Dr. Ramchandra Pandurang Shinde, Pune V. Income-tax Officer, Ward - 5(1), Pune

ITA 3011/PUN/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8179 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-12-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: DILIP S RAHURKAR
• Keywords: Additional evidence
• Section: 143(3); 68; 69

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO.3011/PUN/2017 / ASSESSMENT YEAR: 2008-09 DR. RAMCHANDRA PANDURANG SHINDE, ANAND APARTMENTS, FLAT NO.3, S.NO.12/2, PLOT NO.23, SANGVI, HAVELI, PUNE 411027 PAN : ADXPS4372B . / APPELLANT VS. THE INCOME TAX OFFICER, WARD5(1), PUNE . / RESPONDENT / APPELLANT BY : SHRI DILIP S. RAHURKAR / RESPONDENT BY : SHRI M.K. VERMA DATE OF HEARING : 26.12.2018 / DATE OF PRONOUNCEMENT: 28.12.2018 / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS) 1, PUNE DATED 26.09.2017 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST ORDER PASSED 143(3) OF THE INC OME TAX ACT 1961 (IN SHORT THE ACT). ITA NO.3011/PUN/2017 DR. RAMCHANDRA P. SHINDE 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. LD.CIT APPEAL-1, PUNE HAS ERRED IN DISMISSING AP PEAL AND CONFIRMING ADDITIONS TO THE TOTAL INCOME OF RS.10,00,000/- WIT HOUT APPRECIATING FACTS OF THE CASE IN PROPER PERSPECTIVE. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY , ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF APPEAL IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 3. THE APPELLANT CRAVES LEAVE TO PRODUCE SUCH FURTH ER EVIDENCE AS AND WHEN OCCASION DEMANDS. 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE AC T OF RS.10 LAKHS. 4. BRIEFLY IN THE FACTS OF THE CASE, THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD PURCHASED THE LAND AT DHUMALWADI, TALUKA KOREGAON, DIST. SATARA F OR A CONSIDERATION OF RS.32 LAKHS. THE ASSESSEE EXPLAINED THE SOURCE OF INVEST MENT MADE IN THE PURCHASE OF THE SAID LAND AND CLAIMED TO HAVE OBTAINED A LO AN FROM HIS FATHER-IN-LAW SHRI S. G. KADAM FOR RS.10 LAKHS. THE ASSESSEE FILED PA N OF HIS FATHER-IN-LAW. BUT THE ASSESSING OFFICER DID NOT ACCEPT THE SAME AS TH E ASSESSEE FAILED TO ESTABLISH THE CREDIT WORTHINESS OF THE CREDITOR AND HENCE, THE GENUINENESS OF THE TRANSACTION WAS NOT PROVED. THE ASSESSING OFFI CER HELD THAT MERE CONFIRMATION BY THE CREDITOR WAS NOT SUFFICIENT SIN CE THE ASSESSEE HAD FAILED TO FILE THE COPIES OF THE INCOME-TAX RETURNS FILED BY THE CREDITOR EXPLAINING THE SOURCE FROM WHICH THE AFORESAID LOAN WAS GIVEN. TH E ASSESSEE ALSO CLAIMED THAT THE LOAN AMOUNT WAS REPAID BY CHEQUE BUT THE S AME WAS HELD TO BE NOT SACROSANCT BY THE ASSESSING OFFICER AND HENCE, THE ADDITION OF RS.10 LAKHS WAS MADE IN THE HANDS OF THE ASSESSEE UNDER SECTION 68/ 69 OF THE ACT. ITA NO.3011/PUN/2017 DR. RAMCHANDRA P. SHINDE 3 5. BEFORE THE CIT(A), THE ASSESSEE FURNISHED THE BA NK STATEMENT OF HIS FATHER-IN-LAW WHICH WAS RECEIVED FROM HIM FROM BELG AUM, KARNATAKA. THE ASSESSEE FILED THE SAME AS AN ADDITIONAL EVIDENCE O N THE GROUND THAT WHEN THE SAME WAS RECEIVED FROM HIS FATHER-IN-LAW AND FILED BEFORE THE ASSESSING OFFICER, HE HAD ALREADY PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT. THE CIT(A) IN VIEW OF RULE 46A OF THE ACT CONFRONTED THE LOAN CONFIRMATION ALONG WITH THE COPIES OF THE BANK ACCO UNT WHEREIN PAYMENT OF RS.10 LAKHS WAS MADE THROUGH CHEQUE TO THE ASSESSEE WAS REFLECTED. THE ASSESSING OFFICER NOTED IN THE REMAND REPORT THAT T HE ASSESSEE HAD APPEARED IN THE REMAND PROCEEDINGS AND FURNISHED THE BANK PA SSBOOK OF SHRI S.G. KADAM AND ALSO THE COPIES OF THE AGREEMENTS OF DEVE LOPMENT IN WHICH, HE AS A PROMOTER WAS THE CONSENTING PARTY ON BEHALF OF TH E SOCIETY. THE ASSESSING OFFICER WAS OF THE VIEW THAT WHERE THE ASSESSEE HAD NOT FURNISHED THE RETURNS OF INCOME OF HIS FATHER-IN-LAW WHO WAS A RETIRED PE RSON SINCE LAST 15 YEARS, THE DEPOSITS IN THE BANK ACCOUNT ARE NOT PROVED AND HEN CE, HE DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE. THE ASSESSEE IN THE R EJOINDER BEFORE THE CIT(A) STRESSED THAT THE ENTRIES IN THE BANK PASSBOOK OF S HRI S.G. KADAM CLEARLY REFLECT THE SUM OF RS.10 LAKHS AND THE SUBSEQUENT W ITHDRAWAL BY CHEQUE NO.521195 ON 11-06-2007, WHICH WAS DEPOSITED TO THE OTHER ACCOUNT. IT WAS ALSO EVIDENCED FROM THE SAID BANK ACCOUNT THAT THE SAID AMOUNT WAS DEBITED IN THE NAME OF THE ASSESSEE. THE SAID AMOUNT WAS PAID OUT OF THE AVAILABLE BALANCE IN THE BANK ACCOUNT OUT OF DEPOSITS OF RS.2 8 LAKHS BY WAY OF THREE CHEQUES. THE ASSESSEE ALSO FILED THE BANK ACCOUNT WITH BANK OF MAHARASHTRA AT KARVE ROAD BRANCH, PUNE WHEREIN THE SAID CHEQUE NO.521195 WAS DEPOSITED. THE ASSESSEE ALSO EXPLAINED THE SOURCE OF THE DEPOSIT IN THE ACCOUNT OF HIS FATHER-IN-LAW WHICH WAS RECEIVED ON ACCOUNT OF TRANSACTION ENTERED INTO BY HIM ON 20-02-2007 AND ALSO FURNISHE D THE REGISTERED AGREEMENT ITA NO.3011/PUN/2017 DR. RAMCHANDRA P. SHINDE 4 IN RESPECT OF THE SAID AMOUNT. HOWEVER, THE CIT(A) DID NOT ACCEPT THE PLEA OF THE ASSESSEE AS PER PARA NO.11 OF THE APPELLATE ORD ER AND QUESTIONED THE SOURCE OF SOURCE IN THE HANDS OF THE ASSESSEE. THE CIT(A) MADE OBSERVATIONS IN RESPECT OF EXPLANATION OF THE ASSESSEE, VIS--VI S THE SOURCE OF DEPOSITS IN THE ACCOUNT OF SHRI S.G. KADAM AND UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSEE IS IN APPEAL AGAINST THE ORD ER OF CIT(A). 6. THE ONLY ISSUE RAISED BEFORE THE TRIBUNAL IS AGA INST LOAN OF RS.10 LAKHS RECEIVED BY THE ASSESSEE FROM HIS FATHER-IN-LAW SHR I S.G. KADAM. THE SAID TRANSACTION WAS THROUGH BANKING CHANNELS. THE ASSE SSEE HAD IN THE FIRST INSTANCE FILED THE CONFIRMATION LETTER AND ALSO PAN OF HIS FATHER-IN-LAW. THE EXPLANATION OF THE ASSESSEE WAS THAT, INITIALLY HIS FATHER-IN-LAW WAS STAYING IN PUNE AND IN LATER YEARS HE SETTLED IN BELGAUM TOWN OF KARNATAKA STATE. HOWEVER, HE HAD THE BANK ACCOUNT IN PUNE IN WHICH C ERTAIN DEPOSITS WERE MADE THROUGH CHEQUES WHICH WERE RECEIVED ON BEHALF OF COOPERATIVE SOCIETY IN WHICH HE WAS A PROMOTER AND THE ADVANCES WERE RE CEIVED. ALL THESE ADVANCES WERE RECEIVED IN CHEQUES. OUT OF THE AFOR ESAID DEPOSITS, THE LOAN CREDITOR ADVANCED SUM OF RS.10 LAKHS BY CHEQUE THRO UGH BANKING CHANNEL TO THE ASSESSEE. NECESSARY ENTRIES WERE CLEARLY AVAIL ABLE IN THE BANK ACCOUNT OF THE LOAN CREDITOR AND THE EVIDENCES WERE FURNISHED BY THE ASSESSEE IN THIS REGARD BEFORE THE AUTHORITIES BELOW. IN SUCH A SCE NARIO, WHERE THE ASSESSEE HAS PROVED THE IDENTITY OF THE CREDITOR, CREDIT WOR THINESS OF THE CREDITOR, THEN THE GENUINENESS OF THE TRANSACTION CANNOT BE OBJECTED O N THE GROUND THAT SOURCE OF SOURCE HAS NOT BEEN PROVED BY THE ASSESSEE. THE CO URTS HAVE TIME AND AGAIN HELD THAT WHEN COMPLYING THE CONDITIONS OF SECTION 68 OF THE ACT, IT IS NOT OPEN TO THE RECIPIENT OF THE LOAN TO ESTABLISH THE SOURC E OF SOURCE. ACCORDINGLY, I FIND ITA NO.3011/PUN/2017 DR. RAMCHANDRA P. SHINDE 5 NO MERIT IN THE ORDERS OF THE AUTHORITIES BELOW AND THE SAME ARE REVERSED. THE ADDITION OF RS.10 LAKHS MADE UNDER SECTION 68 OF TH E ACT IS THUS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON THIS 28 TH DAY OF DECEMBER, 2018. SD/- (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE DATED : 28 TH DECEMBER, 2018 SATISH / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A)-1, PUNE; 4. / THE PR.CIT-1, PUNE; 5. 6. , , , - / DR SMC, ITAT, PUNE; / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY, , / ITAT, PUNE ITA NO.3011/PUN/2017 DR. RAMCHANDRA P. SHINDE 6 DATE 1. DRAFT DICTATED ON 26-12-18 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27-12-18 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER.