SMT PRATIBHA GOYAL, Jaipur V. ACIT, Jaipur

ITA 453/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99343 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Keywords: Notional interest
• Section: 133A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA NO. 453/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SMT. PRATIBHA GOYAL B-20, KRISHNAPURI, OLD RAMGARH MODE, JAIPUR CUKE VS. THE ACIT CIRCLE- 5 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEQPG 2844 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 09/10/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 25-03-2013 FOR THE ASSESSM ENT YEAR 2008-09 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS. (I) THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDI TION OF RS. 1.90 LACS MADE ON ACCOUNT OF UNEXPLAINED INVES TMENT IN MONEY LENDING BUSINESS. (II) THE LD. CIT(A) HAS ERRED IN UPHOLDING THE AN ADDITION OF RS. 84,390/- ON ACCOUNT OF NOTIONAL INTEREST FR OM ABOVE AMOUNT. ITA NO. 453/JP/2013 SMT. PRATIBHA GOYAL VS. ACIT, CIRCLE- 5, JAIPUR 2 2.1 BRIEF FACTS OF THE CASE ARE THAT A SURVEY ACTIO N U/S 133A OF THE ACT WAS CARRIED OUT ON 25-07-2007 AT THE BUSINESS PREMI SES OF THE ASSESSEE'S HUSBAND SHRI RAMESH GOYAL WHO IS THE DIRECTOR IN SO ME COMPANIES. SOME PAPERS AND DIARY PERTAINING TO ASSESSEE WERE A LSO FOUND AND HER CASE WAS ALSO COVERED UNDER SURVEY. IT IS PERTINENT TO MENTION THAT IN THE DIARY ITSELF ON THE ENTRY ITSELF THE AMOUNT OF RS. 1.90 LACS WAS MENTIONED TO BE ADVANCED FOR TWO MONTHS ONLY. THE ASSESSEE OF FERED FOLLOWING ADDITIONAL INCOMES IN HER RETURNS OF INCOME IN RELA TION TO THE DOCUMENTS FOUND DURING THE COURSE OF SURVEY. ASSESSMENT YEAR 2007-08 RS. 1,90,000/- ASSESSMENT YEAR 2008-09 RS. 40,40,000/- THE ASSESSEE FILED HER RETURN FOR THE ASSESSMENT YE ARS 2007-08 DISCLOSING RS. 1,90,000/- AND FOR 2008-09 AT RS. 38.50 LACS A FTER CLAIMING THE TELESCOPING OF RS. 1.90 LACS OFFERED IN AY 2007-08 CLAIMING TO BE AVAILABLE FOR CIRCULATION IN HER BUSINESS OF ADVANC ING MONEY OF RS. 40,40,000/-. THE AO HOWEVER, DID NOT ALLOW THIS TEL ESCOPING AND ADDED THE AMOUNT OF RS. 1.90 LACS AND NOTIONAL INTEREST O F RS. 84,390/- IN AY 2008-09 I.E. THE YEAR UNDER APPEAL WITHOUT THERE BE ING ANY EVIDENCE ABOUT THE ACCRUAL OF THIS INTEREST. 2.2 THE ASSESSEE'S FIRST APPEAL WAS DISMISSED. ITA NO. 453/JP/2013 SMT. PRATIBHA GOYAL VS. ACIT, CIRCLE- 5, JAIPUR 3 2.3 AGGRIEVED, THE ASSESSEE IS BEFORE US WHEREIN TH E LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE OBSERVATIONS OF THE AO AND LD. CIT(A)S OBSERVATIONS AT PARA 3 OF HIS ORDER TO TH E EFFECT THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE TO SHOW THAT MONEYS LE NT IN ASSESSMENT YEAR 2007-08 WAS RECEIVED BACK AND WAS AVAILABLE FOR LEN DING IN ASSESSMENT YEAR 2008-09. 2.4 THE LD. COUNSEL FOR THE ASSESSEE FURTHER DREW O UR ATTENTION TO PAPER BOOK PAGE 5 WHICH IS A COPY OF INCRIMINATING DOCUME NT DATED 25-07-2007 WHEREIN ADVANCE FOR RS. 1,90,000/- FOR 2 MONTHS IS MENTIONED. THUS THE EVIDENCE TO PROVE THAT THIS MONEY WAS AVAILABLE FOR CIRCULATION AFTER TWO MONTHS WAS VERY MUCH AVAILABLE ON RECORD. CONSEQUEN TLY IT IS ERRONEOUS ON THE PART OF AUTHORITIES BELOW TO HOLD THAT NO EV IDENCE ABOUT AVAILABILITY IS ON RECORD. THUS THE ASSESSEE'S BUSINESS OF ADVAN CING MONEY IS BASED ON CIRCULATING THE CAPITAL, THE MONEYS RETURNED BY THE BORROWERS IS AVAILABLE CASH FOR FURTHER CIRCULATION TO THE ASSESSEE. THUS THE SAID AMOUNT OF RS. 1.90 LACS WAS AVAILABLE TO THE ASSESSEE IN AY 2008- 09 WHICH WAS DULY TELESCOPED WHILE OFFERING THE ADDITIONAL INCOME FOR AY 2008-09. 2.5 SIMILARLY, THERE CANNOT BE ANY ADDITION OF INTE REST ON NOTIONAL BASIS UNLESS IT IS DEMONSTRATED BY THE REVENUE AUTHORITIE S THAT ANY INTEREST INCOME ACCRUED TO THE ASSESSEE IN THIS BEHALF. THUS NOTIONAL INCOME ITA NO. 453/JP/2013 SMT. PRATIBHA GOYAL VS. ACIT, CIRCLE- 5, JAIPUR 4 CANNOT BE ASSUMED TO HAVE ACCRUED TO ASSESSEE'S INC OME. IT IS PLEADED THAT BOTH THE ADDITIONS DESERVE TO BE DELETED. 2.6 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. A PERUSAL OF PAPER BOOK PAGE 5 BEING ONE OF THE INCRIMINATING DOCUMENT CLEARLY INDICATE THAT SAID A MOUNT OF RS. 1.90 LACS WAS ADVANCED FOR TWO MONTHS. IN VIEW THEREOF, A CLE AR PRESUMPTION MATERIALIZES IN FAVOR OF THE ASSESSEE THAT SAID AMO UNT ADVANCED FOR TWO MONTHS WAS AVAILABLE FOR CIRCULATION IN AY 2008-09. THUS THE FINDING OF THE LOWER AUTHORITIES THAT THE ASSESSEE FAILED TO P ROVIDE ANY EVIDENCE IS ERRONEOUS INASMUCH AS THE INCRIMINATING DOCUMENT IT SELF IS EVIDENCE TO THIS EFFECT, MORE SO IS RELIED ON BY THE LOWER AUTH ORITIES WITHOUT ANY QUESTION. IT IS A TRITE LAW THAT EVIDENCE CANNOT BE PARTLY RELIED ON AND PARTLY IGNORED. IN VIEW THEREOF, WE HOLD THAT THE A MOUNT OF RS. 1.90 LACS WAS AVAILABLE TO THE ASSESSEE FOR AY 2008-09 AND WA S AVAILABLE FOR TELESCOPING IN AY 2008-09. THUS THE ADDITION OF RS. 1,90,000/- CONFIRMED BY THE LD. CIT(A) IS DELETED. 2.8 COMING TO THE ISSUE OF NOTIONAL INTEREST, IT IS OBSERVED THAT NOTHING HAS BEEN BROUGHT ON RECORD TO SUGGEST ACCRUAL OF IN TEREST INCOME OF RS. 84,390/- TO THE ASSESSEE. THE INCOME CANNOT BE HELD TO ACCRUE ON ITA NO. 453/JP/2013 SMT. PRATIBHA GOYAL VS. ACIT, CIRCLE- 5, JAIPUR 5 PRESUMPTIONS AND HYPOTHETICATIONS. IN VIEW THEREOF, WE DELETE THE NOTIONAL ADDITION OF RS. 84,390/- 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09-10-2015. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09 /10/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. PRATIBHA GOYAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE- 5, JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.453/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR