Smt. Parveen Suhail , Lucknow V. Asstt. Commissioner of Income Tax, Lucknow

ITA 545/LKW/2012

• Counselvise Citation: 54523714 RSA 2012
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 02-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: R K RAM
• Keywords: Revision of order
• Section: 68; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.545/LKW/2012 ASSESSMENT YEAR:2008 - 09 A.C.I.T., CENTRAL CIRCLE - 1, LUCKNOW. VS SMT. PARVEEN SUHAIL, 118/86 KHA, CANTT ROAD, LUCKNOW. PAN:AODPS7564N (RESPONDENT) (APPELLANT) SHRI B. P. YADAV, C. A. APPELLANT BY SHRI R. K. RAM, D. R. RESPONDENT BY 02/12/2014 DATE OF HEARING 16 /01/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - III, LUCKNOW DATED 15/06/2012 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. GROUND NO. 1 IS AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - III, LUCKNOW (HEREINAFTER REFERRED TO AS THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN CONFIRMING ADDITION OF RS.7,50,000/ - MADE BY THE LD. A.O. IN THE HANDS OF THE APPELLANT WITHOUT APPRECIATING THE FACTS OF THE CASE OF THE APPELLANT. 3. LEARNED A.R. OF THE A SSESSEE REITERATED THE SAME CONTENTIONS, WHICH WERE RAISED BEFORE CIT(A). AS AGAINST THIS, LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE WAS DECIDED BY LEA RNED CIT(A) AS PER PARA 3.3.1 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 3.3.1 IN THE COURSE OF THE APPEAL, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.7,50,000/ - MADE BY THE ASSESSING OFFICER BY 2 RELYING UPON THE ENTRIES IN THE BANK ACCOUNT. IT IS STATED THAT ALL THE AMOUNTS ADDED BY THE ASSESSING OFFICER WERE RECEIVED BY WAY OF ACCOUNT PAYEE CHEQUES FROM DIFFERENT PARTIES AND THE ASSESSEE IS PUTTING HER BEST EFFORT TO GET CONFIRMATIONS FROM THESE PARTIES. HOWEVER, AS TIL L DATE NO CONFIRMATION HAS BEEN FILED FROM ANY CREDITOR IN RESPECT OF ANY OF THESE ENTRIES, THEREFORE, THE CREDITS OF RS.7,50,000/ - ARE HELD TO BE UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT AND ADDED TO THE INCOME OF THE APPELLANT. THE ASSES SING OFFICER HAS ADDED THESE AMOUNTS UNDER SECTION 68 OF THE I.T. ACT, 1961 BUT AS THE BANK PASSBOOK IS NOT THE BOOK OF ACCOUNT OF THE ASSESSEE, THE AMOUNTS AGGREGATING TO RS.7,50,000/ - ARE ADDED AS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT IN PLACE OF BEIN G ADDED UNDER SECTION 68 AS DONE BY THE ASSESSING OFFICER. HENCE, GROUNDS NO. 5 AND 6 OF THE APPEAL ARE REJECTED. 5. WE FIND THAT AS PER THIS PARA FROM THE ORDER OF CIT(A), A CLEAR FINDING IS GIVEN BY HIM THAT THE ASSESSEE COULD NOT OBTAIN CONFIRMATION FROM THE CONCERNED PARTIES FROM WHOM IT IS CLAIMED BY THE ASSESSEE THAT THE MONEY WAS RECEIVED. IN THE ABSENCE OF CONFIRMATION, IT CANNOT BE SAID THAT THE ASSESSEE WAS ABLE TO EXPLAIN THE SOURCE OF BANK DEPOSIT. BEFORE US ALSO, THE LEARNED A.R. OF THE AS SESSEE COULD NOT PRODUCE ANY EVIDENCE TO ESTABLISH THE SOURCE OF THIS BANK DEPOSIT AND HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). GROUND NO. 1 IS REJECTED. 6. GROUND NO. 2 IS AS UNDER: 2. THE LD. CIT(A) ERRED ON FACTS AND IN LA W IN ENHANCING THE ASSESSMENT BY RS.1,80,000/ - ON ACCOUNT OF NOTIONAL RENT ON HOUSE PROPERTIES OF THE APPELLANT AT LUCKNOW AND DEHRADUN. 7. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ENHANCEMENT WAS MADE BY THE CIT(A) BY DISCOVERING A NEW SOURCE OF INCOME BUT THIS CANNOT BE DONE BY CIT(A) AND IN SUPPORT OF THIS CONTENTION, RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE DELHI HIGH CO URT RENDERED IN THE CASE OF CIT VS. SARDARI LAL AND CO. [2001] 251 ITR 864 (DEL). 8. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE ASSESSMENT ORDER, THERE IS NO WHISPER ABOUT ANY ADDITION ON ACCOUNT OF INCOME 3 FROM HOUSE PROPERTY. IN THE ORDER OF CIT(A), WE FIND THAT THE ORDER OF CIT(A) IS ON THE BASIS OF APPELLATE ORDER FOR ASSESSMENT YEAR 2007 - 08 AS PER THE ORDER OF CIT(A) DATED 10/02/2010. IN THE LIGHT OF THES E FACTS, NOW WE EXAMINE THE APPLICABILITY OF THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY LEARNED A.R. OF THE ASSESSEE. IN THIS CASE, IT WAS HELD BY HON'BLE DELHI HIGH COURT THAT WHEN THE ASSESSING OFFICER HAS NOT CONSIDERED NEW SOURCE OF INCOME, FIR ST APPELLATE AUTHORITY HAS NO POWER TO ENHANCE THE INCOME BY DISCOVERING A NEW SOURCE OF INCOME. IT WAS HELD BY HON'BLE DELHI HIGH COURT THAT QUESTION OF TAXABILITY OF INCOME FROM A NEW SOURCE OF INCOME CAN BE CONSIDERED BY THE ASSESSING OFFICER IN APPROP RIATE CASE U/S 147/148 OR BY CIT U/S 263 IF REQUISITE CONDITIONS ARE FULFILLED . IT IS FURTHER HELD THAT IT IS INCONCEIVABLE THAT IN PRESENCE OF SUCH SPECIFIC PROVISIONS, A SIMILAR POWER IS AVAILABLE TO THE FIRST APPELLATE AUTHORITY. IN THE PRESENT CASE A LSO, IN THE LIGHT OF THIS FACT THAT THERE IS NO WHISPER IN THE ASSESSMENT ORDER REGARDING TAXABILITY OF INCOME FROM HOUSE PROPERTY, THIS NEW SOURCE OF INCOME CANNOT BE CONSIDERED BY CIT(A) FOR MAKING ENHANCEMENT IN APPELLATE PROCEEDINGS. THEREFORE, BY RES PECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE DELHI HIGH COURT, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. THIS GROUND OF APPEAL IS ALLOWED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COUR T ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 /01/2015 *C.L.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 ASSTT. REGISTRAR