Shipra Kumar, Bhubaneswar V. ITO, Bhubaneswar

ITA 485/CTK/2012

• Counselvise Citation: 48522114 RSA 2012
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 08-10-2012
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: S C BHADRAB MOHANTY
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 485/CTK/2012 / ASSESSMENT YEAR 2005 - 06 SMT. SHIPRA KUMAR, A/23,VIP COLONY, IRC VILLAGE, NAYAPALLI, BHUBANESWAR PAN: ADXPK 1494 Q - - - VERSUS - INCOME - TAX OFFICER, WARD 1(1), BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.C.BHADRA/B.MOHANTY, AR / FOR THE RESPONDENT: / SHRI S.C.MOHANTY, DR / DATE OF HEARING: 20.1 1.2012 / DATE OF PRONOUNCEMENT: 14.12.2012 / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THIS APPEAL IS FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DT.10.09.2012 FOR THE ASSESSMENT YEAR 2005 - 06 IN THE CASE OF THE ASSESSEE. 2. THE SOLE ISSUE RAISED BY THE ASSESSEE IS REGARDING CONFIRMING THE ADDITIONS OF CASH DEPOSITS IS BANK ACCOUNT ON ESTIMATE AT RS.1,50,000 WHILE ACCEPTING ASSE SSEES SOURCE OF INCOME AS SHOWN IN RETURN OF INCOME AS WELL AS THE CASH FLOW ANALYSIS. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUE RAISED BY THE ASSESSEE AND ITS LEGAL IMPLICATIONS. 4. ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL, THE UNDISPU TED FACTS RELATING TO THE ISSUE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS MADE ADDITION I.T.A.NO. 485/CTK/2012 2 OF RS.6,20,000 SHOWN AS DEPOSITED IN THE BANK ACCOUNT AS PER THE PASS BOOK TREATING THE SAME AS UNEXPLAINED I NCOME. ON APPEAL, THE LEARNED CIT(A) HAS ACCEPTED THE SOURCES OF ALL THE DEPOSITS DEPOSITED AFTER VERIFICATION OF EVIDENCES PRODUCED AS WELL AS BASING ON THE REMAND REPORT FURNISHED BY THE ASSESSING OFFICER. HOWEVER, HE HAS UPHELD THE ADDITION AMOUNTING TO RS.1,50,000 TREATING THE SAME AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT ON ESTIMATION. AGGRIEVED WITH THIS FINDING OF THE LEARNED CIT(A), THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. 5. ON CAREFUL ANALYSIS OF THE IMPUGNED O RDER PASSED BY THE AUTHORITIES BELOW AND ANALYZING THE SAME IN THE LIGHT OF THE SUBMISSIONS OF BOTH THE PARTIES , IT IS FOUND THAT THE DEPARTMENT HAS MADE THE ADDITION OF RS.1,50,000 ON ESTIMATION OF UNEXPLAINED CASH DEPOSITS MADE IN THE BANK ACCOUNT AS UNE XPLAINED INCOME OF THE ASSESSEE. ADMITTEDLY THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT AND THE BANK ACCOUNT IS NOT AT ALL MAINTAINED BY THE ASSESSEE OR THE BANK IS ACTING AS AGENT OF THE ASSE SSEE. UNDER THESE CIRCUMSTANCES, ALLEGED UNEXPLAINED DE POSITS IN THE BANK ACCOUNT CANNOT COMPREHEND THE SCOPE OF UNEXPLAINED CASH CREDIT LIABLE TO BE ADDED AS UNEXPLAINED INCOME OF THE ASSESSEE. THIS PROPOSITION IS LAID DOWN BY HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. BHAICHAND H. GANDHI (141 ITR 67) WH EN MONEYS ARE DEPOSITED IN A BANK, THE RELAT IONSHIP THAT IS CONSTITUTED BET WEEN THE BANKER AND THE CUSTOMER IS ONE OF DEBTOR AND CREDITOR AND NOT OF TRUSTEE AND BENEFICIARY. APPLYING THIS PRINCIPLE, THE PASS BOOK SUPPLIED BY THE BANK TO ITS CONSTITUENT IS ONLY A COPY OF THE CONSTITUENT'S ACCOUNT IN THE BOOKS MAINTAINED BY THE BANK. IT IS NOT AS IF THE PASS BOOK IS MAINTAINED BY THE BANK AS THE AGENT OF THE CONSTITUENT, NOR CAN IT BE SAID THAT THE PASS BOOK IS MAINTAINED BY THE BANK UNDER THE INSTRUCTIONS OF THE CONSTITUENT. HENCE, THE PASS BOOK SUPPLIED BY THE BANK TO I.T.A.NO. 485/CTK/2012 3 THE ASSESSEE COULD NOT BE REGARDED AS A BOOK OF THE ASSESSEE, THAT IS, A BOOK MAINTAINED BY THE ASSESSEE OR UNDER HIS INSTRUCTIONS. THEREFORE, A CASH CREDIT FOR THE PREVIOUS YEAR SHOWN IN THE A SSESSEE'S BANK PASS BOOK BUT NOT SHOWN IN THE CASH BOOK MAINTAINED BY THE ASSESSEE FOR THAT YEAR, DOES NOT FALL WITHIN THE AMBIT OF SECTION 68 OF THE I.T. ACT, 1961, AND AS SUCH THE SUM SO CREDITED IS NOT CHARGEABLE TO TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF HONBLE BOMBAY HIGH COURT IN ABSENCE OF ANY CONTRARY DECISION BROUGHT TO THE NOTICE OF THE TRIBUNAL OF THE JURISDICTIONAL HIGH COURT, THE IMPUGNED ORDER IS NOT SUSTAINABLE FOR LEGAL SCRUTINY MORE SO WHEN THE ADDITION IS ON ESTIMATE BASIS. HENCE, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED DIRECTING THE DELETION OF RS.1,50,000 SUSTAINED BY THE LEARNED CIT(A). 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. SD/ - SD/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) DATE: 14.12.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SMT. SHIPRA KUMAR, A/23,VIP COLONY, IRC VILLAGE, NAYAPALLI, BHUBANESWAR 2 / THE RESPONDENT: INCOME - TAX OFFIC ER, WARD 1(1), BHUBANESWAR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, ( ), (H.K.PADHEE), SENIOR.P RIVATE SECRETARY. I.T.A.NO. 485/CTK/2012 4 APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 06.12 .2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.1 2 .2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLER K .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..