Smt Liz Aby, Kottayam V. Assistant Director of Incometax, Trivandrum

ITA 484/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61502 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 13-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 ITA NO. 484/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 484/COCH/2010 (ASSESSMENT YEAR 2006-07) LIZ ABY VS A.C.I.T. (INTL TAXATION) NIDHIRY HOUSE TRIVANDRUM KURAVILANGAD, KOTTAYAM PAN : AHDPA2910M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.B.M. WARRIER RESPONDENT BY : SMT. S. VIJAYAPRABHA DATE OF HEARING : 29-05-2012 DATE OF PRONOUNCEMENT : 01-06-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-TRIVANDRUM DATED 10-05-2010 AND PERTA INS TO ASSESSMENT YEAR 2006-07. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDIT ION OF RS. 2,75,958. 3. SHRI C.B.M WARRIER, THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER MADE ADDITION OF RS. 2,75,958 ON THE GROUND THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF DEPOSITS FOUND IN S.B. AC COUNT NO.6334 WITH FEDERAL BANK LTD. REFERRING TO PAGE NO.1 OF THE PAPER BOOK, THE LD.RE PRESENTATIVE SUBMITTED THAT IT IS THE COPY OF THE STATEMENT OF THE BANK ACCOUNT NO.6334. THIS ACCOUNT WAS MAINTAINED IN THE JOINT NAME OF THE ASSESSEE AND HER HUSBAND. AC CORDING TO THE LD.REPRESENTATIVE, THE 2 ITA NO. 484/COCH/2010 ASSESSEES HUSBAND DEPOSITED THE CHEQUE RECEIVED BY HIM IN HIS NAME IN THE JOINT ACCOUNT MAINTAINED BY THE ASSESSEE AND HER HUSBAND. REFERRING TO PAGES 9 & 10 OF THE PAPER BOOK, THE LD.REPRESENTATIVE SUBMITTED THAT TH ESE ARE THE COPIES OF THE CHEQUES RECEIVED BY THE ASSESSEES HUSBND AND THE SAME WERE DEPOSITED IN THE S.B. ACCOUNT MAINTAINED BY THEM WITH FEDERAL BANK LTD. THEREFOR E, ACCORDING TO THE LD.REPRESENTTIVE, THIS AMOUNT, IF AT ALL HAS TO BE TREATED AS UNEXPLAINED, HAS TO BE ADDED ONLY IN THE HANDS OF THE ASSESSEES HUSBAND AND NOT IN THE HANDS OF THE ASSESSEE. THIS FACT WAS AFFIRMED BY THE PAYERS IN THEIR AFFIDAVITS . THE COPY OF THE AFFIDAVITS ARE AVAILABLE AT PAGES 3,4,5 & 6 OF THE PAPER BOOK. AC CORDING TO THE LD.REPRESENTATIVE, THE CREDIT WAS RECEIVED BY ASSESSEES HUSBAND ONLY AND NOT BY THE ASSESSEE AND THEREFORE, THE ADDITION CANNOT BE MADE IN THE HANDS OF THE PRE SENT ASSESSEE. FURTHERMORE, THE ASSESSEE HAS EXPLAINED THE SOURCE OF CREDIT BY WAY OF AFFIDAVITS RECEIVED FROM THE RESPECTIVE PAYERS. THEREFORE, THE ENTIRE ADDITION HAS TO BE DELETED. 4. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT THE ASSESSEE HAS NOT EXPLAINED THE IDENTITY OF THE CREDITOR, CREDITW ORTHINESS AND GENUINENESS OF THE TRANSACTION. THE ASSESSEE HAS NOT FILED ANY CONFIR MATION LETTER AND THE DETAILS OF BANK TRANSACTIONS BEFORE THE ASSESSING OFFICER. IN THE ABSENCE OF ANY MATERIAL, ACCORDING TO THE LD.DR, THE ASSESSING OFFICER HAS RIGHTLY MADE T HE ADDITION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CASE OF THE ASSE SSEE IS THAT THE MONEY WAS RECEIVED BY THE ASSESSEES HUSBAND BY CHEQUES. THE ASSESSEE FILED THE COPIES OF THE CHEQUES AT PAGES 9 & 10 OF THE PAPER BOOK. THE BANK ACCOUNT W AS MAINTAINED IN THE JOINT NAME OF ASSESSEE AND HER HUSBAND. THEREFORE, THE CHEQUES W ERE DEPOSITED IN THE JOINT ACCOUNT MAINTAINED BY THE ASSESSEE AND HER HUSBAND. THE QU ESTION ARISES FOR CONSIDERATION IS WHEN THE ASSESSEES HUSBAND RECEIVED THE CHEQUES AN D DEPOSITED THE SAME IN THE JOINT ACCOUNT MAINTAINED BY THE ASSESSEE AND HER HUSBAND, WHETHER THERE CAN BE ANY ADDITION IN THE HANDS OF THE PRESENT ASSESSEE. IT IS NOT IN DISPUTE THAT THE ASSESSEE AND 3 ITA NO. 484/COCH/2010 HER HUSBAND ARE INDEPENDENT ASSESSEES. WHEN THE AS SESSEE WAS CALLED UPON TO EXPLAIN THE CREDITS FOUND IN THE SAVING BANK ACCOUNT AND TH E ASSESSEE EXPLAINED THAT THE CREDIT WAS RECEIVED BY HER HUSBAND IT IS FOR THE ASSESSING OFFICER TO EXAMINE THE SAME AND FIND OUT WHO IN FACT HAS RECEIVED THE CREDIT. THE FIRST APPELLATE AUTHORITY FOUND THAT THE ASSESSEE HAS NOT PRODUCED ANY MATERIAL TO PROVE THE GENUINENESS OF THE TRANSACTION. NO DOUBT, IT IS THE ASSESSEES RESPONSIBILITY TO PR OVE THE GENUINENESS OF THE TRANSACTION. BUT, WHEN THE ASSESSEE CLAIMS THAT THE CREDIT WAS R ECEIVED BY HER HUSBAND AND NOT BY HERSELF IT IS THE DUTY OF THE ASSESSING OFFICER TO EXAMINE WHO HAS ACTUALLY RECEIVED THE CREDIT. IF THE ASSESSEES HUSBAND HAS RECEIVED THE CREDIT IT IS THE DUTY OF THE ASSESSING OFFICER TO CALL FOR THE DETAILS FROM THE ASSESSEES HUSBAND. UNDER THE NORMAL CIRCUMSTANCES, THIS TRIBUNAL WOULD HAVE REMANDED BA CK THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AFTER GIVING OPP ORTUNITY TO THE ASSESSEE. HOWEVER, IN THIS CASE, THE ADDITION IS ONLY RS.2,75,958, THEREF ORE, REMANDING THE MATTER BACK TO THE ASSESSING OFFICER FOR FURTHER VERIFICATION MAY BURD EN THE EXCHEQUER MORE THAN THE TAX, IF ANY, THAT MAY BE DUE. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT REMANDING BACK THE MATTER WOULD NOT SERVE ANY PURPOSE SINCE THE DISPUT E OF CREDIT IS VERY SMALL. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE ADDITION M ADE IN THE HANDS OF THE PRESENT ASSESSEE IS NOT CALLED FOR. IN VIEW OF THE CONTENT ION OF THE ASSESSEE, IF AT ALL ANY ADDITION COULD BE MADE THAT SHOULD BE IN THE HANDS OF THE AS SESSEES HUSBAND ONLY. 6. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL I S UNABLE TO UPHOLD THE ORDERS OF THE LOWER AUTHORITY. ACCORDINGLY, THE ORDERS OF TH E LOWER AUTHORITIES ARE SET ASIDE AND THE ADDITION OF RS.2,75,958 IS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 ST JUNE, 2012. (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 01 ST JUNE, 2012 4 ITA NO. 484/COCH/2010 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH