ITO Ward1(1), Gwalior V. Shri Ramesh Kumar Gupta, Gwalior

ITA 413/AGR/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2482 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-02-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 24-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Unexplained investment; Depreciation
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.413/AGR/2009 ASST. YEAR: 2005-06 INCOME TAX OFFICER, VS. SHRI RAMESH KUMAR GUPTA , WARD 1(1), GWALIOR. F-303, TULSI VIHAR, BEHIND SHRIRAM DHARAMSHALA, CHITNIS KI GOTH, LASHKAR, GWALIOR. (PAN : AKXPG 6315 R). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : APPLICATION REJECTED (NONE) ORDER PER P.K. BANSAL, A.M. : THIS APPEAL HAS BEEN FIELD BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) DATED 29.06.2009. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT ORDER HAS BEEN PASSED UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAF TER) BY MAKING AN ADDITION OF ` 10,00,000/- AS UNEXPLAINED INVESTMENT IN RESPECT OF DEPOSITS IN THE SAVINGS BANK ACCOUNT NO.54510010007216 WITH UNITED WESTERN BANK LIMITED, LOHIYA BAZAR, GWALIOR. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER GOING THROUGH THE COPY OF THE BANK ACCOUNT OF THE ASSESSEE NOTED THAT ALL THE DEPOSITS IN THE BANK ACCOUNT ARE COVERED BY THE WITHDRAWAL MADE IN THE EARLIER DATES AND THE TOTAL WITHDRAWAL DURING THE YEAR IN CASH WAS ` 13,73,500/- 2 WHILE THE TOTAL DEPOSITS IN CASH WAS ` 16,40,000/- AND ULTIMATELY HE DELETED THE ADDITION BY OBSERVING AS UNDER :- I HAVE GONE THROUGH THE WRITTEN SUBMISSION AND ASS ESSMENT ORDER AND FIND THAT THE ASSESSING OFFICER HAS MADE AN ADDITIO N OF ` 10,00,000/- AS UNEXPLAINED DEPOSIT IN SAVING BANK ACCOUNT NO.54510 010007216 WITH UNITED WESTERN BANK LIMITED, GWALIOR. THE LD. A.R. OF THE APPELLANT VEHEMENTLY CONTESTED THAT THE ADDITION OF ` 10,00,000/- IS NOT JUSTIFIED BECAUSE THE APPELLANT HAD DEPOSITED MANY A TIMES OUT OF FUNDS WITHDRAWN F ROM THE BANK ITSELF. HE HAS SUBMITTED THE COPY OF BANK PASS BOOK IN WHICH HE WA S HAVING ` 10,01,000/- AS OPENING BALANCE. HE HAD WITHDRAWN CASH AMOUNTING T O ` 13,73,500/- FROM BANK ON VARIOUS DATES. HE HAD ALSO ISSUED CHEQUES IN FA VOUR OF TATA FINANCE AMOUNTING TO ` 3,00,000/- DURING THE YEAR. SIMILARLY, HE HAD DEP OSITED CASH ` 16,40,000/- ON VARIOUS DATES. APART FROM THAT THER E ARE TWO DEPOSIT ENTRY OF ` 36,214/- AND ` 4,379/-. THE APPELLANT HAD WITHDRAWN AND DEPOSITE D THE CASH ON VARIOUS DIFFERENT DATES. HE HAD WITHDRAWN SUBSTANT IAL AMOUNT OF CASH IN THE MONTH OF APRIL ITSELF AND DEPOSITED THEREAFTER. HE HAD DEPOSITED CASH ` 16,40,000/- ON VARIOUS DATES, WHEREAS HE HAD WITHDR AWN ` 13,73,500/- ON VARIOUS DATES BUT PRIOR TO FURTHER DEPOSIT IN THE BANK ACCO UNT. ACCORDINGLY THE APPELLANT HAD DEPOSITED ` 2,66,500/- IN EXCESS OF CASH WITHDRAWN FROM THE BA NK. THE LD. A.R. OF THE APPELLANT SUBMITTED THAT THE CASH OF ` 2,66,500/- WAS DEPOSITED OUT OF INCOME FROM TRUCK PLYING BUSINESS, WHICH WAS PURCHA SED ON 10.03.04 I.E. DURING PRECEDING YEAR AND REGISTERED WITH THE TRANSPORT AU THORITY ON 01.04.04 I.E. DURING THE YEAR UNDER CONSIDERATION. THE TRUCK INCOME AS PER SECTION 44AE OF THE ACT COMES TO ` 42,000/- AFTER ALLOWING DEPRECIATION. THE RATE OF DEPRECIATION ON TRUCK FOR THE ASSESSMENT YEAR 2005-06 WAS 40% ACCOR DINGLY IT COMES TO ` 3,20,834/-. THE DEPRECIATION IS AN ALLOWABLE BUT N ON CASH EXPENDITURE. THEREFORE, THE CASH EQUAL TO DEPRECIATION REMAIN WI TH THE APPELLANT. ACCORDINGLY, THE CASH SURPLUS AVAILABLE FROM TRUCK PLYING BUSINE SS WAS ` 3,62,834/- ( ` 3,20,834/- + ` 42,000/-), WHICH IS SUFFICIENT TO COVER ` 2,66,500/-, THE DEPOSIT IN BANK ACCOUNT. THE HOUSEHOLD EXPENSES ARE BEING MET OUT FROM AGRICULTURAL INCOME. AFTER CONSIDERING ALL THESE, THE APPELLANT WAS HAVING SUFFICIENT CASH TO DEPOSIT IN BANK ACCOUNT AND ACCORDINGLY THE DEPOSIT OF ` 10,00,000/- IS VERY WELL EXPLAINED. IN VIEW OF ALL THESE, THE ADDITION OF ` 10,00,000/- IS NOT SUSTAINABLE AND IS HEREBY DELETED. 3. THE REVENUE, BEING AGGRIEVED, CAME IN APPEAL BEF ORE US. 3 4. NONE APPEARED ON BEHALF OF THE ASSESSEE. ADJOUR NMENT APPLICATION FILED WAS REJECTED AS THERE WAS NO PLAUSIBLE REASON. WE, THEREFORE, DECI DED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. D.R. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MAD E BY THE LD. D.R. AND GONE THROUGH THE ORDER OF CIT(A). WE NOTED THAT THE CIT(A) HAS GIVE N THE CLEAR FINDING OF FACT THAT ALL THE CASH DEPOSITS IN THE BANK ACCOUNT BY THE ASSESSEE ARE DU LY COVERED BY THE WITHDRAWALS MADE OUT OF THE BANK ACCOUNT ON THE EARLIER DATES. IN VIEW OF THES E FACTS, IN OUR OPINION, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE CIT(A). THE LD. D.R. COULD NOT PRODUCE ANY EVIDENCE CONTRARY TO THE FINDING GIVEN BY THE CIT(A). UNDER THESE FACTS, WE CONFIRM THE ORDER OF THE CIT(A). 6. IN THE RESULT, APPEAL FIELD BY THE REVENUE STAND S DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.02.2011 ). SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 25 TH FEBRUARY, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY