDIA, KOLAR ROAD, BHOPAL IN THE NAME OF THE ASSESSEE AND HIS WIFE SMT. GOSWAMI, AN AMOUNT OF RS.9,25,000/-. T HE A.O. HAS ASKED THE ASSESSEE TO EXPLAIN THE SOURCES OF THE AMOUNT FOUND IN THE LOCKER NO.44 DURING THE COURSE O F SEARCH. IT WAS SUBMITTED BY THE ASSESSEE BY WRITTEN R EPLY DATED 9.10.2014 THAT CASH FOUND OF RS.9,25,000/- AT LO CKER NO.44, BANK OF INDIA, KOLAR ROAD, BHOPAL WAS SAVINGS OF THE ASSESSEE AND HIS SPOUSE RETAINED FOR ASSESSEES DAUGHTERS MARRIAGE. THESE AMOUNTS WERE DEPOSITED IN THE LOCKER OUT OF THE SAVINGS OF HIS WIFE AND HIMSELF IN MORE THAN 5 YEARS. THE A.O. AFTER CONSIDERING THE EXPLANATIO N OF THE ASSESSEE HAS OBSERVED THAT THE EXPLANATION GIVEN BY [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 4 THE ASSESSEE IS NOT ACCEPTABLE ON THE GROUND THAT AT THE TIME OF SEARCH, ASSESSEE HAS NOT RECONCILED THE CASH FO UND WITH THE BOOKS OF ACCOUNTS AND THE EXPLANATION NOW GIV EN STATING THAT THE CASH OF RS.9,25,000/- IS PAST SAVINGS O F HIS FAMILIES IS SELF-SERVING AND AFTERTHOUGHT. IF THERE WO ULD HAVE BEEN CASH BALANCE IN CASH BOOK AS ON DATE OF SEARCH, THE ASSESSEE COULD HAVE EXPLAINED THE SAME AT THAT TIME ONLY. THE ASSESSEE HAS NOT SATISFACTORILY EXPLAINED BEF ORE THE SEARCH PARTY IN RESPECT OF CASH FOUND IN THE LOCKE R. ACCORDINGLY, THE A.O. HAS ASSESSED ENTIRE INCOME OF RS.9,25,000/- U/S 69A OF THE ACT. THE ASSESSMENT IS COMPLETED. 3. ON APPEAL, LD. CIT(A) CONFIRMED THE ORDER OF THE A.O. BY OBSERVING THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT CONVINCING FOR THE REASON THAT A PERSON WOULD GO, OPERATE THE LOCKER AND KEEP CASH THERE FROM TIME TO TI ME, WHEREAS DEPOSITING CASH IN THE BANK OR MAKING A FDR IS A [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 5 BETTER AND EASIER OPTION. THE AMOUNT SO DEPOSITED EARN S INTEREST ALSO. 4. ON BEING AGGRIEVED, THE ASSESSEE CARRIED MATTER IN APPEAL BEFORE THE TRIBUNAL. LD. COUNSEL FOR THE ASSESS EE HAS SUBMITTED THAT THE ASSESSEE AND HIS WIFE BOTH ARE WORKING AND SO FAR AS THE AMOUNT FOUND, RETURNS OF INCO ME FILED BY THE ASSESSEES WIFE SMT. ANITA GOSWAMI FOR TH E A.YRS. 2007-08 TO 2012-13 AMOUNTING TO A TOTAL OF RS.11,59,993/-. IN SO FAR AS HER HUSBAND SHRI DINESH GOSWAMI IS CONCERNED, THE RETURNS OF INCOME FROM 200 7-08 TO 2012-13 FOR RS.10,74,346/- WERE FILED AND SUBMITT ED THAT THE ASSESSEE HAS FILED ALL THE DETAILS BEFORE THE A .O. AND DURING THE COURSE OF SEARCH, A STATEMENT U/S 132(4) OF THE ACT WAS FILED AND ALSO SUBMITTED THAT THE AMOUNTS KE PT IN THE LOCKER ARE PAST SAVINGS OF HIMSELF AND HIS WIFE. THE A.O. WITHOUT CONSIDERING THE EXPLANATION OF THE ASSESS EE, SIMPLY MADE AN ADDITION U/S 69A OF THE ACT. HE HAS [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 6 SUBMITTED THAT THERE IS NO BASIS FOR THE ADDITION MADE BY THE A.O. AS CONFIRMED BY THE LD. CIT(A). IT WAS FURT HER SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT TH E LD. CIT(A) CONFIRMED THE ADDITION ON THE GROUND THAT INST EAD OF KEEPING THE MONEY IN THE LOCKER, IT IS BETTER TO DE POSIT IN THE BANK, THEREBY ASSESSEE EARNS INTEREST AND HENCE, TH E EXPLANATION GIVEN BY THE ASSESSEE WAS NOT ACCEPTED. IT IS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT TH E ASSESSEE HAS TO DECIDE WHETHER TO KEEP THE MONEY IN T HE LOCKER OR DEPOSIT THE SAME IN THE BANK. THE ASSESSEE HAS DEPOSITED IT IN THE LOCKER WITH WHICH HE PERFORMED HIS DAUGHTERS MARRIAGE, THEREFORE, ADDITION CANNOT BE CONFIRMED ON THE BASIS OF PERSONAL PRESUMPTIONS AND ASSUMPTIONS, THEREFORE, REQUESTED THAT THE LD. CIT(A) S ORDER MAY BE SET ASIDE. [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 7 5. ON THE OTHER HAND, LD. D.R. STRONGLY SUPPORTED TH E ORDERS PASSED BY THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORDS AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. THERE IS A SEARCH & SEIZURE OPERATION CARRIED ON AND IN THE LOCKER NO.44 OF BANK O F INDIA, KOLAR ROAD, BHOPAL AN AMOUNT OF RS.9,25,000/- WAS FOUND. SUBSEQUENTLY, A.O. WAS ASKED TO FILE A RETURN O F INCOME. ACCORDINGLY, THE ASSESSEE HAS FILED RETURNS OF INCOME FOR ALL THE ASSESSMENT YEARS 2007-08 TO 2012-13 . ASSESSEES WIFE HAD ALSO FILED RETURNS OF INCOME FOR THE A.YS 2007-08 TO 2012-13. IN THE COURSE OF SEARCH, A STATEM ENT WAS RECORDED U/S 132(4) OF THE ACT, WHEREIN THE ASSES SEE HAS SUBMITTED THAT THE AMOUNT KEPT IN THE LOCKER WAS PAS T SAVINGS OF THE ASSESSEE AND HIS WIFE FOR THE PURPOSE O F PERFORMING HIS DAUGHTERS MARRIAGE. EVEN DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS ALSO, THE ASSESSE E [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 8 HAS SUBMITTED BEFORE THE LD. A.O. THE VERY SAME FACTS. IT IS ALSO SUBMITTED BEFORE THE A.O. THAT THE ASSESSEE FILED RETURNS OF INCOME FOR THE A.YS 2007-08 TO 2012-13 B Y DECLARING AN INCOME OF RS.10,74,346/- AND FOR HIS WIFE S INCOME RETURNS FILED FOR A.YS 2007-08 TO 2012-13 AMOUNTING TO RS.11,59,993/- AND SUBMITTED THAT OUT OF THE SAVINGS, THE AMOUNTS WERE KEPT IN LOCKER. THE A.O. AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE IS OF THE OPINION THAT THE ASSESSEE HAS NOT GIVEN ANY SATISFACTORY EXPLANATION FOR KEEPING THE AMOUNT IN THE LOCKER AND E VEN THE ASSESSEE HAS NOT SATISFACTORILY EXPLAINED BEFORE THE SEARCH TEAM. THEREFORE, HE MADE AN ADDITION U/S 69A OF THE ACT. THE LD. CIT(A) CONFIRMED THE ORDER OF THE A.O. AND REJECTED THE EXPLANATION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE SHOULD HAVE DEPOSITED IT IN THE BANK INST EAD OF KEEPING IT IN THE LOCKER, IF AT ALL HE DEPOSITED IN THE BANK SHOULD HAVE EARNED THE INTEREST, THEREFORE, HIS EXP LANATION [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 9 IS REJECTED. FOR THE SAKE OF CONVENIENCE, THE EXPLAN ATION SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE THE LD. CIT(A) IS EXTRACTED AS UNDER: THE SUBMISSIONS OF THE LEARNED AR ON ABOVE GROUNDS OF APPEAL ARE AS BELOW: GROUND NOS.2 & 3 : THE APPELLANT WAS AGED ABOUT 48 YEARS AND HIS WIFE SMT. ANITA GOSWAMI AGED ABOUT 45 YEARS ALL THE TIME OF SEARCH CONDUCTED IN THE YEAR 2012. BOTH WE RE CARRYING OUT BUSINESS FOR PAST 25 YEARS AND WERE FILLING THEIR R ETURN OF INCOME REGULARLY. THE APPELLANT WAS CARRYING ON THE BUSIN ESS OF CIVIL CONSTRUCTION AND SUPPLY OF BUILDING MATERIAL AND HI S WIFE WAS CARRYING ON PROFESSION OF COACHING IN THE NAME AND STYLE AS NEETA TUTORIAL. HER QUALIFICATION ARE M.A. BED & PGDCA. THEY HAD BUILT UP HOUSE PROPERTY AT PLOT NO.190, SARVDHARM COLONY, BHOPAL. THEY HAD ALSO PLOT NO.179 AT SARVDHARM COLONY, PLOT AT M ANDAKINI HOUSING SOCIETY & CAR BEFORE 31.3.2006. WHEN THE A PPELLANT STARTED GETTING RENTAL INCOME, HE STOPPED HIS BUSINESS AND STARTED EARNING SALARY INCOME FROM AMRIT COLONISERS PVT. LTD. FROM 1.4.2011. THE APPELLANT HAD PREPARED MEMORANDUM ACCOUNT BOOKS AND HAD FILED THE CAPITAL ACCOUNT AND BALANCE SHEETS FROM A.YRS 2 007-08 TO 2013- 14 DURING THE PROCEEDINGS. SMT. ANITA GOSWAMI HAD ALSO FILED THE BALANCE SHSEETS DURING THE ASSESSMENT PROCEEDINGS A GAINST HER U/S 153A 143(3) FOR A.YRS 2007-08 TO 2013-14 WHEN SHE W AS ASSESSED U/S 153A AND 143(3) FOR A.YRS 2007-08 TO 2013-14 BY HER COMBINED ORDER. THE COPIES OF BALANCE SHEET OF APPELLANT AN D HIS WIFE AND HER ASSESSMENT ORDER ARE ENCLOSED HEREWITH. DURING THE SEARCH PROCEEDING, THE AUTHORITIES RAIS ED THE QUERY ABOUT CASH FOUND IN THE LOCKER OPERATION AND APPELL ANT HAD EXPLAINED THAT HE AND HIS WIFE WERE SAVING MONEY FO R THEIR DAUGHTERS MARRIAGE, COPY OF HIS STATEMENT U/S 132( 4) IS ENCLOSED HEREWITH. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS THE ASSESSING OFFICER ALSO RAISED THE SAME QUERY ABOUT THE CASH FOUND FROM THE LOCKER AT RS.9,25,000/- AND THE APPELLANT HAD FILED A DETAILED REPLY BEFORE HIM, THE COPY OF THE SAME IS ENCLOSED HEREWITH FOR YOUR KIND PERUSAL. IT WAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE APPELLANT HAD A DAUGHTER AND BOTH THE APPE LLANT AND HIS WIFE WERE CONSCIOUS ABOUT THE MARRIAGE OF THEIR DAU GHTER AND [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 10 FINANCIAL REQUIREMENT OF THE EVENT. THEY WERE LEAD ING VERY FRUGAL LIFE AND WERE EARNING MONEY AND WERE MAKING INVESTM ENTS AND CASH SAVINGS FOR THE MARRIAGE OF THEIR ONLY DAUGHTE R. THEY DEPOSITED CASH IN THE BANK LOCKER FROM TIME TO TIME SO AS TO MAKE THE FUNDS OUT OF THEIR EASY REACH. THE APPELLANT W AS HAVING CASH OF RS.2,73,000/- AND HIS WIFE WAS HAVING CASH OF RS.6, 76,000/- ON LAST DATE OF LOCKER OPERATION I.E. 14.9.2012 AS EVI DENT FROM MEMORANDUM CASH BOOK FILED BY THE APPELLANT AND HIS WIFE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE BRIEF CH ART SHOWING THE INCOME OF THE APPELLANT AND HIS WIFE FROM DIFFERENT SOURCES AS WELL AS THEIR BANK DEPOSITS AND WITHDRAWAL AND INVESTMEN T PREPARED FROM THE BALANCE SHEETS IS ENCLOSED HEREWITH WHICH WILL SHOW THAT APPELLANT AND HIS WIFE HAD CASH BALANCE OF MORE THA N RS.9,49,000/- ON THE DATE OF LOCKER OPERATION I.E. 14.9.2012. ON PERUSAL OF THE SAME YOUR HONOUR WILL APPRECIATE THAT ALL THE CASH FOUND IN THE LOCKER AT RS.9,25,000/- ON THE DATE OF LOCKER OPERA TION BY THE DEPARTMENT WAS EXPLAINABLE AND THERE WAS NO UNEXPLA INED INVESTMENT SO AS TO INVITE THE ADDITION U/S 69A IN THE HANDS OF APPELLANT. IT IS REQUESTED THEREFORE THAT ADDITION OF RS.9,25,000/- MAY KINDLY BE REMOVED. 7. WE HAVE ALSO CONSIDERED THE ASSESSMENT ORDER AND GONE THROUGH THE ORDERS PASSED BY THE LD. CIT(A) AND ALSO EXPLANATION GIVEN BY THE ASSESSEE. WE FIND THAT THE LD . CIT(A) SIMPLY REJECTED THE EXPLANATION GIVEN BY THE ASSESSEE WITHOUT GIVING ANY PROPER REASONS. WHEN THE ASSESSEE HAS FILED RETURNS OF INCOME, SAME ARE ACCEPTED. HIS WIFE HAS ALSO FILED RETURNS OF INCOME AND THE SAME ARE ALSO ACCEPTED AND THE ASSESSEE HAS SUBMITTED THAT OUT OF SAVINGS THE AMOUNTS ARE KEPT IN THE LOCKER. BY TAKING INTO [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 11 THE FACTS AND CIRCUMSTANCES OF THE CASE, IN OUR OPINION , ASSESSEE HAS FULLY EXPLAINED THE SOURCES AND HE HAS DISCHARGED THE BURDEN CASTED UPON HIM. THE A.O. WITH OUT GIVING ANY BASIS, REJECTED THE EXPLANATION OF THE ASSESS EE. IN OUR OPINION, THE A.O. IS NOT CORRECT. IN SO FAR AS LD. CIT(A) IS CONCERNED, HE IS OF THE OPINION THAT INSTE AD OF KEEPING MONEY IN THE LOCKER, IT IS BETTER TO DEPOSI T IN THE BANK SO THAT THE ASSESSEE MAY EARN THE INTEREST. IN OU R OPINION, THE ASSESSEE IS THE PERSON WHO HAS TO DECIDE HIMSELF WHETHER TO KEEP THE MONEY IN THE LOCKER OR DEPOSIT IN THE BANK. IN THIS CASE, THE ASSESSEE HAS DECIDED TO KEEP MONEY IN THE LOCKER TO PERFORM HIS DAUGHTERS MARRIAG E AND EXPLAINED THE SOURCES. IN VIEW OF THE ABOVE, WE F IND THAT THE ORDER PASSED BY LD. CIT(A) HAS TO BE REVERSED . 8. IN SO FAR AS CASE LAWS RELIED BY THE A.O. ARE CONCE RNED JUDGEMENT OF RAJASTHAN HIGH COURT IN THE CASE OF RAJEN DRA PRASAD SUBHASH CHAND VS. UOI 344 ITR 533 FACTS ARE [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 12 ENTIRELY DIFFERENT AND NO APPLICATION TO THE FACTS OF THE PRESENT CASE. IN SO FAR AS JUDGEMENT OF KERALA HIGH CO URT IN THE CASE OF ACIT VS. B. RAJASHEKHARAN NAIR 329 ITR 12 3, WE FIND THAT THE FACTS ARE ENTIRELY DIFFERENT. IN THE PRESENT CASE, EXPLANATION WAS GIVEN BEFORE THE SEARCH PARTY U/S 132(4) OF THE ACT AND THE SAME IS EXPLAINED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. DETAILED REPLY IS GIVEN BEFORE THE LD. CIT(A). BEFORE THE A.O., THE ASSESSE E HAS DISCHARGED HIS BURDEN FOR EXPLAINING SOURCE OF CASH KE PT IN THE LOCKER AND EVEN BEFORE LD. CIT(A) ALSO, THE ASSESS EE HAS EXPLAINED THE SOURCES. THE A.O. WITHOUT GIVING ANY P ROPER REASONS, SIMPLY REJECTED EXPLANATION OF THE ASSESSEE. THE LD. CIT(A) SUBSTITUTED THE DECISION OF THE A.O. BY SAYING THAT INSTEAD OF KEEPING THE MONEY IN THE LOCKER, IT S HOULD BE KEPT IN THE BANK TO EARN THE INTEREST. THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES, THE CASE LAWS RELIED BY THE A.O. ARE NOT APPLICABLE. IN VIEW OF THE ABOVE, THE O RDER [ITA 277/IND/2017] [SHRI DINESH GOSWAMI, BHOPAL] 13 PASSED BY THE LD. CIT(A) IS REVERSED AND APPEAL FILED B Y THE ASSESSEE IS ALLOWED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28. 02.2019. SD/- (MANISH BORAD) SD/- (V. DURGA RAO) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 28/02/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE