Sh. Harmohinder Singh, Kapurthala V. The Income Tax Officer, Kapurthala

ITA 67/ASR/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0550 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 20-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISRA
• Assessee Lawyers: J S BHASIN
• Keywords: Salary income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (CAMP AT JA LANDHAR ) BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.67(ASR)/2016 ASSESSMENT YEAR: 2008-09 SH. HA R MOHINDER SINGH S/O SH. S PRITAM SINGH C/O GOVT. SENIOR SECONDARY SCHOOL, VPO, BEGOWAL DIST:- KAPURTHALA. PAN: ADVPS2571C VS. INCOME TAX OFFICER , WARD-1, KAPURTHAL. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S.BHASIN (ADV.) RESPONDENT BY: SH. A.N.MISRA (DR) DATE OF HEARING: 21.06. 2016 DATE OF PRONOUNCEMENT: 24.06.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LEARNED CIT(A), JALANDHAR, DATED 23.11.2015 FOR ASST. YEAR: 2008-09. 2. THE ONLY ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAD UPHELD THE ADDITION OF RS.8,98,000/- U/S 69A OF THE ACT. 3. THE BRIEF FACTS OF THE CASE AS NOTED IN THE ASSE SSMENT ORDER ARE THAT THE ASSESSEE IS A TEACHER IN A GOVT. SCHOOL AN D DERIVES INCOME FROM SALARY. THE CASE OF THE ASSESSEE WAS SELECTED FOR S CRUTINY. THE AO OBSERVED THAT ASSESSEE HAD MADE CASH DEPOSITS IN ST ATE BANK OF INDIA, ITA NO.67 (ASR)/2016 ASST. YEAR: 2008-09 2 PATIALA ON VARIOUS DATES AMOUNTING TO RS.10,48,000/ -. THE LD. AO FURTHER OBSERVED THAT ASSESSEE HAD SIMILARLY MADE C ASH DEPOSITS IN HIS BANK ACCOUNT IN THE KAPURTHALA CENTRAL CO-OPERATIVE BANK LTD. BEGOWAL, THEREFORE, HE SHOW CAUSED THE ASESSEE TO EXPLAIN TH E TOTAL DEPOSITS OF RS.20.4 LACS IN HIS BANK ACCOUNT. IN HIS REPLY THE ASSESSEE SUBMITTED THE DETAILS OF DEPOSITS AND EXPLANATION OF DEPOSITS IN BANK ACCOUNTS. THE A.O AFTER NOTING DOWN THE REPLY OF ASSESSEE MADE AD DITION OF RS.8,98,000/-. 4. AGGRIEVED THE ASSESSEE FIELD APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A), HOWEVER, CONFIRMED THE ACTION OF LD. AO BY HOLDING AS UNDER: 6.2 I HAVE CONSIDERED THE OBSERVATIONS OF THE ASSES SING OFFICER AS MADE BY HER IN THE ASSESSMENT ORDER. I HAVE ALSO CONSIDERED WRITTEN SUBMISSIONS FILED BY THE ASSESSEE VIDE LETTERS DATED 16.10.2015 [INCORRE CTLY MENTIONED AS 16.10.2016], 26.10.2015 AND 23.11.2015 AS WELL AS OTHER MATERIAL PLACED BY THE ASSESSEE ON RECORD. I HAVE FURTHER CONSIDERED VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE IN CONNECTION WITH THE ISSUE UNDER REF ERENCE. ON CAREFUL CONSIDERATION OF THE RIVAL CONTENTIONS, IT HAS BEEN NOTICED THAT SMT. RARWINDER KAUR IN HER STATEMENT DATED 29.09.2010 HAD STATED T HAT SHE HAS GIVEN RS.10,00,000/- ON HER BEHALF ON BEHALF OF HER SISTER SMT. AMRINDER KAUR AS UNDER: RS.3,00,000/- WAS GIVEN AFTER WITHDRAWING THE AMOUNT FROM HER BANK ACCOUNT NO.5738 ON 16.11.2007. RS. 2,00,000/- WAS GIVEN BY HER SISTER OUT OF HER OW N SOURCES. SOURCES WERE EXPLAINED TO BE DAIRY FARMING INCOME AND AGRICULTUR E INCOME OF THE FAMILY FROM AGRICULTURAL LAND MEASURING 4 ACRES. RS.5,00,000/- WERE COLLECTED IN CASH FROM RELATIVES AND GIVEN TO ASSESSEE. IT HAS FURTHER BEEN NOTICED THAT THE AGREEMENT FOR SALE OF LAND BY SH. PRITAM SINGH 9FATHER OF ASSESSEE) TO SMT. RAJWINDER KAUR AND SMT . AMARJEET KAUR IS DATED 06.11.2007. WHEN ASKED AS TO HOW SMT. RAJWINDER KAU R HAS GIVEN AN AMOUNT OF RS.3,00,000/- ON 06.11.2007 TO THE ASSESSEE AFTER WI THDRAWING IT FROM THE BANK ACCOUNT ON 16.11.2007. IN RESPONSE TO THIS QUERY, T HE ASSESSEE FILED ANOTHER AFFIDAVIT FROM ONE SH. JAGIR SINGH NAMBARDAR WHEREI N IT HAS BEEN MENTIONED THAT HE HAS GIVEN RS.3,00,000/- TO SMT. RAJWINDER KAUR ON 06.11.2007. IT HAS FURTHER ITA NO.67 (ASR)/2016 ASST. YEAR: 2008-09 3 BEEN NOTICED THAT SH. JAGIR SINGH, NAMBARDAR IS ALS O WITNESS TO BOTH THE AGREEMENTS TO SELL DATED 06.11.2007 AND 30.04.2009. NOT ONLY THIS, HE IS ALSO WITNESS TO EVEN EXTENSION OF DATE OF THE AGREEMENT TO SELL DATED 30.04.2009. FROM THIS FACT, IT IS CLEAR THAT AS TO HOW THE AFFIDAVIT S ARE BEING MISUSED TO EXPLAIN UNACCOUNTED MONEY EARNED BY ANY ASSESSEE. MOREOVER, THE SOURCE OF RS.5,00,000/-WHICH HAS BEEN STATED TO BE TAKEN FROM RELATIVES BY SMT. RAJWINDER KAUR REMAINED UNEXPLAINED AS NEITHER THE NAME OF RE LATIVES WAS DISCLOSED NOR THEIR SOURCE OF INCOME WAS EVER TOLD. IT IS ASSESSE E WHO IS REQUIRED BRING ALL THESE EVIDENCES ON RECORD BUT THE VEHEMENTLY FAILED IN TH IS REGARD. SMT. RAJWINDER KAUR HAS ALSO GIVEN INCORRECT STATEMENT IN VIEW OF THE A BOVE STATED FACTS. THE SOURCE OF INCOME OF SMT. AMARJEET KAUR HAS ALSO NOT BEEN EXPL AINED WITH ANY DOCUMENTARY EVIDENCE. MERELY SAYING THAT SMT. AMARJEET KAUR IS H AVING INCOME FROM DAIRY FARMING OR HAVING AGRICULTURE INCOME IS NOT SUFFICI ENT TO PROVE HER CAPACITY TO PAY. WHEN SMT. RAJWIDNER KAUR AND ASSESSEE ARE MAINTAINI NG BANK ACCOUNTS WHY THE AMOUNT HAS NOT BEEN GIVEN BY WAY OF ACCOUNT CHEQUE. LASTLY THE LAND IN QUESTION HAS NOT BEEN TRANSFERRED. ALL THESE FACTS PROVE THAT SMT. RAJWINDER KAUR IS NOT TELLING THE CORRECT FACTS. MOREOVER, THERE ARE LOT OF INCONSISTENCIES IN HER STATEMENT WITH REGARD TO SOURCE OF PAYMENT. IN VIEW OF ALL TH ESE FACTS, NO FAULT CAN BE FOUND IN THE ACTION OF THE ASSESSING OFFICER IN TREATING C ASH DEPOSITS OF RS.8,98,000/- IN VARIOUS BANK ACCOUNTS OF THE ASSESSEE AS UNEXPLAINE D INCOME OF THE ASSESSEE. 6.3 IN VIEW OF THE ABOVE STATED FACTS AND IN THE C IRCUMSTANCES OF THE CASE OF THE ASSESSEE, I AM OF THE OPINION THAT THE ASSESSING OFFICER IN FULLY JUSTIFIED IN MAKING ADDITION OF RS.8,98,000/- IN THIS CASE ON ACC OUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE. IN T HE RESULT, GROUND NO.1(B) AND 2 OF APPEAL TAKEN BY THE ASSESSEE ARE DISMISSED. 5. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 6. AT THE OUTSET, THE LD. AR INVITED OUR ATTENTION TO COPY OF AGREEMENT TO SALE DATED 6.11.2007 PLACED AT (PB PAGE 35 TO 41 ) AND SUBMITTED THAT FATHER OF ASSESSEE SH. PRITAM SINGH HAD RECEIVED TH E ABOVE AMOUNT OF RS.10,00,000/- AGAINST THIS SALE AGREEMENT AND WHIC H WAS DEPOSITED BY ASSESSEE IN HIS BANK ACCOUNT. THE LD. AR SUBMITTED THAT THOUGH THE AMOUNT WAS RECEIVED BY FATHER OF ASSESSEE. HE SUBMI TTED THAT SMT. RAJWINDER KAUR THE PROPOSED PURCHASER HAD ADMITTED IN HER STATEMENT THAT THE AMOUNT WAS PAID TO SH PRITAM SINGH, FATHER OF THE ASSESSEE WHO WAS OLD AND WHO HAD GIVEN IT TO ASSESSEE. THE AO DI D NOT DISPUTE THE ITA NO.67 (ASR)/2016 ASST. YEAR: 2008-09 4 RECEIPT OF MONEY BUT HE SIMPLY DISBELIEVED THE DEPO SITS IN THE BANK BECAUSE OF TIME GAP BETWEEN THE RECEIPT OF MONEY AN D DEPOSIT IN BANK. THE LD. AR SUBMITTED THAT THIS GROUND FOR NOT ACCEP TING THE EXPLANATION OF ASSESSEE HAS NO GROUND UNLESS IT IS PROVED THAT THE SAID AMOUNT WAS UTILIZED SOMEWHERE. THE LD. AR IN THIS RESPECT INV ITED OUR ATTENTION TO VARIOUS SUBMISSIONS BEFORE LD. CIT(A) VIDE WRITTEN SUBMISSIONS DATED 16.10.2015, 26.10.2015 AND 23.11.2015. THE LD. AR ALSO INVITED OUR ATTENTION TO COPY OF BANK ACCOUNT AND AS PER CASH F LOW STATEMENT PLACED AT (PB PAGE 12 TO 32). IN VIEW OF THE ABOVE FACTS A ND CIRCUMSTANCES, THE LD. AR SUBMITTED THAT THE AUTHORITIES BELOW HAS WRO NGLY MADE THE ADDITION. 7. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UN DISPUTED FACT THAT ASSESSEE IS A TEACHER AND HAS NO SOURCE OF INCOME O THER THAN SALARY. IT IS ALSO A FACT THAT ASSESSEE MADE DEPOSITS IN THE BANK ACCOUNTS JUST TO SHOW HIS GOOD NETWORTH FOR THE PURPOSE OF GETTING V ISAS FOR HIS SONS. IT IS A GENERAL PRACTISE PREVAILING IN THE VILLAGES TO GE T TEMPORARY LOANS FROM FRIENDS AND RELATIVES FOR DEPOSIT IN THE BANK ACCOU NT AND AFTER THE APPLICATION OF ASSESEE FOR VISA IS DISPOSED OFF, TH E SAME ARE RETURNED BACK. THE ASSESSEE HAS TRIED TO EXPLAIN THE SOURCES OF SUCH DEPOSITS BY ITA NO.67 (ASR)/2016 ASST. YEAR: 2008-09 5 SUBMITTING VARIOUS EXPLANATIONS. THE ASSESSEE HAD A LSO FILED WRITTEN SUBMISSIONS VIDE LETTER DATED 16.12.2015, 26.10.201 5, 23.11.2015 AND A PART OF WHICH WAS DISBELIEVED BY THE AUTHORITIES BE LOW. THE ASSESSEE HAD ALSO FILED CASH FLOW STATEMENT PLACED AT (PB PAGE 1 0 & 11). SIMILARLY, THE ASSESSEE HAS ALSO FILED COPIES OF BANK ACCOUNTS. TH E LEARNED CIT(A) WHILE DISPOSING OFF THE APPEAL HAS NOT EXAMINED CASH FLOW STATEMENT AND BANK ACCOUNTS. 9. THEREFORE, IN THE INTEREST OF JUSTICE THE CASE IS REMITTED BACK TO THE OFFICE OF LEARNED CIT(A) WHO SHOULD DECIDE AFRESH I N VIEW OF THE ABOVE OBSERVATIONS AND AFTER AFFORDING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. 10. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JUNE, 2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24.06.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER