SHRI SHRI RAKESH CHOPRA,BHILAI, BHILAI(CG) V. THE DY. COMMISSIONER OF INCOME TAX 1(1), BHILAI(CG)

ITA 3/BIL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2536 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 18-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P NAMDEO
• Assessee Lawyers: S R RAO
• Keywords: Unexplained investment
• Section: 147; 69; 148; 6; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHU RY , JM . / I TA NO S. 02 & 03 /RPR /20 1 7 / ASSESSMENT YEAR S : 20 1 1 - 12 & 201 2 - 13 SHRI RAKESH CHOPRA, H. NO. 435, NEW KHUSIPAR, SECTOR 11, BHILAI (CG) PAN : ABZPC3488L ....... / APPELLANT / V/S. THE DY. COMMISSIONER OF INCOME TAX - 1(1), BUNGALOW N. 32/32, AMDI NAGAR, HUDCO, BHILAI (CG) / RESPONDENT A SSESSEE BY : SHRI S.R. RAO REVENUE BY : S HRI R.P. NAMDEO / DATE OF HEARING : 1 8 .01.2019 / DATE OF PRONOUNCEMENT : 11 .0 3 .2019 2 ITA NO S. 02 & 03 /RPR /20 1 7 / ORDER PER ANIL CHATURVEDI, AM : THESE TWO APPEALS BY THE ASSESSEE ARE EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME - TAX (A) - I I, RAIPUR DATED 07 - 10 - 2016 FOR THE A.YS. 20 1 1 - 12 AND 201 2 - 13 . 2. BEFORE US, AT THE OUTSET LD. A.R. SUBMITTED THAT THOUGH THE PRESENT APPEALS OF THE ASSESSEE ARE FOR TWO DIFFERENT ASSESSMENT YEARS BUT THE ISSUE INVOLVED BOTH THE APPEALS ARE IDENTICAL EXCEPT FOR THE CHANGE IN AMOUNTS AND THE ASSESSMENT YE ARS. HE THEREFORE SUBMITTED THAT SUBMISSIONS MADE BY HIM WOULD BE APPLICABLE TO BOTH THE APPEALS AND THEREFORE BOTH THE APPEALS CAN BE HEARD TOGETHER. LD. D.R. DID NOT OBJECT TO THE AFORESAID CONTENTIONS OF LD. A.R. WE THEREFORE PROCEED TO DISPOSE OF BO TH THE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER PROCEED TO NARRATE WITH THE FACTS FOR A.Y. 201 1 - 12 IN ITA NO. 02 /RPR/201 7 . 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER : - ASSESSEE IS AN INDIVIDUAL WHO IS STATED TO BE HAVING INCOME FROM INTEREST AND REMUNERATION FROM THE FIRMS WHERE HE IS PARTNER. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 201 1 - 12 ON 1 3 - 03 - 2012 DECLARING TOTAL 3 ITA NO S. 02 & 03 /RPR /20 1 7 INCOME OF RS.19,84,920/ - . NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 22 - 08 - 2013 . THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY AND SUBSEQUENTLY ASSESSMENT WAS FRAMED U/S 14 7 OF THE ACT VIDE ORDER DATED 17 - 03 - 2015 AND THE TOTAL INCOME WAS DETERMINED AT RS. 79,23,370/ - . AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED TH E MATTER BEFORE LD. CIT(A), WHO VIDE CONSOLIDATED ORDER DATED 07 - 10 - 2016 (IN A PPEAL NO. CIT(A) - II/RPR/A.NO.30/14 - 15/2016 - 17) DISMISSED THE APPEALS OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.53,89,246/ - MADE BY THE A.O. AS UNEXPLAINED INVESTMENTS U/S. 69 OF THE INCOME - TAX ACT 1961. 2. TH E LD. COMMISSIONER OF INCOME - TAX (APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.3,75,146/ - MADE AS UNEXPLAINED INVESTMENT U/S. 69 OF THE INCOME - TAX ACT 1961. 3. TH E ORDER OF THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) IS BAD IN LAW AND ON FACTS. 4. TH E APPELLANT RESERVES THE RIGHTS TO ADD, AMEND AND OMIT ALL OR ANY OF THE GROUNDS OF APPEAL WITH PERMISSION OF THE HONBLE APPELLATE AUTHORITY. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN ITA NO. 03 /RPR/201 7 . 4 . DURING THE COURSE OF RE ASSESSMENT PROCEEDINGS , IT WAS NOTICED THAT THE ASSESSEE HAD DEPOSITED CASH AGGREGATING TO RS.7,39,925/ - IN SAVING BANK ACCOUNT NO. 048104000216081 MAINTAINED WITH THE IDBI BANK, 4 ITA NO S. 02 & 03 /RPR /20 1 7 NEHARU NAGAR BRANCH, BHILAI. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT TO WHICH THE ASSESSEE INTER ALIA SUBMITTED THAT THOUGH THE AFORESAID BANK ACCOUNT IS IN HIS PERSONAL CAPACITY BUT IT RELATE S TO THE PARTNERSHIP FIRM M/S. MAHAVIR VENTURES, JAGDALPUR IN WHICH THE ASSESSEE WAS ONE OF THE PARTNERS. HE FURTHER SUBMITTED THAT THE INTEREST INCOME EARNED FROM THE BANK WAS THEREFORE NOT DISCLOSED IN THE RETURN OF INCOME. A PERUSAL OF BALANCE SHEET OF M/S. MAHAVIR VENTURES WHICH WAS FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2011 - 12 REVEALED THAT THE ASSESSEE HAD SHOWN ONLY ONE BANK ACCOUNT WITH DENA BANK HAVING CREDIT BALANCE OF RS.1,92,187/ - AS ON 31 - 03 - 2011 AND HAD NO MENTION ABOUT THE BANKS ACCOUNTS MAINTAINED WITH THE IDBI BANK. THE VERIFICATION OF BANK OPENING DOCUMENTS REVEALED THAT THE BANK ACCOUNT WAS OPENED IN THE INDIVIDUAL NAME AND NOT AS REPRESENTATIVE OF THE FIRM I.E. M/S. MAHAVIR VENTURES. THE ASSESSING OFFICER, THEREFORE, DID NOT ACCEPT THE SUBMISSION OF ASSESSEE THAT THE ACCOUNT BELONGS TO THE FIRM AND NOT OF THE ASSESSEE. ON PERUSAL OF BANK ACCOUNT THE ASSESSING OFFICER ALSO NOTICED THAT IN ALL THE CASES , THE CASH WAS DEPOSITED AT BHILAI. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD FAILED TO BRING ON RECORD ANY DOCUMENTARY EVIDENCE TO SHOW THAT THE CASH WAS TRANSMITTED FROM THE JAGDALPUR TO BHILAI AND THEREAFTER THE SAME WAS DEPOSITED. THE ASSESSING OFFICER ALSO NOTICED THAT THE BANK ACCOUNT WAS UTILIZED BY THE ASSESSEE AS HIS P ERSONAL BANK ACCOUNT FOR PURCHASE OF SHARES OF VARIOUS COMPANIES THROUGH M/S. MOTILAL OSWAL SECURITIES LTD. DURING FINANCIAL YEARS 2009 - 10 5 ITA NO S. 02 & 03 /RPR /20 1 7 TO 2013 - 14. THE ASSESSING OFFICER, THEREFORE, CONCLUDED THAT THE BANK ACCOUNT WAS OF THE ASSESSEE , THE TRANSACTIONS IN THE BANK ACCOUNT WERE MADE BY ASSESSEE IN HIS INDIVIDUAL CAPACITY AND THE DEPOSITS APPEARING IN THE BANK ACCOUNT BELONGS TO THE ASSESSEE. THE ASSESSING OFFICER, THEREFORE, TREATED THE INTEREST INCOME CREDITED IN THE BANK ACCOUNT AMOUNTING TO RS.3,73,57 9/ - AS THE INCOME OF THE ASSESSEE. THE ASSESSING OFFICER ALSO NOTICED THAT IN THE AFORESAID BANK ACCOUNT THERE WERE OTHER DEPOSITS AGGREGATING TO RS.52,01,046/ - FOR WHICH NO EXPLANATION WAS OFFERED BY THE ASSESSEE. APART FROM THE ABOVE HE ALSO NOTICED TH AT THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS. 1,88,200/ - ON 08 - 05 - 2010 FOR WHICH NO EXPLANATION WAS OFFERED. HE ACCORDINGLY CONSIDERED AGGREGATE DEPOSITS OF RS.53,89,246/ - AS UNEXPLAINED AND MADE ITS ADDITION U/S. 69 OF THE ACT. AGGRIEVED BY THE ORD ER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO UPHELD THE ORDER OF ASSESSING OFFICER . AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 5. BEFORE US LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND LD. CIT(A). HE FURTHER SUBMITTED THAT IDENTICAL ISSUE AROSE IN ASSESSEES OWN CASE IN A.Y. 201 0 - 11. THE CO - ORDINATE BENCH OF TRIBUNAL VIDE ORDER DATED 02 - 05 - 2017 HAS DECIDED THE ISS UE IN FAVOUR OF THE ASSESSEE. HE PLACED ON RECORD THE COPY OF AFORESAID DECISION OF TRIBUNAL . HE THEREFORE SUBMITTED THAT WHEN THERE ARE NO CHANGE IN THE 6 ITA NO S. 02 & 03 /RPR /20 1 7 FACTS AS COMPARED TO EARLIER YEAR , THEN FOLLOWING THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE , T HE ISSUE BE DECIDED IN SAME MANNER. 6. THE LD. D.R. ON THE OTHER HAND DID NOT CONTROVERT THE SUBMISSIONS MADE BY LD. A.R. BUT HOWEVER SUPPORTED THE ORDER OF LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT IS WITH RESPECT TO THE DEPOSITS IN THE BANK ACCOUNT. IT IS ASSESSEES CONTENTIONS THAT THOUGH THE ACCOUNT IS IN HIS NAME BUT THE TRANSACTIONS IN IT PERTAINS TO THE FIRM IN WHICH HE IS A PARTNER. WE FIND THAT THE IDENTICAL ISSUE IN ASSESSEES OWN CASE AROSE IN A.Y. 2010 - 11 AND THE CO - ORDINATE BENCH OF TRIBUNAL VIDE ORDER DATED 02 - 05 - 2017 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER : 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE AND SEVEN OTHER PERSONS HAD FORMED A FIRM BY THE NAME M/S MAHAVIR VENTURES, JAGDALPUR. THE PARTNERS MUTUALLY DECIDED TO OPEN AN ACCOUNT IN THE NAME OF THE ASSESSEE AND HIS WIFE, WHICH WAS DEDICATED TO THE FIRM M/S MAHAVIR VENTURES. THIS FACT IS ADMITTEDLY BORN OUT FROM THE RECONSTITUTE PARTNERSHIP DEED, WHICH IS PLACED ON RECORD IN THE PAPER BOOK FILED BY THE ASSESSEE. THE PARTNERSHIP FIRM FOR THE RELEVANT YEAR HAD FILED THE RETURN OF INCOME AND THE BALANCE SHEET F ILED ALONG WITH THE RETURN OF INCOME, SHOW CLOSING BALANCE WITH THE BANK AT RS.3,05,33,790.41, SUNDRY DEBTORS AT RS.4,71,344/ - AND CASH IN HAND RS.73,983/ - . THIS FACT IS BEING ADMITTED BY THE ASSESSING OFFICER OF THE PARTNERSHIPS FIRM. ALL THE PARTNERS HAV E ADMITTED THAT ENTRIES IN THE BANK ACCOUNT BELONG TO THE FIRM. THE SOURCE OF INVESTMENT WAS SUBSTANTIATED BY THE PARTNERS WHICH WAS CONFIRMED BY THE AO OF THE FIRM. THE ASSESSING OFFICER, WHILE DISBELIEVING THAT THE BANKS ACCOUNTS DOES NOT BELONGS TO THE PARTNERSHIP FIRM HAD NOT ACTUALLY DISPUTED THE SOURCE OF DEPOSITS. FROM EXAMINATION OF RECORD, IT IS 7 ITA NO S. 02 & 03 /RPR /20 1 7 EVIDENTLY CLEAR THAT THE IMPUGNED BANK ACCOUNTS WERE USED BY THE FIRM AND THE TRANSACTIONS RELATES TO THE FIRM. THE TRANSACTIONS IN THE BANK ACCOUNT HAVE B EEN DULY CONFIRMED BY THE PARTNERS AND BALANCE SHEET OF FIRM CLEARLY DEPICT CLOSING BALANCE OF RS.3,05,33,790.41. MOREOVER THE CATEGORIC FINDING BY THE CIT(A) THAT THESE BANK ACCOUNTS ARE DEDICATED TO THE PARTNERSHIP FIRM AND NOT OF THE ASSESSEE, HAS NOT B EEN DISPELLED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS CORRECT AND IN ACCORDANCE WITH LAW AND NO INTERFERENCE IS CALLED FOR. IT IS ORDERED ACCORDINGLY . 8. BEFORE US, REVENUE HAS NOT POINTED ANY DISTINGUISHING FEATURES IN THE FACTS OF THE PRESENT CASE NOR HAS PLACED ON RECORD ANY MATERIAL TO DEMONSTRATE THAT THE AFORESAID DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 201 0 - 11 HAS BEEN SET ASIDE/OVERTURN ED BY HIGHER JUDICI AL FORUM. IN VIEW OF THE SE FACTS WE FOLLOWING THE ORDER OF CO - ORDINATE BENCH OF TRIBUNAL FOR A.Y. 2010 - 11 AND FOR SIMILAR REASONS HOLD THAT NO ADDITION WITH RESPECT TO DEPOSITS IN ACCOUNT IS CALLED FOR IN ASSESSEES HANDS AS THE BANK ACCOUNT DOES NOT BELONG TO HIM. SINCE, THE BANK ACCOUNT IS HELD TO BE NOT BELONGING TO THE ASSESSEE , THE INTEREST EARNED IS ALSO THEREFORE NO T LIABLE TO BE TAXE D IN THE HANDS OF ASSESSEE. WE, THEREFORE, DIRECT ITS DELETION. THUS, THE GROUNDS OF APPEAL OF ASSESSEE ARE ALLOWED. ITA NO. 03 /RPR/201 7 (A.Y. 201 2 - 13 ) 9. BEFORE US B OTH THE SIDES ARE UNANIMOUS IN STATING THAT THE SOLITARY ISSUE RAISED IN ASSESSMENT YEAR 201 2 - 13 IS IDENTICAL TO ASSESSMENT YEAR 201 1 - 12 . SINCE, THE FACTS IN THE ASSESSMENT YEAR 201 2 - 13 ARE SIMILAR TO ASSESSMENT YEAR 201 1 - 12 , THE FINDINGS GIVEN BY US WHILE DECIDING THE 8 ITA NO S. 02 & 03 /RPR /20 1 7 APPEAL OF ASSESSEE IN A.Y. 201 1 - 12 WOULD MUTATIS MUTANDIS APPLY TO ASSESSMENT YEAR 201 2 - 13 . ACCORDINGLY, THE APPEAL OF ASSESSEE IS ALLOWED FOR THE SIMILAR REASONS. 10. IN THE RESULT, B OTH THE APPEALS OF ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON 11 TH DAY OF MARCH, 2019. SD/ - SD/ - PARTHA SARATHI CHAUDHURY ANIL CHATURVEDI JUDICIAL MEMBER ACCOUNTANT MEMBER / RAIPUR ; / DATED : 11 TH MARCH, 2019 . RK / COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, I.T.A.T., RAIPUR //TRUE COPY// / BY ORDER, / PRIVATE SECRETARY , / ITAT, RAIPUR . 9 ITA NO S. 02 & 03 /RPR /20 1 7 DATE 1 DRAFT DICTATED ON SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER