The Income Tax Officer, Amritsar. V. Smt. Jogan Nijjer, Amritsar.

ITA 57/ASR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9585 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 14-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAM BAHL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER ITA NOS.57 & 58 (ASR)/2016 ASSESSMENT YEARS:2007-08 & 2011-12 PAN : AAGPN8741D INCOME TAX OFFICER, VS. SMT. JOGAN NIJJER, WARD 4(2), V&PO NIJJERPURA, AMRITSAR. AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH.RAHUL DHAWAN, DR RESPONDENT BY: SH. PADAM BAHL, CA DATE OF HEARING: 21/09/2016 DATE OF PRONOUNCEMENT: 26/09/2016 ORDER PER T.S. KAPOOR, AM: THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE SEPARATE ORDERS OF LD. CIT(A)-2, AMRITSAR, EACH DATED 12.10. 2015, RELATING TO ASSESSMENT YEARS 2007-08 & 2011-12. THE REVENUE IN THESE TWO APPEALS IS AGGRIEVED WITH THE ACTION OF THE LD. CIT(A) BY W HICH HE HAD DELETED THE ADDITION OF RS.35 LACS AND RS.84 LACS RESPECTIVELY MADE BY THE AO ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. 2. THE LD. DR RELIED UPON THE ORDERS OF THE ASSESSI NG OFFICER. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF ORDER, DATED 08.08.2016, PASSED BY THE ITAT, AMRITSAR BENC H IN THE CASE OF CHANDAN NIJJER, IN ITA NO.61/ASR/2016 FOR THE ASSES SMENT YEAR 2011-12 ITA NOS. 57 & 58(ASR)/2016 A.YS. 2007-08 & 2011-12 2 AND SUBMITTED THAT THE PRESENT CASES RELATE TO THE SISTER OF CHANDAN NIJJER, WHEREIN UNDER SIMILAR SET OF CIRCUMSTANCES, THE TRIBUNAL HAD DISMISSED THE APPEAL OF THE REVENUE. IT WAS FURTHER SUBMITTED THAT CASH WAS DEPOSITED IN THE BANK ACCOUNT OUT OF THE OPENIN G CASH IN HAND AND OUT OF PAST WITHDRAWALS AND THEREFORE, THE LD. CIT( A) HAS RIGHTLY DELETED THE ADDITION. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE GON E THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE LD. CIT (A) HAS ALLOWED THE RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: ASSTT. YEAR: 2007-08 THE APPELLANT EXPLAINED THAT THE SAID CASH AMOUNT O F RS 35,00,000/- WAS WITHDRAWN BY HER FOR A LAND DEAL WH ICH DID NOT MATERIALIZE AND THEREFORE SHE DEPOSITED THE CASH WI THDRAWN EARLIER FROM THE SAME BANK ACCOUNT BACK IN THE SAME BANK AC COUNT AFTER A GAP OF NEARLY 5 MONTHS. IT WAS ARGUED BY THE APP ELLANT THAT THE AO HAS LED/PRODUCED NO EVIDENCE TO SHOW THAT THE CA SH OF RS 35 LACS WITHDRAWN BY THE ASSESSEE ON 20-12- 2005 FROM HER ACCOUNT IN INDUSIND BANK HAS BEEN SPENT/INVESTED BY HER AND WA S THEREFORE NOT AVAILABLE WITH HER FOR RE-DEPOSITING THE SAME A MOUNT OF RS 35,00,000/- IN THE SAME BANK ACCOUNT ON 01-06-2006. AND RELIED UPON THE FOLLOWING DECISIONS IN SUPPORT OF HER ARGU MENT AGAINST THE ADDITION- (A) DECISION OF HONBLE ITAT, AMRITSAR IN THE CASE OF SHRI RAM NATH & RAJ KUMAR IN ITA NO. 336(ASR)/2006 & ITA NO. 337(ASR)/2006 DATED 25-01-2007. (B) DECISION OF HONBLE PUNJAB 8 HARYANA HIGH COURT IN THE CASE OF SHRI SHIV CHARAN DASS VS CIT, REPORTED IN 126 IT R 263. (C) DECISION OF HONBLE ITAT, AMRITSAR IN THE CASE OF ITO VS NAVDEEP SINGH IN ITA NO. 24(ASR)/2013 DATED 17-04-2 013. (D) DECISION OF HONBLE ITAT, AMRITSAR IN THE CASE OF ACIT VS INDERPAL SINGH AHUJA IN ITA NO. 132(ASR)/2006. (E) DECISION OF HONBLE ITAT, AHMADABAD IN THE CASE OF ACIT VS ITA NOS. 57 & 58(ASR)/2016 A.YS. 2007-08 & 2011-12 3 ANAND AUTORIDE LTD IN 99 ITD 227. (F) DECISION OF HONBLE ITAT, DELHI BENCH B IN THE CASE OF ITO VS MRS DEEPALI SEHGAL IN ITA NO. 5660 /DEL /2012 DATED 05-09- 2014. THE OPENING CASH-IN-HAND OF THE APPELLANT AS ON 01- 04- 2006 AT RS 59,39,219/- AS REFLECTED IN THE BALANCE SHEET AS ON 31-03- 2006 HAS BEEN UPHELD ABOVE. ACCORDINGLY CONSIDERING THAT THE AO HAS NOT GIVEN ANY EVIDENCE TO SHOW THAT THE SAID CA SH OF RS 35,00,000/- WITHDRAWN ON 20-12-2005 AND THE CASH-IN -HAND OF THE APPELLANT OF RS 59,39,219/- AS ON 01-04-2006 AS REF LECTED IN THE BALANCE SHEET AS ON 31-03-2006 SUBMITTED ALONGWITH THE RETURN OF INCOME OF THE APPELLANT OF A Y 2006-07 HAD BEEN SPE NT/INVESTED ELSEWHERE BEFORE 01-06-2006, THEREFORE THE BENEFIT OF THE SAID AMOUNT OF RS 35 LACS WITHDRAWN ON 20-12- 2005 AND T HE OPENING CASH-IN-HAND OF AN AMOUNT OF RS 59,39,219/- HAS TO BE ALLOWED TO THE APPELLANT. ACCORDINGLY, IN VIEW OF THE ABOVE DISCUSSION AND TH E ABOVE CITED CASE LAWS, AFTER ALLOWING THE BENEFIT OF THE SAID AMOUNT OF RS 35 LACS WITHDRAWN ON 20-12-2005 AND THE OPENING CAS H-IN- HAND OF AN AMOUNT OF. RS 59,39,219/- AS ON 01-06-2006 IN TH E HANDS OF THE APPELLANT UPHELD ABOVE AS THE SOURCE OF CASH DEPOSI T OF RS. 35,00,000/- AS ON 01.06.2006 IN THE SAID ACCOUNT OF THE APPELLANT IN INDUSIND BANK IS HELD TO BE EXPLAINED AND THE ADDI TION OF RS.35,00,000/- IS DELETED. 5. IN THE ASSESSMENT YEAR 2011-12, THE LD. CIT(A) HAS GIVEN THE FOLLOWING FINDINGS WHILE ALLOWING RELIEF TO THE AS SESSEE: THE COPIES OF THE PERSONAL BALANCE SHEETS MADE BY THE APPELLANT FROM AY 2006-07 TO 2011-12 WERE PERUSED. THE BALANCE SHEET OF THE APPELLANT AS ON 31-03-2007 REVEALS CAS H-IN- HAND OF RS 46,15,299/-. THE CASE OF THE ASSESSEE WAS REOPENED BY THE AO U/S 17 OF THE WEALTH TAX ACT, IN RESPONSE TO WHICH THE WEALTH TAX RETURN WAS SUBMITTED ON 28.04.2014 DECLARING A NET WEALTH OF,RS, 15,38,900/-. THE COPY OF NET WEALTH COMPUTATION OF AY 2007-08 REVEALED THAT THE ASSESSEE HAD INCLUDED CASH IN HAN D OF RS. 46,15,299/- IN THE NET WEALTH DECLARED, WHICH WAS A PPEARING IN HER BALANCE SHEET AS ON 31-03-2007. THE WEALTH TAX ASSE SSMENT OF AY 2007-08 WAS COMPLETED AT THE RETURNED WEALTH OF RS 15,38,900/- VIDE ORDER U/S 17(3) OF W T ACT DATED 27-03-2015. T HEREFORE, THE ITA NOS. 57 & 58(ASR)/2016 A.YS. 2007-08 & 2011-12 4 DEPARTMENT HAD ACCEPTED THE CASH- IN-HAND OF RS 46, 15,299/- APPEARING IN HER PERSONAL BALANCE SHEET AS ON 31-03 -2007. LIKEWISE, IN RESPONSE TO NOTICE U/S 17 ISSUED BY TH E AO FOR AY 2010-11, THE ASSESSEE HAD FILED HER WEALTH TAX RETU RN FOR A Y 2010- 11 ON 02-09-2014 DECLARING NET WEALTH OF RS 54,11,5 69/-, WHOSE COPY ALONGWITH THE COMPUTATION OF NET WEALTH OF A Y 2010-11 WAS SUBMITTED BEFORE THE UNDERSIGNED. THE CASH IN HAND INCLUDED IN THE NET WEALTH DECLARED AS PER THE SAID COMPUTATION OF WEALTH FOR A Y 2010-11 WAS RS 1,44,21,914/-. THE CASH-IN-HAND OF T HE ASSESSEE AS ON 31-03-2010 WAS RS 1,44,21,914/- WHICH IS REFL ECTED IN THE CASH BOOK SUBMITTED BY THE ASSESSEE FOR F Y 2009-10 AND HER BALANCE SHEET AS ON 31.0.3.2010. THE WEALTH TAX ASS ESSMENT OF THE ASSESSEE FOR A Y 20L0-11 IS STILL PENDING. THE AO HAS NOT ACCEPTED THE CASH IN HAND APPEARING IN HER BALANCE SHEET AT RS 1,44,21,914/- FOR THE YEAR ENDI NG 31-03- 2010, WHICH HAD BEEN GENERATED FROM YEAR TO YEAR OUT OF C ASH WITHDRAWAL FROM HER OWN BANK ACCOUNT IN INDUSIND BANK AND REFL ECTED IN HER CASH BOOK OF FY 2006-07,2007-08, 2008-09, 2009-10. THE AO HAS HOWEVER NOT LED/PRODUCED ANY EVIDENCE TO SHOW THAT THE CASH WITHDRAWLS MADE BY THE ASSESSEE FROM HER S.B ACCOUN T IN. INDUSIND BANK IN ALL THESE YEARS FY 2006- 07,2007-08, 2008-0 9, 2009-10 HAD BEEN SPENT/INVESTED BY HER AND WAS THEREFORE NO T AVAILABLE WITH HER AS ON 31-03-2010. IN VIEW OF THE VARIOUS D ECISIONS OF HONBLE HIGH COURT AND ITAT, AMRITSAR CITED BY THE APPELLANT (SUPRA), THE BENEFIT OF CASH WITHDRAWAL MADE BY THE ASSESSEE FROM HER ACCOUNT IN INDUSIND BANK IN ALL THESE YEARS THE REFORE CANNOT BE DENIED. ACCORDINGLY THE CASH IN HAND AT RS 1,44,21, 914/- AS ON 01- 04-2010 REFLECTED IN THE CASH BOOK AND THE BALANCE SHEET OF THE ASSESSEE AS ON 31- 03-2010 IS UPHELD. THE ASSESSEE HAD MADE DEPOSITS TOTALING TO RS 81,00 ,000/- IN HER ACCOUNT IN INDUSIND BANK IN THE MONTHS OF MAY, 2010, AUGUST, 2010, SEPTEMBER,2010 8S NOVEMBER,2010 AND RS 300,00 0/- IN HER ACCOUNT IN PUNJAB NATIONAL BANK ON 13-05- 2010. THE SOURCE OF THE SAID CASH DEPOSITS TOTALING TO RS.84,00,000/- IN TH E SAID BANK DEPOSITS OF THE ASSESSEE WAS STATED TO BE OUT OF TH E CASH IN HAND AT RS 1,44,21,914/- AS ON 01-04- 2010, WHICH HAS BEEN UPHELD ABOVE. THE ASSESSEE DEPOSITED CASH AMOUNTS IN HER INDUSIND BANK AS UNDER- A) IN INDUSIND BANK DATE AMOUNT (RS) 10.05.2010 299,000/- ITA NOS. 57 & 58(ASR)/2016 A.YS. 2007-08 & 2011-12 5 11.05.2010 1000/- 12.05.2010 300,000/- 18.08.2010 500,000/- 04.09.2010 25,00,000/- 18.11.2010 45,00,000/- 81,00,000/- (B) IN PUNJAB NATIONAL BANK 13.05.2010 13.05.2010 RS 300,000/- THE SOURCE OF THE ABOVE DEPOSITS WAS OUT OF THE CAS H IN HAND AT RS 1,44,21,914/- AS ON 01-04-2010, WHICH HAS BEE N UPHELD ABOVE. THE AO HAS HOWEVER NOT LED/PRODUCED ANY EVID ENCE TO. SHOW, THAT THE SAID CASH IN HAND OF THE APPELLANT A S ON 01-04-2010 HAD BEEN SPENT/INVESTED BY HER DURING THE F Y 2010- 11 AND WAS THEREFORE NOT AVAILABLE WITH HER FOR DEPOSITING RS 84,00,000/- IN HER SAID BANK ACCOUNTS, EVEN THOUGH AFTER GAP OF 9 MONT HS. IT WAS NOT MANDATORY UNDER ANY LAW THAT THE INDIVIDUAL HAS TO KEEP HIS /HER SAVINGS IN THE BANK ACCOUNT ONLY AND NOT AS CASH IN HAND AS HELD BY HONBLE ITAT, DELHI BENCH IN THE CASE OF ITO VS MRS DEEPALI SEHGAL IN ITA NO. 5660/DEL/2012 DATED 05-09-2014. THEREFORE IN VIEW OF THE VARIOUS DECISIONS OF HONB LE HIGH COURT AND ITAT, AMRITSAR CITED BY THE APPELLANT (SU PRA), THE SOURCE OF CASH DEPOSITS AMOUNTING TO RS 81,00,000/- IN THE S.B ACCOUNT OF THE APPELLANT IN INDUSIND BANK AND THE DEPOSIT OF R S 300,000/- IN HER ACCOUNT IN PUNJAB NATIONAL BANK OUT OF THE OPEN ING CASH IN HAND AT RS 1,44,21,914/- AS ON 01-04-2010 AS PER CASH BO OK AND BALANCE SHEET AS ON 31-03-2010 IS UPHELD AND THE AD DITION OF RS 84,00,000/- IS THEREFORE DELETED. 6. WE FIND THAT THE LD. CIT(A) HAS PASSED A DETAILE D SPEAKING AND EXHAUSTIVE ORDER BY RELYING UPON THE BALANCE SHEET OF THE ASSESSEE, WHEREIN HE HAD VERIFIED THE OPENING BALANCE OF CAS H IN HAND AND HAD ALSO VERIFIED THE WEALTH TAX RETURN OF THE ASSESSEE . THE LD. DR WAS NOT ABLE TO CONTROVERT ANY OF THE FINDING OF THE LD. CI T(A). THEREFORE, WE DO ITA NOS. 57 & 58(ASR)/2016 A.YS. 2007-08 & 2011-12 6 NOT FIND ANY INFIRMITY IN THE ORDERS OF THE LD. CIT (A) AND THE SAME ARE UPHELD. 7. IN VIEW OF THE ABOVE, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/09/20 16. SD/- SD/- (N.K. CHOUDHRY) (T.S. KAPOOR ) JUDICIAL MEMBER ACCOUNTANT MEMBER /SKR/ DATED: 26/09/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SMT. JOGAN NJJER, AMRITSAR. 2. THE ITO WARD 4(2), ASR 3. THE CIT(A), ASR 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.