ITO,Wd.-1(4), Nashik V. Smt. Supriya Milind Jadhav, Nashik

ITA 543/PUN/2011

• Counselvise Citation: 54324514 RSA 2011
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R M MADHAVI
• Keywords: Unexplained investment; Gift; Corroborative evidences
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIALMEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 543 & 544/PN/11 (ASSTT. YEAR: 200 6-07 & 2007-08) INCOME-TAX OFFICER, .. APPELLANT WD. 1(4) NASHIK VS. SMT SUPRIYA MILIND JADHAV, .. RESPONDENT AKSHAY BUNGLOW, ASL-29, ASHWIN SECTOR, CIDCO, NASHIK APPELLANT BY: MS R.M. MADHAVI RESPONDENT BY: MS J R CHA NDEKAR DATE OF HEARING : 22.06.2012 DATE OF PRONOUNCEMENT : 26.06.2012 ORDER PER G.S. PANNU, A.M .: THE CAPTIONED APPEALS BY THE REVENUE ARE DIRECTED A GAINST SIMILAR BUT SEPARATE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPE ALS)-I, NASHIK DATED 03.02.2011 WHICH, IN TURN, HAVE ARISEN FROM THE RESPEC TIVE ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S 147 OF TH E INCOME-TAX ACT, 1961, (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEARS 2006-07 AND 2007-08. 2. THE SOLITARY ISSUE RAISED IN ITA NO 543/PN/11 FOR ASSE SSMENT YEAR 2006-07 IS THAT THE COMMISSIONER OF INCOME-TAX (APPEAL S) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS 11,42,575/- BEING THE UN EXPLAINED AMOUNTS DEPOSITED IN CASH BY THE ASSESSEE. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE DERIVED INCOME FROM TUITION ACTIVITY. FOR THE ASSE SSMENT YEAR 2006- 07, SHE FILED A RETURN OF INCOME ON 30.3.2009 DECLARI NG INCOME OF RS 54,278/- IN RESPONSE TO A NOTICE UNDER SECTION 148 THAT WAS ISSUED ON THE GROUND THAT THERE WAS INFORMATION THAT ASSESSEE HAD DEPOSITED CASH OF RS 11,42,535/- IN JOINT ACCOUNT WITH SHRI MILIND JADHAV, HUSBAND OF THE A SSESSEE. IT APPEARS THAT DURING THE COURSE OF SCRUTINY IN THE CASE OF SHRI MILIND JADHAV, ASSESSEES STATEMENT WAS RECORDED IN WHICH SHE ADMITTED THAT THE CA SH DEPOSITED BELONGED TO HER. THE ASSESSEE WAS NOT ASSESSED TO INCOME-TAX AND NO RETURN OF INCOME WAS FILED. IT WAS STATED THAT SHE HAD RECEIVE D CASH TO THE TUNE OF RS 20 T0 22 LAKHS FROM HER FATHER SHRI NATH DATTATAYA JO SHI WHICH WAS DEPOSITED IN HER BANK ACCOUNT OUT OF WHICH CASH OF RS 11,42,575/- WAS DEPOSITED IN HER SAVINGS BANK ACCOUNT IN HDFC BANK ON VARIOUS DATES DURING T HE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2006-07. IN SUPPORT T HEREOF, SHE FILED A DEED OF CONFIRMATION DATED 15.12.2008 DULY SIGNED BY HER M OTHER. THE ASSESSING OFFICER SCRUTINIZED THE RETURN AND WAS NOT SATISFIED WI TH THE SOURCE OF CASH DEPOSIT. REJECTING THE CREDIBILITY OF THE AFFIDAVIT, T HE ASSESSING OFFICER ACCORDINGLY MADE ADDITION OF RS 11,42,575/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. 3. IN APPEAL, THE COMMISSIONER OF INCOME-TAX (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DELETED THE IMPUGNED ADD ITION OF RS 11,42,575/- BY MAKING THE FOLLOWING DISCUSSION IN PARA 4 .7 OF THE IMPUGNED ORDER: 4.7 ON THESE FACTS, THE AOS ACTION IN REJECTING T HE SAID AFFIDAVIT WITHOUT APPRECIATING THE FACTS F THE CASE IS NOT IN ORDER. THE ADMITTED FACTS ARE, THE PERSON WHO IS CLAIMED TO HAVE GIVEN THE CASH HAD DIED, THE REFORE, THE TESTIMONY OF HIS LEGAL HEIR N THE FORM OF THE AFFIDAVIT HAS TO BE EXAMINED IN THE LIGHT OF THE CORROBORATIVE EVIDENCE. THE DEPONENT OF THE AFFIDAVIT HAD FILED R OOF OF THE LAND HOLDING, SALE THEREOF AND THE PAST SAVINGS OF THE DECEASED. THE APPELLANT BEING THE ONLY DAUGHTER OF THE DECEASED AND HER MARRYING OUTSIDE HER COMMUNITY PRE VENTED HER FROM ASKING FOR ANY GIFT DEED FROM HER FATHER. THE DEPONENT OF THE AFFIDAVIT HAS NOT DENIED THE C ONTENTS, NOR IS THERE ANY EVIDENCE ON RECORD TO REJECT THE SAME. THEREFORE, I T HAS AN EVIDENTIARY VALUE WHICH THE AO HAD FAILED TO APPRECIATE IN THIS CASE. IN MY CONSIDERED VIEWS THERE IS NO MATERIAL ON RECORD TO DOUBT THE VERACITY OF THE AFF IDAVIT, MORE PARTICULARLY WHEN IN THE CASE OF THE JOINT HOLDER OF THE BANK A/C THE DEPART MENT HAS ACCEPTED THE SAME. THEREFORE, THE APPELLANT HAS DISCHARGED THE INITIAL BURDEN WITH REGARD TO THE CASH CREDITED IN THE BANK ACCOUNT AND THE SUPPORTING EVI DENCES HAVE BEEN FILED. HOWEVER, THE PERSON WHO THE APPELLANT HAS CLAIMED AS GIVEN T HE CASH GIFTS HAS EXPIRED ON 12 TH OCTOBER 2006, THEREFORE, THE TESTIMONY OF THE LEGAL HEIR NAMELY THE WIFE MRS VASUDHA NATH JOSHI, THE MOTHER OF THE APPELLANT HAS TO BE G IVEN CREDENCE AND DUE CONSIDERATION. IT IS A SETTLED POSITION OF LAW THAT THE LAW DOES NT DIRECT THE PERSON TO DO THE IMPOSSIBLE. IN THE GIVEN CASE THE PERSON HAS EX PIRED AND SUPPORTING EVIDENCES ON RECORD CONFIRM THE SOURCE OF THE RECEIPTS IN THE AP PELLANTS HANDS. IN VIEW OF THESE FACTS AND THE CIRCUMSTANCES OF THE CASE THE INVESTM ENT IS EXPLAINED AND NO ADDITION IS WARRANTED. CONSEQUENTLY, HE IMPUGNED ADDITION OF RS 11,42,575/- IS DIRECTED T BE DELETED. THIS GROUND OF APPEAL IS ALLOWED. BEING AGGRIEVED BY THE AFORESAID DECISION OF THE COMM ISSIONER OF INCOME-TAX (APPEALS), THE REVENUE IS IN APPEAL BEFORE US. 4. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATIV E, APPEARING FOR THE REVENUE, VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. IT WAS CONTENDED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS NOT JUSTIFIED IN HOLDING THAT THERE WAS NO MATERIAL ON RECORD TO DOUB T THE VERACITY OF THE AFFIDAVIT, WHEN THE ASSESSEE FAILED TO PRODUCE ANY EVID ENCE REGARDING AVAILABILITY OF CASH WITH THE FATHER AND WITHDRAWALS F ROM BANK ACCOUNT BY FATHER AND THE EXTENT OF LAND HOLDING. HE ACCORDINGLY URGED T HAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE RE SPONDENT-ASSESSEE, BESIDES REITERATING THE DETAILED SUBMISSIONS MADE BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) SUBMITTED THAT NO INTERFERENCE IS C ALLED FOR IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS). 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ASSESSEE HAS BEEN ABLE TO SATISFACTORILY EXPLAIN THE CASH DEPOSIT OF RS 11,42,535/- IN HER SAVINGS BANK ACCOUNT OUT OF AMOUNTS SECU RED FROM HER FATHER. AS RIGHTLY OBSERVED BY THE COMMISSIONER OF INCO ME-TAX (APPEALS), THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE AFFIDA VIT OF THE MOTHER OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. AS A MA TTER OF FACT, THE PERSON WHO IS CLAIMED TO HAVE GIVEN THE CASH HAD DIED A ND THEREFORE, THE TESTIMONY OF HIS LEGAL HEIR IN THE FORM OF AN AFFIDAV IT IS REQUIRED TO BE EXAMINED IN THE LIGHT OF THE CORROBORATIVE EVIDENCE. THE DEPO NENT OF THE AFFIDAVIT HAD FILED PROOF OF THE LAND HOLDING, SALE THEREOF AND TH E PASTING SAVINGS OF THE DECEASED. THE ASSESSEE WAS THE ONLY DAUGHTER OF THE DECEAS ED-FATHER AND IT IS NOTHING BUT NATURAL THAT OUT OF LOVE AND AFFECTION , FATHER WOULD BE THE SOURCE OF CASH DEPOSITED ON VARIOUS DATES IN THE SAVINGS BANK ACCOU NT OF THE ASSESSEE. WE DO NOT FIND ANY INFIRMITY IN THE ULTIMATE CONCLUSION OF THE COMMISSIONER OF INCOME-TAX (APPEALS) WHICH WE HAVE EXTRA CTED ABOVE AND IN THE ABSENCE OF ANY CREDIBLE EVIDENCE TO THE CONTRARY, T HE CONCLUSION OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS AFFIRMED. AS A R ESULT, THE REVENUE FAILS ON THIS GROUND OF APPEAL. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 8. THE ISSUE RAISED BY THE REVENUE IN ITS APPEAL FOR THE ASSESSMENT YEAR 2007-08 VIDE ITA NO544/PN/11 IS IN REGARD TO SIMILAR ADDITION OF 22,76,905/- BEING THE UNEXPLAINED AMOUNTS DEPOSITED IN CASH BY THE ASSESSEE . WE HAVE DEALT WITH SIMILAR ISSUE IN THE REVENUES APPEAL FOR TH E ASSESSMENT YEAR 2006- 07 IN ITA NO 543/PN/11 IN ASSESSEES CASE FOR ASSESSMENT Y EAR 2006-07, WHEREIN WE HAVE DELETED THE ADDITION BY AFFIRMING T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), THE FACTS AND CIRCUM STANCES OF THE CASE FOR THIS YEAR BEING SIMILAR OUR FINDINGS GIVEN IN ITA NO 543/PN/11 WILL APPLY MUTATIS MUTANDIS TO THE ITA NO 544/PN/11. ACCORDI NGLY, WE AFFIRM THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) ON T HIS ISSUE. REVENUE FAILS IN ITS APPEAL. 9. IN THE RESULT, ITA NO 544/PN/11 IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF JUNE, 2012. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE, DATED: 26 TH JUNE, 2012 B COPY TO:- 1) ASSESSEE 2) ITO WD 1(4) NASHIK 3) THE CIT (A) I NASHIK 4) THE CIT-I, NASHIK 5) THE D R, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER TRUE COPY SR.PS I.T.A.T., PUNE