Shri Shiv Govind Gautam, Lucknow V. Income Tax Officer- IV, Lucknow

ITA 461/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7638 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 24-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68; 148

Judgement Text

I.T.A. NO.461/LKW/2018 ASSESSMENT YEAR:2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.461/LKW/2018 ASSESSMENT YEAR:2012-13 SHRI SHIV GOVIND GAUTAM, HIG 1/7, RAJNI KHAND, SHARDA NAGAR, RAIBAREILLY ROAD, LUCKNOW. PAN:AFDPG 7153 A VS. INCOME TAX OFFICER-IV(4), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-2, LUCKNOW DATED 22/03/2018 PERTAINING TO AS SESSMENT YEAR 2012- 13. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLL OWING GROUNDS: 1. THE LD. C.I.T., (APPEALS), LUCKNOW ERRED WHILE SUSTAINING THE ADDITION OF RS.1,80,069.00 WHICH WAS AN INVESTM ENT MADE BY WIFE OF THE APPELLANT IN HER OWN NAME FOR THE PU RCHASE OF PLOT. IT WAS A PAYMENT IN CONTINUATION TO EARLIER P AYMENTS MADE BY HER. 1(A) THE LD. C.I.T., (APPEALS), LUCKNOW FAILED TO A PPRECIATE THE WIFE OF THE APPELLANT, WHO IS AN OLD ASSESSEE. 2. THE LD. C.I.T, (APPEALS), LUCKNOW ERRED WHILE SU STAINING THE ADDITION OF RS.30,000.00 WITHOUT CONSIDERING TH E SOURCE OF APPELLANT BY SHRI A. P. SINHA, ADVOCATE RESPONDENT BY S HRI C. K. SINGH, D.R. DATE OF HEARING 08/01/2019 DATE OF PRONOUNCEMENT 11 / 01 /201 9 I.T.A. NO.461/LKW/2018 ASSESSMENT YEAR:2012-13 2 DEPOSIT [WITHDRAWAL OF RS.49,000.00 TWO DAYS PRIOR TO DEPOSIT FROM THE SAME BANK]. 2(A) THE LD. C.I.T., (APPEALS), LUCKNOW ERRED WHILE NOT CONSIDERING THAT CASH DEPOSIT IN BANK ACCOUNT CANNO T BE ADDED U/S 68 OF THE INCOME TAX ACT, 1961. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING AND SUSTAINING THE ADDITION S OF RS.1,80,069/- AND RS.30,000/- IN VIEW OF THE FACT THAT THE ASSESSEE H AD DULY EXPLAINED THE INVESTMENT IN PLOT AND DEPOSITS IN BANK ACCOUNT. E XPLAINING THE FACTS OF THE CASE, LEARNED A. R. SUBMITTED THAT ON THE BASIS OF CERTAIN INFORMATION IT CAME TO THE NOTICE OF THE REVENUE AUTHORITIES THAT ASSESSEE HAD MADE INVESTMENT IN A PLOT AMOUNTING TO RS.11,80,009/- AN D THEREFORE, THE CASE OF THE ASSESSEE WAS REOPENED U/S 148 OF THE ACT. THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BROUGHT TO THE NOT ICE OF THE ASSESSING OFFICER THAT THE AMOUNT OF RS.11,80,009/- IN FACT W AS ONLY RS.1,80,009/- AND WHICH INVESTMENT WAS MADE BY HIS WIFE AND THE AMOUN T WAS REFLECTED IN THE BALANCE SHEET OF HIS WIFE. THE ASSESSING OFFICER A GREED WITH THE CONTENTION OF THE ASSESSEE THAT THE AMOUNT OF RS.11,80,009/- W AS IN FACT ONLY RS.1,80,009/- BUT HE DID NOT ACCEPT THAT THE ASSESS EE HAD EXPLAINED THE SAME THEREFORE, HE MADE THE ADDITION OF RS.1,80,009 /-. 2.1 IN THIS RESPECT LEARNED A. R. INVITED OUR ATTE NTION TO A COPY OF RECEIPT ISSUED BY DEVELOPERS PLACED AT PAGE 5 OF THE PAPER BOOK WHICH WAS FOR RS.1,80,069/- AND WHICH WAS IN THE NAME OF CHANDRA WATI GAUTAM, WIFE OF THE ASSESSEE. LEARNED A. R. ALSO TOOK US TO PAGE 2 OF THE PAPER BOOK WHERE SUCH RECEIPT IN THE NAME OF WIFE OF THE ASSESSEE WA S BROUGHT TO THE NOTICE OF LEARNED CIT(A) AND IT WAS ALSO BROUGHT TO THE NO TICE OF LEARNED CIT(A) THAT HIS WIFE WAS FILING SEPARATE RETURN OF INCOME AND COPY OF ITR WAS ALSO ENCLOSED AND THEREFORE, THE FINDINGS OF LEARNED CIT (A) THAT NO EVIDENCE WAS FILED, WAS NOT CORRECT. I.T.A. NO.461/LKW/2018 ASSESSMENT YEAR:2012-13 3 2.2 AS REGARDS THE ADDITION OF RS.57,250/-, LEARNED A. R. SUBMITTED THAT LEARNED CIT(A) HAD REDUCED THE ADDITION TO RS.30,00 0/- AND HAD ACCEPTED THE EXPLANATION WITH RESPECT TO RS.27,250/- WHEREAS THE EXPLANATION FOR RS.30,000/- WAS ALSO PROVIDED TO LEARNED CIT(A) AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAGE 2 OF THE PAPER BOOK W HERE IN BEFORE LEARNED CIT(A) THE ASSESSEE HAD SUBMITTED THAT THE AMOUNT O F RS.30,000/- WAS DEPOSITED ON 24/12/2011 WAS OUT OF CASH WITHDRAWAL OF RS.49,000/- MADE ON 21/12/2011. OUR ATTENTION WAS ALSO INVITED TO P AGE 3 OF THE PAPER BOOK WHERE THE EVIDENCE OF WITHDRAWAL OF RS.49,000/- ON 21/12/2011 IN THE FORM OF BANK STATEMENT OF THE ASSESSEE WAS PLACED. 3. LEARNED D. R., ON THE OTHER HAND, RELIED ON THE ORDER OF THE AUTHORITIES BELOW. 4. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. AS REGARDS THE FIRST ISSUE OF IN VESTMENT OF RS.1,80,009/-, I FIND THAT ASSESSEE DURING THE ASSESSMENT PROCEEDI NGS ITSELF HAD SUBMITTED TO THE ASSESSING OFFICER THAT THE INVESTMENT WAS MA DE BY HIS WIFE AND THE SAME WAS REFLECTED IN THE BALANCE SHEET AS ON 31/03 /2012. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AS HE HELD THAT NO EXPLANATION REGARDING THE SOURCE OF RS.1,80 ,009/- WAS MADE. HOWEVER, HE IGNORED TO CROSS VERIFY THE INFORMATION FROM THE FILE OF HIS WIFE WHO WAS A SEPARATE INCOME TAX ASSESSEE. BEFORE LEA RNED CIT(A) THE ASSESSEE ALSO FILED COPY OF RECEIPT ISSUED BY THE D EVELOPER WHICH WAS IN THE NAME OF HIS WIFE. BEFORE LEARNED CIT(A), THE ASSES SEE VIDE WRITTEN SUBMISSIONS ALSO EXPLAINED THAT THE INVESTMENT WAS MADE BY HIS WIFE AND COPY OF HER RETURNS WERE ALSO ATTACHED BUT LEARNED CIT(A) IGNORED THESE FACTS AND HELD THAT NO EXPLANATION WAS FILED WHEREA S THE FACT REMAINS THAT THE RECEIPT ITSELF SHOWS THAT THE INVESTMENT WAS MA DE BY HIS WIFE AND I.T.A. NO.461/LKW/2018 ASSESSMENT YEAR:2012-13 4 ASSESSEE HAS CLEARLY STATED BEFORE LEARNED CIT(A) T HIS FACT. THEREFORE, FINDINGS OF LEARNED CIT(A) ARE NOT CORRECT TO THIS EXTENT THEREFORE, WE REVERSE THE ORDER OF LEARNED CIT(A) AND ALLOW RELIE F TO THE ASSESSEE. 4.1 AS REGARDS SUSTENANCE OF ADDITION OF RS.30,000/ -, WE FIND FROM THE COPY OF BANK ACCOUNT, PLACED AT PAGE NO. 3 OF THE P APER BOOK, THAT ON 21/12/2011 THE ASSESSEE HAD WITHDRAWN RS.49,000/- A ND ON 24/12/2011 THE ASSESSEE HAD DEPOSITED RS.30,000/- OUT OF THIS WITH DRAWAL THEREFORE, SUSTENANCE OF ADDITION OF RS.30,000/- IS ALSO NOT J USTIFIED AS IT IS SUPPORTED BY WITHDRAWAL OF RS.49,000/- WHICH WAS MADE TWO OR THREE DAYS BEFORE THE DEPOSIT. IN VIEW OF THE ABOVE, WE REVERSE THE ORDE R OF LEARNED CIT(A) ON THIS ISSUE ALSO. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:11/01/2019 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW