SMT. MANISHA TOMAR, ALWAR V. INCOME TAX OFFICER, BHIWADI

ITA 386/JPR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8206 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR ASHWANI
• Assessee Lawyers: S K GUPTA
• Keywords: Unexplained cash credit; Business income; Business expenditure
• Section: 68; 148; 6; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 386/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD-BHIWADI CUKE VS. SMT. MANISHA TOMAR W/O SH. AJENDRA TOMAR, A- 145, ASHIANA GARDEN, BHIWADI, TEH-TIJARA, DISTT.- ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AHMPT4311J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : DR ASHWANI (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. K. GUPTA (ADVOCATE) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/07/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 16/07/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A), ALWAR DATED 08.01.2018 FOR A.Y 2009-10 WHEREIN THE REVENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDIT ION OF RS. 73,50,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S 6 8 OF THE ACT. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE WAS ISSUED ISSUED A NOTICE U/S 148 DATED 28.09.2016 ON THE BAS IS OF INFORMATION IN POSSESSION OF THE ASSESSING OFFICER THAT THE ASSESS EE HAS DEPOSITED A SUM OF RS. 73,50,000/- IN HER BANK ACCOUNT DURING THE F.Y 2008-09 AND SINCE THE ASSESSEE HAS NOT FILED HER RETURN OF INCOME, ASSESS EES INCOME TO THE EXTENT OF RS. 73,50,000/- HAS ESCAPED ASSESSMENT. SUBSEQUENTL Y, THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,74 ,565/- IN RESPONSE TO NOTICE ITA NO. 386-JP-2018 ITO, BHIWADI VS. SMT. MANISHA T OMAR, ALWAR 2 ISSUED U/S 148 OF THE ACT. DURING THE COURSE OF AS SESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT THE AMOUNT WAS WITHDRAWN FR OM HER HUSBANDS BANK ACCOUNT MAINTAINED WITH AXIS BANK AND SUBSEQUENTLY DEPOSITED IN HER ACCOUNT. IT WAS SUBMITTED THAT THE ASSESSEE IS ENGAGED IN TH E BUSINESS OF CIVIL CONSTRUCTION AND THE AMOUNT WAS WITHDRAWN TO PAY TO THE WORKERS AND CONTRACTORS AND TO MEET OTHER BUSINESS EXPENDITURE AND ALSO TO EARN INTEREST THEREON. 3. THE SUBMISSION SO FILED WAS NOT ACCEPTED BY THE ASSESSING OFFICER. AS PER THE ASSESSING OFFICER, THE ASSESSEE HAS NOT EST ABLISHED ANY NECESSITY OF CASH FOR HER BUSINESS DUE TO WHICH THE CASH WAS BOR ROWED FROM HER HUSBAND. NO SPECIFIC REQUIREMENT HAS BEEN POINTED OUT WHICH LEADS THE ASSESSEE TO ACCEPT THE LOAN FROM HER HUSBAND. THE ASSESSEE AND HER HUSBAND BOTH ARE RUNNING CONTRACT BUSINESS AND BOTH HAVE THEIR OWN B ANK ACCOUNTS. IN THESE CIRCUMSTANCES, IF ASSESSEE HAS ANY REQUIREMENT OF F UNDS, SHE SHOULD HAVE BORROWED THE LOAN THROUGH BANKING CHANNEL/CHEQUE ET C. IN GENERAL BUSINESS COURSE, LOANS ARE GIVEN OR TAKEN THROUGH BANK BUT I N THE CASE OF ASSESSEE, LOAN WAS GIVEN IN CASH. IT PROVES THAT ASSESSEE IS TRYIN G TO MAKE A VEIL ON HER UNDISCLOSED INCOME WHICH WAS DEPOSITED AS CASH IN H ER BANK ACCOUNT THROUGH AN AFTERTHOUGHT STORY OF LOAN RECEIVED FROM HER HUS BAND. IT IS NOT UNDERSTANDABLE AS TO WHY SUCH HUGE CASH ON A PARTIC ULAR DATE WAS WITHDRAWN BY THE HUSBAND OF THE ASSESSEE AND SAME WAS DEPOSIT ED IN THE BANK ACCOUNT OF ASSESSEE. FURTHER, ON CERTAIN DATES I.E. 15/04/2 008 AND 13/06/2008 ASSESSEE COULD NOT PROVE ANY DIRECT NEXUS BETWEEN T HE AMOUNTS WITHDRAWN FROM BANK ACCOUNT OF HER HUSBAND AND DEPOSITS MADE IN HER BANK ACCOUNT. THEREFORE, IT IS NOT ESTABLISHED THAT ASSESSEE HAS TAKEN LOAN IN CASH FROM HER HUSBAND. IN VIEW OF THE SAME, THE ASSESSING OFFICER CAME TO THE FINDING THAT THE ASSESSEE HAS NOT RECEIVED ANY AMOUNT FROM HER H USBAND AND DEPOSITED HER OWN UNDISCLOSED INCOME IN BANK AS CASH. HENCE, ADDI TION ON ACCOUNT OF ITA NO. 386-JP-2018 ITO, BHIWADI VS. SMT. MANISHA T OMAR, ALWAR 3 UNEXPLAINED CASH CREDIT AS PER SECTION 68 OF IT ACT WAS MADE FOR RS. 73,50,000/- TO THE TOTAL INCOME OF ASSESSEE. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). THE LD CIT(A) HAS GIVEN A FINDING THAT THE CASH AMOUNT FOUND DEPOSITED IN THE APPELLANTS BANK ACCOUNT DIRECTLY CORRESPONDS WITH THE IDENTICAL CASH AMOUNT WITHDRAWN FROM THE BANK ACCOU NT OF HER HUSBAND, SH. AJENDER TOMAR WHO IS AN EXISTING INCOME TAX ASSESSE E AND WHO HAS CONFIRMED TO HAVE GIVEN THE CASH AMOUNT TO HIS WIFE SMT. MANI SHA TOMAR. ACCORDINGLY, THE LD. CIT(A) HELD THAT THE AMOUNT OF RS. 73.50 LA KHS FOUND DEPOSITED IN THE APPELLANTS BANK ACCOUNT HAS COME FROM THE BANK ACC OUNT OF SH. AJENDER TOMAR, ACCORDINGLY, THE SOURCE OF CASH DEPOSITS IS EXPLAINED AND THE ADDITION SO MADE BY THE ASSESSING OFFICER WAS DELETED. AGAI NST THE SAID FINDING OF THE LD. CIT(A), THE REVENUE IS NOW IN APPEAL BEFORE US. 5. DURING THE COURSE OF HEARING, LD. DR SUBMITTED THAT THE AMOUNT HAS BEEN WITHDRAWN FROM THE CURRENT ACCOUNT MAINTAINED WITH THE AXIS BANK BY THE HUSBAND OF THE ASSESSEE AND THEREFORE, THE SAME HAS BEEN DEPOSITED IN THE SAVINGS BANK ACCOUNT MAINTAINED WITH AXIS BANK OF T HE ASSESSEE. IT WAS ACCORDINGLY SUBMITTED THAT BOTH HUSBAND AND WIFE AR E MAINTAINING THEIR BANK ACCOUNTS WITH THE SAME BANK AND THE BRANCH OF THE A SSESSEE AND NO PLAUSIBLE EXPLANATION HAS BEEN SUBMITTED BY THE ASSESSEE WHIC H NECESSITATED WITHDRAWAL OF CASH AND SUBSEQUENTLY, DEPOSITING THE SAME IN THE BANK ACCOUNT OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT EVEN FROM THE PERUSAL OF THE BANK STATEMENT OF THE ASSESSEE, IT IS NOT CLEAR AS TO WHAT PURPOSE THE MONEY WAS BORROWED BY THE ASSESSEE FROM HER HUSBAND AS TH E WITHDRAWALS AGAIN ARE MOSTLY IN CASH. FURTHER, NOTHING HAS BEEN SUBMITTED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND EVEN BEFORE THE TRIBUNAL IN S UPPORT OF THE CONTENTION THAT MONEY WAS BORROWED TO MEET THE BUSINESS EXPENDITURE OF THE ASSESSEE. IT WAS ACCORDINGLY SUBMITTED THAT THESE WERE MERE CONTENTI ONS WHICH ARE NOT ITA NO. 386-JP-2018 ITO, BHIWADI VS. SMT. MANISHA T OMAR, ALWAR 4 SUPPORTED BY ANY FACTS WHICH HAS BEEN BROUGHT ON RE CORD BY THE ASSESSEE AND THE THEORY OF LOAN TAKEN FROM THE HUSBAND OF THE AS SESSEE CANNOT BE BELIEVED AND ACCEPTED. DRAWING OUR REFERENCE TO THE CURRENT ACCOUNT STATEMENT OF THE HUSBAND OF THE ASSESSEE, IT WAS SUBMITTED BY THE LD . DR, THE FINDINGS OF THE LD CIT(A) THAT THE AMOUNT WITHDRAWN FROM THE HUSBANDS BANK ACCOUNT MATCHES WITH THE AMOUNT DEPOSITED IN THE ASSESSEES BANK AC COUNT CANNOT BE ACCEPTED AS THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THA T THESE CASH WITHDRAWALS WERE MADE BY SELF-CHEQUE ISSUED BY THE HUSBAND OF THE AS SESSEE AND NOT THE CHEQUE ISSUED IN FAVOUR OF THE ASSESSEE, THEREFORE MERELY BECAUSE THE FIGURES HAVE BEEN MATCHING, THE SAME CANNOT BE HELD THAT TH E SOURCE OF THE AMOUNT DEPOSITED IN THE ASSESSEES BANK ACCOUNT MATCHES WI TH THE WITHDRAWALS FROM THE HUSBANDS BANK ACCOUNT. IT WAS FURTHER SUBMITTE D THAT THE FINDINGS OF THE LD. CIT(A) THAT THE HUSBAND OF THE ASSESSEE HAS CON FIRMED THAT HE HAS GIVEN THE CASH AMOUNT TO THE ASSESSEE IS ALSO NOT BORNE O UT OF THE RECORDS AS THERE IS NO SUCH STATEMENT OF THE HUSBAND OF THE ASSESSEE WH ICH HAS BEEN RECORDED EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(A ) AND EVEN THERE IS NO CONFIRMATION WHICH HAS BEEN FILED AND WHICH IS PLAC ED ON RECORD. IT WAS ACCORDINGLY SUBMITTED THAT THE FINDINGS OF THE LD. CIT(A) ARE NOT EMERGING FROM THE RECORD AND THE SAME CANNOT BE SUSTAINED AND THE SAME SHOULD BE SET-ASIDE AND THE ORDER OF THE ASSESSING OFFICER SHOULD BE SU STAINED WHERE HE HAS STATED THAT THESE UNEXPLAINED CASH DEPOSITS ARE ASSESSEES OWN UNDISCLOSED INCOME. 6. PER CONTRA, THE LD. AR REITERATED THE SUBMISSIO N MADE BEFORE THE LOWER AUTHORITIES. IT WAS SUBMITTED THAT ONCE THE SOURCE OF THE CASH DEPOSIT IN ASSESSEES BANK ACCOUNT HAS BEEN DULY MATCHED WITH THE CASH WITHDRAWALS FROM HER HUSBANDS BANK, THE SOURCE OF SUCH DEPOSIT HAS BEEN DULY EXPLAINED AND NO ADDITION SHOULD BE MADE IN HANDS OF THE ASSE SSEE. IT WAS FURTHER SUBMITTED THAT THE AMOUNT HAS BEEN BORROWED BY THE ASSESSEE FROM HER HUSBAND TO MEET HER BUSINESS EXPENDITURE. IT WAS F URTHER SUBMITTED THAT EVEN ITA NO. 386-JP-2018 ITO, BHIWADI VS. SMT. MANISHA T OMAR, ALWAR 5 WHERE THE CONTENTIONS SO ADVANCED ARE NOT ACCEPTED, THE WHOLE OF CASH DEPOSITS CANNOT BE BROUGHT TO TAX. HE SUPPORTED TH E FINDINGS OF THE LD. CIT(A) 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. MERELY IDENTIFYING THE PERSON FROM WHOM THE MONEY HAS BEEN RECEIVED AND CARRYING OUT MATCHING OF THE TRANSACTI ONS OF CASH WITHDRAWALS AND SUBSEQUENT DEPOSITS IN THE ASSESSEES BANK ACCOUNT DOESNT ABSOLVE THE ASSESSEE FROM HER RESPONSIBILITY IN ITS ENTIRETY AS SO STATED UNDER SECTION 68 OF THE ACT. THE PURPOSE FOR WHICH THE MONEY HAS BEEN RECEIVED AND THE GENUINENESS OF THE TRANSACTION IS EQUALLY AN IMPORT ANT ASPECT WHICH THE ASSESSEE HAS TO DEMONSTRATE TO SATISFY THE INITIAL ONUS CAST ON HER. IN OUR VIEW, THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE TRANSACTIONS, ALL THREE REQUIREMENTS GO HAND-IN-HAND, HOWEVER, AMONG ALL TH E THREE, THE GENUINENESS OF THE TRANSACTION SHALL TAKE PRECEDENCE AND THE SA ME SHOULD BE DEMONSTRATED CLEARLY WHEN THE SAME IS CALLED IN QUESTION BY THE REVENUE. IN THE INSTANT CASE, THE THEORY OF BORROWING THE MONEY IN CASH FROM TIME TO TIME BY THE ASSESSEE FROM HER HUSBAND FOR MEETING BUSINESS EXPENDITURE I S NOT SUPPORTED BY ANY VERIFIABLE DEMONSTRABLE EVIDENCE AND THEREFORE, THE SAME CANNOT BE ACCEPTED. AT THE SAME TIME, WE FIND THAT ONCE THE REVENUE HAS NOT DISPUTED THAT THE ASSESSEE IS ENGAGED IN CONSTRUCTION BUSINESS AND NO INDEPENDENT SOURCE OF SUCH CASH RECEIPTS HAS BEEN DETERMINED, THE NATURE OF SUCH CASH RECEIPTS CAN REASONABLY BE TREATED AS UNDISCLOSED BUSINESS RECEI PTS AND ONLY NET PROFIT ARISING THEREON CAN BE BROUGHT TO TAX. BEFORE THE L D CIT(A), THE ASSESSEE HAS STATED THAT SHE HAS REPORTED NET PROFIT @ 8% OF HER TURNOVER AND HAS FILED HER RETURN OF INCOME. HOWEVER, THERE IS NO INDEPENDENT FINDING OF THE LD CIT(A) IN THIS REGARD. IN THE RESULT, WE SET-ASIDE THE MATTE R TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE NET PROFIT WHICH HAS BEEN REP ORTED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AS THE SAME HAS BEEN ACCEP TED DURING THE COURSE OF ITA NO. 386-JP-2018 ITO, BHIWADI VS. SMT. MANISHA T OMAR, ALWAR 6 ASSESSMENT PROCEEDINGS AND APPLY THE SAME TO UNDISC LOSED BUSINESS RECEIPTS AMOUNTING TO RS 73.50 LACS AND WHICH CAN BE BROUGHT TO TAX. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/07/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/07/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- INCOME TAX OFFICER, WARD-BHIWADI 2. IZR;FKHZ@ THE RESPONDENT- SMT. MANISHA TOMAR, BHIWADI, ALWAR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 386/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR