P.Sivashanmugam (Indl.), Sivakasi V. ACIT, Madurai

ITA 2929/CHNY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1936 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 21-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G CHANDRABABU A DDL
• Assessee Lawyers: G BASKAR
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D (SMC) BENCH: CHENNAI , BEFORE SHRI V. DURGA RAO , JUDICIAL MEMBER ./ ITA NO. 2929 /CHNY/ 20 19 / ASS ESSMENT YEAR: 200 9 - 2010 SMT. S. KANCHANA (L/H), LATE SHRI P. SIVASHANMUGAM, NO.588, SIVAKASI VIRUDHUNAGAR ROAD, THIRUTHANGAL, [T.N.] [PAN: A HKPS 3086K ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II , IT STAFF QUARTERS COMPLEX, KULAMANGALAM MAIN ROAD, MEENAMBALPURAM, MADURAI 625 002. ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. G. BASKAR , ADVOCATE /RESPONDENT BY : M R . G. CHANDRABABU , A DDL. CIT / DATE OF HEARING : 1 7 . 11 .2020 / DATE OF PRO NOUNCEMENT : 19. 1 1 .20 20 / O R D E R PER V. DURGA RAO , JUDICIAL MEMBER : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 1 , MADURAI IN . I . T . A NO. 27A/2017 - 18 DATED 30.09.2019 RELEVANT TO THE ASSESSMENT YEAR 200 9 - 20 10 . ITA NO 2929/CHNY/2019 : - 2 - : 2. THE BRIEF FACTS OF THE CASE ARE THAT THERE WAS A SEARCH CONDUCTED IN THE GROUP CASE OF M/S. SRI KALISWARI FIRE WORKS AND ITS PARTNERS ON 21.10.2008. CONSEQUENT TO THE SEARCH PROCEEDINGS, THE JURISDICTION OF SHRI P. SIV ASHANMUGAM, SIVAKASI WAS TRANSFERRED TO THIS OFFICE VIDE COMMISSIONER OF INCOME TAX II AT MADURAI. ACCORDINGLY, A NOTICE U/S.142 AND 148 WAS ISSUED FOR THE ASSESSMENT YEAR 2009 2010 ON 13.11.2009. 3. IN RESPONSE, THE ASSESSEE FILED A RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 2010 ADMITTING A TOTAL INCOME OF RS.52,591/ - . IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOTED THAT DURING THE COURSE OF THE SEARCH PROCEEDINGS, AN AMOUNT OF RS. 6,80,.242/ - CASH WAS FOUND AVAILABLE IN THE RESIDENCE, INVENTORISED VIDE ANNEXURE KR/CASH/F DATED 21.10.2008. THE ASSESSEE IN HIS OWN STATEMENT DEPOSED THAT THIS AMOUNT REPRESENTS THE CASH WITHDRAWN PERIODICALLY WHICH INCLUDE THE CASH BALANCE OF HIS WIFES INDIVIDUAL BUSINESS, SINCE NO SEPARATE CASH BOOKS A RE MAINTAINED. 4 . BEFORE THE ASSESSING OFFICER, DURING THE SCRUTINY PROCEEDINGS, IT WAS SUBMITTED THAT RS.1,20,000/ - BELONGING TO SMT. S. KANCHANA ITA NO 2929/CHNY/2019 : - 3 - : WHO IS DOING A SEPARATE BUSINESS IN TUPPERWARE SALE WAS MAINTAINING PROPER ACCOUNTS. THE CASH BOOK MAINT AINED FOR THIS PURPOSE IS PRODUCED AND VERIFIED. WITH REGARD TO THE BALANCE AMOUNT OF RS.5,60,242/ - , NO SEPARATE BOOKS WERE MAINTAINED. HENCE, THE SAME IS TREATED AS UN - EXPLAINED CREDIT U/S.68 OF THE INCOME TAX ACT, 1961 AND AN ADDITION WAS MADE TO RS.5, 60,242/ - . THE SAME IS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 5 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 6 . THE ONLY ISSUE INVOLVED IN THIS APPEA L IS IN RESPECT OF THE ADDITION OF RS.5,60,242/ - . DURING THE SEARCH PROCEEDINGS, IN THE SWORN STATEMENT HE HAS DEPOSED THAT THE CASH FOUND DURING THE SEARCH REPRESENTED THE CASH WITHDRAWN PERIODICALLY WHICH INCLUDES THE CASH BALANCE OF HIS WIFES ALSO. SO FAR AS HIS WIFE IS CONCERNED, THE CASH FLOW TO A TUNE OF RS.1,20,000/ - AND THE REMAINING BALANCE IS CONCERNED, THERE IS NO SEPARATE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND THAT THERE ARE REGULAR DEPOSITS AND WITHDRAWALS ITA NO 2929/CHNY/2019 : - 4 - : AS SUBMITTED BEFORE THE AS SESSING OFFICER AS WELL AS THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 7 . HOWEVER, BOTH THE AUTHORITIES BELOW HAVE NOT ACCEPTED THE EXPLANATION MADE BY THE ASSESSEE. SIMPLY AN ADDITION IS MADE . THE ASSESSEE DURING THE SEARCH PROCEEDINGS, IN A SWO RN STATEMENT HAS DEPOSED THAT THE CASH FOUND DURING THE SEARCH REPRESENTED THE CASH WITHDRAWN PERIODICALLY WHICH INCLUDES CASH BALANCE OF HIS WIFE ALSO. 8. THE ASSESSING OFFICER WITHOUT CONSIDERING THE WITHDRAWALS AND DEPOSITS, SIMPLY MADE AN ADDITION U/S .68 OF THE INCOME TAX ACT, 1961. NOT ONLY THAT, WHEN THE ASSESSEE HAD GIVEN A SWORN STATEMENT, THE ASSESSING OFFICER HAS TO EXAMINE AS TO WHETHER THE STATEMENT GIVEN BY THE ASSESSEE IS CORRECT OR NOT? THE ASSESSING OFFICER SIMPLY REJECTED THE EXPLANATION GIVEN BY THE ASSESSEE WITHOUT GIVING REASONS. 9. IN OUR OPINION, THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CANNOT SURVIVE. ITA NO 2929/CHNY/2019 : - 5 - : 10. ACCORDINGLY, THE ORDER PASSE D BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) STANDS CANCELLED AND THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 11 . IN THE RESULT, THE APPEAL OF THE A SSESSEE IN ITA NO. 2929 /CHNY/2019 IS ALLOWED. ORDER PRONOUNCED ON 19 TH NOVEMBER , 20 20 IN CHENNAI . SD/ - ( ) ( V. DURGA RAO ) /JUDICIAL MEMBER / CHENNAI, / DATED: 19 TH NOVEMBER , 2020 IA, SR. PS / COPY TO: 1. / APPELLANT 2. / RESPONDENT 3. ( ) / CIT (A) 4. / CIT 5. / DR 6. / GF