Shri Kamlesh Harivadan Desai, Baroda V. The Income Tax Officer, Ward-8(3), Baroda

ITA 3347/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 6814 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Salary income

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO .3347 /AHD /2014 / ASSTT. YEAR: 20 09 - 20 10 SHRI KAMLESH HARIVADAN DESAI, 13, VITTHAL NAGAR SOCIETY, NEAR SUVARNLAXMI APT. WAGHODIA ROAD, VADODARA - 390 019. PAN : AHWPD2631H VS . INCOME TAX OFFICER, WARD - 8(3), BARODA (APPLICANT) (RESPONENT) ASSESSEE BY : SHRI MEHUL K PATEL, A.R REVENUE BY : SHRI MUDIT NAGPAL, SR. D.R / DATE OF HEARING : 01 / 11 / 201 8 / DATE OF PRONOUNCEMENT: 31 / 12 /201 8 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS ) - 1II, BARODA, DATED 22/09/2014, FOR THE ASSESSMENT YEAR 2009 - 2010. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.ASSESSING OFFICER ERRED IN TREATING AND THE LD.COMMISSIONER OF INCOME TAX (APPEALS) - ITA NO.3347/AHD/2014 ASSTT. YEAR 2009 - 10 2 III, BARODA ERRED IN CONFIRMING AMOUNT OF RS.1,12,000/ - AS UNDISCLOSED INCOME FROM OTHER SOURCES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.ASSESSING OFFICER ERRED IN TREATING AND THE LD.COMMISSIONER OF INCOME TAX (APPEALS) - III, BARODA ERRED IN CONFIRMING AMOUNT OF OPENING BALANCE OF CASH BOOK OF RS.1,30,741/ - AS UNEXPLAINED AND ADD ING THE SAME TO HIS INCOME. 3. THE APPELLANT CRAVES LEAVE TO AMEND, TO ALTER TO ADD OR TO DELETE THE GROUNDS OF APPEAL . 2 . THE BRIEF FACT S OF THE CASE ARE THAT APPELLANT IS AN INDIVIDUAL HAVING SALARY INCOME. THE RETURN OF INCOME WAS FILED ON 19/03/2012, IN RESPONSE TO NOTICE U/S.148 OF THE ACT DECLARING TOTAL INCOME OF RS.4,67,190/ - THEREAFTER, NOTICES WERE ISSUED BY THE LD.AO AND THE SAME WAS DULY COMPLIED WITH AND NECES SARY DETAILS WERE CALLED FOR WERE ALSO SUBMITTED BY THE ASSESSEE . THE APPELLANT FOR REPAYMENT OF ICICI HOUSING LOAN AMOUNT OF RS.10,00,00/ - IN CASH WAS DEPOSITED WITH THE PUNJAB NATIONAL BANK, BARODA, ON 19/03/2009 AND THE A BOVE SAID AMOUNT INCLUDES RS.2, 25,000/ - RECEIVED FROM SHILPABEN DESAI, WIFE OF THE APPELLANT . 3 . THE LD.AO IN PARA 4 OF THE ASSESSMENT ORDER DID NOT ACCEPTED CASH CREDIT AMOUNT AND ASSESSED TOTAL INCOME OF RS.2,25,000/ - HOWEVER, IN APPEAL BEFORE LD.CIT (A) THIS AMOUNT WAS REDUCED TO RS ,1,12,000/ - 4 . THE LD.AR, BEFORE US STATED THAT APPELLANT AND HIS WIFE ARE EQUAL CO - OWNER OF OPEN LAND AT PLOT NO.16, PREET BUNGLOWS, IN VADODARA, AND LOAN OF RS.10, 56,380 WAS JOINTLY TAKEN FROM ICICI HOME FINANCE AND APPELLANT AND HIS WIFE SHILPA DESAI WERE JOINT BORROWERS AND LOAN OF RS.10,60,000/ - WHICH WAS REPAID ON 19/03/2009. IN SUPPORT OF HIS CONTENTION A COPY OF ICICI HOME LOAN A/C STATEMENT WHEREIN APPELLANT IS A BORROWER AND SHILPA DESAI IS A CO - BORROWER IS ENCLOSED. THE SOLE PURPOSE OF RECEIVING AMOUNT OF RS.2,00,000/ - ITA NO.3347/AHD/2014 ASSTT. YEAR 2009 - 10 3 AND RS.2,25,000/ - WAS FROM SHILPA DESAI, CO - OWNER OF THE LAND PLOT AND CO - BORROWER WA S TO REPAY THE LOAN LIABILITY FOR PURCHASE OF PLOT NO.16, PREET BUNGLOWS, VADODARA , AND THE AMOUNT SO RECEIVED OF RS.4,25,000/ - FROM HER ON 18/03/2009 PLUS BALANCE AMOUNT OF RS.5,75,000/ - CASH HELD BY THE APPELLANT BEING CASH WITHDRAWALS BY THE APPELLANT FROM ICICI/IDBI/BORROWED FROM OTHER (TOTAL AMOUNT DEPOSITED IN BANK RS.10,00,000/ - ) WERE DEPOSITED IN PUNJAB NATIONAL BANK OF THE APPELLANT ON 19/03/2009 FOR REPAYMENT OF ICICI HOME LOAN. THE NATURE OF AMOUNT RECEIVED RS.2,00,000/ - PLUS RS.2,25,000/ - BY THE APPELLANT FROM HIS WIFE WAS NOT IN NATURE OF LOAN/DEPOSIT BUT IT WAS FOR THE R EPAYMENT OF EXISTING JOINT HOME LOAN BY THE WIFE LIABLE TO PAY. IN SUPPORT OF HIS CONTENTIONS APPELLANT HAS SUBMITTED BANK ACCOUNT STATEMENT WHICH WERE USED AS A MEDIUM FOR THE HOME LOAN FOR REPAYMENT. 5 . IN OUR CONSIDERED OPINION APPELLANT HAS DISCHARGE HIS ONUS WITH REGARD TO RS.1,25,000/ - AND IN SUCH CASE ADDITION CANNOT BE MADE. 6 . NOW COMING TO THE SECOND GROUND OF APPEAL OF CONFIRMING THE AMOUNT OF OPENING BALANCE OF CASH BOOK OF RS.1,30,741/ - AS UNEXPLAIN ED. 7 . THE APPELLANT BEFORE THE LD.AO SUBMITTED CASH BOOK IN ITS OPENING BA LANCE ON 01/04/2008 WHICH AMOUNTS TO RS. 1 , 30 , 741/ - . IN CONNECTION WITH THE NOTICE U/S.142(1) DATED 01/08/2012 AND LETTER DATED 04/02/2013 APPELLANT HAS SUBMITTED COPIES OF ALL BA NK STATEMENTS/PASS BOOK DETAILS OF ALL ENTRIES IN BANK ACCOUNT WERE EXPLAINED TO THE LOWER AUTHORITIES. THE CONTENTIONS OF THE APPELLANT WAS THAT THE SAME WAS WITHDRAWN FROM THE IDBI BANK MADE BETWEEN 01/02/2008 TO 31/03/2008. AS WE CAN SEE THAT APPELLANT IS AN ENGINEER AND HIS KNOWLEDGE OF FI NANCE, ACCOUNTS AND TAXATION ARE LIMITED TH EREFORE HE IS NOT MAINTAINING HIS PERSONAL BOOKS OF ACCOUNT. IN SUPPORT OF HIS CONTENTIONS HE ITA NO.3347/AHD/2014 ASSTT. YEAR 2009 - 10 4 SUBMITTED ALL THE DET AILS WITH THE LOWER AUTHORITIES SUCH AS BANK ACCOUNT STATEMENT OF DEPOSIT OF RS.1,12,000/ - FOR THE PERIOD BETWEEN 01/02/2008 TO 31/03/2008 . A PART FROM SERVICE APPELLANT IS ALSO HAVING AGRICULTURE INCOME AND SAME WAS ACCEPTED BY THE LD.AO. A PPELLANT HAS ALSO FURNISHED ADDITIONAL DETAILS BEFORE THE LD.CIT(A) BUT THE SAME WAS NEITH ER ACCEPTED BY THE LD.CI T(A) NOR FORWARDED TO THE LD.AO FOR HIS COMMENTS AND FURTHER APPELLANT HAS FAILED TO PRODUCE DOCUMENTS BEFORE THE LD.AO THEREFORE LD.CIT(A) WAS OF THE OPINION THAT CLAIMED OF THE APPELLANT CANNOT BE ACCEPTED. 8 . IN OUR C ONSIDERED OPINION LD.CIT(A) SHOU LD HAVE ACCEPTED ADD I TIO N AL EVIDENCE SUBMITTED BY THE APPELLANT OR SAME SHOULD HAVE BEEN SENT TO THE LD.AO FOR HIS COMMENTS BUT IN THIS CASE IT WAS NOT HAPPENED THEREFORE IN OUR CONSIDERED OPINION THE SAME LEAD S TO MISCARRIAGE OF JUSTICE . THE AMOUNT OF RS . 1,30,741/ - IS SMALL AMOU N T AS APPELLANT IS IN AN ENGINEER AND ALSO HAVING AGRICULTURE INCOME THEREFOR E IN SUCH CIRCUMSTANCES WE WOULD LIKE TO GIVE BENEFIT TO THE APPELLANT AND DELETE THE ADDITION OF R.1,30,741/ - 9 . THUS IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE COURT ON 31 /12 / 2018 AT AHMEDABAD. - SD - - SD - ( PRAMOD KUMAR ) VICE PRESIDENT ( MAHAVIR PRASAD ) JUDICIAL MEMBER TRUE COPY A HMEDABAD; DATED 31 / 12/2018 M ANISH