SHABANA KHAN, Jaipur V. ITO, JHALAWAR

ITA 368/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5375 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Keywords: Source of fund; Deemed to accrue or arise in india
• Section: 143(3); 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH EQDQY DS-JKOR] U;KF;D LNL; DS LE{K BEFORE: SHRI MUKUL K. SHRAWAT, JUDICIAL M EMBER VK;DJ VIHY LA-@ ITA NO. 368/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. DR. SHABANA KHAN, C/O S.K. HOSPITAL & RESEARCH CENTRE, BHAWANIMANDI, JHALAWAR. CUKE VS. THE INCOME TAX OFFICER, JHALAWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ARQPK 5761 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. JAIN (ADVOCATE) ADJOURNMENT APPLICATION REJECTED. JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 29/02/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/03/2016. VKNS'K@ ORDER PER MUKUL K. SHRAWAT, JM : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FR OM THE ORDER OF LD. CIT (A), KOTA DATED 17.02.2014 AND THE GROUNDS RAISED ARE REPRODU CED BELOW :- 1. THAT THE AUTHORITIES BELOW HAS GROSSLY ERRED IN LAW AND FACTS IN MAKING/CONFIRMING ADDITION OF RS. 7,95,450/- ON ACC OUNT OF CASH CREDIT U/S 68 IN THE NAME OF SHRI ALI MOHD. KHAN AND SMT. SHAHNAZ PARVEEN WITHOUT ANY POSITIVE EVIDENCE, WHEREAS THE ASSESSEE HAS DISCHARGED HER BURDEN BY PLACING RELEVANT EVIDENCES. 2. THAT THE AUTHORITIES BELOW HAS GROSSLY ERRED IN LAW AND FACTS IN MAKING/CONFIRMING DISALLOWANCE OF INTEREST AMOUNTIN G TO RS. 50,450/- AND MADE/CONFIRMED THE ADDITION OF SUCH MOUNT ON AC COUNT OF CASH CREDIT U/S 68 WITHOUT ANY BASIS. 2 ITA NO. 368/JP/2014 DR. SHABANA KHAN VS. ITO 2. ON THE DATE OF HEARING, AN ADJOURNMENT APPLICATI ON WAS MOVED. HOWEVER, CONSIDERING THE ISSUE IS TRIFLE IN NATURE, HENCE RE JECTED. 3. THE LD. D/R SHRI RAJ MEHRA, JCIT IS PRESENT WHO HAS PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 4. THE FACTS IN BRIEF AS EMERGED FROM THE CORRESPON DING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 30.11.2011 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY IS IN MEDICAL PROFESSION. AS A DOCTOR, THE APPELLANT IS ENGAGED IN MEDICAL PRACTICE WITH S.K. HOSPITAL AND RESEARCH CENTRE. THE SHORT ISSUE IS IN RESPECT OF THE UNSECURED LOAN IN THE NAME OF ONE SHRI ALI BHAI AMOUNTING TO RS. 3 ,95,000/- AND THE OTHER AMOUNT OF UNSECURED LOAN IN THE NAME OF SMT. SHAHNAZ PARVEEN AMOUNTING TO RS. 3,50,000/-. 4.1. IN RESPECT OF SHRI ALI BHAI, A STATEMENT WAS R ECORDED WHEREIN HE HAS CONFIRMED THAT THE AMOUNT IN QUESTION WAS PAID THROUGH CHEQUE FROM HIS BANK ACCOUNT. HE HAS EXPLAINED HIS SOURCE AS A MANAGER OF S.K. HOSPITAL. HE HAS INFORMED THAT HIS SOURCES OF INCOME WERE SALARY AS WELL AS INCOME FROM X-RAY MAC HINE OWNED BY HIM. THE AO HAS DISBELIEVED THE SAID EXPLANATION AND TAXED THE AMOU NT BY INVOKING THE PROVISIONS OF SECTION 68 OF THE IT ACT. 4.2. IN RESPECT OF SMT. SHAHNAZ PARVEEN, MOTHER OF THE ASSESSEE, IN HER STATEMENT RECORDED BY THE AO, SHE HAS CONFIRMED THAT THE AMOU NT IN QUESTION WAS ADVANCED THROUGH A BANK DEMAND DRAFT. SHE HAS INFORMED THAT EARLIER SHE WAS HAVING TUITION INCOME BUT WHEN THE STATEMENT WAS RECORDED SHE HAS TOLD THE AO THAT SHE WAS NOT DOING ANY WORK, HOWEVER, OUT OF HER PAST SAVINGS TH E SAID AMOUNT WAS ADVANCED TO THE 3 ITA NO. 368/JP/2014 DR. SHABANA KHAN VS. ITO ASSESSEE. THE AO HAS TURNED DOWN THE SAID EXPLANAT ION AND TAXED THE AMOUNT IN THE HANDS OF THE ASSESSEE. 5. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, THE LD. CIT (A) HAS AFFIRMED THE ADDITION. 6. ON CAREFUL EXAMINATION OF THE FACTS OF THE CASE, IT IS WORTH TO MENTION THAT PRELIMINARY ONUS HAS BEEN DISCHARGED BY THE ASSESSE E TO THE EXTENT THAT THE IDENTITY OF BOTH THE PERSONS WAS ESTABLISHED BY PRODUCING THEM BEFORE THE AO. SECONDLY, THE GENUINENESS OF THE TRANSACTION HAS ALSO BEEN ESTABL ISHED BY PRODUCING THE DETAILS OF BANK TRANSACTION THROUGH WHICH THE LOAN AMOUNT WAS TRANSFERRED IN THE ACCOUNT OF THE ASSESSEE. AS FAR AS THESE TWO CONDITIONS ARE CONCE RNED, I HAVE NOTED THAT THE REVENUE AUTHORITIES HAVE NOT RAISED ANY SPECIFIC OBJECTION. THE ONLY REASON FOR THE IMPUGNED ADDITION WAS ALLEGED TO BE THE FINANCIAL CAPACITY O F THOSE CREDITORS. IT IS WORTH TO MENTION THAT BOTH OF THEM ARE KNOWN TO THE ASSESSEE AND THEY HAVE COME FORWARD TO FURNISH THEIR STATEMENT CONFIRMING THE AMOUNT ADVAN CED TO THE ASSESSEE. IT IS ALSO WORTH TO MENTION THAT ONE OF THE CASH CREDITORS, NA MELY, SMT. SHAHNAZ PARVEEN IS THE MOTHER OF THE ASSESSEE. IT IS ALSO WORTH TO MENTIO N THAT SHRI ALI BHAI HAPPENED TO BE THE MANAGER OF THE HOSPITAL RUN BY THE ASSESSEES H USBAND. THEREFORE, IN A SITUATION WHEN BOTH THE PERSONS HAVE THEIR INDEPENDENT RESOUR CES, THEN WHETHER IT WAS JUSTIFIABLE ON THE PART OF THE AO TO INVOKE THE DEE MED PROVISIONS AND PRESUME THAT THE AMOUNTS IN QUESTION WAS THE DEEMED INCOME OF THE AS SESSEE. IN MY CONSIDERED OPINION, THE ONUS HAD SHIFTED UPON THE AO AND IT WA S EXPECTED TO PLACE ON RECORD SOMETHING MORE THAN MERELY PRESUMING THAT THE AMOUN TS IN QUESTION WAS ALLEGEDLY THE 4 ITA NO. 368/JP/2014 DR. SHABANA KHAN VS. ITO DEEMED INCOME OF THE ASSESSEE. I, THEREFORE, INTER ALIA, HOLD THAT THE EXPLANATION OF THE ASSESSEE WAS BONAFIDE AND THE ACTION OF THE AO IS NOT SUSTAINABLE IN THE EYES OF LAW. I, THEREFORE, DIRECT TO DELETE THE ADDITIONS. 7. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/03/201 6. SD/- EQDQY DS-JKOR (MUKUL K. SHRAWAT) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04/03/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DR. SHABANA KHAN, JHALAWAR. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO JHALAWAR. 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.368/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 368/JP/2014 DR. SHABANA KHAN VS. ITO