Shri Sanjay Bharti, Indore V. The ITO., Indore

ITA 434/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0094 (ITAT-INDORE)
• Duration Of Justice: 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-09-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 28-08-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: P D NAGAR
• Keywords: Salary income
• Section: 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE (S.M.C.-I) BENCH : INDORE BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER PAN NO. : AHLPB9352L I.T.A.NO. 434 & 435/IND/2009 A.Y. : 2004-05 & 2005-06 SHRI SANJAY BHARTI, INCOME-TAX OFFICER, 19, RAMBAGH, VS. WARD 4(3), INDORE. INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI P. D. NAGAR, C. A. RESPONDENT BY : SMT. APARNA KARAN, ADDL. CIT DR O R D E R BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST DIFFERENT ORDERS OF CIT(A)-II, INDORE, DATED 25 TH JUNE, 2009, FOR ASSESSMENT YEARS 2004-05 AND 2005-06. - 2 - 2 2. I HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE PA RTIES, GONE THROUGH THE MATERIAL AVAILABLE ON RECORD AND PERUSE D THE FINDINGS OF THE AUTHORITIES BELOW. I.T.A.NO. 434/IND/2009 : (A.Y.2004-05) : 3. ON GROUND NO. 1, THE ASSESSEE CHALLENGED THE ADDITI ON OF RS. 85,000/- ON ACCOUNT OF INTRODUCTION OF OPENING CAPI TAL. 4. FACTS OF THE CASE ARE THAT THE ASSESSEE CLAIMED OPE NING CAPITAL OF RS. 1,95,000/- ON ACCOUNT OF INVESTMENT MADE IN SHO P ACQUIRING IN THE YEAR 1996-97, INVESTMENT IN SHARES, ADVANCE FOR PURCHASE OF RESIDENTIAL HOUSE AND CASH AND BANK BALANCE IN SAVING BANK ACCOUNT. IT WA S CLAIMED THAT THE ASSESSEE DERIVED INCOME FROM SALARY AND RENTAL INCO ME FROM PROPERTY BESIDES PART TIME JOB SINCE LAST 18 YEARS. IT WAS, THEREFORE, CLAIMED THAT INVESTMENTS ARE MADE OUT OF PAST SAVINGS. THE A.O. ACCEPTED THE EXPLANATION OF THE ASSESSEE WITH REGARD TO PAST SAVING IN A SUM OF RS. 45,000/- AND IN THE ABSENCE OF EVIDENCES, ADDITION OF RS. 1,50,000/- WA S MADE ON ACCOUNT OF UNEXPLAINED MONEY U/S 69A OF THE INCOME-TAX ACT, 19 61. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED BY THE LD. CIT(A) IN THE IMPUGNED ORDER AND - 3 - 3 THE CIT(A) CONSIDERING THE CLAIM OF THE ASSESSEE OF PAST SAVINGS ACCEPTED THE EXPLANATION OF THE ASSESSEE AS REGARD AVAILABIL ITY OF OPENING CAPITAL AT RS. 1,10,000/- AND CONFIRMED THE ADDITION OF RS. 85 ,000/-. 5. ON CONSIDERATION OF THE ABOVE FACTS, I FIND IT IS A CASE OF ESTIMATED ADDITION. THOUGH THE LD. CIT(A) ACCEPTED THE EXPLAN ATION OF THE ASSESSEE AS REGARDS AVAILABILITY OF OPENING CAPITAL AT RS. 1,10 ,000/- BUT THE FACT REMAINS THAT THE SHOP WAS ACQUIRED IN THE YEAR 1996-97 FOR WHICH NO ADDITION COULD BE MADE IN THE YEAR OF APPEAL. THE LD. CIT(A), THER EFORE, RIGHTLY GAVE BENEFIT OF RS. 1,10,000/- TO THE ASSESSEE. HOWEVER, AS REGARDS INVESTMENT IN SHARES AND ADVANCE FOR PURCHASE OF RESIDENTIAL HOUS E, THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BECAUSE NO EVIDENCE WAS F ILED. THE A.O. HAS GIVEN PART BENEFIT OF PAST SAVING. THE LIST OF SHAR ES HELD BY THE ASSESSEE ON 31 ST MARCH, 2003, SHOWS THAT SHARES WERE ACQUIRED IN TH E EARLIER YEARS. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE WAS HAVING SA LARY INCOME IN PAST AS WELL AS RENTAL INCOME, THEREFORE, THE A.O. ACCEPTED SUCH EXPLANATION OF THE ASSESSEE PARTLY FOR GIVING BENEFIT OF PART PAST SAV INGS. THE BENEFIT GIVEN BY THE AUTHORITIES BELOW OF PAST SAVING IS NOT REASONA BLE. - 4 - 4 6. CONSIDERING THE FACTS AND CIRCUMSTANCES NOTED ABOVE , IT WOULD BE REASONABLE AND APPROPRIATE TO REDUCE THE ADDITION O F RS. 85,000/- TO RS. 45,000/- IN ALL ON THIS ISSUE. I, ACCORDINGLY, MODI FY THE ORDERS OF THE AUTHORITIES BELOW AND RESTRICT THE ADDITION TO RS. 45,000/- IN ALL. AS A RESULT, THIS GROUND OF APPEAL IS PARTLY ALLOWED. 7. ON GROUND NO.2, THE ASSESSEE CHALLENGED THE ADDITIO N OF RS. 9233/- ON ACCOUNT OF LOW HOUSE HOLD EXPENDITURE. THE ASSES SEE HAS DISCLOSED HOUSE HOLD WITHDRAWALS AT RS. 55,767/-, WHICH IS ESTIMATE D BY THE ASSESSING OFFICER AT RS. 65,000/-. THE LD. CIT(A) CONFIRMED T HE ADDITION OF RS. 9233/-. CONSIDERING THE ABOVE FACTS AND INCOME OF T HE ASSESSEE AS NOTED ABOVE AND THE ADDITION MADE ON ACCOUNT OF INTRODUCT ION OF THE CAPITAL, IT WOULD BE REASONABLE TO SUSTAIN THE ADDITION AT RS. 5,000/- IN ALL ON THIS ISSUE. I, THEREFORE, RESTRICT THE ADDITION ON THIS HEAD TO RS. 5,000/- ONLY, BECAUSE IT IS A CASE OF ESTIMATE OF THE HOUSE HOLD EXPENDITURE ONLY WITHOUT BRINGING ANY SPECIFIC MATERIAL AGAINST THE ASSESSEE. AS A RESULT , THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 8. AS A RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY A LLOWED. I.T.A.NO. 435/IND/2009 : - 5 - 5 9. THE ASSESSEE CHALLENGED THE ADDITION OF RS. 16,620/ - ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWAL. THE ASSESSEE HAS SHOWN H OUSE HOLD WITHDRAWAL AT RS. 53,380/-. THE A.O. ESTIMATED THE SAME AT RS. 70,000/- AND MADE THE ABOVE ADDITION. THE LD. CIT(A) CONFIRMED THE ADDITI ON. 10. ON CONSIDERATION OF THE ABOVE FACTS AND THAT IT IS A CASE OF ESTIMATE OF HOUSE HOLD EXPENDITURE WITHOUT ANY SPECIFIC MATE RIAL AGAINST THE ASSESSEE BROUGHT ON RECORD AND THAT IN THE EARLIER YEAR ADDI TION IS RESTRICTED TO RS. 5,000/-, IT WOULD BE REASONABLE AND APPROPRIATE TO RESTRICT THE ADDITION IN THIS YEAR AT RS.10,000/- ONLY. I, ACCORDINGLY, MODIFY TH E ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND RESTRICT THE ADDITION TO RS . 10,000/- ONLY. AS A RESULT, THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTLY AL LOWED. 11. AS A RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE P ARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 15 TH SEPTEMBER, 2009. SD/- BHAVNESH SAINI JUDICIAL MEMBER DATED : 15 TH SEPTEMBER, 2009. CPU* 15159