Sh. Parveen Kumar, Ludhiana V. ITO, Ludhiana

ITA 6/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8274 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 13-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 04-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Salary income; Additional evidence; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 44AB

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 6/CHD/2016 ASSESSMENT YEAR: 2011-12 SH. PARVEEN KUMAR, VS. THE ITO, WARD III(1) LUDHIANA LUDHIANA PAN NO. AYKPP0060F (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUDHIR SEHGAL RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 16.02.2017 DATE OF PRONOUNCEMENT : 06.03.2017 ORDER THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAI NST THE ORDER OF LD. CIT(A)-1, LUDHIANA DATED 30.11.2015 FOR ASSESSMENT YEAR 2011-12. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOL LOWING GROUNDS:- 1. THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITIO N OF RS.20,49,420/- MADE BY THE LEARNED ASSESSING OFFICER IN RESPECT OF CASH DEPOSITED IN SAVING BANK ACCOUNT NO.197010100090146 IN AXIS BANK AS UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME-TAX ACT , 1961 AS PER PARA 3 OF HIS ORDER. 2. THAT THE CIT(A) HAS ALSO ERRED CONFIRMING THE ADDITION OF RS.14,40,000/- IN RESPECT OF CASH 2 DEPOSITED IN SAVING BANK ACCOUNT NO.19701010011034 IN AXIS BANK [(IN THE NAME OF SHRI OM PARKASH) (GRAND FATHER] AND PARVEEN KUMAR (ASSESSEE) AS UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT, 1961 AS PER PARA 4 OF HIS ORDER. 3. THAT THE ADDITIONS AS PER PARA 1 AND 2 ABOVE HAS BEEN WITHHELD AGAINST THE FACTS AND CIRCUMSTANCES O F THE CASE AND THE SUBMISSIONS FILED DURING THE COURS E OF HEARING HAS NOT BEEN CONSIDERED PROPERLY. 2. GROUND NO.1 RELATES TO ADDITION OF RS. 20,49,420 /- IN THE SAVING BANK ACCOUNT NO. 1197010100090146 AS UNEXPLAINED INVESTM ENT U/S 69 OF THE INCOME-TAX ACT, 1961. THE TOTAL DEPOSIT FOR THE REL EVANT YAER WERE RS. 23,39,420/-. THE ASSESSING OFFICER HAS ALLOWED RS. 3 LAKHS AFTER CONSIDERATION OF THE CASH AVAILABLE WITH HIM OUT OF THE CASH WITHDRAWALS IN THE PART, MAKING NET ADDITION OF RS. 20,49,420/-. 3. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE TH E LD. CIT(A) FOR DELETION OF ADDITION. THE CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. BEFORE US, THE ASSESSEE HAS SUB MITTED THAT THE OPENING BALANCE OF RS. 8,86,639/- AVAILABLE AS ON 1.4.2010 WITH THE ASSESSEE HAS ACCUMULATED FOR THE YEARS HAS NOT BEEN GIVEN BENEFI T BY THE APPELLATE AUTHORITIES. THE ASSESSEE HAS SUBMITTED THAT HE HAS RECEIVED AN AMOUNT OF RS. 1,65,850/- SAVED FROM SALARY INCOME IN THE FORM OF CASH OUT OF THE SALARY RECEIVED OF THE FINANCIAL YEARS 2006-07 AND 2007-08. SIMILARLY, THE ASSESSEE HAS ALSO WITHDRAWN AN AMOUNT OF RS. 3,12, 914/- FROM AXIS BANK AND CASH OF RS. 1,39,688/- RECEIVED FROM M/S PARKAS H RICE AND GENERAL 3 MILLS. THE FACTS HAVE BEEN PERUSED WITH REFERENCE T O THE CASH BOOK PREPARED BY THE ASSESSEE. 4. THE LD. DR ARGUED THAT NO BENEFIT CAN BE GIVEN T O THE CASH SALARY RECEIVED IN THE YEARS 2006-07 AND 2007-08 AND ALSO THE WITHDRAWALS OF 2009-10. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, IT IS C LEAR THAT THERE HAD BEEN A CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSE SSEE. THE ASSESSEE EXPLAINED THE AVAILABILITY OF THE CASH FROM VARIOUS SOURCES BEFORE THE AUTHORITIES BELOW AND ALSO CLAIMED THAT THERE WAS C ASH IN HAND AVAILABLE TO THE ASSESSEE ON 1.4.2010 IN A SUM OF RS. 10,94,260/ -. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED COPY OF THE CASH BOOK OF TH E ASSESSEE AT PAGE 11 OF THE PAPER BOOK TO SHOW THAT ON 1.4.2010, THE ASSESS EE HAS OPENING CASH BALANCE OF RS. 8,86,639/-. THE DOCUMENTS FILED IN THE PAPER BOOK WERE PROVIDED TO BE LD. DR FOR VERIFYING THE SAME AND IT APPEARS THAT THERE IS NO SERIOUS CHALLENGE TO THE CASH BOOK FILED IN THE PAP ER BOOK, BY THE LD. DR. THE AUTHORITIES BELOW HAVE NOTED THAT EVEN THOUGH T HERE WERE CASH AND OTHER INCOME AVAILABLE TO THE ASSESSEE BUT WITHDRAW ALS HAVE BEEN MADE FROM THE BANK ACCOUNT FOR HOUSES HOLD EXPENSES FOR WHICH NO SPECIFIC DETAILS HAVE BEEN GIVEN. THE AUTHORITIES BELOW ALSO NOTED THAT ASSESSEE DID NOT SUBMIT SPECIFIC EVIDENCE IN SUPPORT OF CASH FLO W AND WHATEVER RECEIPTS HAVE BEEN RECEIVED FROM M/S PARKASH RICE AND GENERA L MILLS TOWARDS LABOUR CONTRACT, THE PROFIT HAVE BEEN DECLARED U/S 44AB WHICH WOULD EVIDENTLY PROVE THAT THE REMAINING AMOUNT HAVE BEE N INCURRED ON EXPENDITURE FOR EARNING CONTRACT INCOME. THE TOTAL ITY OF FACTS AND 4 CIRCUMSTANCES, THEREFORE, CLEARLY SHOW THAT THOUGH CERTAIN INCOME IS AVAILABLE TO THE ASSESSEE FROM EARLIER YEARS ACCUMU LATION AND ENTRIES APPEARED IN THE CASH BOOK, PREPARED BY THE ASSESSEE , COPY OF WHICH IS AVAILABLE IN THE PAPER BOOK BUT AUTHORITIES BELOW H AVE GIVEN BENEFIT OF RS. 3 LAKHS TO THE ASSESSEE ON ACCOUNT OF AMOUNT AVAILA BLE OUT OF WITHDRAWALS FROM THE BANK FOR REDEPOSIT. HOWEVER, AUTHORITIES B ELOW HAVE NOT GIVEN ANY BENEFIT TO THE ASSESSEE ON ACCOUNT OF SALARY IN COME AND OTHER INCOME EARNED BY THE ASSESSEE IN PRECEDING YEAR. THE OPENI NG BALANCE OF RS. 8,86,639/- THOUGH SHOWN TO HAVE BEEN AVAILABLE TO T HE ASSESSEE BUT NO SPECIFIC EVIDENCE IS PROVIDED TO SUPPORT SUCH A CLA IM. HOWEVER, SINCE THE CASH BOOK PREPARED BY THE ASSESSEE HAVE NOT BEEN DO UBTED BY THE LD. DR THROUGH ANY EVIDENCE OR MATERIAL ON RECORD, THEREFO RE, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT EXPLANATION OF THE ASSESSEE CAN BE CONSIDERED FAVOR ABLE. I ALSO AGREE WITH LD. AR THAT OTHER FAMILY MEMBERS HAVE ALSO CONTRIBU TED FOR HOUSE HOLD EXPENSES. THE ASSESSEE IS ADMITTEDLY UNMARRIED AND ALONE, AND THEREFORE, TO SOME EXTENT THE ASSESSEE COULD HAVE ACCUMULATED THE FUNDS FROM EARNINGS IN PAST, WHICH MAY BE AVAILABLE AS OPENING BALANCE TO THE ASSESSEE AS ON 1.4.2010, THEREFORE, CONSIDERING THE EXPLANAT ION OF THE ASSESSEE AND TOTALITY OF FACTS ABOVE, I AM OF THE VIEW THAT FURT HER BENEFIT OF RS. 5 LAKHS COULD BE GIVEN TO THE ASSESSEE FOR ACCUMULATING THE FUNDS FOR THE PURPOSE OF MAKING DEPOSIT IN THE BANK ACCOUNT. THE ORDERS O F THE AUTHORITIES BELOW TO THAT EXTENT ARE SET ASIDE AND MODIFIED AND ASSES SING OFFICER IS DIRECTED TO GIVE FURTHER BENEFIT OF RS. 5 LAKHS OUT OF THE A DDITION OF RS. 20,49,420/-. 6. GROUND NO.1 OF THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. 5 7. GROUND NOS. 2 & 3 IS REGARDING THE CONFIRMATION OF ADDITION OF RS. 14,40,000/- IN RESPECT OF CASH DEPOSIT. THE ASSESS EE IS THE JOINT OWNER OF THE ACCOUNT NO. 19701010011034 WHEREIN CASH DEPOSIT OF RS. 14,40,000/- HAS BEEN TREATED AS UNEXPLAINED INVESTMENT OF THE A SSESSEE BY THE CIT(A). IT HAS BEEN FOUND THAT THE ACCOUNT OPENING FORM CLE ARLY MENTION THE PAN NUMBER OF THE ASSESSEE. THE ASSESSEE BEFORE THE TRI BUNAL CONTENDED THAT THE ACCOUNT DOES NOT BELONG TO HIM. THE ASSESSEE F ILED CERTAIN ADDITIONAL EVIDENCES BEFORE LD. CIT(A) THAT HIS GRANDFATHER EX PIRED ON 10.11.2011 AND HE DID NOT HAVE ACCESS TO THE SAID DOCUMENTS T O EXPLAIN THE DEPOSIT OF CASH IN THE JOINT BANK ACCOUNT. THE ASSESSING OFFIC ER REPORTED IN THE REMAND REPORT THAT ASSESSEE HAS COOKED STOREY AT TH IS STAGE AND THAT THE CASH BOOK AND CAPITAL ACCOUNT OF SHRI OM PARKASH HA S BEEN PREPARED RECENTLY. THE LD. CIT(A), HOWEVER, ADMITTED THE ADD ITIONAL EVIDENCE AND DISCUSSED THE SAME IN THE ORDER. THE ASSESSEE INITI ALLY DENIED THE OWNERSHIP OF THE JOINT BANK ACCOUNT AND LATER ON WH EN HE WAS CONFRONTED WITH THE JOINT BANK ACCOUNT, THE ASSESSEE ANSWERED THAT HE WAS MAINTAINING THE BANK ACCOUNT JOINTLY WITH SHRI OM PARKASH BECAU SE HE WAS NOT IN A CONDITION TO OPERATE THE BANK ACCOUNT. THE ASSESSEE ALSO DEMONSTRATED THAT BANK ACCOUNT WAS UNDER OPERATION THROUGH HIS GRANDF ATHER, WHO EXPIRED ON 10.11.2011. THE ASSESSEE ALSO ADMITTED IN A STATEME NT THAT SOURCE OF THE INCOME OF HIS GRANDFATHER WAS ONLY RENTAL INCOME FR OM PROPERTY AMOUNTING TO RS. 3,630/- PER MONTH. THE PHOTOCOPY OF THE RAT ION CARD OF SHRI OM PARKASH SHOWS THAT HIS GRANDFATHER WAS LIVING WITH HIS TWO SH. KRISHAN LAL AND SHRI SURENDER KUMAR IN MANDI MULLANPUR. FURTHER , AS PER ACCOUNT OPENING FORM OF THE SAID SAVING BANK ACCOUNT, THE A SSESSEE IS THE JOINT OWNER, ALTHOUGH SHRI OM PARAKSH IS HAVING HIS OWN PAN NUMBER BUT PAN 6 NUMBER OF THE ASSESSEE WAS MENTIONED ON THE ACCOUNT OPENING FORM. THE ASSESSEE ALSO ADMITTED THAT HIS GRANDFATHER WAS RES IDING IN MANDI MULLANPUR, THEREFORE, THERE IS NO POSSIBILITY THAT HE WAS NOT AWARE OF THE SOURCES OF HIS GRANDFATHER. THE ADDITIONAL EVIDENCE FILED BEFORE LD. CIT(A) WERE REJECTED BECAUSE THEY WERE NOT RELIABLE AS NON E OF THE DOCUMENTS WERE FILED BEFORE THE INCOME TAX AUTHORITIES BECAUS E SHRI OM PARKASH WAS NOT ASSESSED TO TAX. THE AUTHORITIES BELOW HAVE C ONSIDER THIS ISSUE AND SPECIFICALLY HELD THAT ASSESSEE HAS MAINTAINED THIS JOINT BANK ACCOUNT FOR HIMSELF UNDER THE GARB OF USING THE NAME OF HIS GRA NDFATHER. 8. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO PB- 1 WHICH IS A CERTIFICATE OF AXIS BANK DATED 30.8.2016 IN WHICH B ANK HAS CERTIFIED THAT SHRI OM PARKASH HAD A SAVING BANK ACCOUNT WITH THEM AND MADE DEPOSIT OF RS. 14,40,000/-. HOWEVER, THIS CERTIFICATE IS OBTAI NED AFTER PASSING OF THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER. T HE COPY OF THE BANK STATEMENT ALONGWITH CERTIFICATE AND COPY OF THE CAP ITAL ACCOUNT OF SHRI OM PARKASH HAVE BEEN FILED IN THE PAPER BOOK. LD. COUN SEL FOR THE ASSESSEE CONTENDED THAT SH. OM PARKASH WAS PAYING BILLS THRO UGH HIS BANK ACCOUNT. HOWEVER, NONE OF THE DOCUMENTS WERE FIELD BEFORE TH E AUTHORITIES BELOW AND BANK CERTIFICATE IS FILED FOR THE FIRST TIME BE FORE THE TRIBUNAL WITHOUT MAKING REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE . THEREFORE, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES , IT IS CLEAR THAT ASSESSEE WAS MAINTAINING JOINT BANK ACCOUNT FOR SELF BECAUSE HE WAS ALSO MAINTAINING THE SIMILAR BANK ACCOUNT AFTER THE DEAT H OF HIS GRANDFATHER. THE ASSESSEE HAS THUS FAILED TO EXPLAIN THE SOURCE OF DEPOSIT IN THIS BANK ACCOUNT THROUGH ANY COGENT OR RELIANCE EVIDENCE. TH EREFORE, EXPLANATION OF 7 THE ASSESSEE CANNOT BE ACCEPTED. NO EXPLANATION CO ULD BE GIVEN BY THE ASSESSEE REGARDING THE DEPOSIT AND THE SOURCE WAS O F SALARY. I FEEL THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE CIT( A) AND THE ADDITION IS HEREBY CONFIRMED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 06-03-2017 RKK COPY TO: 2. THE APPELLANT 3. THE RESPONDENT 4. THE CIT 5. THE CIT(A) 6. THE DR