Smt. Rashmiben R.Upadhyay, Nani Daman V. The Income tax Officer,Vapi 4, Daman

ITA 431/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0027 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 08-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Keywords: Unexplained cash credit; Unexplained investment; Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO.431/AHD/2013 A.Y. 2009-10 SMT. RASHMIBEN R. UPADHYAY, PROPRIETOR OF VIMAL AUTOMOBILE & SERVICES KUNDA FALIA BHIMPORE, NANI DAMAN PAN: AAEPU4079K VS THE INCOME TAX OFFICER VAPI, WARD-4, DAMAN. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J.P. JHANGID, SR.D.R. , ASSESSEE(S) BY : SHRI JIGNESH PARIKH / DATE OF HEARING : 08/10/2013 / DATE OF PRONOUNCEMENT: 08/10/2013 / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A), VALSAD, DATED 26.11.2012. 2. THE GROUND NO.1 OF THE APPEAL IS DIRECTED AGAINS T THE ORDER OF LEARNED CIT(A) CONFIRMING THE ADDITION OF RS.32,56, 112/- ON ACCOUNT OF CASH DEPOSIT IN HDFC BANK. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER FOUND THAT THE ASSESSEE HAS NOT SHOWN THE BANK ACCOUNT WITH HD FC BANK BEING A/C NO.01351000029120 IN THE RETURN OF INCOME. HE FOUND FROM THE BANK ITA NO.431/AHD/2013 SMT. RASHMIBEN R. UPADHYAY VS. ITO DAMAN. FOR A.Y. 2009-10 - 2 - STATEMENT THAT THE ASSESSEE HAD DEPOSITED CASH ON V ARIOUS DATES AMOUNTING TO RS.32,36,112/-. HE FURTHER OBSERVED TH AT THE ASSESSEE HAD DEPOSITED RS.20,000/- CASH IN KOTAK MAHINDRA BANK L TD., BANK A/C. NO.083301400008963. THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT AND HENCE, THE AO MADE ADDITION OF RS.32,56,112/- TO THE INCOME OF THE ASSESSEE AS UNE XPLAINED INVESTMENT. 4. ON APPEAL THE LEARNED CIT(A) HAS CONFIRMED THE A CTION OF THE ASSESSEE ON THE GROUND THAT BEFORE THE AO THE ASSES SEE TOOK CONTRARY STAND ABOUT THE SOURCE OF DEPOSIT THAT ALL TRANSACT IONS RELATING TO HDFC BANK A/C NO. 01351000029120 ARE SHOWN IN THE BOOKS OF SRI RAJESH BHAI, HER HUSBAND AND SUBSEQUENTLY BY LETTER DATED 11.12.2011 IT WAS STATED BY THE ASSESSEE THAT THE CASH WAS THE SALE P ROCEEDS OF HER BUSINESS OF RASHMI TRADING CO. . 5. LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE AD DITION OF ONLY PEAK CREDIT IN THE HDFC BANK ACCOUNT SHOULD HAVE BE EN MADE BY THE AO. HE SUBMITTED THAT IMMEDIATE WITHDRAWAL OF CASH BEFORE THE DEPOSIT OF CASH IN THE BANK ACCOUNT SHOULD HAVE BEEN ALLOWE D AS A SET OFF. HE SUBMITTED THAT HE HAS PLACED A SUMMARY OF CASH TRAN SACTION WITH HDFC BANK DURING THE F.Y. 2008-09 AT PAGES 100 AND 101 O F THE PAPER BOOK AND ALSO ANNEXURE-8 TO THE WRITTEN SUBMISSION WHICH SHOWS STATEMENTS OF MONTHLY SUMMARY OF SURPLUS OF WITHDRAWALS OVER D EPOSIT ACCORDING TO WHICH ONLY RS.43,527/- WHICH WAS THE SURPLUS OF DEP OSIT OVER WITHDRAWALS ADDITION COULD HAVE BEEN MADE IN THE HA NDS OF THE ASSESSEE AS UNEXPLAINED INVESTMENT. HE ALSO EXPLAINED THAT T HE ASSESSEE HAS OBTAINED A CERTIFICATE FROM HDFC BANK DATED 20.05.2 013 PLACED AT PAGE ITA NO.431/AHD/2013 SMT. RASHMIBEN R. UPADHYAY VS. ITO DAMAN. FOR A.Y. 2009-10 - 3 - NO.99 OF THE PAPER BOOK EVIDENCING THAT TRANSACTION CODE SCW (CHEQUE PAID-NAVSARI-GUJARAT) DENOTES CASH WITHDRAWAL FROM ACCOUNT THROUGH CHEQUE FOR TRANSACTION. HE ALSO SUBMITTED THAT THES E DOCUMENTS WERE NOT FILED BEFORE THE ASSESSING OFFICER AND THE LEARNED CIT(A) AND PRAYED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH AFTER CONSIDERING THE SE DOCUMENTS. 6. LEARNED DR OF THE REVENUE DID NOT HAVE ANY OBJEC TION TO THE MATTER BEING RESTORED BACK TO THE FILE OF THE AO FO R FRESH ADJUDICATION. 7. THE GROUND NO.2 OF THE APPEAL IS DIRECTED AGAINS T THE ORDER OF LEARNED CIT(A) CONFIRMING THE ADDITION OF RS.1,55,0 00/- ON ACCOUNT OF UNEXPLAINED CREDIT. 8. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER FOUND THAT THE ASSESSEE CREDITED A SUM OF RS.1,55,000/- ON 14. 07.2008 IN KOTAK MAHINDRA BANK IN THE A/C NO. 083301400008963. HE OB SERVED THAT THE SAID BANK ACCOUNT WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. AS THE ASSESSEE FAILED TO ESTABLISH THE S OURCE OF RS.1,55,000/-, THE SAME WAS ADDED AS UNEXPLAINED CREDIT TO THE TOT AL INCOME OF THE ASSESSEE. 9. ON APPEAL, THE LEARNED CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE F AILED TO EXPLAIN THE SOURCE OF CREDIT OF RS.1,55,000/- IN KOTAK MAHINDRA BANK. ITA NO.431/AHD/2013 SMT. RASHMIBEN R. UPADHYAY VS. ITO DAMAN. FOR A.Y. 2009-10 - 4 - 10. LEARNED AR OF THE ASSESSEE SUBMITTED THAT IT WI LL BE SEEN FROM PAGE 79 OF THE PAPER BOOK WHEREIN THE BANK STATEMEN T OF KOTAK MAHINDRA BANK IS FILED FROM WHICH IT CAN BE SEEN TH AT RS.1,55,000/- WAS DEPOSITED ON 15.04.2008. HE FURTHER SUBMITTED THAT IT WILL BE SEEN FROM PAGE 82 OF THE PAPER BOOK WHERE COPY OF THE BANK ST ATEMENT OF HDFC BANK ACCOUNT IS FILED IN WHICH THERE IS PAYMENT OF RS.1,55,000/- ON 08.04.2008 FROM HDFC BANK ACCOUNT VIDE CHEQUES NO.0 440862. THUS IT WAS THE SUBMISSION THAT DEPOSIT IN THE KOTAK MAH INDRA BANK ACCOUNT WAS BY WAY OF CHEQUES ISSUED ON HDFC BANK ACCOUNT A ND THEREFORE, THE ADDITION MADE WAS NOT JUSTIFIED. HE FURTHER SUBMITT ED THAT THESE DOCUMENTS WERE NOT PLACED EITHER BEFORE THE AO OR B EFORE THE LEARNED CIT(A) AND THEREFORE, THE MATTER MAY BE RESTORED BA CK TO THE FILE OF THE AO FOR VERIFICATION AND THEREAFTER RE-ADJUDICATING THE ISSUE AFRESH. HE ALSO SUBMITTED THAT THERE WAS A DELAY OF FEW DAYS I N CREDIT OF RS.1,55,000/- IN KOTAK MAHINDRA BANK AS THERE WAS D ELAY IN OPENING THE ACCOUNT BY KOTAK MAHINDRA BANK AND THE AMOUNT WAS K EPT IN SUSPENSE ACCOUNT BY THE BANK . 10. LEARNED DR OF THE REVENUE HAS SUBMITTED THAT HE DID NOT HAVE ANY OBJECTION TO THE ISSUE BEING RESTORED TO THE FILE O F THE AO FOR FRESH ADJUDICATION. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS ON RECORD. WE FIND THAT COPY OF BANK STATEMENT OF HDFC BANK IS PLACED AT PAGE NO.82 TO 8 3 OF THE PAPER BOOK FILED BY THE ASSESSEE. A PERUSAL OF THE SAME SHOWS THAT THERE WERE CASH DEPOSITS ON SEVERAL DATES AND THE AGGREGATE OF SUCH DEPOSITS AMOUNTING TO ITA NO.431/AHD/2013 SMT. RASHMIBEN R. UPADHYAY VS. ITO DAMAN. FOR A.Y. 2009-10 - 5 - RS.32,56,112/-. THERE WAS ALSO CASH WITHDRAWALS FRO M THE SAID BANK ACCOUNT BEFORE MAKING OF SUBSEQUENT CASH DEPOSIT IN THE VERY SAME BANK ACCOUNT. NO MATERIAL HAS BEEN BROUGHT BEFORE US TO SHOW THAT THE CASH WITHDRAWALS FROM THE HDFC BANK ACCOUNT COULD NOT HA VE BEEN UTILIZED BY THE ASSESSEE FOR MAKING SUBSEQUENT CASH DEPOSIT IN THE SAID BANK ACCOUNT. IN THE ABOVE CIRCUMSTANCES, ADDITION OF AG GREGATE OF CASH DEPOSITS IGNORING THE EARLIER CASH WITHDRAWALS WILL LEAD TO DOUBLE TAXATION OF VERY SAME AMOUNT. THE LEARNED DR FAIRLY CONCEDED THIS ISSUE BUT SUBMITS THAT THE SUMMARY PREPARED BY THE ASSESS EE NEEDS VERIFICATION BY THE AO TO DETERMINE PEAK AMOUNT OF CASH DEPOSIT WHICH SHOULD BE ADDED TO THE INCOME OF THE ASSESSEE. IN THE ABOVE C IRCUMSTANCES, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS I SSUE. WE REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FO R MAKING ADDITION OF ONLY PEAK AMOUNT OF CASH DEPOSIT MADE IN THE BANK D URING THE YEAR. THE ASSESSEE IS DIRECTED TO SUBMIT THE WORKINGS OF PEAK CASH DEPOSIT BEFORE THE AO AS AND WHEN CALLED FOR BY THE AO AND THE AO SHALL REFRAME THE ASSESSMENT AFRESH AFTER VERIFICATION OF THE DEPOSIT S MADE IN THE BANK. 12. SIMILARLY, THE ASSESSEE MADE DEPOSIT OF RS.1,55 ,000/- IN KOTAK MAHINDRA BANK ON 15.04.2008 WHICH WAS ADDED AS UNEX PLAINED CREDIT IN THE HANDS OF THE ASSESSEE BY THE ASSESSING OFFICER AS THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THE DEPOSIT. THE ASSESSEE HAS NOW FILED THE COPY OF STATEMENT OF HDFC BANK AT PAGE 82 OF THE PAPER B OOK. HE HAS ALSO SUBMITTED THAT THE DEPOSIT OF RS.1,55,000/- IN KOTA K MAHINDRA BANK ON 15.04.2008 WAS BY ISSUANCE OF CHEQUES OF HDFC BANK A/C. BEARING CHEQUES NO. 0440862 DATED 08.04.2008. HE FURTHER SU BMITTED THAT AS THE ACCOUNT WITH KOTAK MAHINDRA BANK WAS OPENED AFTER A FEW DAYS, ITA NO.431/AHD/2013 SMT. RASHMIBEN R. UPADHYAY VS. ITO DAMAN. FOR A.Y. 2009-10 - 6 - THEREFORE, THERE IS A DELAY IN SHOWING THE DEPOSIT IN THE KOTAK MAHINDRA BANK ACCOUNT ON 15.04.2008. THE ASSESSEE HAS PRAYED THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF THE AO FOR FRESH AD JUDICATION AFTER VERIFICATION TO WHICH THE LEARNED DR HAS NO OBJECTI ON. WE, THEREFORE, SET ASIDE THE ORDER OF THE LOWER AUTHORITIES ON THIS IS SUE AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDIC ATION AFTER VERIFICATION OF THE DOCUMENTS AS PER LAW. THUS GROUND NOS. 1 AND 2 OF THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 13. GROUND NO.3 OF THE APPEAL IS DIRECTED AGAINST T HE ORDER OF LEARNED CIT(A) CONFIRMING THE ACTION OF THE AO MAKING ADDIT ION OF RS.20,776/- ON ACCOUNT OF INTEREST INCOME. 14. AT THE TIME OF HEARING, LEARNED AR OF THE ASSES SEE SUBMITTED THAT HE IS NOT PRESSING THIS GROUND OF THE APPEAL AND MA DE AN ENDORSEMENT TO THIS EFFECT ON THE GROUNDS OF APPEAL FILED BEFORE U S IN THE MEMO OF APPEAL. THEREFORE, THIS GROUND OF APPEAL OF THE ASS ESSEE IS DISMISSED AS NOT PRESSED. 15. GROUND NO.4 OF THE APPEAL IS GENERAL IN NATURE AND HENCE, REQUIRES NO SEPARATE ADJUDICATION BY US. 16. GROUND NO.5 OF THE APPEAL IS DIRECTED AGAINST T HE ORDER OF LEARNED CIT(A) CONFIRMING THE ACTION OF THE AO IN CHARGING INTEREST U/S.234B/C/D OF THE ACT. ITA NO.431/AHD/2013 SMT. RASHMIBEN R. UPADHYAY VS. ITO DAMAN. FOR A.Y. 2009-10 - 7 - 17. AT THE TIME OF HEARING THE LEARNED AR OF THE AS SESSEE DID NOT MAKE ANY ARGUMENTS ON THIS GROUND OF APPEAL RAISED BY TH E ASSESSEE. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED FOR WANT OF PROS ECUTION. 18. GROUND NO.6 OF THE APPEAL IS DIRECTED AGAINST T HE ORDER OF LEARNED CIT(A) CONFIRMING THE ACTION OF THE AO IN INITIATIN G PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. WE DISMISS THIS GROUND O F APPEAL OF THE ASSESSEE AS BEING PREMATURED. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 8 TH OCTOBER, 2013. SD/- SD/- (MUKUL KR. SHRAWAT) ( N.S. SAINI) JUDICIAL MEMBER ACCOUN TANT MEMBER AHMEDABAD; DATED 08/10/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD