Shankar Sharma, Delhi V. ITO, Ward- 59(1), Vikas Bhawan, New Delhi

ITA 5904/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5486 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 15-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard; Corroborative evidences; Reason to believe
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.5904/DEL./2017 ASSESSMENT YEAR 2007-2008 SHRI SHIV SHANKAR SHARMA, 91, PANDIT CHOWK, MANDAWALI FAZALPUR, DELHI 110 092. PAN AVAPS1384A VS THE INCOME TAX OFFICER, WARD-59(1), D-BLOCK, VIKAS BHAWAN, NEW DELHI 110 002. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI DEV RAJ SHARMA, ADVOCATE FOR REVENUE : MS. ASHIMA NEB , SR. D.R. DATE OF HEARING : 07 .0 5 .2018 DATE OF PRONOUNCEMENT : 08 .0 5 .2018 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-19, NEW DELHI, DATED 03 RD JULY, 2017, FOR THE A.Y. 2007-2008, CHALLENGING THE ADDITION OF RS.7,32,000/- ON ACCOUNT OF UNEXPLAINED MONEY DEPOS ITED IN THE BANK ACCOUNT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE EARLIER EX-PARTE ASSESSMENT ORDER WAS PASSED ON 18 TH 2 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. DECEMBER, 2009 AT AN INCOME OF RS.11,76,000/- AGAIN ST THE RETURNED INCOME OF RS.1,44,000/- AFTER MAKING ADDIT ION OF RS.10,32,000/- BEING UNEXPLAINED CASH DEPOSITS IN T HE BANK ACCOUNT. THE ASSESSMENT WAS HOWEVER SET ASIDE BY TH E TRIBUNAL VIDE ORDER DATED 10 TH SEPTEMBER, 2015 AND MATTER WAS RESTORED TO THE FILE OF A.O. TO PASS ASSESSMENT ORDER AFRESH , AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2.1. THE ASSESSEE EXPLAINED BEFORE A.O. THAT ACTUA L CASH DEPOSITS IN THE BANK ACCOUNT WAS OF RS.7,32,000/- A ND NOT RS.10,32,000/-. IT WAS SUBMITTED THAT THE BANK A/C. NO.XXX 35051 MAINTAINED WITH AXIS BANK LTD., KRISHNA NAGAR , BELONGS TO SHRI MAHESH SHARMA AND NOT TO THE ASSESSEE. THER EFORE, IT CANNOT BE TAXED AGAINST THE ASSESSEE. THE A.O. SUMM ONED THE ASSESSEE AS WELL AS SHRI MAHESH SHARMA. THE STATEME NT OF ASSESSEE WAS RECORDED. HOWEVER, SHRI MAHESH SHARMA, THE OTHER ACCOUNT HOLDER DID NOT ATTEND THE PROCEEDINGS BEFORE HIM. A.O, THEREFORE, NOTED THAT ASSESSEE FAILED TO PROVE THAT TRANSACTIONS ENTERED INTO IN THIS BANK ACCOUNT WERE NOT RELATED 3 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. TO HIM. THE ASSESSEE DID NOT PRODUCE ANY SUPPORTING EVIDENCE TO SUBSTANTIATE HIS CLAIM THAT THESE TRANSACTIONS W ERE NOT ENTERED INTO BY HIM. THE ASSESSEE IS JOINT ACCOUNT HOLDER OF THIS BANK ACCOUNT. IN THE ABSENCE OF SOURCE OF THE CASH DEPOSITED IN THIS BANK ACCOUNT, A.O. MADE THE ADDITION OF RS.7,3 2,000/-. ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(A). HOWEVER, LD. CIT(A) ALSO CONFIRMED THE ADDITION AND DISMISSE D THE APPEAL OF ASSESSEE. THE FINDINGS OF THE LD. CIT(A) IN PARA S 5 TO 9 ARE REPRODUCED AS UNDER : 5. ALL THE GROUNDS OF APPEAL ARE IN RESPECT OF THE ADDITION OF RS. 7,32,000/-. I HAVE GONE THROUGH THE FACTS. N ORMALLY, JOINT ACCOUNTS ARE OPENED BETWEEN BLOOD RELATIONS, ARE CLOSE FRIENDS, WHO HAVE AN UTMOST FAITH ON EACH OTHER AND WHO NORMALLY POOL THEIR RESOURCES FOR COMMON USE. IN TH E PRESENT CASE, THE JOINT ACCOUNT HAS BEEN OPENED BY THE ASSE SSEE WITH HIS AUTHORIZED REPRESENTATIVE, AN ADVOCATE MR. MAHESH SHARMA. IT CANNOT BE STATED THAT THESE TWO P ERSONS WERE POOLING THEIR RESOURCES FOR THEIR COMMON USE. WHILE MR. SHIV SHANKAR SHARMA THE ASSESSEE MIGHT BE DEPENDENT UPON SH. MAHESH SHARMA FOR HIS FINANCIAL MATTERS RE LATING TO INVESTMENT, ACCOUNTING AND INCOME TAX. THERE WAS NO 4 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. REASON TO STATE THAT SH. MAHESH SHARMA WILL POOL HI S MONEY IN THE ACCOUNT WHICH THE ASSESSEE WAS AUTHORIZED TO OPERATE. 6. ONCE THE ASSESSEE WAS HOLDING A JOINT ACCOUNT W ITH SOMEONE ELSE AND HE ALLEGES THAT THE MONEY WAS NOT DEPOSITED-IV THE BANK BY HIM, THEN THE ONUS IS ON H IM TO PRODUCE THE OTHER PERSON AND TO PROVE THAT THE MONE Y WAS DEPOSITED BY THE OTHER PERSON. THE CIRCUMSTANCES IN THE PRESENT CASE SHOW THAT SINCE SH. MAHESH SHARMA WAS CARRYING OUT INVESTMENTS AND VARIOUS FINANCIAL COMP LIANCES ON BEHALF OF THE ASSESSEE. THE ASSESSEE WAS DEPOSIT ING THE MONEY IN THE BANK ACCOUNT TO FACILITATE HIS AUTHORI SED REPRESENTATIVE TO WITHDRAW THE MONEY FOR VARIOUS NECESSITIES LIKE INVESTMENTS, PAYMENT OF TAXES, ETC . WITHOUT BOTHERING THE ASSESSEE FROM TIME TO TIME. 7. IN ABSENCE OF ANY RELATIONSHIP IT IS AGAINST AL L PROBABILITIES THAT SH. MAHESH SHARMA WILL OPEN AN A CCOUNT WITH THE ASSESSEE AND DEPOSIT MONEY INTO THE SAME W ITH THE RISK OF THE ASSESSEE WITHDRAWING THE MONEY OR MISAPPROPRIATING THE SAME. CLEARLY, THEREFORE, THIS WAS A CLIENT ACCOUNT BEING MAINTAINED BY THE AUTHORIZED REPRESENTATIVE TO MANAGE THE CLIENTS AFFAIRS AS AN D WHEN REQUIRED. THE ASSESSING OFFICER IS, THEREFORE, CORR ECT IN 5 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. TREATING THE DEPOSITS MADE IN THE BANK ACCOUNT AS T HE UNEXPLAINED MONEY OF SH. SHIV SHANKAR SHARMA. THE ASSESSEE STATES THAT HE HAS FILED AN AFFIDAVIT TO T HE EFFECT THAT THE MONEY WAS NOT DEPOSITED BY HIM. IT WOULD H AVE BEEN MUCH MORE USEFUL TO FILE AN AFFIDAVIT OF SH. M AHESH SHARMA ACCEPTING THE DEPOSITS RATHER THAN FILING A SELF- SERVING AFFIDAVIT. WHERE A PERSON IS A JOINT OWNER OF A BANK ACCOUNT, THERE IS AN EQUAL ONUS ON HIM TO EXPLAIN T HE DEPOSITS IN THE BANK. HE CANNOT REMAIN IGNORANT TO THE ENTRIES APPEARING IN THE BANK ACCOUNT. 8. THE ASSESSEE HAS RELIED UPON THE JUDICIAL DECIS IONS IN THE CASE OF : COMMISSIONER OF INCOME TAX VS. SAVITRI DEVI SHUKLA ARUP KUMAR SAO VERSUS IDEO TO STATE THAT IN THE CASE OF JOINT ACCOUNT HOLDERS, ADDITION, IF ANY, SHOULD BE MADE IN THE ACCOUNT OF THE FIRST HOL DER. I HAVE GONE THROUGH THESE CASES AND IN THE FIRST CASE IT W AS THE MOTHER AND THE DAUGHTER WHO WERE JOINT HOLDERS. IN THE SECOND CASE, IT WAS THE HUSBAND AND THE WIFE WHO. W ERE JOINT HOLDERS. AS ALREADY HELD THAT WHERE THE JOINT HOLDERS ARE CLOSE RELATIVES, IT IS NORMAL THAT THE DOMINANT RELATIVE OR THE SENIOR RELATIVE, IS PRESUMED TO HAVE MADE THE D EPOSITS BUT WHERE THE JOINT ACCOUNTS HAVE BEEN OPENED BETWE EN 6 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. UNRELATED PERSONS, THE ONUS IS ON EACH CO-OWNER TO ADDUCE EVIDENCE THAT THE DEPOSITS HAVE NOT BEEN MADE BY HI M BUT BY THE OTHER CO-OWNER. THE ASSESSEE HAS NOT BEEN AB LE TO DISCHARGE HIS ONUS THAT THE DEPOSITS WERE NOT MADE BY HIM. THE ASSESSING OFFICER WAS, THEREFORE, CORRECT TO RE TAIN THE ADDITION OF RS. 7,32,000/-IN THE CASE OF THE ASSESS EE. 9. AS A RESULT, THE APPEAL OF THE APPELLANT IS DISM ISSED. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I DO N OT FIND ANY MERIT IN THE APPEAL OF ASSESSEE. LEARNED COUNSE L FOR THE ASSESSEE MERELY CONTENDED THAT ASSESSEE WAS A MERE SECOND HOLDER OF THE JOINT BANK ACCOUNT AND AUTHORITIES BE LOW MERELY ON PRESUMPTION THAT FIRST ACCOUNT HOLDER IS AN ADVO CATE OF THE ASSESSEE MADE THE ADDITION. 4. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW. 5. LEARNED COUNSEL FOR THE ASSESSEE ALSO FILED COP Y OF THE STATEMENT OF ASSESSEE RECORDED BY A.O. UNDER SE CTION 131 OF THE I.T. ACT. ON CONSIDERATION OF THE MATERIAL O N RECORD, NO INTERFERENCE IS CALLED FOR IN THE MATTER. THE STATE MENT OF 7 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. ASSESSEE RECORDED BY A.O. SHOWS THAT ASSESSEE ADMIT TED THEREIN THAT HE HAS OPENED THIS BANK ACCOUNT JOINTLY WITH S HRI MAHESH SHARMA. HOWEVER, ASSESSEE DENIED DOING ANY TRANSACT ION IN THIS BANK ACCOUNT. THE ASSESSEE ADMITTED IN HIS STA TEMENT THAT HE KNEW SHRI MAHESH SHARMA FOR THE LAST 4 TO 5 YEAR S AND HE WAS FILING HIS RETURN OF INCOME. LEARNED COUNSEL FO R THE ASSESSEE STATED THAT SHRI MAHESH SHARMA IS NOT AN A DVOCATE BUT AN ACCOUNTANT OF THE ASSESSEE AND HE USED TO FI LE I.T. RETURN ON BEHALF OF THE ASSESSEE. THE ASSESSEE ADMITTED TH AT BANK ACCOUNT IN QUESTION WAS OPENED WITH SHRI MAHESH SHA RMA. HOWEVER, NO REASONS HAVE BEEN EXPLAINED AS TO UNDER WHAT CIRCUMSTANCES JOINT BANK ACCOUNT WAS OPENED WITH SH RI MAHESH SHARMA. IT IS UNBELIEVABLE THAT A PROFESSION AL LIKE ADVOCATE, C.A. OR ACCOUNTANT, WOULD OPEN A BANK ACC OUNT WITH HIS CLIENT. THE LD. D.R. RIGHTLY CONTENDED THAT ANY PROFESSIONAL WOULD OPEN A BANK ACCOUNT FOR AN ASSESSEE IF UNACCO UNTED TRANSACTIONS ARE CONDUCTED ON BEHALF OF THE ASSESSE E. SINCE, SHRI MAHESH SHARMA WAS ACTING AS ACCOUNTANT ON BEHA LF OF THE ASSESSEE AND WAS PROVIDING PROFESSIONAL ADVICE TO T HE ASSESSEE 8 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. AND FILING RETURN BY THE ASSESSEE, THEREFORE, THERE IS NO REASON TO BELIEVE THAT SHRI MAHESH SHARMA WOULD OPEN A JOI NT BANK ACCOUNT WITH THE ASSESSEE FOR HIS PERSONAL AFFAIRS. IT IS PROBABLE THAT ASSESSEE WOULD HAVE OPENED THIS BANK ACCOUNT W ITH THE PROFESSIONAL FOR CONDUCTING UNACCOUNTED TRANSACTION S ON HIS BEHALF. THE ONUS IS UPON THE ASSESSEE TO EXPLAIN TH E CIRCUMSTANCES UNDER WHICH THIS BANK ACCOUNT WAS OPE NED WITH HIS ACCOUNTANT. HOWEVER, NO EXPLANATION HAVE BEEN F ILED IN THIS BEHALF. THE LD. CIT(A) RIGHTLY NOTED THAT NORMALLY JOINT BANK ACCOUNT ARE OPENED BETWEEN THE RELATIVES OR CLOSE F RIENDS. BUT HERE IS THE CASE WHERE THE ASSESSEE HAS OPENED A BA NK ACCOUNT WITH THE PROFESSIONAL WHO WAS AUTHORISED REPRESENTA TIVE OF THE ASSESSEE. THERE IS NO REASON WHY A PROFESSIONAL WIL L PROVIDE HIS OWN MONEY AND OPERATE BANK ACCOUNT WITH THE ASSESSE E. IF THERE WAS MONEY OF SHRI MAHESH SHARMA, HE COULD HAV E GIVEN CONFIRMATION OR WOULD HAVE APPEAR BEFORE A.O. FOR R ECORDING HIS STATEMENT. HOWEVER, HE DID NOT SUPPORT THE CASE OF THE ASSESSEE AND DID NOT APPEAR BEFORE A.O. FOR RECORDING HIS ST ATEMENT. THE EXPLANATION OF ASSESSEE IS CLEARLY AN AFTERTHOUGHT. THE 9 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. AUTHORITIES BELOW, THEREFORE, CORRECTLY CONSIDERED THE DEPOSIT OF UNACCOUNTED CASH BANK ACCOUNT AS THE MONEY BELONGS TO THE ASSESSEE. THE DECISIONS RELIED UPON BY THE ASSESSEE BEFORE LD. CIT(A) HAVE ALREADY BEEN FOUND DISTINGUISHABLE ON F ACTS, COPIES OF WHICH ARE ALSO FILED IN THE PAPER BOOK OF THE LE ARNED COUNSEL FOR THE ASSESSEE. 6. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE LIGHT OF FINDING O F FACT RECORDED BY THE AUTHORITIES BELOW, PARTICULARLY WHEN FIRST A CCOUNT HOLDER IS AUTHORISED REPRESENTATIVE OF THE ASSESSEE WOULD CLEARLY SUPPORT THE FINDINGS OF THE AUTHORITIES BELOW THAT IT WAS AN UNACCOUNTED BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH HIS AUTHORISED REPRESENTATIVE AND IN THE ABSENCE OF ANY EXPLANATION OF SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT, NO INTERFERENCE IS CALLED FOR IN THE MATTER. 7. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. 10 ITA.NO.5904/DEL./2017 SHRI SHIV SHANKAR SHARMA, DELHI. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 08 TH MAY, 2018 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.