Hina Himanshu Patel, Surat V. The Income Tax Officer (Intl.Taxn.), Surat

ITA 2913/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9100 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 20-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift
• Section: 143(3); 147; 69; 148

Judgement Text

ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH, AHMEDABAD BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI PRA DIP KUMAR KEDIA , ACCOUNTANT MEMBER ITA NO S . 2912 & 2913 / AHD /201 3 ASSESSMENT YEAR S : 20 0 8 - 09 & 2009 - 10 HINA HIMANSHU PATEL, VS. INCOME TAX OFFICER (INTL. TAXATION), AT & P.O. BAMANIYA , SURAT. TAL. BARDOLI, DIST. SURAT. [PAN BRNPP 3602 G ] ITA NO S . 2914 & 2915 /AHD/201 3 ASSESSMENT YEARS : 2007 - 08 & 2008 - 09 HI MANSHU MAGANBHAI PATEL, VS. INCOME TAX OFFICER (INTL. TAXATION) , AT & P.O. BAMANIYA, SURAT. TAL. BARDOLI, DIST. SURAT. [PAN B LIPP 0522 Q ] (APPELLANT S ) (RESPONDENT S ) A PPELLANT S BY : NONE (WRITTEN SUBMISSION) RE SPONDENT BY : SHRI DHARAMVIR YADAV, SR. D.R. DATE OF HEARING : 2 0 .0 2 . 20 1 7 DATE OF PRONOUNCEMENT : 27 .02 .201 7 O R D E R PER S.S. GODARA , J.M. TH ESE TWO DIFFERENT ASSESSEES HAVE FILED THE INSTANT FOUR APPEALS I.E. FORMER S APPEAL ITA NOS.2912 AND 2913/AHD/2013 FOR ASSESSMENT YEARS 2008 - 09 & 2009 - 10 FOLLOWED BY LATTER S APPEAL ITA NO S .2914 & 2915/AHD/2013 FOR ASSESSMENT YEARS 2007 - 08 & 2008 - 09 ; AGAINST CIT(A) S GANDHI N AGAR S ORDERS; ALL DATED 02.09.2013 PASSED IN CASE NOS. CIT(A)GNR/191/INTL. TAXN./2011 - 12, CIT(A)GNR/19 0 /INTL. TAXN./2011 - 12 & CIT(A)GNR/19 3 /IN TL. TAXN./2011 - 12, CIT(A)GNR/192/INTL.TAXN./2011 - 12 ; RESPECTIVELY, IN ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 2 OF 7 PROCEEDINGS UNDER SECTION 143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. CASES CALLED TWICE. IT EMERGES THAT LEARNED COUNSEL REPRESENTING ASSESSEE HAS CHOSEN TO FILE WRITTEN SUBMISSION S . WE TAKE THE SAME ON RECORD . 3. A PERUSAL OF THE CASE FILE S REVEAL THAT THE INSTANT FOUR APPALS SUFFER FROM SEVEN DAYS DELAY IN FILING. THESE TWO ASSESSES HAVE DULY FILED THEIR CONDONATION PETITIONS EXPLAINING UNAVO IDABLE CIRCUMSTANCES CAUSING THE IMPUGNED DELAY IN FILING OF THE INSTANT APPEALS. 4. LEARNED DEPARTMENTAL REPRESENTATIVE IS VERY FAIR IN NOT DISPUTING THE SOLEMNISED AVERMENT PLEADED THEREIN. WE THUS CONDONE THE SEVEN DAYS DELAY IN FILING OF FOUR APPEALS. THE SAME ARE NOW TAKEN UP FOR ADJUDICATION ON MERITS. 5. WE COME TO FORMER ASSESSEE S APPEAL ITA NO.291 2 /AHD/2013 RAISING SOLE SUBSTANTIVE GROUND CHALLENGING ADDITION OF RS.4,50,000/ - IN THE NATURE OF UNDISCLOSED INCOME ON ACCOUNT OF INVESTMENT MADE WITH ICICI PRUDENTIAL LIFE IN SURANCE COMPANY LIMITED. 6. W E COME TO THE RELEVANT FACTS. THERE DO ES NOT APPEAR TO BE ANY DISPUTE THAT THE ASSESSEE ALONG WITH HER HUSBAND SHRI HIAMANSHU MAGANLAL PATEL (LATTER APPELLANT) AS WELL AS HER BROTHER IN LAW SHRI ANIMESH M PATEL ARE N ON - RESIDENT INDIANS. THIS FAMILY ADMITTEDLY HOLD S AGRICULTURAL LAND MEASURING ABOUT 25 BIG H AS. REVENUE RECORD S PERTAINING THERETO PROVE THE SAME TO BE VERY FERTILE NATURE PRODUCING SUGARCANE CROPS FORMING PART OF RECORD BEFORE US. IT IS FU RTHER EVIDENT THAT THE ASSESSEE AND HER FAMILY MEMBERS RUN M OTEL BUSINESS IN TEXAS, U.S.A. T HE ASSESSEE INVESTED CASH AMOUNT OF RS.8,50,000/ - AS PREMIUM IN ICICI PRUDENTIAL INSURANCE COVER. SHE HAD NOT BEEN FILING ANY RETURN THROUGHOUT. ASSESSING O FFICE R THUS ISSUED REOPENING NOTICE UNDER SECTION 148 OF THE ACT ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 3 OF 7 QUA THE ABOVE CASH INVESTMENT. THE ASSESSEE FILED A COMBINED CASH FLOW STATEMENT HAVING OPENING BALANCE OF RS.15,77,982/ - AS ON 01.04.2006. SHE SOUGHT TO EXPLAIN THE FACT THAT THE IMPUGNED INVES TMENT OF RS.8,50,000/ - WAS OUT OF CASH WITHDRAWAL THEREFROM. IT IS FURTHER EVIDENT TO US THAT THE ASSESSEE ALSO CLAIMS TO HAVE RECEIVED CASH FROM HER HUSBAND AND BROTHER - IN - LAW (SUPRA) OUT OF THEIR RESPECTIVE AGRICULTURAL LANDS. THE SAID DONORS CONFIRMED HER CASE TO HAVE GIVEN GIFTS. ALL THIS FAILED TO CONVINCE THE ASSESSING OFFICER WHO INTER ALIA WAS OF THE VIEW THAT THE ABOVE SAID CASH STATEMENT DID NOT DISCLOSE ANY CASH RECEIVED/INCOME DIRECTLY IN ASSESSEE S NAME IN INDIA AND THERE WERE NO DETAILS OF AGRICULTURAL INCOME DECLARED FROM ABOVE SAID 25 BIG H AS OF LAND IN ASSESSEE S NAME. WE NOTICE FROM REASSESSMENT ORDER DATED 27.12.2011 THAT THE ASSESSING OFFICER THEREAFTER SOUGHT TO EXAMINE ASSESSEE S CASE ON THE THREE LIMBS OF IDENTITY, GENUINENESS AND C REDITWORTHINESS OF ASSESSEE S EXPENSES. HE WAS OF THE VIEW THAT IDENTITY AND CREDITWORTHINESS LIMBS OUT OF THREE FACTORS HEREINABOVE STOOD SATISFIED. THE ASSESSING O FFICER HOWEVER CHALLENGED ASSESSEE S EXPLANATION ON GENUINENESS ASPECT BY CONCLUDING THAT ASSESSEE S INVESTMENTS WERE NOT IN THE NATURE OF NORMAL TRANSACTION SINCE IT WAS AGAINST COMMON SENSE WHY A PERSON HAVING NRI BANK ACCOUNT IN INDIA WOULD INVEST THE ABOVE STATED INCOME IN INDIA. HE HOWEVER ACCEPTS ASSESSEE S CASE QUA SUM OF RS.4,00,000/ - TO BE A PART OF ASSESSEE S PAST CASH WITHDRAWALS AND MADE ADDITION QUA REMAINING SUM OF RS.4,50,000/ - IN QUESTION. CIT(A) AFFIRMED THE SAME. 7. WE HAVE PERUSED ASSESSEE S WRITTEN SUBMISSION. THE REVENUE S STAND HEARD AT LENGTH . THERE CAN NORMALLY BE A NY DISPUTE THAT BOTH THE LOWER AUTHORITIES DISPUTE ASSESSEE S EXPLANATION TO HAVE DERIVED AGRICULTURAL INCOME AS WELL AS RECEIVED CASH FROM OTHER TWO FAMILY MEMBERS (HUSBAND AND BROTHER - IN - LAW) TO FORM SOURCE OF THE IMPUGNED CASH INVESTMENT IN PREMIUM MADE FOR ICICI PRUDENTIAL LIFE I NSURANCE POLICY. BOTH THE LOWER AUTHORITIES AND MORE PARTICULARLY THE ASSESSING O FFICER DOUBTS OVER ASSESSEE S ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 4 OF 7 CLAIM ON GENUINENESS ASPECT. IT HOWEVER EMERGES THAT HE HAS NOWHERE GRANTED EFFECT OF AGRICULTURAL INCOME TO EITHER ASSESSEE OR HER TWO FAMILY MEMBERS DESPITE THE FACT THAT THEY ARE OWNING 25 BIG H AS OF FERTILE LAND IN BARDOLI DISTRICT, SURAT, GUJARAT. THE CASE FILE FURTHER INDICATE S THAT THE LOCAL CO - OPERATIVE SUGAR FEDERATION HAS ALSO PURCHASED SUGARCANE HARVESTED FR OM THE ABOVE SAID LAND SINCE IT HAS ISSUED VARIOUS RECEIPTS PERTAINING TO THE IMPUGNED ASSESSMENT YEAR AS WELL AS PRECEDING AND SUCCEEDING ASSESSMENT YEAR S . 8. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE CORRECTNESS THEREOF IN THE COURSE OF HEARIN G THE CASE. WE REITERATE THAT TH E SAID S UGAR F EDERATION (S HREE KHEDUT SAHAKARI KHAND UDYOG MANDLI LIMITED) HAS CERTIFIED TO HAVE PURCHASED SUGARCANE FROM ASSESSE E S HUSBAND IN ASSESSMENT YEARS 2008 - 09 TO 1010 - 11 OF RS.4,47,000/ - , RS.4,23,000/ - AND RS.2,0 3,000/ - . THE SAME FIGURE IN ASSESSMENT YEAR 2006 - 07 IS OF RS.88,425 / - FOLLOWED BY NIL AMOUNT IN ASSESSMENT YEAR 2007 - 08. ASSESSEE S BROTHER - IN - LAW SHRI ANIMESH M . PATEL IS ALSO STA TED TO HAVE SOLD SUGARCANE TO T H E VERY C O - OPERATIVE FEDERATION OF RS.3,16, 000/ - , RS.3,37,000/ - , RS.3,65,000/ - , RS.8,24,000/ - AND RS.4,85,000/ - IN ASSESSMENT YEARS 2006 - 07 TO 2010 - 11. COUPL E D WITH THIS , THE FACT ALSO REMAINS THAT THE ASSESSEE HERSELF OWN AGRICULTURAL LAND WHICH IS UNDER CULTIVATION. WE TAKE INTO ACCOUNT ALL THE SE FACTS AS WELL AS ASSESSEE S EXPLANATION TO HAVE RECEIVED CASH SUMS FROM HER ABOVE STATED FAMILY MEMBERS WHO HAD NEVER BEEN CALLED BY PERSON BY LOWER AUTHORITIES TO ENQUIRE THAT THE IMPUGNED ADDITION OF RS.4,50,000/ - IN QUESTION IS NOT SUSTAINABLE . THE SAME IS ACCORDINGLY DELETED. 9. ITA NO.2912/AHD/2013 IS ACCEPTED . ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 5 OF 7 1 0. FORMER ASSESSEE S NEXT APPEAL IS ITA N O.2913/AHD/2013 ASSAILING CORRECTNESS OF ADDITION OF PREMIUM PAID TO ICICI PRUDENTIAL LIFE INSURANCE COMPANY LIMITED AMOUNTING TO RS.8,50,000/ - BY C ASH. 11. WE NOTICE IN THIS CASE RELEVANT FACTS ARE NOT IDENTICAL. THE ASSESSEE CLAIMED TO HAVE MADE THE IMPUGNED PAYMENT OF RS.8,50,000/ - ON A SINGLE DAY I.E. 03.11.2008 IN FORM OF 18 DEMAND DRAFTS PURCHASED IN CASH IN AS MANY DIFFERENT NAMES. DETAILS THEREOF ARE AT PAGE 3 OF THE REASSESSMENT O R DER DATED 22.12.2011. SEVENTEEN OF THE SAID DEMAND DRAFTS INVOLVE A SUM OF RS.49,000/ - AND 18 TH INSTANCE IS OF RS.17,000/ - . A PERUSAL OF BOTH THE LOWER AUTHORITIES ORDERS REVEAL THAT THE ASSESSEE COULD NOT PRO DUCE EVEN A SINGLE PARTY OUT OF THE SAID 18 PERSONS ALONG WITH ALL THE RELEVANT DETAILS PROVING THEIR SOURCE OF DEMAND DRAFT AMOUNTS IN QUESTION. THE SAME FACTUAL POSITION CONTINUES HEREIN AS WELL. T HE ASSESSEE S WRITTEN SUBMISSION A S WELL A S HER STAND T HROUGHOUT PRIMA FACIE SEEKS TO DRAW PARITY WITH THE RELEVANT FACTS IN PRECEDING ASSESSMENT YEAR. WE ARE HOWEVER OF THE VIEW THAT SINCE THE ASSESSEE HAS FAILED TO DISCHARGE EVEN THE IDENTITY OF THE SAID 18 DEMAND DRAFT PARTIES, WE ADOPT A DIFFERENT APPROAC H IN THE IMPUGNED ASSESSMENT YEAR TO AFFIRM ADDITION IN QUESTION OF RS.8,50,000/ - UNDER CHALLENGE. 1 2 . ITA NO.2913/AHD/2013 IS THUS REJECTED. 1 3 . WE NOW ADVERT TO LATTER ASSESSEE SHRI HIMANSHU MAGAN BHAI PATEL. HIS FIRST APPEAL ITA NO.2914/AHD/2013 SEEKS T O DELETE UNDISCLOSED INCOME ADDITION OF RS.2,00,000/ - QUA INVESTMENT MADE WITH ICICI PRUDENTIAL LIFE INSURANCE COMPANY LIMITED AS TREATED TO BE FALLING UNDER SECTION 69 OF THE ACT BY BOTH THE LOWER AUTHORITIES. 14. IT EMERGES THAT THIS ASSESSEE HAD PAID PREMIUM OF RS.6,00,000/ - ON 12 TH AND 14 TH DECEMBER, 2006 WITH ICICI PRUDENTIAL LIFE INSURANCE COMPANY LIMITED. HE SOUGHT TO EXPLAIN SOURCE OF THE SAID INVESTMENT OF HIS LIFE TIME SAVING AS WELL A S AGRICULTURAL INCOME. ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 6 OF 7 THE ASSESSING O FFICER ACCEPTED HIS C ASE O N LY TO THE EXTENT OF RS.4,00,000/ - IN VIEW OF HIS BANK STATEMENTS A S WELL AS THE C O - OPERATIVE S UGAR F EDERATION CERTIFICATE AND ALSO IN VIEW OF ASSESSEE S DECLARATION WHICH PROVES TO HAVE BROUGHT A SUM OF RS.4500 US$ COMING TO RS.2,0 2 ,500/ - WITH HIM ON HIS VISIT TO INDIA. THE ASSESSING O FFICER THUS ASSUMED THAT 50% OF THE SAID AMOUNT TO HAVE HELD TO BE AVAILABLE WITH THE ASSESSEE SO AS TO ACCEPT THE CLAIM IN PART. THE CIT(A) UPHOLDS THE SAME IN COURSE OF LOWER APPELLATE PROCEEDINGS. 1 5 . WE HAVE HEA R D LEARNED DEPARTMENTAL REPRESENTATIVE AT LENGTH. RELEVANT FINDINGS PERUSED . WE DEEM IT APPROPRIATE TO REITERATE OUR OBSERVATIONS IN FORMER ASSESSEE S FI R ST APPEAL I.E. THIS ASSESSEE HOLDS AGRICULTURAL LANDS IN BARDOLI PRODUCING SUGARCANE AND OTHER CROPS. WE WISH TO REPEAT TH A T THE SAID SUGARCANE FEDERATION HAS ALREADY ISSUED NECESSARY CERTIFICATE S TO HAVE PU RC HAS E D SUGARCANE GROWN IN HIS LAND. T HIS IS NOT THE R EVENUE S CASE THAT ASSESSEE S LAND REVENUE RECORD ONLY REVEALS THE SUGARCANE CROP S A ND NOT OTHER CROP S HARVESTED THEREFROM. WE FURTHER FIND NO LOGIC IN ASSESSING O FFICER S PRESUMPTION THAT ASSESSEE IS DEEMED TO HAVE SPENT 50% CASH AVAILABLE TO ACCEPT HIS CLAIM RE G A R DING SOURCE OF CASH FOR PREMIUM OF RS.4,00,000/ - . WE ACCORDINGLY CONCLUDE THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN MAKING THE IMPUGNED ADDITION OF RS.2,00,000/ - FORMING SUBJECT MATTER OF SOLE SUBSTANTIVE GROUND RAISED IN ASSESSEE S APPEAL. THE SAME STAN D S DELETED. 1 6 . ASSESSEE S APPEAL ITA NO.2914/AHD/2013 IS ACCEPTED. 1 7 . WE NOW CO ME TO LATTER ASSESSEE S SECOND APPEAL ITA N O.2915/AHD/2013 RAISING SOLE SUBSTANTIVE GROUND CHALLENGING UNEXPLAINED INVESTMENT ADDITION OF RS.2,00,000/ - IN THE NATURE OF CASH PREMIUM PAID TO ICICI PRUDENTIAL LIFE INSURANCE COMPANY LIMITED OUT OF THE T OTAL P REMIUM OF RS.4,00,000/ - PAID IN THE IMPUGNED ASSESSMENT YEAR. WE NOTICE ITA NO S . 2912, 2913, 2914 & 2915 / AHD/20 1 3 A.Y S . 20 0 8 - 09, 2009 - 10, 2007 - 08 & 2008 - 09 PAGE 7 OF 7 HEREIN AS WELL T HAT THE ASSESSING O FFICER S REASON IS IDENTICAL TO THE ONE ADOPTED IN THE PRECEDING ASSESSMENT YEAR. 1 8 . LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT WE HAVE ALREADY DELETED IDENTICAL ADDITION HEREINABOVE. WE ADOPT THE SAME REASONING TO ACCEPT ASSESSEE S SOLE SUBSTANTIVE G ROUND IN THE INSTANT APPEAL . 1 9 . THE INSTANT APPEAL ITA NO.2915/AHD/2013 IS ACCORDINGLY ACCEPTED. 20 . WE REFER OUR DETAIL ED DISCUSSIO NS IN PRECEDING PARAGRAPHS TO ALLOW ITA NOS.2912, 29 1 4 & 2915 FILED AT THE INSTANCE OF THESE TWO ASSESSEES. FORMER ASSESSEE S LATTER APPEAL ITA N O.2913/AHD/2013 IS DISMISSED. P RONOUNCED IN THE OPEN COURT TODAY ON THE 27 TH DAY OF FEBRUARY , 201 7 . SD/ - SD/ - PRA DIP KUMAR KEDIA S.S. GODARA (ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) AHMEDABAD, THE 27 TH DAY OF FEBRUARY, 2017 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPA RTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD