Smt. Hemlata Jain, Gwalior V. I.T.O., Ward-1(2), Gwalior

ITA 384/AGR/2012

• Counselvise Citation: 38420314 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT SHUK LA
• Assessee Lawyers: NK JAIN
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

I.T.A. NO.384/AGRA/2012 ASSESSMENT YEAR 2006-07 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA [CORAM: PRAMOD KUMAR AM] ITA NO.384/AGRA/2012 ASSESSMENT YEAR: 2006-07 SMT. HEMLATA JAIN, ....................... APPELLANT 171-172, BINDAYAKA BHAWAN, SECTOR-4, VIJAY NAGAR, NEAR KOTESHWAR HOSPITAL, GWALIOR. [PAN: ABWPJ 4412 E] VS. INCOME TAX OFFICER, ......RESPONDENT WARD 1(2), GWALIOR. APPEARANCES BY: N.K. JAIN, FOR THE APPELLANT AMIT SHUKLA, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 17 TH JUNE, 2015 DATE OF PRONOUNCING THE ORDER : 24 TH JUNE, 2015 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF LEARNED CIT(A)S ORDER DATED 25 TH MAY 2012, IN THE MATTER OF ASSESSMENT UNDER SECTIO N 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) , FOR THE ASSESSMENT YEAR 2006-07, ON THE FOLLOWING GROUND :- HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE LEARNED HONBLE COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW IN CONFIRMING THE ADDITION OF RS.1,84,000/- OUT OF 394 500/- WHEN ALL THE DEPOSITS WERE FULLY EXPLAINED BEING OUT OF ENCASHME NT OF MIS FROM POST OFFICE AND BANK WITHDRAWALS. I.T.A. NO.384/AGRA/2012 ASSESSMENT YEAR 2006-07 PAGE 2 OF 5 2. THE ASSESSEE IS A COMMISSION AGENT IN RESPECT OF LIFE INSURANCE AND POST OFFICE DEPOSITS. SHE HAD DISCLOSED RECEIPTS OF COMMISSION OF RS.4,90,023/- IN THIS REGARD. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDING S, HOWEVER, THE ASSESSING OFFICER MADE ADDITION OF RS.3,94,500/- IN RESPECT OF THE FO LLOWING CASH DEPOSITS MADE BY HER IN THE BANK ACCOUNT WITH BANK OF BARODAS GWALIOR SARA FA BAZAR BRANCH:- SL. NO. DATE AMOUNT OF DEPOSIT 01. 10.12.2005 RS.99,500/- 02. 31.12.2005 RS.89,000/- 03. 02.01.2006 RS.95,000/- 04. 30.01.2008 RS.51,000/- 05. 10.02.2006 RS.60,000/- TOTAL RS.394500/- 3. THE EXPLANATION GIVEN BY THE ASSESSEE, TO THE EF FECT THAT THE ABOVE DEPOSITS WERE MADE BY HER OUT OF CASH AVAILABLE ON ACCOUNT OF WIT HDRAWALS FROM POST OFFICE DEPOSITS, WAS REJECTED. THE ASSESSING OFFICER ALSO NOTED THE ASSESSEES STAND THAT SOMETIMES ASSESSEE DOES DEPOSIT, ON BEHALF OF CUSTOMERS, FROM OWN FUNDS, AND, CUSTOMERS REIMBURSE THESE AMOUNTS LATER, BUT SIMPLY BRUSHED I T ASIDE AS UNACCEPTABLE FOR WANT OF SPECIFIC DETAILS. AGGRIEVED BY THE ADDITION OF RS. 3,94,500/- SO MADE BY THE ASSESSING OFFICER, ASSESSEE DID CARRY THE MATTER IN APPEAL BU T WITHOUT COMPLETE SUCCESS. LEARNED CIT(A), WHILE PARTLY CONFIRMING THE ADDITION OF RS. 1,84,000/-, HAS OBSERVED AS FOLLOWS :- 4. DURING THE COURSE OF APPEAL PROCEEDINGS, THE AP PELLANT HAS SUBMITTED AS UNDER AS PER STATEMENT OF FACTS :- THE RETURN FOR ABOVE A.Y. WAS FILED ON 30.03.2007 DECLARING INCOME FOR RS.1,25,023/- FROM COMMISSION FROM LIC A ND POST OFFICE BEING THE AGENT FOR LIC BUSINESS AND DEPOSITS WITH POST OFFICE UNDER VARIOUS SCHEMES LIKE PPF, MPKBY (RECURRING DEPOSITS ) AND NSC ETC. THE CASE FOR ABOVE A.Y. WAS SELECTED FOR SCRUTINY U NDER CASS. HE LEARNED INCOME TAX OFFICE HAS MADE ADDITIONS U/S 69A OF INCOME TAX ACT, 1961 FOR R.3,94,500/- WHEN THE SOURCE OF A CQUISITION OF MONEY WAS FULLY EXPLAINED. YOUR APPELLANT RECEIVED RS.99,900/- AND RS.1,99,800/- ON 13.06.2005 AND 15.10.2005 RESPECTI VELY TOTALLING TO I.T.A. NO.384/AGRA/2012 ASSESSMENT YEAR 2006-07 PAGE 3 OF 5 RS.2,99,700/- ON THE MATURITY OF MIS IN CASH FROM P OST OFFICE, THE PROOF OF WHICH WAS FURNISHED TO INCOME TAX OFFICER. OUT OF THE ABOVE WITHDRAWALS THE DEPOSITS WITH BANK OF BARODA, SARAF A BAZAR, GWALIOR WAS MADE IN CASH AS UNDER :- 31.12.2005 RS.89,000/- 02.01.2006 RS.95,000/- 30.01.2006 RS.51,000/- 10.02.2006 RS.60,000/- TOTAL RS.2,95,100/- THE CASH RECEIVED RS.2,99,700/- ON MATURITY OF MIS REMAINED IN THE HOUSE BEFORE DEPOSIT IN THE BANK AS SOMETIME S IN RD ACCOUNT OF CLIENTS THE DEPOSIT IS BEING MADE BY THE AGENT S O AS TO OBSERVE THE DATE OF DEPOSIT. SINCE YOUR APPELLANT WENT TO U.S. A. ON 23.07.2005 TO MEET HIS SONS WHO ARE IN SERVICE AT U.S.A. BEING SO FTWARE ENGINEER, SHE HAS TO LEAVE MONEY WITH A HER SON AT GWALIOR. THE CASH WAS DEPOSITED WITH BANK OF BARODA AFTERWARDS. YOUR APP ELLANT ALSO WITHDRAWN CASH RS.1.00 LAC VIDE CHEQUE NO.530948 FR OM BANK OF BARODA ON 03.12.2005 AND DEPOSITED CASH RS.99,500/- OUT OF THIS WITHDRAWAL IN THE SAME BANK ON 10.12.2005. THE R3E ASON OF DELAY IN DEPOSITING CASH IN THE BANK OUT OF WITHDRAWAL OF MI S ON MATURITY WAS EXPLAINED O LD. ITO. THE LD. ITO WAS NOT JUSTI FIED IN MENTIONING THE SOURCE ON PAGE 3 OF THE ORDER ON THE BASIS OF N OTING MADE ON THE PASS BOOK OF BANK OF BARODA AS THE NOTING WAS FOR U TILISATION OF DEPOSITS. FOR UTILISATION YOUR APPELLANT ISSUED CH EQUE NO.536162 FOR RS.3,60,000/- ON 03.01.2006 FOR MIS A/C AND CHEQUE NO.536163 FOR RS.58250/- FOR LIC ON 31.01.2006 AS APPEARING IN TH E BANK PASS BOOK. THUS THE ACQUISITION OF MONEY WAS FULLY EXPL AINED EVEN THOUGH THE ADDITION FOR 3,94,500/- WAS MADE U/S 69A WHICH IS AGAINST THE FACTS OF LAW. 5. APPELLANTS SUBMISSIONS ALONG WITH ASSESSMENT OR DER HAVE BEEN CONSIDERED CAREFULLY. ASSESSMENT RECORDS HAVE ALSO BEEN PERUSED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, VIDE LETTER D TD. 19.08.08, THE APPELLANT HAS SUBMITTED AS UNDER REGARDING CASH DEPOSITS IN H ER BANK ACCOUNT:- . IN HINDI .. 5.1 ON BEING ASKED BY THE AO REGARDING DATES OF DEP OSITS VIS-A-VIS RECEIPTS FROM POST OFFICE, AS PER CERTIFICATE, THE APPELLANT HAS STATED AS UNDER VIDE LETTER DATED 09.09.2008:- . IN HINDI .. 5.2 AFTER PERUSAL OF BANK STATEMENT AND SUBMISSIONS OF THE APPELLANT, THE APPELLANT IS FOUND TO HAVE DULY EXPLAINED SOURC E OF DEPOSIT OF I.T.A. NO.384/AGRA/2012 ASSESSMENT YEAR 2006-07 PAGE 4 OF 5 RS.99,500/- (10.12.05) MADE FROM CASH WITHDRAWAL OF RS.1,00,000/- MADE FROM SAME BANK ACCOUNT ON 03.12.05 AND DEPOSIT OF R S.51,100/- (30.01.2006) & RS.60,000/- (10.02.06) MADE FROM WIT HDRAWAL OF RS.3,60,000/- MADE ON 03.01.2006. HOWEVER, NO SATI SFACTORY EXPLANATION ALONG WITH DOCUMENTARY EVIDENCE HAS BEEN GIVEN BY T HE APPELLANT IN RESPECT OF CASH DEPOSITS OF RS.89,000/- (31.12.05) & RS.95, 000/- (02.01.2006) EVEN DURING THE COURSE OF APPEAL PROCEEDINGS. ACCORDING LY, ADDITION OF RS.1,84,000/- IS, HEREBY, CONFIRMED OUT OF RS.3,94, 500/- MADE BY THE A.O. 4. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE ME. 5. I FIND THAT THERE IS NO DISPUTE ABOUT THE AVAILA BILITY OF CASH WITH THE ASSESSEE, BUT YET THE DEPOSITS ARE TREATED AS UNEXPLAINED ON THE GROUND THAT THE DEPOSITS WERE MUCH LATER THAN THE CORRESPONDING WITHDRAWAL. WHAT THIS APPROACH OVERLOOKS IS THE UNDISPUTED CLAIM OF THE ASSESSEE THAT THE CASH AVAI LABLE WITH THE ASSESSEE WAS USED IN THE COURSE OF HER BUSINESS FOR TEMPORARY NEEDS. TH E EXPLANATION OF THE ASSESS, ON THE GIVEN FACT AND KEEPING IN MIND THE NATURE OF HER WO RK AS ALSO REQUIREMENTS, OUGHT TO HAVE BEEN ACCEPTED. THE ASSESSEE IS A SMALL TAXPAY ER AND IT MAY NOT BE POSSIBLE FOR HER TO KEEP METICULOUS DETAILS OF ALL HER ACTIVITIES. HOWEVER, THAT HANDICAP, PARTICULARLY WHEN AVAILABILITY OF CASH IS NOT DISPUTED, SHOULD N OT BE USED TO DISREGARD EXPLANATION OF THE ASSESSEE. IN MY CONSIDERED VIEW, EVEN THE FACT AND CIRCUMSTANCES OF THIS CASE, THE EXPLANATION FOR DEPOSIT SHOULD HAVE BEEN ACCEPTED. ACCORDINGLY, I UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED DISALLOWANCE OF R.1,84,000/-. THE ASSESSEE GETS THE RELIEF ACCORDI NGLY. 9. IN THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCE D IN THE OPEN COURT TODAY ON 24 TH JUNE, 2015. SD/- PRAMOD KUMAR (ACCOUNTAN T MEMBER) AGRA, THE 24 TH JUNE, 2015 PBN/* I.T.A. NO.384/AGRA/2012 ASSESSMENT YEAR 2006-07 PAGE 5 OF 5 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA