Ilaben Nareshbhai Patel, Ahmedabad V. The Income tax Officer,Ward-13(1), Ahmedabad

ITA 433/AHD/2013

• Counselvise Citation: 43320514 RSA 2013
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-09-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Assessee Lawyers: D K PARIKH
• Keywords: Peak credit

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD . , ! ' ' ' ' # $%, ! BEFORE SHRI A.MOHAN ALANKAMONY,ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.433/AHD/2013 ( ' '(' ' '(' ' '(' ' '(' / / / / ASSESSMENT YEAR : 2009-10) ILABEN NARESHBHAI PATEL 6 MADHUVAN BUNGALOWS B/H.HARIOM NAGAR NR.SYNDICATE BANK GHODASAR AHMEDABAD-382 445 / VS. THE INCOME TAX OFFICER WARD-13(1) AHMEDABAD !) ./*+ ./ PAN/GIR NO. : ALPPP 7017 G ( ), / // / APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY : SHRI D.K.PARIKH, A.R. -.), 0 / / RESPONDENT BY : SHRI O.P.BHATEJA, SR.DR #'1 0 %2 / / / / DATE OF HEARING : 05/09/2013 3( 0 %2 / DATE OF PRONOUNCEMENT : 13/09/2013 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XXI, AHMEDAB AD (CIT(A) FOR SHORT) DATED 31/12/2012 PERTAINING TO ASSESSME NT YEAR (AY) 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING G ROUNDS OF APPEAL:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A S WELL AS ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.24,71,48 5/- UNEXPLAINED CASH ITA NO.433/AHD/ 2013 ILABEN NARESHBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 2 - DEPOSITED IN SAVING BANK ACCOUNT ADDED AS A INCOME FROM OTHER SOURCES. 2. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 22/11/2011, THEREBY THE ASSESSING OFFICER(AO) MADE ADDITION OF RS.24,71,485/- ON ACCOUNT OF CASH DEPOSITED INTO TH E BANK ACCOUNT OF THE ASSESSEE ON VARIOUS DATES DURING THE YEAR UNDER CON SIDERATION. AGAINST THIS, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CI T(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISS ED THE APPEAL. 3. THE ONLY ISSUE IN THIS APPEAL IS AGAINST CONFIRM ATION OF ADDITION OF RS.24,71,485/-. THE LD.COUNSEL FOR THE ASSESSEE SU BMITTED THAT BOTH THE AUTHORITIES BELOW GROSSLY ERRED IN MAKING THE ADDIT ION AND SUSTAINING THE ADDITION IN RESPECT OF TOTAL AGGREGATE DEPOSITS OF THE CASH IN THE APPELLANTS BANK ACCOUNT WITH STATE BANK OF INDIA D URING THE F.Y. 2008- 09. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE CONSIDERED THE DEPOSITS INTO THE BANK ACCOUNT BUT DID NOT CONSIDER THE WITHDRAWALS FROM THE SAME ACCOUNT. HE SUBMITTE D THAT IT IS EVIDENT FROM THE RECORDS THAT THE ASSESSEE HAS DEPOSITED AS WELL AS WITHDRAWN THE AMOUNT FROM THE ACCOUNT, THEREFORE IT CANNOT BE SAI D THAT THE ENTIRE AMOUNT DEPOSITED WAS OTHER THAN THE AMOUNT WITHDRAW N FROM THE BANK ACCOUNT. HE SUBMITTED THAT THE TAX CAN BE LEVIED O N THE AMOUNT WHICH IS NOT EXPLAINED. HE SUBMITTED THAT THE ASSESSEE OFFE RED EXPLANATION BUT THE EXPLANATION WAS NOT ACCEPTED BY THE AUTHORITIES BEL OW. HE SUBMITTED THAT ITA NO.433/AHD/ 2013 ILABEN NARESHBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 3 - ONE OF THE EXPLANATIONS OF THE ASSESSEE WAS THAT TH E AMOUNT BELONGING TO THE HUSBAND OF THE ASSESSEE WAS DEPOSITED AND WITHD RAWN FOR HIS BUSINESS ACTIVITY. THEREFORE, THE ASSESSEE CANNOT BE HELD L IABLE FOR PAYMENT OF TAX ON THIS AMOUNT. ANOTHER SUBMISSION BEFORE THE AUT HORITIES BELOW WAS THAT EVEN IF IT IS ASSUMED THAT THE AMOUNT IS BELON GING TO THE ASSESSEE, THEN IN THAT EVENTUALITY THE ENTIRE AMOUNT CANNOT B E ADDED IN THE HANDS OF THE ASSESSEE, BUT ONLY PEAK BALANCE OUGHT TO HAVE B EEN ADDED. HE SUBMITTED THAT VARIOUS DECISIONS OF THIS HONBLE TR IBUNAL WERE RELIED UPON BY THE ASSESSEE BUT THE AUTHORITIES BELOW HAVE NOT CONSIDERED THE SAME. HE SUBMITTED THAT IN SUCH CASES, PEAK BALAN CE HAS TO BE ADDED AND IF THE BANK DEPOSITS ARE CONSIDERED AS THE TURNOVER OF THE BUSINESS, NOT DISCLOSED IN THE RETURN OF INCOME, THEN IN THAT EVE NTUALITY ALSO, ONLY THE ELEMENT OF BUSINESS PROFIT CAN BE TAXED AS PER THE PROVISIONS OF LAW. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT BEFORE THE AO AS WELL AS THE LD.CIT(A) ONE OF THE SUBMISSIONS OF THE ASSESSEE WAS THAT THE AMOUNT DEPOSITED INTO THE BANK ACCOUNT PERTAINED TO THE BUSINESS ACTIVITY OF THE HUSBAND OF THE ASSESSEE AND ANOTHER SUBMISSION WAS THAT EVEN IF IT WAS ASSUMED THAT THE AMOUNT BELONGS TO THE ASSESSEE IN THAT EVENTUALITY ONLY PEAK CREDIT CAN BE TAXED. WE FIND THAT BOTH THE SUBMISSIONS OF THE AS SESSEE WERE REJECTED BY THE AUTHORITIES BELOW. THE UNDISPUTED FACT REMA INS THAT THE AUTHORITIES BELOW HAVE ONLY CONSIDERED THE CASH DEPOSITS BUT CA SH WITHDRAWALS ARE NOT CONSIDERED. WE FIND FORCE IN THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE THAT THE AMOUNT WITHDRAWN WAS AVAILABLE FO R MAKING DEPOSITS AT A LATER DATE. THE REVENUE HAS NOT PLACED ANYTHING ON RECORD TO ESTABLISH ITA NO.433/AHD/ 2013 ILABEN NARESHBHAI PATEL VS. ITO ASST.YEAR 2009-10 - 4 - THAT THE CASH DEPOSITS AT A LATER DATE WAS OTHER TH AN THE CASH WITHDRAWN BY THE ASSESSEE. THEREFORE, UNDER SUCH FACTS, THE ACT ION OF THE AUTHORITIES BELOW FOR MAKING ADDITION ON THE ENTIRE AMOUNT IS N OT JUSTIFIED. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE A UTHORITIES BELOW OUGHT TO HAVE TREATED THE SAME AS BUSINESS TURNOVER OF T HE ASSESSEE AND APPLIED THE PROVISIONS OF SECTION 44AF OF THE IT ACT FOR CO MPUTING THE BUSINESS PROFIT. HENCE, WE HEREBY SET ASIDE THE ORDERS OF T HE AUTHORITIES BELOW. IT WOULD BE JUST AND PROPER FOR US TO RESTORE THIS ISS UE BACK TO THE AO TO RECONSIDER THE BASIS OF ADDITION IN THE LIGHT OF AN OBSERVATION MADE HEREINABOVE. WE HOLD ACCORDINGLY AND THIS GROUND MA Y BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES ONLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- (. ) (# $%) ! ! ( A. MOHAN ALANKAMONY ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/ 09 /2013 72.., '.../ T.C. NAIR, SR. PS 4 0 -%8 98(% 4 0 -%8 98(% 4 0 -%8 98(% 4 0 -%8 98(%/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. % #: / CONCERNED CIT 4. #:() / THE CIT(A)-XXI, AHMEDABAD 5. 8'$; -% , , / DR, ITAT, AHMEDABAD 6. ;<' =1 / GUARD FILE. 4# 4# 4# 4# / BY ORDER, .8% -% //TRUE COPY// > >> >/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD