Shri Shantilal Kaluram Shah, Surat V. The Income tax Officer,Ward-9(4), Surat

ITA 2815/AHD/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8620 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA. NO.2815/AHD/2012 (ASSESSMENT YEAR:2009-10) SHANTILAL KALURAM SHAH 31, HARINANDAN SOCIETY, HIRA BAUG, VARACHHA ROAD, SURAT APPELLANT VS. THE INCOME TAX OFFICER WARD-9(4), SURAT RESPONDENT PAN: ALLPS9411R /BY APPELLANT : SHRI M. K. PATEL, A.R. /BY RESPONDENT : SHRI M. K. SINGH, SR. D.R. !' /DATE OF HEARING : 25.02.2015 #$% !' /DATE OF PRONOUNCEMENT : 30.03.2015 ITA NO. 2815/AHD/12 A.Y. 09-10 [SHANTILAL KALURAM SHAH VS. ITO] PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, SU RAT, DATED 22.10.2012 FOR A.Y. 2009-10 ON THE FOLLOWING GROUND : 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONE R OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING TH E ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.10,65,000/- BEING CASH DEPOSIT DURING THE YEAR B Y TREATING IT AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX ACT, 1961. 2. ASSESSING OFFICER IN ITS CONCLUDING PARA HELD AS UNDER: THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DIAMOND BROKERAGE INCOME. DURING THE YEAR, THE ASSESSEE HAS SHOWN TOTAL BROKERAGE INCOME OF RS.2,82,448/-, AND N.P. S HOWN OF RS.2,39,942/-, AS COMPARED TO THE EARLIER YEAR THE ASSESSEE HAS SHOWN TOTAL BROKERAGE INCOME OF RS.2,05,458/- A ND N.P. SHOWN OF RS.1,68,244/-. THE ASSESSEE HAS FURNI SHED NECESSARY DETAILS AND DOCUMENTS, WHICH ARE HAVE BEE N RANDOMLY VERIFIED AND THE SAME ARE PLACED ON RECORD . UNEXPLAINED CASH DEPOSITS THE AIR INFORMATION IN THIS CASE REVEALED THAT THE ASSESSEE HAD MADE CASH DEPOSITS OF RS. 10,65,000/- IN ICICI BANK, SURAT. THE SAID CASH DEPOSITS WERE NOT REFLECTED IN THE RETURN OF INCOME. THEREFORE, THE ASSESSEE WAS ASKED TO ASKED TO EXPLAIN WITH EVIDENCES THE SOURCE OF SUCH INVESTMENT AND TRANSACTIONS. IN RESPONSE THE ASSESS EE FAILED TO GIVE ANY EXPLANATION OR DOCUMENTARY EVIDE NCE WITH ITA NO. 2815/AHD/12 A.Y. 09-10 [SHANTILAL KALURAM SHAH VS. ITO] PAGE 3 RESPECT TO SOURCE OF THE SAID CASH DEPOSITS. THE AS SESSEE FAILED TO DISCHARGE HIS ONUS OF PROVING THE CASH CR EDITS. THEREFORE, IN ABSENCE OF ANY DETAILS OR EVIDENCE, T HE CASH DEPOSITS OF RS.10,65,000/- ARE TREATED AS UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT AND ADDED TO THE TOTAL IN COME OF THE ASSESSEE. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F ASSESSEE AND HAVING CONSIDERED THE SAME, CIT(A) CONFIRMED TH E ORDER OF ASSESSING OFFICER. 2.2 SAME HAS BEEN OPPOSED ON BEHALF OF ASSESSEE INT ER ALIA SUBMITTED THAT CIT(A) HAS ERRED IN CONFIRMING THE A CTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.10,65,00 0/- BEING CASH DEPOSIT AS UNEXPLAINED CASH CREDIT U/S. 68 OF INCOME TAX ACT. ACCORDINGLY, SAME BE DELETED. ON OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). 2.3 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT ISSUE BEFORE US IS REGARDING A DDITION OF RS.10,65,000/- BEING CASH DEPOSIT AS UNEXPLAINED CA SH CREDIT U/S. 68 OF THE ACT. DURING APPELLATE PROCEEDINGS, ASSESSEE FILED ADDITIONAL EVIDENCE. SINCE THESE DOCUMENTS WE RE NOT FILED BEFORE CONCERNED ASSESSING OFFICER, REMAND REPORT W AS CALLED FROM ASSESSING OFFICER UNDER RULE 46A OF THE INCOME TAX RULES. ASSESSING OFFICER VIDE THIS LETTER DATED 28 .08.2012 HAS OBJECTED TO THE FILING OF ADDITIONAL EVIDENCE ON TH E GROUND THAT ITA NO. 2815/AHD/12 A.Y. 09-10 [SHANTILAL KALURAM SHAH VS. ITO] PAGE 4 THOSE SEVERAL OPPORTUNITIES WERE GIVEN TO ASSESSEE BUT HE DID NOT FILE THESE DOCUMENTS DURING ASSESSMENT PROCEEDI NGS. THE STAND OF ASSESSEE HAS BEEN THAT ASSESSING OFFICER H AD NEVER CALLED FOR COPY OF TRADING ACCOUNTS, BALANCE SHEET, COPY OF TECHO SHARE AND STOCK ETC. IN VIEW OF THIS, DOCUME NTS SUBMITTED BY ASSESSEE WERE IMPORTANT FOR DECIDING T HE ISSUE OF SOURCE OF DEPOSITS IN THE BANK ACCOUNT AND ASSESSME NT ORDER WAS ALSO NOT VERY CLEAR ON THE ISSUE OF CALLING FOR EVIDENCES, THEREFORE THE FRESH EVIDENCE WERE ADMITTED. COMING TO THE MERITS, ASSESSEE CLAIMED THAT IT IS HAVING COMMISSI ON INCOME AND ALSO INCOME FROM AGRICULTURE LAND. COPY OF AGR ICULTURE LAND HOLDING IN RAJASTHAN WAS ALSO SUBMITTED WHICH IS JOINTLY IN THE NAME OF FAMILY MEMBERS. ASSESSEE SUBMITTED THAT THIS LAND IS HUF PROPERTY AND HE IS KARTA OF HUF BUT HE IS NEITHER HAVING A PAN OF HUF NOR FILING ANY TAX RETURN SEPAR ATELY FOR HUF. IN REMAND REPORT, ASSESSING OFFICER STATED TH AT ASSESSEE HAS NEITHER SHOWN ANY INCOME FROM SHARE TRANSACTION NOR SHOWN ANY INCOME FROM AGRICULTURE INCOME FROM AGRIC ULTURE ACTIVITIES AND ALSO OBSERVED THAT THERE IS NO AGRIC ULTURE LAND HOLDING INDIVIDUALLY IN THE NAME OF ASSESSEE. IN R EMAND REPORT, ASSESSING OFFICER ALSO MENTIONED THAT TO SE T OFF OF LOSS ON SHARE TRADING BUSINESS AGAINST ANY ADDITION OF C ASH DEPOSITED IN BANK ACCOUNT, IN FACT, ASSESSEE HAS NO T SHOWN ANY LOSS FROM SHARE TRADING BUSINESS. IN THE ORIGIN AL RETURN OF INCOME FILED FOR A.Y. 2009-10 NOR THE ASSESSEE FILE D ANY REVISED INCOME OF RETURN SHOWING LOSS FROM SHARE TRADING. T HEREFORE, ITA NO. 2815/AHD/12 A.Y. 09-10 [SHANTILAL KALURAM SHAH VS. ITO] PAGE 5 ASSESSEE IS NOT ENTITLED TO CLAIM ANY SET OFF LOSS WHICH IS NEITHER SHOWN IN THE ORIGINAL RETURN OF INCOME OR R EVISED RETURN OF INCOME. IN FIRST APPELLATE PROCEEDING, C IT(A) FOUND THAT THIS BANK ACCOUNT WOULD NOT HAVE COME TO THE KNOWLEDGE OF TAX DEPARTMENT SAVE THE USE OF TECHNOLOGY AND CO LLECTION OF INFORMATION BY THE INCOME TAX DEPARTMENT REGARDIN G HIGH VALUE TRANSACTIONS THROUGH BANKING AND FINANCIAL IN STITUTIONS. ASSESSEES SUBMISSION THAT THE DEPOSITS IN BANK ACC OUNTS WERE MADE OUT OF SALE PROCEEDS OF AGRICULTURE LAND AND N O ACCOUNTS WERE MAINTAINED AND NOT SUPPORTED BY ANY PROOF OR DOCUMENTARY EVIDENCE. ACCORDINGLY PRIMARY ONUS OF ASSESSEE TO PROVE THE SOURCE OF CASH DEPOSITS WAS NOT ESTABL ISHED. IN THIS REGARD, LEARNED AUTHORIZED REPRESENTATIVE BEFO RE US SUBMITTED THAT ALL DETAILS OF HUF LAND WERE SUBMITT ED BEFORE CONCERNED CIT(A) BUT THEY HAVE NOT BEEN DULY APPREC IATED. ALTERNATIVELY LEARNED AUTHORIZED REPRESENTATIVE SUB MITTED THAT HIS PLEA OF SET OFF OF LOSS HAS NOT BEEN CONSIDERED . TAKING ALL FACTS AND CIRCUMSTANCES INTO CONSIDERATION AND IN T HE INTEREST OF JUSTICE, WE RESTORE THE MATTER TO ASSESSING OFFI CER WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW ON BOTH ACCOUNTS I.E. AGRICULTURAL INCOME VIS--VIS AGRICUL TURAL HOLDING AND ISSUE OF SET OFF OF IMPUGNED INCOME AGAINST LOS S, IF ANY AS PER LAW AFTER PROVIDING DUE OPPORTUNITY OF BEING HE ARD TO ASSESSEE, WHICH IS ALTERNATE CONTENTION OF ASSESSEE . SINCE, WE ARE RESTORING THE ISSUE OF ASSESSING OFFICER IN LIG HT OF ABOVE ITA NO. 2815/AHD/12 A.Y. 09-10 [SHANTILAL KALURAM SHAH VS. ITO] PAGE 6 DISCUSSION, WE ARE REFRAINING TO COMMENT ON THE MER IT OF ISSUE AT HAND. 3. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF MARCH, 2015. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 30/03/2015 TRUE COPY S.K.SINHA & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER / & ,