Shri Baburao V.Bagade, Nashik V. ITO, Nashik

ITA 678/PUN/2010

• Counselvise Citation: 67824514 RSA 2010
• Duration Of Justice: 3 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 05-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.678/PN/2010 (A.Y.2003-04) SHRI BABURAO V. BAGADE PLOT NO.27, BAGADE SADAN, VISE MALA, COLLEGE ROAD, NASHIK PAN: AEKPB0054P APPELLANT VS. ITO, WARD 1(1), NASHIK RESPONDENT ITA NO.1493/PN/2012 (A.Y.2003-04) ITO, WARD 1(1), NASHIK APPELLANT VS. SHRI BABURAO V. BAGADE PLOT NO.27, BAGADE SADAN, VISE MALA, COLLEGE ROAD, NASHIK PAN: AEKPB0054P RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK DEPARTMENT BY : SHRI S.P. WALIMBE DATE OF HEARING : 10.01.2014 DATE OF ORDER : 21.01.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: BOTH THESE APPEALS PERTAIN TO THE SAME ASSESSEE AG AINST THE RESPECTIVE ORDERS OF CIT(A) ON QUANTUM AND PENALTY. SO THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 2. IN ITA NO.678/PN/2010 FOR 2003-04, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1 (A) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ER RED IN CONFIRMING THE ADDITION OF RS. 15,31,330/- U/S. 68 OF THE ACT TOWARDS ALLEGED UNEXPLAINED LOAN FROM MRS. URMILA B AGADE I.E. WIFE OF THE APPELLANT FOR WANT OF EVIDENCE IN THE F ORM OF ENTRY IN THE BANK STATEMENT OF THE APPELLANT. (B) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE SOURCE OF THE LOAN O F RS. 15,31,330/- ADVANCED BY MRS. URMILA BAGADE IS OUT OF LOAN FROM NDIMC BANK AND THE CONSOLIDATED DE BIT ENTRY IS ALSO APPEARING IN THE BANK STATEMENT OF MRS. URM ILA BAGADE, WHICH INCLUDES AN AMOUNT OF RS.15,31,330/- TRANSFER RED TO THE APPELLANT. (C) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ISSUE UNDER CONSIDER ATION RELATES TO THE PERIOD WHICH IS PRIOR TO MORE THAN 5 YEARS, IT IS DIFFICULT TO PRODUCE BANK STATEMENT OF THE SAID PERIOD BY OBT AINING THE SAME FROM THE BANK. 2. ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.20,389/- I.E. TO THE EXTENT OF 1 5% OF THE CAR EXPENSES TOWARDS ALLEGED PERSONAL USE OF CAR. 3. ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.4,000/- ON ACCOUNT OF ALLEGED PERSON AL USE OF TELEPHONE. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE A BOVE OR ANY OTHER GROUND/S OF APPEAL. 3. AT THE OUTSET OF HEARING, THE LEARNED AUTHORIZED REPRESENTATIVE DID NOT PRESS GROUNDS OF APPEAL NOS.2 & 3, SO SAME ARE DISMISSED AS NOT PRESSED. 4. THE ONLY ISSUE SURVIVES IS WITH REGARD TO THE AD DITION OF RS.15,31,330/- U/S.68 OF I.T. ACT. BRIEF FACTS OF CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS O F LAND DEALINGS. WHILE ASSESSING THE INCOME FOR A.Y. 2003-04 TO 2006 -07, THE ASSESSING OFFICER HAS MADE ADDITION U/S.68 AND DISA LLOWED THE VARIOUS EXPENSES. IN A.Y.2003-04, THE ASSESSEE HAD TAKEN LOANS FROM HIS WIFE MRS. URMILA BABURAO BAGADE OF RS.27,1 7,698/-. THE 3 ASSESSING OFFICER HAS TREATED THE UNEXPLAINED AMOUN T AS THE ASSESSEE HAS NOT SUBMITTED PAN OF LENDER AND NDIMC LOAN ACCOUNT IN THE NAME OF MRS. URMILA BABURAO BAGADE. IN APPE AL, THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED LOAN FROM HIS WIFE BUT THE SAME WAS NOT ACCEPTED BY THE CIT(A) IN THE ABSENCE OF BANK DETAI LS. 4.1 THUS THE REVENUE AUTHORITIES HAVE ACCEPTED THE LOAN OF RS.1,21,000/- AND RS.11,73,589/- BECAUSE THEIR BANK DETAILS WERE FURNISHED BUT REGARDING THE AMOUNT OF RS.15,31,330/ -, ADDITION WAS CONFIRMED IN ABSENCE OF BANK ACCOUNT DETAILS. BEFO RE US, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THE WI FE OF ASSESSEE HAS TAKEN LOAN OF RS.50 LACS ON 31.03.2003 AND OUT OF THE SAME, SHE GAVE LOAN OF RS.1,21,000/-, RS.11,73,589/- AND RS.1 5,31,330/- AS STATED ABOVE. THE DETAILS OF THE BANK ACCOUNT TRAN SACTIONS OF RS.1,21,000/- AND RS.11,73,589/- WERE GIVEN AT FIRS T APPEAL STAGE, SO TO THAT EXTENT, THE ASSESSEE WAS GRANTED RELIEF. REGARDING RS.15,31,330/-, THE ASSESSEE HAS SUBMITTED AN ADDIT IONAL EVIDENCE IN THE FORM OF CERTIFICATE FROM THE CONCERNED OFFIC ER WHICH READ AS UNDER: ENGLISH TRANSLATION OF THE CERTIFICATE DATED 7/4/2011 ISSUED BY NDIMC BANK LTD., NASHIK IN MARATHI LANGUAGE NASHIK DISTRICT INDUSTRIAL & MERCANTILE CO-OP. BANK LTD. HEAD OFFICE- SHIVKAMAL APARTMENT, CANADA COMER, SH ARANPUR EXTN. ROAD, NASHIK-422 005. PHONE [phone], FAX [phone] E MAIL IMCBANK @SANCHAR.IN O/W NO. 14/631 /NASHIK DATE: 07/04/2011 CERTIFICATE SAVINGS ACCOUNT NO. 23/300 4 THIS IS TO CERTIFY THAT MRS. URMILA BABURAO BAGADE, RESIDING AT VISE MALA, NASHIK IS HAVING SAVING BANK ACCOUNT WITH THE MAIN BRANCH OF THE BANK. IN THIS BANK ACCO UNT LOAN SANCTIONED AMOUNTING TO RS. 50,00,000/- HAS BEEN CR EDITED ON 31/3/2003. OUT OF THIS AMOUNT RS. 49,87,000/- (RS.49,87,000/- ONLY) HAS BEEN TRANSFERRED TO VARIO US ACCOUNTS BY DEBITING THE SAME TO A/C NO. 23/300, SUCH AS SHRI B ABURAO VISHWANATH BAGADE A/C NO.23/13 RS.1,21,000/-, M/S.J OY BUILDERS A/C NO. 174/406 RS. 58,6407-, SHRI BAGADE BABURAO VISHWANATH A/C NO. 174/581 RS.11,73,589/-, MRS. URM ILA BABURAO BAGADE A/C NO. 174/58 RS. 21,02,441/- AND SHRI BABURAO VISHWANATH BAGADE A/C NO. 21/1136 RS. 15,31,330/-. THE CERTIFICATE HAS BEEN ISSUED ACCORDINGLY. SD/- CHIEF EXECUTIVE OFFICER. 4.2 THE ASSESSEE HAS ALSO FILED BANK EXTRACT WITH R EGARD TO THE AMOUNT OF RS.15,31,330/-. IN THIS REGARD, THE STAN D OF THE ASSESSEE IS THAT THE ABOVE TRANSACTION OF RS.15,31,330/- WAS DONE THROUGH BANKING CHANNEL, BUT SAME COULD NOT BE PRODUCED BEF ORE THE LOWER AUTHORITIES AT THE RELEVANT POINT OF TIME FOR THE R EASONS BEYOND HIS CONTROL, BUT THE EVIDENCE IN QUESTION GOES TO THE R OOT OF THE ISSUE AT HAND, SO SAME SHOULD BE ADMITTED. FINDING FORCE IN THE CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE, THAT THE DETAILS OF BANKING TRANSACTIONS WITH REGARD TO THE AMOUNT IN QUESTION COULD NOT BE PRODUCED AT THE RELEVANT POINT OF TIME AS IT GOES T O THE ROOT OF THE ISSUE, SO SAME SHOULD BE APPRECIATED FOR PROPER ADJ UDICATION OF ISSUE AT HAND. IN THE INTEREST OF JUSTICE, WE RESTORE TH IS ISSUE TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SA ME IN THE LIGHT OF THIS ADDITIONAL EVIDENCE AND AS PER FACT AND LAW AF TER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. 6. IN ITA NO.1493/PN/2012, THE REVENUE HAS FILED TH IS APPEAL ON THE FOLLOWING GROUNDS. 5 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, AND IN LAW THE LEARNED CIT (A)-I, NASHIK IS JUST IFIED IN CANCELLATION OF PENALTY AMOUNTING TO RS.4,55,070/-, UNDER SEC. 271 (L)(C) OF THE IT ACT, 1961, FOR FILING INA CCURATE PARTICULARS OF INCOME LEVIED BY THE AO. 2. THE LEARNED CIT (A) OUGHT TO HAVE UPHELD THE PENALT Y ORDER AMOUNTING TO RS. 4,55,070/-, UNDER SEC. 271 (L)(C) OF THE IT ACT 1961 PASSED BY THE ASSESSING OFFICER ITO WARD 1(1), NASHIK. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEARNE D CIT (A) BE VACATED AND THAT OF THE ASSESSING OFFICER ITO WARD 1 (1), NASHIK, BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND AND ALTER ANY GROUND (S) OF APPEAL. 7. AS DISCUSSED ABOVE IN PROCEEDING IN QUANTUM ADDI TION DURING THE YEAR UNDER APPEAL, THE ASSESSING OFFICER HAS MA DE ADDITION OF RS.27,17,698/- ON ACCOUNT OF ALLEGED UNEXPLAINED LO AN FROM THE WIFE OF THE ASSESSEE MRS. URMILA BAGADE. THE CIT(A) VID E ORDER DATED 24.04.2012 HAS DELETED THE ADDITION TO THE EXTENT O F RS.12,93,589/- AND HAS CONFIRMED TO THE EXTENT OF RS.15,31,330/- F OR WANT OF THE DETAILS OF THE CONSOLIDATED BANK ENTRIES. THE ASSE SSING OFFICER HAS LEVIED THE PENALTY OF RS.4,55,070/- U/S.271(1)(C) O N ACCOUNT OF ABOVE, WHICH WAS DELETED BY THE CIT(A). IN FACT BE FORE THE FIRST APPELLATE AUTHORITIES BY WAY OF ADDITIONAL EVIDENCE OF THE DETAILS WITH REGARD TO RS.15,31,330/- WERE FILED AND ADMITTING T HE SAME, THE CIT(A) HAS GRANTED THE RELIEF IN PENALTY IN QUESTIO N BY OBSERVING THAT THE ASSESSEES WIFE HAS TAKEN LOAN OF RS.50 LACS FR OM NDIMC BANK AND TRANSFERRED THE SAME LOAN BY 5 ENTRIES TO VARIO US ACCOUNTS IN THE SAME BANK TO THE EXTENT OF RS.49,87,000/-. THE BANK HAS PASSED CONSOLIDATED ENTRY OF RS.49,87,000/- IN THE BANK ST ATEMENT WHICH INCLUDES AMOUNT OF RS.15,31,330/- TRANSFERRED TO TH E ASSESSEE IN ACCOUNT NO.21/1136 OF NDIMC BANK. AS STATED ABOVE, THE CIT(A) IN QUANTUM HAS CONFIRMED THE ADDITION AS DETAILS OF TH E RELEVANT BANK ENTRIES COULD NOT BE PRODUCED BY THE ASSESSEE IN QU ANTUM PROCEEDINGS AT THE RELEVANT POINT OF TIME BUT THE S AME WAS PRODUCED BY THE CIT(A) IN PENALTY PROCEEDINGS BY WAY OF ADDI TIONAL EVIDENCE. 6 IN VIEW OF THE ABOVE, THE ASSESSEE HAS PROVED THE S OURCE OF THE LOAN OF RS.15,31,330/- FROM SMT. URMILA B. BAGADE AND AC CORDINGLY, PENALTY LEVIED ON THIS ACCOUNT WAS DELETED. THIS R EASONED FINDING OF CIT(A) NEED NO INTERFERENCE FROM OUR SIDE WHEREBY C IT(A) HAS DELETED THE PENALTY LEVIED UNDER THE PROVISIONS OF SECTION 271(1)(C) OF RS.4,55,070/- IN RESPECT OF ADDITION OF RS.15,31,33 0/- AS SAME DULY EXPLAINED DURING PENALTY PROCEEDINGS BEFORE THE FIR ST APPELLATE AUTHORITIES. WE UPHOLD THE SAME. 8. AS A RESULT, THE APPEAL OF REVENUE IS DISMISSED. 9. IN THE RESULT, THE ASSESSEES APPEAL IN QUANTUM IN ITA NO.678/PN/2010 IS ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE REVENUES APPEAL IN ITA NO.1493/PN/2012 IS DISMISSE D AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 21 ST DAY OF JANUARY, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 21 ST JANUARY, 2014 GCVSR COPY TO:- 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-I, NASHIK 4. THE CIT-I, NASHIK 5. THE DR, B BENCH, I.T.A.T., PUNE. 6. GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE