Payal Sanei, Kolkata V. I.T.O Wd - 32(2),kolkata., Kolkata

ITA 570/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99895 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-03-2013
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: VARSHA JALAN
• Keywords: Gift; Income from undisclosed sources; Peak credit
• Section: 143(3); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO. 570/KOL/2013 ASSESSMENT YEAR: 2009-10 PAYAL SANEI VS. INCOME-TAX OFFICER, WD-32(2), KOLKATA (PAN: AEOPA1820L) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 13.10.2015 DATE OF PRONOUNCEMENT: 15.10.2015 FOR THE APPELLANT: MISS VARSHA JALAN, ADVOCATE FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIX, KOLKATA IN APPEAL NO. 201/CIT(A)-XIX/ITO,WD-32(2)/KOL/11-12 DATED 06. 12.2012. ASSESSMENT WAS FRAMED BY ITO, WD-32(2), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2009-10 VIDE ITS O RDER DATED 19.12.2011. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO BEING CASH DEPOSIT IN ICICI BANK AMOUNTING TO RS.3,12,294/- IN THE NAME OF MINOR DAUGHTER OF THE ASSESSEE. ALT ERNATIVELY, ASSESSEE ALSO PLEADED FOR APPLICATION OF PEAK CREDIT THEORY IN RESPECT TO CAS H DEPOSIT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NOS. 1 AND 2: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.3,12,294 /- MADE BY THE AO ON ACCOUNT OF CASH DEPOSITS IN ICICI BANK. 2. WITHOUT PREJUDICE TO THE ABOVE GROUND NO. 1, THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE APPLICATION OF PEAK CREDIT THEORY OF RESPECT OF THE ALLEGED CASH DEPOSITS OF RS.3,12,294/- IN THE BANK. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE AO DURING THE COURSE OF ASSESSMEN T PROCEEDINGS NOTICED FROM AIR INFORMATION THAT SHE IS MAINTAINING ANOTHER SAVINGS BANK ACCOUNT NO. 030501002168 WITH ICICI BANK 1/1, ASUTOSH CHOWDHURY AVENUE, BALL YGUNGE, KOLKATA, WHICH IS NOT DISCLOSED IN HER ACCOUNTS. DURING THE YEAR UNDE R CONSIDERATION THERE IS TOTAL DEPOSIT OF RS.3,12,120/- IN THE SAID SAVINGS BANK A CCOUNT. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSIT AND IN TU RN ASSESSEE STATED THAT THE SAID BANK ACCOUNT WAS OPEN FOR THE PURPOSE OF HER MINOR DAUGHTER MISS ISHIKA SANEI AND 2 ITA NO.570/KOL/2013 PAYAL SANEI AY 2009-10 THIS CASH DEPOSIT IN THE SAID BANK ACCOUNT IS OUT O F GIFT MADE BY SMT. GITA DEVI SANEI THE GRANDMOTHER OF MISS ISHIKA SANEI. SMT. GI TA DEVI SANEI, THE DONOR PASSED AWAY ON 14.04.2009 AND IT WAS NOT POSSIBLE TO VERIF Y THE SOURCE FROM HER. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCES BY PRO DUCING THE DOCUMENTS LIKE BANK ACCOUNT DETAILS OF SMT. GITA DEVI SANEI AND HER INC OME TAX PARTICULARS. THE AO ISSUED SUMMON U/S. 131 OF THE ACT TO ASSESSEE, HER FATHER IN LAW, HER HUSBAND AND BROTHER IN LAW TO KNOW THE PARTICULARS OF SMT. GITA DEVI SANEI BUT NONE COULD PROVIDE THE DETAILS. ACCORDINGLY, THE AO TREATED T HE CASH DEPOSIT AS UNEXPLAINED. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A) AND BEFORE CIT(A) ALSO ASSESSEE COULD NOT FILE ANY DETAILS AND HE CONFIRME D THE ADDITION BY OBSERVING AS UNDER: DURING THE APPEAL PROCEEDINGS NOTHING NEW HAS BEEN SUBMITTED OTHER THAN THE SUBMISSION MADE BEFORE THE AO AT THE TIME OF ASSESS MENT PROCEEDINGS. IN VIEW OF THE DETAILED MATERIAL BROUGHT ON RECORD AND DISCUSS ED IN THE ASSESSMENT ORDER AND ASSESSEES FAILURE TO SUBSTANTIATE HIS EXPLANATION ONLY JUSTIFIES THAT THE ADDITION MADE IS ON PROPER APPRECIATION OF FACTS AND EVIDENC ES. IN VIEW OF THIS THE ADDITION OF RS.3,12,120/- AS INCOME FROM UNDISCLOSED SOURCES IS CONFIRMED ON MERIT. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US 4. WE FIND THAT THE ASSESSEE FAILED TO PRODUCE DETA ILS BEFORE THE AO AND BEFORE CIT(A) ALSO. BUT NOW LD. COUNSEL FOR THE ASSESSEE MADE ONLY PLEA THAT SINCE THE DONOR EXPIRED AND HER DETAILS WERE NOT AVAILABLE AT THE TIME OF ASSESSMENT WITH THE ASSESSEE AND ASSESSEE PLEADED THAT NOW THESE DETAIL S ARE AVAILABLE AND THE SAME CAN BE PRODUCED BEFORE THE LOWER AUTHORITIES. IN TERM O F THIS, SHE REQUESTED THAT THE ISSUE CAN BE SET ASIDE TO THE FILE OF CIT(A) FOR ADJUDICA TING THE ISSUE AFRESH. WHEN A QUERY FROM THE BENCH WAS PUT TO LD. SR. DR, HE DID NOT RA ISE OBJECTION TO THE SETTING ASIDE OF THIS ISSUE. ALTERNATIVELY, LD. COUNSEL FOR THE ASSESSEE ALSO REQUESTED THAT SHE IS READY TO PRODUCE THE PEAK CREDIT DETAILS IN RESPECT OF CASH DEPOSIT OF RS.3,12,294/- IN THE UNDISCLOSED BANK ACCOUNT AND FOR THAT THE CIT(A ) SHOULD GIVE OPPORTUNITY TO THE ASSESSEE. WE FIND THAT THE PLEA OF THE ASSESSEE IS QUITE REASONABLE AND LET THE ASSESSEE PRODUCE EVIDENCE BEFORE CIT(A) AND ALSO CO NSIDER THE PLEA OF PEAK CREDIT THEORY IN CASE THE ASSESSEE PRODUCES EVIDENCE. ACC ORDINGLY, THIS ISSUE OF ASSESSEES APPEAL IS SET ASIDE TO THE FILE OF CIT(A) AND ALLOW ED FOR STATISTICAL PURPOSES. 3 ITA NO.570/KOL/2013 PAYAL SANEI AY 2009-10 5. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION ON ACCOUNT OF DISALLOWANCE OF INTEREST ON BANK OVERDRAFT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO. 3: 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.20,048/- ON ACCOUNT O F INTEREST ON BANK OVERDRAFT. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE HAS CLAIMED DEDUCT ION OF RS.20,048/- ON ACCOUNT OF PAYMENT OF BANK INTEREST ON BANK OVERDRAFT. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THE OVERDRAFT FACILITIES W ERE TAKEN FOR PROVIDING LOANS TO VARIOUS PERSONS, COMPANIES NAMELY, SHRI GOPAL KR. SANEI, G. S. FERTILIZERS PVT. LTD. ETC. WHEREIN HER FAMILY MEMBERS WERE HAVING SUBSTANTIAL INTEREST . ACCORDING TO AO, THIS IS NOTHING BUT DIVERSION OF INTEREST BEARING FUNDS BY GIVING I NTEREST FREE LOANS. ACCORDINGLY, AO DISALLOWED THIS CLAIM OF INTEREST OF RS.20,048/-. BEFORE CIT(A) ALSO ASSESSEE COULD NOT PRODUCE ANY EVIDENCE. EVEN NOW BEFORE US, ASSESSEE COULD NOT PRODUCE ANY EVIDENCE OR COULD NOT ARGUE HOW THIS INTEREST IS TO BE ALLOWED. IN TERM OF THE ABOVE, WE CONFIRM THIS ADDITION AND THIS ISSUE OF ASSESSEES APPEAL IS DIS MISSED. 7. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF CASH DEPOSIT IN STATE BANK OF HYDERABAD AMOUNTING TO RS.32,000/-. FOR THIS, ASSESSEE HAS R AISED FOLLOWING GROUND NO. 4: 4. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.32,000/- MADE BY THE AO ON ACCOUNT OF ALLEGED DEPOSITS AT STATE BANK OF HYDERABAD. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE IS MAINTAINING ANO THER BANK ACCOUNT NO. 52092154683 AND NO. 62018292708 WITH STATE BANK OF HYDERABAD. FROM THE ABOVE BANK ACCOUNTS IT IS CLEAR THAT ASSESSEE HAS DEPOSITED A SUM OF RS.32,00 0/- IN CASH ON VARIOUS DATES AND SOURCE IS NOT EXPLAINED. BEFORE THE AO ASSESSEE CO ULD NOT FILE ANY EVIDENCE TO SUPPORT THE SOURCE OF DEPOSIT OF THIS CASH. ACCORDINGLY, T HE AO ADDED THIS BEING UNDISCLOSED CASH DEPOSIT IN THE BANK ACCOUNT. THE CIT(A) ALSO CONFIRMED AS THE ASSESSEE COULD NOT REBUT THE FINDINGS OF AO TREATING THE CASH DEPOSIT OF RS.32,000/- AS UNEXPLAINED DEPOSIT. NOW BEFORE US, LD. COUNSEL FOR THE ASSESSEE ONLY MA DE A REQUEST THAT SINCE A MAJOR ISSUE OF CASH DEPOSIT IS GOING BACK TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION, THIS WILL HAVE BEARING ON THIS ISSUE. HENCE, THIS MAY ALSO BE REMI TTED BACK TO THE FILE OF CIT(A). ON 4 ITA NO.570/KOL/2013 PAYAL SANEI AY 2009-10 QUERY FROM THE BENCH, LD. SR. DR DID NOT RAISE ANY OBJECTION TO THE SETTING ASIDE THIS ISSUE TO THE FILE OF CIT(A). HENCE, WE REMIT THE MATTER BACK TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. THIS ISSUE OF ASSESSEES APPEAL IS A LLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 10. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15.10. 2015. SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15 TH OCTOBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SM. PAYAL SANEI, BLOCK-A, 1 ST FLOOR, 113, PARK STREET, KOLKATA-700016 2 RESPONDENT ITO, WD-32(2), KOLKATA 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .