Asstt. Commissioner of Income Tax-III, Kanpur V. Shri Sharda Maheshwari, Kanpur

ITA 354/LKW/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100386 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-08-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K JAIN; SWARN SINGH
• Keywords: Corroborative evidences

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.354/LKW/2013 ASSESSMENT YEAR: 2005 06 ACIT III, KANPUR VS. SHRI SHARAD MAHESWARI, 7/33, TILAK NAGAR, KANPUR 208001. PAN:AAYPM4282C (APPELLANT) (RESPONDENT) ASSESSEE BY SRI S. K. JAIN C.A. & SRI SWARN SINGH, C.A. REVENUE BY SHRI AMIT NIGAM, SR. DR DATE OF HEARING 17/08/2015 DATE OF PRONOUNCEMENT 1 6 /09/2015 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) II KANPUR DATED 28.02.2013 FOR A.Y. 2005 06. 2. GROUND NO. 1 IS AS UNDER: - 1. THAT THE LD. CIT (A) II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 13,20,000/ - MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDING. 3. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER AND LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT (A). HE ALSO SUBMITTED THAT ON PAGES 4 TO 6 OF THE PAPER BOOK IS COPY OF CASH FLOW 2 STATEMENT AND ON PAGES 31 TO 40 OF THE PAPER BOOK IS COPY OF BANK STATEMENT. 4. WE HAVE CONS IDERED THE RIVAL SUBMISSIONS. WE FIND THAT LEARNED CIT (A) HAS DECIDED THIS ISSUE ON THIS BASIS THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF CASH DEPOSIT OF RS. 13.20 LACS AS PER CASH FLOW STATEMENT WHICH IS SUPPORTED BY BANK STATEMENT. WE FIND THAT THE A .O. HAS DOUBTED THE OPENING CASH IN HAND OF RS. 182,912/ - SHOWN BY THE ASSESSEE IN THIS CASH FLOW STATEMENT ON THIS BASIS THAT THE ASSESSEE HAS NOT SUBMITTED ANY SUPPORTING EVIDENCE. HE ALSO OBSERVED THAT IN THE PRECEDING YEAR, TOTAL INCOME SHOWN BY THE AS SESSEE WAS RS.879,808/ - OUT OF WHICH RS.878,833/ - IS ON ACCOUNT OF SALE OF PROPERTIES WHICH LOGICALLY SHOULD BE DEPOSITED IN BANK. BUT THERE IS NO FINDING OF THE A.O. THAT IT WAS SO DEPOSITED IN BANK IN FULL AND THERE WAS NO CASH WITHDRAWAL IN LAST YEAR. H ENCE, WE FIND NO MERIT IN THIS OBJECTION OF THE A.O. THEREAFTER, REGARDING CASH DEPOSIT OF RS. 2 LACS ON 14.05.2004, THE A.O. SAYS THAT THERE WERE SEVERAL CASH WITHDRAWAL FROM BANK DURING 26.04.2004 TO 14.05.2004 BUT THESE ARE SMALL WITHDRAWALS AND HENCE, IT IS NOT ACCEPTABLE THAT THESE AMOUNTS WERE AVAILABLE FOR DEPOSIT IN BANK ON 14.05.2004. W FIND NO MERIT IN THIS OBJECTION OF THE A.O. ALSO BECAUSE WE FIND THAT AS PER THE CASH FLOW STATEMENT, EVEN AFTER THIS DEPOSIT OF RS. 2 LACS ON 14.05.2004, THE CASH BALANCE WAS RS. 223,209/ - BECAUSE THERE WERE CASH WITHDRAWALS OF RS.120,000/ - ON 20.04.2004 IN ADDITION TO SEVERAL SMALL WITHDRAWALS IN MAY 2004. THERE IS NO OTHER SPECIFIC OBJECTION OF THE A.O. IN THE ASSESSMENT ORDER. CONSIDERING THE FACTS OF THE PRESE NT CASE AS DISCUSSED ABOVE, WE FIND NO INFIRMITY IN THE ORDER OF CIT (A) ON THIS ISSUE. ACCORDINGLY, THIS GROUND IS REJECTED. 5. GROUND NO. 2 IS AS UNDER: - 3 2. THAT THE LD. CIT (A) II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 19,65,000/ - MADE BY THE A.O. ON ACCOUNT OF DEDUCTION IN RESPECT OF INVESTMENT IN RESIDENTIAL PROPERTY WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDING. 6. LEARNED DR OF THE REVENUE SUPP ORTED THE ASSESSMENT ORDER AND LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT (A). HE ALSO SUBMITTED THAT VARIOUS DOCUMENTS ARE FILED BEFORE THE TRIBUNAL IN THE FORM OF ANNEXURE 1 TO 7 TO ESTABLISH THAT THE NEW HOUSE CONSTRUCTED BY THE BUILDER/DEVEL OPER IN TERMS OF MOU WAS RESIDENTIAL HOUSE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT LEARNED CIT (A) HAS DECIDED THIS ISSUE ON THIS BASIS THAT AN AMOUNT OF RS. 19.65 LACS WAS INVESTED FOR RESIDENTIAL PROPERTY BEING DUPLEX NO. 5 AT 7/33, TILAK NAGAR KANPUR. WE ALSO FIND THAT AS PER THE ASSESSMENT ORDER, THE A.O. HAD ONLY ONE OBJECTION THAT THE ASSESSEE COULD NOT ESTABLISH THAT THE HOUSE CONSTRUCTED IS A RESIDENTIAL HOUSE. IN THIS REGARD, WE FIND THAT ANNEXURE 2 IS A STATEMENT OF ICICI BANK CREDIT CARDS DIVISION IN THE NAME OF THE ASSES SEE WITH THE ADDRESS 7/33 (5), TILAK NAGAR, KANPUR. THIS IS NOT THE CASE OF THE A.O. THAT THE ASSESSEE IS RUNNING A BUSINESS AND THE ADDRESS IS HIS BUSINESS ADDRESS. IN FACT, AS PER THE ASSESSMENT ORDER, INCOME OF THE ASSESSEE DOES NOT INCLUDE BUSINESS INC OME. HENCE, IN OUR CONSIDERED OPINION, THIS SHOULD BE ACCEPTED THAT THIS IS THE RESIDENTIAL ADDRESS OF THE ASSESSEE. ANNEXURE 6 IS A BILL OF RELIANCE BROAD BAND AND THIS IS ALSO IN THE NAME OF THE ASSESSEE WITH THE ADDRESS BUNGALOW NO. 5, 7/33, RATAN VIL LA, TILAK NAGAR, KANPUR I.E. THE SAME ADDRESS. ANNEXURE 7 IS A SALE DEED DATED 02.04.2014 FOR THE SAME PROPERTY AND ON PAGE NO. 5 OF THIS SALE DEED ALSO, IT IS STATED THAT IT IS RESIDENTIAL PROPERTY. FROM ALL 4 THESE EVIDENCES, IT GETS ESTABLISHED THAT THE PROPERTY IN QUESTION IS A RESIDENTIAL HOUSE AND THE OBJECTION OF THE A.O. DOES NOT SURVIVE. THEREFORE, WE FIND NO REASON TO INTERFERE IN THE ORDER OF LEARNED CIT (A) ON THIS ISSUE ALSO. THIS GROUND IS ALSO REJECTED. 5. IN THE RESULT, THE APPEAL OF THE REV ENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 6 /09/2015 COPY OF THE ORDER F ORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR