The ITO, Ward-1(2), Bhavnagar V. Shri Govindbhai Gilabhai Sachapara, Bhavnagar

ITA 3485/AHD/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5983 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 03-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 30-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: AASTHA H MANIAR
• Section: 68

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.3485/AHD/2010 [ASSTT.YEAR : 2007-2008] ITO, WARD-1(2) BHAVNAGAR. PAN : AAATJ 0934 E /VS. SHRI GOVINDBHAI GILABHAI SACHAPRA PLOT NO.2233-G, NANDIGRAM KALPATARU PARK, HILL DRIVE ROAD BHAVNAGAR. PAN : AXAPS 5525 Q ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 )/ REVENUE BY : SHRI P.L. KUREEL, SR.DR 4& 1 2 )/ ASSESSEE BY : AASTHA H. MANIAR 5 1 &(*/ DATE OF HEARING : 3 RD APRIL, 2014 678 1 &(*/ DATE OF PRONOUNCEMENT : 02-05-2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2007-2008 IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A). 2. THE GROUNDS OF THE APPEAL OF THE REVENUE ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.14,52,000/- MADE BY THE AO U/S.68 OF THE ACT WITHOUT ITA NO.3485/AHD/2010 -2- APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL S BROUGHT ON RECORD BY THE AO. 1.2 IN DOING SO, THE LD.CIT(A) HAS CONTRADICTED HIM SELF AS HE FIRST HELD THAT THE EXPLANATION FURNISHED BEFORE THE AO T HAT THE SUMS TOTALING TO RS.14,52,000/- BELONGED TO THE APPELLAN TS FATHER WAS NOT SUBSTANTIATED, AS NOTED IN PARA 4 OF THE APPELLATE ORDER, AND YET, HE LATER ON CONCLUDED THAT THERE WAS NO EVIDENCE ON RE CORD TO SHOW THAT THE BANK ACCOUNT BELONGED TO THE APPELLANT. T HE CIT(A) HAS THUS OVERLOOKED THE FACT THAT THE SUMS WERE DEPOSIT ED ONLY AFTER THE APPELLANT WAS MADE A JOINT ACCOUNT HOLDER AND, THAT IF THE FATHER DID NOT HAVE SUFFICIENT RESOURCES TO DEPOSIT SUCH MONIE S, THE ONLY CONCLUSION THAT COULD BE DRAWN WAS THAT THE MONIES/ DEPOSITS BELONGED TO THE APPELLANT. 3. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . HE SUBMITTED THAT THE CIT(A) HAS WRONGLY DELETED THE ADDITION BY HOLD ING THAT THERE WAS NO EVIDENCE ON RECORD TO SHOW THAT THE BANK ACCOUNT BE LONGED TO THE ASSESSEE. HE SUBMITTED THAT NAME OF THE ASSESSEE, AS A JOINT HOLDER OF THE BANK ACCOUNT, ALONG WITH HIS FATHER AND MOTHER, IS A FAC T AND HAS NOT BEEN CONTROVERTED BY THE ASSESSEE. THE LEARNED COUNSEL OF THE ASSESSEE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED DR. SHE SUB MITTED THAT THE CIT(A) HAS GIVEN A FINDING THAT THE CASH AMOUNT DEP OSITED IN THE JOINT BANK ACCOUNT OF THE ASSESSEE, ALONG WITH HIS PARENT WAS MADE BY THE FATHER OF THE ASSESSEE, AND THEREFORE, NO ACTION COULD BE TAKEN IN THE HANDS OF THE ASSESSEE. SHE SUBMITTED THAT THE PROVISIONS OF SEC TION 68 OF THE ACT WAS WRONGLY INVOKED BY THE AO, AS IT IS A CASE OF DEPOS IT IN THE BANK ACCOUNT AND NOT A CREDIT ENTRY IN THE ACCOUNT BOOKS OF THE ASSESSEE. SHE RELIED ON THE ORDER OF THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND HAVE PERUSED CO PIES OF DOCUMENTS FILED IN THE COMPILATION BY THE ASSESSEE. WE FIND THAT THE ADDITION OF RS.14,52,000/- WAS MADE BY THE AO ON THE BASIS OF A IR INFORMATION I.E. ITA NO.3485/AHD/2010 -3- THE ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.14, 52,000/- IN THE BANK ACCOUNT OF THE DENA BANK, BHAVNAGAR. THE BANK ACCO UNT IS IN THE JOINT NAME OF THE FATHER AND MOTHER AND THIRD NAME IS THA T OF THE ASSESSEE. THE ASSESSEE HAS CLAIMED THAT THE FATHER BEING FIRST AC COUNT HOLDER OF THE SAID ACCOUNT, THE AMOUNT BELONGED TO HIS FATHER. WE FIN D THAT THE CIT(A)HAS GIVEN A CLEAR CUT FINDING THAT A SUM OF RS.14,52,00 0/- WAS NOT DEPOSITED OUT OF ACCUMULATED AGRICULTURE INCOME OF THE FATHER OF THE ASSESSEE. WE FIND THAT MERE MENTIONING OF WRONG SECTION WHILE MA KING ADDITION IS NOT DECISIVE OF THE ISSUE. IN REPLY TO A SPECIFIC QUES TION FROM THE BENCH, THE PARTIES BEFORE US COULD NOT CONVEY THAT WHETHER ANY ACTION WAS TAKEN IN THE HANDS OF THE FATHER OF THE ASSESSEE. WE FIND THAT THERE IS NO BASIS FOR THE OBSERVATION OF THE CIT(A) THAT THE AMOUNT BELONGED TO FATHER OF THE ASSESSEE, AND THEREFORE, THE AO SHOULD NOT HAVE MAD E ANY ADDITION IN THE HANDS OF THE ASSESSEE. WE FIND THAT THERE IS NO MA TERIAL BROUGHT ON RECORD EITHER BY THE REVENUE OR BY THE ASSESSEE TO PROVE T HAT THE AMOUNT DEPOSITED IN THE JOINT BANK ACCOUNT IN FACT BELONGS TO WHICH ONE OF THE JOINT ACCOUNT HOLDER. IN REPLY TO A SPECIFIC QUERY FROM THE BENCH THAT WHETHER THE ASSESSEE IS IN A POSITION TO SHOW THAT THE AMOUNT IN QUESTION WAS DEPOSITED BY THE FATHER OF THE ASSESSEE AND NOT THE ASSESSEE, REPLY WAS IN THE NEGATIVE. WE FIND THAT IN SUCH CASES, ALTH OUGH THERE IS NO EVIDENCE IN SUPPORT OF THE CASE OF THE REVENUE OR THE ASSESS EE, BUT ON PREPONDERANCE OF PROBABILITY, THE ISSUE COULD BE DE CIDED AS REGARD THE QUANTUM ADDING OF THE ASSESSEE IS CONCERNED. IN T HESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT SINCE THE ASSESSEE HAS FAILED TO PROVE THE SOURCE OF CASH DEP OSITED OF RS.14,52,000/- IN THE JOINT BANK ACCOUNT OF THREE INDIVIDUALS, I.E . FATHER, MOTHER AND THE ASSESSEE (SON), IT SHALL BE JUSTIFIED TO RESTRICT T HE ADDITION TO ONE-THIRD OF THE CASH DEPOSIT OF RS.14,52,000/- WHICH COMES TO R S.4,84,000/- AS AGAINST ITA NO.3485/AHD/2010 -4- THE ADDITION OF RS.14,52,000/- MADE BY THE AO AND D ELETED IN FULL BY THE CIT(A), ACCORDINGLY, THE GROUNDS OF THE APPEAL OF T HE REVENUE ARE PARTLY ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD