Smt. Sonica Malhotra, Jalandhar V. The Dy. Commissioner of Income Tax, Jalandhar

ITA 515/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8787 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKARDR
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: (CIRCUIT BENCH AT JALANDHAR) BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO. 515/ASR/2016 (ASSESSMENT YEAR-2009-10) SMT. SONICA MALHOTRA C/O MALHOTRA BOOK DEPOT, MBD HOUSE, RAILWAY ROAD, JALANDHAR PAN NO.AAZPM7202K (ASSESSEE) VS .. DCIT, CENTRAL CIRCLE-II JALANDHAR (REVENUE) ASSESSEE BY SHRI SUDHIR SEHGAL. AR. REVENUE BY SHRI BHAWANI SHANKAR,DR. ORDER PER, A. D. JAIN, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL FOR A.Y. 2009-10, AGAINST THE CONFIRMATION OF ADDITION OF RS.7,48,400/- MADE U/S 69A OF THE INCOM E TAX ACT. 2. IN THE SEARCH OPERATION CONDUCTED AT THE RESIDEN CE OF THE ASSESSEE, CASH OF RS.7,97,300/- WAS FOUND. OUT OF THIS, AN AMOUNT OF RS.6 LACS WAS SEIZED. IN THE STATEMENT RECORDED DURING THE SEARCH, AN AMOUNT OF RS.48,900/- WAS FOUND TO BE EXPLAINED. THE AO MADE ADDITION OF THE REMAINING AM OUNT OF RS.7,48,400/-. THE LD. CIT(A) CONFIRMED THE ADDITION BY HOLDING AS FOL LOWS: DATE OF HEARING 16.01.2017 DATE OF PRONOUNCEMENT 18 .01.2017 I.T.A NO. 515/ASR/2015 2 THE FACTS OF THE CASE, THE BASIS OF DISALLOWANCE/A DDITION MADE BY THE A.O. AND THE ARGUMENTS OF THE AR DURING THE APPELLATE PROCEEDINGS HAVE BEEN CONSIDERED. THE AO HAS BROUGH T ON RECORD THE FACT THAT THE ASSESSEE AT THE TIME OF SE ARCH COULD NOT EXPLAIN THE SOURCE OF CASH FOUND FROM THE RESIDENTI AL PART OCCUPIED BY HER AT FIRST FLOOR OF THE RESIDENCE AT 12-SUNDER NAGAR, DELHI. ON THE OTHER HAND THE AR HAS ARGUED D URING THE APPELLATE PROCEEDINGS THAT THE CASH FOUND WAS OUT O F THE IMPREST ACCOUNT AND GIVEN TO THE ASSESSEE BY HER MOTHER M/S MALHOTRA BOOK DEPOT ON 21.01.2009. IT HAS FURTHER B EEN ARGUED THAT THE TWO SISTERS ARE RESIDING IN THE SAM E HOUSE AND FOR THE PURPOSE OF EXPLANATION OF CASH THE EXPLANAT ION AND AVAILABILITY OF THE CASH SHOULD BE JOINTLY CONSIDER ED. THE ABOVE ARGUMENTS OF THE AR DOES NOT MATCH WITH THE STATEME NT RECORDED AT THE TIME OF SEARCH AT THE RESIDENCE OF THE ASSESSEE WHERE SHE WAS REQUIRED TO EXPLAIN THE SOURCE OF THE CASH AMOUNT OF RS.7,97,300/- FOUND FROM HER PART OF THE RESIDENCE. SHE EXPLAINED RS.48,900/- AS DECEMBER SALARY AND TH E REMAINING AMOUNT WAS STATED TO BE GIFT RECEIVED FRO M RELATIVES DURING NEW YEAR EVE AND OTHER FESTIVALS, HOWEVER SH E EXPRESSED INABILITY TO SUBMIT ANY DOCUMENTARY EVID ENCE OF THE SAME (THE RELEVANT PORTION OF THE STATEMENT OF THE ASSESSEE RECORDED AT THE TIME OF SEARCH IS REPRODUCED BY THE AO IN THE ASSESSMENT ORDER ITSELF). THEREFORE, THE CASH AMOUN TING TO RS.6 LACS WAS SEIZED FOR WANT OF PROPER EXPLANATION REGA RDING THE SOURCE. THE P[RESENT EXPLANATION GIVEN BY THE AR TH AT THE CASH WAS RECEIVED FROM IMPREST ACCOUNT GIVEN BY HER MO THER, IS I.T.A NO. 515/ASR/2015 3 CONTRADICTORY TO THE EXPLANATION GIVEN BY THE ASSES SEE AT THE TIME OF SEARCH WHEN SHE STATED THE AMOUNT AS GIFTS RECEIVED FROM RELATIVES. UNDER THESE FACTS AND CIRCUMSTANCES THE ARGUMENTS OF THE AR ARE FOUND DEVOID OF MERITS. THE ADDITION MADE BY THE AO IS THEREFORE FOUND SUSTAINABLE IN VI EW OF THE CONTRADICTORY STANDS REGARDING THE SOURCE OF CASH I N THE HANDS OF THE ASSESSEE. HENCE THE ADDITION OF RS.7,48,400/ - IS CONFIRMED BEING UNEXPLAINED CASH FOUND AT THE TIME OF SEARCH. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION WRONGLY MADE; THAT THE E XPLANATION GIVEN BY THE ASSESSEE AT THE TIME OF ASSESSMENT WAS NOT AN AFTER THOUGHT; THAT IN HER STATEMENT RECORDED DURING THE SEARCH PROCEEDINGS, THE ASSESSE E HAD STATED THAT THE CASH WAS ON ACCOUNT OF GIFT RECEIVED FROM HER RELATIVES; THA T IN THE EXPLANATION OFFERED DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE STA TED THAT A SUM OF RS.6 LACS HAD BEEN STATED AS RECEIVED BY WAY OF GIFT FROM HER MOT HER ON 21.1.2009; THAT FOR THIS, A CASH FLOW CHART (APB-9) HAS BEEN FILED ; THAT EVI DENCE FOR THE SAME IS IN THE SHAPE OF CASH FLOW STATEMENT (APB-16) OF SMT. SATIS H BALA MALHOTRA, MOTHER OF THE ASSESSEE; THAT AVAILABILITY OF CASH OF RS.6 LAC S HAS NOT BEEN DOUBTED IN THE CASE OF SMT. SATISH BALA MALHOTRA, WHOSE ASSESSMENT WAS FRAMED UNDER SECTIONS 153A/143(3) OF THE ACT. 4. ON THE OTHER HAND, THE LD. DR HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. I.T.A NO. 515/ASR/2015 4 5. HAVING HEARD THE PARTIES, WE FIND THAT APB-16 IS THE CASH CHART AS ON 31.03.2009, IN THE CASE OF SMT. SATISH BALA MALHOTR A, MOTHER OF THE ASSESSEE. IN THIS CHART, THE SECOND LAST ENTRY IS THE RELEVANT E NTRY, SHOWING AN AMOUNT OF RS.6 LACS AS HAVING BEEN PAID TO THE ASSESSEE ON 21.01.2 009. IN THE SCRUTINY ASSESSMENT ORDER DATED 29.12.2010, FOR A.Y. 2009-10, IN THE CA SE OF SMT. SATISH BALA MALHOTRA, THIS POSITION HAS NOT BEEN DISPUTED. 6. THE LD. CIT(A) HAS OBSERVED THAT THOUGH INITIALL Y, THE ASSESSEE HAD STATED THE AMOUNT TO HAVE BEEN RECEIVED AS GIFT, LATER ON, THE ASSESSEE STATED THAT IT HAD COME FROM IMPREST ACCOUNT GIVEN BY HER MOTHER. EVIDENTLY , THE LD. CIT(A) AS FAILED TO COMPREHEND THE MATTER IN ITS RIGHT PERSPECTIVE, IN VIEW OF THE ABOVE UNDISPUTED FACTS. THERE IS NO DISCREPANCY BETWEEN THE STATEMEN T GIVEN BY THE ASSESSEE AT THE TIME OF SEARCH AND THE EXPLANATION OFFERED DURING T HE ASSESSMENT PROCEEDINGS, IN THE ABOVE FACTS. THEREFORE, FINDING MERIT IN THE GR IEVANCE SOUGHT TO BE RAISED BY THE ASSESSEE, THE SAME IS ACCEPTED. THE ORDER UNDER APP EAL IS REVERSED. THE ADDITION MADE IS DELETED. 7. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/01/2017. SD/- SD/- (T. S. KAPOOR) (A.D. JAIN) ACCOUTANT MEMBER JUDICIAL MEMBER DATED 18 /01/2017 *AKV* ON TOUR COPY FORWARDED TO: I.T.A NO. 515/ASR/2015 5 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT BY ORDER AR/SR.P.S./P.S. I.T.A NO. 515/ASR/2015 6 DATE 1. DRAFT DICTATED (DNS) 16.01.2017 PS 2. DRAFT PLACED BEFORE AUTHOR 17.01.2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/A M 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18.01.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 18.01.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.