Shri Yakub Ahmed Patel, Ahmedabad V. The Income Tax Officer, Ward-4, Bharuch

ITA 3090/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94604 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 26-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH
• Keywords: Unexplained cash credit; Salary income
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO: 3090/AHD/2013 (ASSESSMENT YEAR: 2010-11) SHRI YAKUB AHMED PATEL, A-9, MASUM PARK, DUNGRIM, SHERPURA ROAD, BHARUCH V/S INCOME TAX OFFICER, WARD- 4, BHARUCH (APPELLANT) (RESPONDENT) PAN: ADOPP9317N APPELLANT BY : SHRI ANIL R. SHAH, AR RESPONDENT BY : SHRI SOMOGYAN PAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 01-10-2015 DATE OF PRONOUNCEMENT : 16-10-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-VI, BARODA DATED 10.09.2013 FOR A.Y. 2010-11. ITA NO . 309 0/AHD/2013 . A.Y. 2010-1 1 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL EMPLOYED AS A SCHOOL TEAC HER AND HAVING INCOME FROM SALARY AND OTHER SOURCES. ASSESSEE FILED HIS R ETURN OF INCOME FOR A.Y 2010-11 ON 26.7.2010 DECLARING TOTAL INCOME OF RS 2 ,12,522/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 28.1.2013 AND THE TOTAL INCOME WAS DETE RMINED AT THE RS 4,76,180/- BY INTER ALIA MAKING ADDITION OF RS 2,48 ,000/- AS UNEXPLAINED CASH CREDIT U/S 68. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO VIDE ORDER DATED 10.9.2013 UP HELD THE ORDER OF A.O AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND IN FACT IN CONFIRMING THE ADDITION OF RS. 2,12,522/- M ADE BY THE INCOME TAX OFFICER U/S. 68 OT THE ACT AS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT. YOUR APPELLANT SUBMITS THAT ON FACTS OF THE CASE AN D PROVISIONS OF LAW SEC. 68 DOES NOT APPLY AND THAT THE SAID AMOUNT OF RS.2,12, 522/- IS DULY EXPLAINED AND THEREFORE IT IS NOT LIABLE TO BE ADDED. 2. THE CIT(A) HAS ALSO ERRED IN CONFIRMING ADDITI ON OF RS. 15,657/- ON ACCOUNT OF ALLEGED UNDISCLOSED INTEREST INCOME. YOUR APPELLANT SUBMITS THAT THE SAID AMOUNT BELONGS TO HIS WIFE MRS. AIYESA AHMED PATEL AND THAT SHE HAS OFFERED FOR TAX IN THE HER RETURN OF INCOME AND THEREFORE, THE ADDITION BE DELETED. IT IS THEREFORE, SUBMITTED THAT RELIEF CLAIMED ABOV E BE ALLOWED AND ASSESSMENT BE MODIFIED ACCORDINGLY. 4. BEFORE US AT THE OUTSET SUBMITTED THAT THERE IS TYP OGRAPHICAL ERROR IN MENTIONING THE AMOUNT IN GROUND NO 1 AND THE CORREC T AMOUNT THAT NEEDS TO ITA NO . 309 0/AHD/2013 . A.Y. 2010-1 1 3 BE CONSIDERED IS RS 2,48,000/- INSTEAD OF RS 2,12,5 22. HE FURTHER SUBMITTED THAT HE DID NOT WISH TO PRESS GROUND NO 2 AND THERE FORE THE ONLY EFFECTIVE GROUND FOR ADJUDICATION IS GROUND NO 1. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O ON PERUSING THE BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH CENTRAL BAN K OF INDIA, NOTICED THAT ASSESSEE HAD DEPOSITED CASH IN HIS BANK ACCOUNT. TH E ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSITS. A.O NOTED THAT ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS 1 LAC ON 1 .8.2009, RS 50,000/- ON 3.8.2009 AND 98,000/- ON 29.10.2009. HE ACCORDINGLY CONSIDERED THE AFORESAID AGGREGATE DEPOSITS OF RS. 2,48,000/- AS U NEXPLAINED U/S 68 OF THE ACT AND ADDED TO THE TOTAL INCOME. AGGRIEVED BY THE ORDER OF A.O, THE MATTER WAS CARRIED BY THE ASSESSEE BEFORE LD. CIT(A) WHO V IDE ORDER DATED 10.8.2013 UPHELD THE ORDER OF A.O BY HOLDING AS UND ER:- 7.2 EVEN AT APPELLATE STAGE, THE APPELLANT HAS FAIL ED TO ADDUCE ANY EVIDENCE TO EXPLAIN THE SOURCE OF THE CASH DEPOSITS. THE APPELL ANT HAS CLAIMED IN THE GROUNDS OF APPEAL THAT THE WITHDRAWAL OF RS. 2,48,0 00/- FOR HIS DAUGHTER'S MARRIAGE WAS LATER ON DEPOSITED IN THE BANK ACCOUNT , BUT HAS UTTERLY FAILED TO SUBSTANTIATE THE CLAIM. EXCEPT FOR FILING APPEAL IN FORM NO. 35, THE APPELLANT HAS REFUSED TO BE PART OF THE APPEAL PROCEEDINGS. 7.7 IN VIEW OF THE ABOVE AND CONSIDERING THAT THE A PPELLANT HAS NOT FILED ANY EVIDENCE IN HIS SUPPORT DURING THE APPELLATE PROCEE DINGS, I REFUSE TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER AND THE ORD ER OF THE ASSESSING OFFICER W.R.T. THE ISSUE UNDER APPEAL IS CONFIRMED. THEREFO RE, THIS GROUND OF APPEAL FAILS . 6. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS N OW BEFORE US. ITA NO . 309 0/AHD/2013 . A.Y. 2010-1 1 4 7. BEFORE US, THE LD AR APART FROM REITERATING THE SU BMISSIONS MADE BEFORE A.O AND LD. CIT(A) FURTHER SUBMITTED THAT THE SOURC E OF CASH DEPOSITS TO BE OUT OF WITHDRAWALS MADE FROM BANK ON EARLIER OCCASI ON AND IN SUPPORT OF WHICH HE PLACED ON RECORD THE COPY OF THE PASS BOOK TO DEMONSTRATE THAT WITHDRAWALS OF AMOUNTS WERE INDEED MADE PRIOR TO TH E DATE OF DEPOSITS AND THEREFORE ASSESSEE HAS FULLY EXPLAINED THE SOURCE O F CASH DEPOSITS. ON THE LEGALITY OF ADDITION, HE SUBMITTED THAT SINCE ASSES SEE WAS NOT MAINTAINING CASH BOOK NO ADDITION U/S 68 COULD BE MADE IN THE C ASE OF THE ASSESSEE AND FOR THE AFORESAID PROPOSITION HE RELIED ON CERTAIN DECISIONS THAT WERE FILED ALONG WITH THE PAPER BOOK. HE THEREFORE SUBMITTED T HAT CONSIDERING THE AFORESAID FACTS, THE DEPOSIT OF CASH IS FULLY EXPLA INED AND THEREFORE CALLS FOR NO ADDITION. THE LD DR ON THE OTHER HAND RELIED ON THE ORDER OF A.O AND LD. CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE WE FIND THAT A.O HAD MADE THE ADDI TION OF RS 2,48,000/- ON ACCOUNT OF CASH DEPOSITS MADE IN THE BANK ACCOUNT O F THE ASSESSEE WHICH WERE TREATED BY THE A.O AS UNEXPLAINED. BEFORE US, THE ASSESSEE HAS PLACED ON RECORD THE COPY OF THE PASS BOOK WHICH REVEALS T HAT ASSESSEE HAD MADE WITHDRAWAL OF CASH PRIOR TO THE DATE OF DEPOSITS (W HICH HAVE BEEN CONSIDERED AS UNEXPLAINED) AND THAT THE WITHDRAWALS WERE IN EX CESS OF THE CASH DEPOSITS AND IN SUCH A SITUATION THE EXPLANATION OF THE ASSE SSEE THAT THE AMOUNTS DEPOSITED WERE OUT OF CASH WITHDRAWN SEEMS TO BE A PLAUSIBLE EXPLANATION. FURTHER, REVENUE HAS ALSO NOT PLACED ANY MATERIAL O N RECORD TO DEMONSTRATE THAT THE SUBMISSION OF THE ASSESSEE IS NOT CORRECT. CONSIDERING THE TOTALITY OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO ADDITION ON ITA NO . 309 0/AHD/2013 . A.Y. 2010-1 1 5 ACCOUNT OF UNEXPLAINED CASH DEPOSITS IS CALLED FOR AND THEREFORE DIRECT THE DELETION OF ADDITION MADE BY A.O. THUS THE GROUND O F ASSESSEE IS ALLOWED. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 10 - 2015 . SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD