Smt. Sumedha Dutta, Indore V. The ACIT 2(1), Ujjain

ITA 397/IND/2013

• Counselvise Citation: 39722714 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESHPANDE
• Section: 133(6); 131; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO.397/IND/2013 A.Y. : 2009-10 SMT.SUMEDHA DUTTA, ACIT, 2(1). INDORE VS UJJAIN APPELLANT RESPONDENT PAN NO. : ACDPD2439B APPELLANT BY SHRI S.S.DESHPANDE, C. A. RESPONDENT BY SHRI R. A. VERMA, DR DATE OF HEARING : 21 .09.2015 DATE OF PRONOUNCEMENT : 12 .10.2015 SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 2 2 O R D E R PER GARASIA, J.M. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 28.03.2014 FOR THE ASSESSM ENT YEAR 2009-10. 2. THE BRIEF FACTS OF THE CASE ARE AS UNDER. 3. THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM INSURANCE COMMISSION FROM ICICI PRUDENTIAL LIFE INS URANCE. THE CASE WAS SELECTED FOR SCRUTINY. IN THE CASE OF THE ASSESSEE INFORMATION WAS RECEIVED FROM INVESTIGATION WING TH AT THE ASSESSEE HAD MADE A TOTAL PREMIUM OF RS. 25 LACS FO R POLICY OF ICICI PRUDENTIAL LIFE INSURANCE ON ONE SINGLE DAY I .E. 31.01.09 THROUGH 51 DEMAND DRAFTS EACH DENOMINATED LESS THAN RS. 50,000/-. THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF INVESTMENT IN POLICY NO. 1154863 OF RS. 25 LACS. TH EREFORE, THE AO HAS MADE THE ADDITION OF RS. 25 LACS IN THE INCO ME OF THE ASSESSEE AND ADDED RS. 1,58,614/- AS PROFIT ON IT. SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 3 3 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS CONFIRMED THE ADDITION. 5. THE LD. AUTHORIZED REPRESENTATIVE HAS FILED THE WRI TTEN SUBMISSION, WHICH READS AS UNDER :- THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM INSURANCE, COMMISSION FROM ICICI PRUDENTIAL LIFE INSURANCE. THE RETURN HAS BEEN FILED. DECLARING THE TOTAL INCOME OF RS. 15,94,496/-. THE SUMMARY OF BANK STATEMENT AND BALANCE SHEET WAS FILED ALONGWITH THE RETURN. SINCE THE ASSESSEE WAS THE AGENT FOR CANVASSING THE BUSINESS ALL NECESSARY DETAILS ALONG WITH THE PHOTOGRAPH, PAN, RESIDENCE PROOF WERE AVAILABLE ON THE FILE OF THE INSURANCE COMPANY. THE INVESTIGATION WING AT INDORE CARRIED OUT SOME ENQUIRIES REGARDING THE PAYMENT OF THE INSURANCE PREMIUM IN THE NAME OF THE ASSESSEE. IT WAS REVEALED THAT. A PENSION POLICY WAS TAKEN IN THE NAME OF THE ASSESSEE BY ICICI PRUDENTIAL INSURANCE COMPANY. THIS APPLICATION WAS SIGNED SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 4 4 IN THE NAME OF SUMEDHA DUTTA. 51 CHEQUES OF RS. 49,000/- WERE DEPOSITED AGAINST THIS POLICY WHICH WERE OBTAINED FROM ARIHANT URBAN CO-OPERATIVE BANK LIMITED. THESE CHEQUES WERE OBTAINED FROM THE BANK IN DIFFERENT NAMES AND WERE DEPOSITED AGAINST THE POLICY IN THE NAME OF SUMEDHA DUTTA. IN THE PROPOSAL FORM, THE IDENTITY ADDRESS VERIFICATION WAS DONE BY KIRTI DUBEY, THE MANAGER OF ICICI PRUDENTIAL. ON 6 TH OF APRIL, 2009, THIS POLICY WAS WITHDRAWN BY AN APPLICATION PURPORTED TO BE SIGNED BY SMT. SUMEDHA DUTTA AND THE AMOUNT WAS TRANSFERRED BY NEFT DIRECTLY IN THE ACCOUNT OF SMT. MADHURI DUBEY JOINTLY HELD IN THE NAME OF SUMEDHA DUTTA. THE AMOUNT WAS IMMEDIATELY WITHDRAWN BY A CHEQUE SIGNED BY MADHURI DUBEY. IT CAME TO THE KNOWLEDGE OF THE ASSESSEE THAT SMT. MADHURI DUBEY, WHO IS THE AUNT OF SMT. KIRTI DUBEY HELD A SAVINGS BANK ACCOUNT IN THE SYNDICATE BANK, SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 5 5 KANADIA ROAD, INDORE, SINCE AUGUST 2006. THIS ACCOUNT WAS INTRODUCED BY SHRI YOGENDRA DUBEY. ON 13.03.2009 THIS ACCOUNT WAS CONVERTED INTO THE JOIN T NAME AND THE ADDITIONAL NAME WAS INTRODUCED AS SUMEDHA DUTTA WITH HER PHOTOGRAPH. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE ALLEGED THAT THE SIGNATURES ON THIS ACCOUNT OPENING FORM ARE NOT. HERS. THE MANAGER OF THE BANK IN HIS STATEMENT (PAGE 88 OF PB) STATED THAT THE NAME SMT. SUMEDHA DUTTA WAS ADDED AS SECOND ACCOUNT HOLDER ON 13.03.2009 AND KYC REQUIREMENTS WERE COMPLETED. HOWEVER THE COPY OF PAN CARD WAS NOT FURNISHED. SURPRISINGLY THIS ACCOUNT WAS CLOSED ON 30.09.2009. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE STATEMENTS OF SMT. MADHURI DUBEY WERE RECORDED ON VARIOUS DATES. SHE STATED THAT THE ACCOUNT WAS CONVERTED IN THE JOINT ACCOUNT ON THE INSTRUCTION OF SHRI SUNIL DUTTA WHO IS KNOWN TO HER NIECE SMT. KIRTI DUBEY. SHE FURTHER STATED THAT SHE SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 6 6 DOESN'T KNOW MUCH ABOUT THESE TRANSACTIONS. SHE ALSO DOESN'T KNOW ABOUT THE WITHDRAWALS FROM THIS ACCOUNT. (PAGE 34 OF PB) SHE FURTHER CONFIRMED THAT ON THE WITHDRAWALS CHEQUES AND ALSO ON THE BACK SIDE OF THE CHEQUE SHE HAS SIGNED ALONG WITH HER NIECE SMT. KIRTI DUBEY (PAGE 36 OF PB) SHE FURTHER CONFIRMED THAT SHE DOESN'T KNOW ABOUT THE TRANSACTION BUT THE SAME HAS BEEN DONE ON THE INSTRUCTION OF SMT. KIRTI DUBEY. (PAGE 37 OF PB) SH E FURTHER STATED THAT THE ACCOUNT CONVERSION FORM INT O THE JOINT ACCOUNT SMT. SUMEDHA DUTTA DID NOT PUT HE R SIGNATURE IN HER PRESENCE AND THE ACCOUNT CLOSURE APPLICATION WAS SIGNED ON THE INSISTENCE OF SMT. KI RTI DUBEY. SHE FURTHER ADMITTED THAT THE CHEQUES FOR WITHDRAWAL OF THE AMOUNT WERE SIGNED BY HER ON THE BEHEST OF HER NIECE SMT. KIRTI DUBEY. THE STATEMENT OF SMT. KIRTI DUBEY WAS RECORDED JOINTLY WITH SHRI VIKRAM SHUKLA WHO RESIGNED FROM SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 7 7 THE JOB OF ICICI BANK IN AUGUST AND JUNE 2009. IT WAS STATED THAT THE POLICY WAS HANDED OVER PERSONALLY TO SUNIL DUTTA. SHE FURTHER STATED THAT THE AMOUNTS WITHDRAWN WERE ALSO HANDED OVER OUTSIDE THE BANK TO SHRI SUNIL DUTTA. DURING THE COURSE OF THE ASSESSMENT PROCEEDING IT WAS SUBMITTED BEFORE THE LD. AO THAT THE ASSESSEE NEVER TOOK THE POLICY AND PAID ANY PREMIUM OF RS. 25,00,000/- TO ICICI PRUDENTIAL. IT IS ALSO WORTH NOTING THAT WHEN A POLICY IS TAKEN, THE SAME IS SENT AT TH E ADDRESS OF THE POLICY HOLDER BY COURIER. THE INSURANCE COMPANY PUTS THE DISPATCH NUMBER AND THE COURIER NUMBER ON THE FRONT PAGE OF THE POLICY, WHICH IS DISPATCHED FROM BOMBAY HEAD OFFICE. IN THE INSTANT CASE, THIS POLICY WAS NEVER SENT TO THE ASSESSEE AND IT WAS NEVER DISCLOSED THAT SUCH A POLICY WAR TAKEN. IN A LETTER DATED 12.12.2009, IT WAS MENTIONED BY THE ICICI PRUDENTIAL THAT THE POLICY WAS HANDED OVER BY MS. KIRTI DUBEY SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 8 8 PERSONALLY ON 09.02.2009. A COMPLAINT WAS ALSO LODGED ON 14'H MAY 2010 TO THE CEO, ICICI PRUDENTIAL THAT THIS POLICY WAS NEVE R TAKEN BY THE ASSESSEE THAT THIS WAS DONE WITH FRAUDULENT AND MALA FIDE INTENTION. THIS WAS DONE B Y MS. KIRTI DUBEY, THE MANAGER OF INDORE BRANCH IN CONNIVANCE WITH THE SOURCING MANAGER. IT IS LEARNT THAT THE MANAGER, KIRTI DUBEY AND THE SOURCING MANAGER, MR. VIKRARN SHUKLA, BOTH RESIGNED AFTER TH IS EPISODE. CONSIDERING THE DETAILED SUBMISSION THE LD . AO ISSUED NOTICES U/S. 131 AND RECORDED THE STATEMENT OF THE FOLLOWING PERSONS: - ANUPAM VERMA, CLERK, ARIHANT CO-OPERATIVE BANK. K.C. BHANDARI, BRANCH MANAGER, ARIHANT CO- OPERATIVE BANK. KIRTI DUBEY, MANAGER, ICICI PRUDENTIAL. VIKRAM SHUKLA, SOURCING MANAGER, ICICI. MADHURI DUBEY, AUNT OF KIRTI DUBEY (DOING THE WORK OF STITCHING AND HOLDING ONLY ONE BANK ACCOUNT I N SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 9 9 SYNDICATE BANK). INFORMATION WAS CALLED U/S, 133(6) FROM SYNDICATE BANK, KANADIA ROAD. AFTER CONSIDERING THE STATEMENTS, THE LD. AO CAME T O THE THAT THE POLICY WAS TAKEN BY THE ASSESSEE AND THE PAYMENTS WERE MADE BY THE ASSSESSEE AND AS SUCH THE SAME IS TAXABLE IN THE HANDS OF THE ASSESSEE. HE, THEREFORE, MADE AN ADDITION OF RS. 26,58,614/- PLUS A COMMISSION OF RS. 1,50,000/-. THE LD CIT(A) UPHELD THE CONTENTION OF THE LD AO ON THE GROUND THAT THE MANAGER OF ICICI HAVE ADMITTED THAT SMT. SUMEDHA DUTTA TOOK THE POLICY AND THE SIGNATURES ON THE POLICY WERE VERIFIED BY THE EMPLOYEES OF ICICI. IT IS HUMBLY SUBMITTED THAT THE CIRCUMSTANTIAL EVIDENCE AND THE ACTIONS OF SMT KIRTI DUBEY AND THE STATEMENTS RECORDED OF SMT. MADHURI DUBEY CLEARLY PROVE THAT THE ASSESSEE HAS BEEN MADE A SCAPEGOAT FOR THIS FRAUDULENT TRANSACTION. THE FOLLOWING FACT S SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 10 10 ARE RELEVANT. THE ASSESSEE HAS NOT GAINED ANYTHING IN TAKING THIS POLICY AND THEN CANCELLING IT WITHIN A SHORT TIME. THE PAYMENT TO THE POLICY HAS BEEN MADE BY 51 BANK DRAFTS TAKEN IN THE VARIOUS NAMES. A NORMAL PERSON WHO IS TAKING THE POLICY OF 25 LAKHS WOULD N OT PURCHASE 51 DRAFTS BUT WOULD MAKE THE PAYMENT FROM HIS OWN BANK ACCOUNT. THE STATEMENT OF THE BANK OFFICIALS HAVE BEEN RECORDED. SHRI ANUMAM VERMA STATED THAT 2-3 AGENTS FROM ICICI INSURANCE COMPANY HAVE TAKEN THE DRAFT. (PAGE 98 OF PB) IF TH E ASSESSEE OR HER SON WOULD HAVE TAKEN THESE DRAFTS, THEN, THE BANK OFFICIALS WOULD HAVE CONFIRMED THE SAME. THE POLICY CANCELLATION AMOUNT WAS DEPOSITED IN SYNDICATE BANK. THIS WAS IN THE NAME OF SMT. MADHURI DUBEY FROM 21 T AUGUST 2006. SMT. MADHURI DUBEY IS THE AUNT OF MS. KIRTI DUBEY, THE MANAGER O F SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 11 11 ICICI. THE NAME OF SUMEDHA DUTTA WAS ADDED ON 13.03.2009 AS A JOINT OWNER. THE CHEQUE THROUGH WHICH THE AMOUNT WAS WITHDRAWN HAS BEEN SIGNED BY SMT. MADHURI DUBEY. IT IS PERTINENT TO NOTE THAT THE SIGNATURES ON THIS BANK OPENING FORM DOES NOT TALLY WITH THE SIGNATURE OF THE ASSESSEE. IT TALLIE S WITH THE INSURANCE POLICY APPLICATION FORM AND CANCELLATION FORM. THE ASSESSEE'S PHOTOGRAPH AND OTHER KYC DETAILS HAVE BEEN TAKEN FROM THE FILE OF THE ASSESSEE AND FROM OTHER POLICY TAKEN IN THE NAME OF THE ASSESSEE. IF THE ASSESSEE WANTED TO WITHDRAW THE SAID MONEY SHE WOULD HAVE WITHDRAWN BY HER OWN SIGNATURE. THE ASSESSEE REQUESTED THE LD. AO TO ALLOW THE CROSS EXAMINATION OF MADHURI DUBEY AND MS. KIRTI DUBEY BUT THE SAME WAS NOT ALLOWED BY THE LD.AO. ALL THE ABOVE FACTS CLEARLY SHOW THAT ALL THESE TRANSACTIONS WERE DONE BY MS. KIRTI DUBEY FOR ELEVATING HER POSITION IN THE COMPANY. SHE HAS USED SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 12 12 THE NAME OF THE ASSESSEE AND ULTIMATELY AFTER BEING EXPOSED, RESIGNED FROM THE JOB IMMEDIATELY. IN VIEW OF THE ABOVE, IT IS HUMBLY SUBMITTED THAT T HE ADDITIONS MADE MAY PLEASE BE DELETED. THE DISALLOWANCE OF EXPENSES ARE UNCALLED FOR AND HENCE, BE DELETED. 6. THE LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORIT IES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE AO HAS RECORDED THE STATEMENT OF S MT. MADHURI DUBEY AND AS PER THE STATEMENT OF SMT. MADH URI DUBEY, WHO HAPPEN S TO BE THE AUNT OF KIRTI DUBEY, MANAGER OF ICICI. THE NAME OF SUMEDHA DUTTA WAS ADDED AS A JOINT. THE CHEQUE WAS WITHDRAWN BY SIGNATURE OF MADHURI DU BEY. THEREFORE, THE AO SHOULD ALLOW THE CROSS EXAMINATIO N OF MADHURI DUBEY AND KIRTI DUBEY, WHICH WAS NOT ALLOWE D BY THE ASSESSING OFFICER. WE ARE OF THE VIEW THAT UNLESS B OTH ARE SMT.SUMEDHA DUTTA,INDORE, VS. ACIT,2(1),UJJAIN, I.T .A.NO. 397/IND/2013 A.Y. 2009-10 13 13 ALLOWED TO CROSS EXAMINE, THE ASSESSEE WILL BE UNJU STIFIED. THEREFORE, WE REVERSE THE FINDING OF THE CIT(A) AND RESTORE BACK THE ISSUE TO THE FILE OF THE AO AND THE AO IS DIRECTED TO CROSS EXAMINE MADHURI DUBEY & KIRTI DUBEY AND DECID E THE MATTER AS PER LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 12 TH OCTOBER, 2015. CPU* 6.12