Shri Umarbhai B. Notiyar, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(3)(3), RAJKOT-GUJARAT

ITA 68/RJT/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8909 (ITAT-RAJKOT)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] UMARBHAI BAVALBHAI NOTIYAR, 15 - P OPATPARA, OPP. N ISHTA VIDHA MANDI R , RAJKOT PAN: AZLPN2081N (APPELLANT) VS THE ITO, WARD - 2(3)(3), RAJKOT ( RESPONDENT) REVENUE BY : S H RI PRAVEEN VERMA , D . R. ASSESSEE BY: NONE DATE OF HEARING : 05 - 1 2 - 2 017 DATE OF PRONOUNCEMENT : 12 - 01 - 2 018 / OR DER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2008 - 09 , AR ISES FROM ORDER OF THE CIT(A) - 2, RAJKOT DATED 01 - 12 - 2016 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 68 / RJT /20 17 A SSESSMENT YEAR 200 8 - 09 I.T.A NO. 68 /RJT /20 17 A.Y. 2008 - 09 PAGE NO UMARBHAI BAVALBHAI NOTIYAR VS. M/S. ITO 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1.0 THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2.0 THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 2, RAJKOT [HEREINAFTER REFERRED TO AS THE CIT (A)] ERRED ON FACTS AS ALSO IN LAW IN RETAINING ADDITION OF CASH DEPOSIT OF RS. 6,50,000/ - IN THE BANK ACCOUNT BY ALLEGING THAT APPELLANT'S VERSION OF DEPOSITING CASH OUT OF PENSION INCOME, RETIREMENT BENEFITS AND PAST SAVING CANNOT BE ACCEPTED IN THE ABSENCE OF CORR OBORATIVE EVIDENCES. THE ADDITION RETAINED IS TOTALLY UNJUSTIFIED ON FACTS AS ALSO IN LAW AND MAY KINDLY BE DIRECTED TO BE DELETED. 3. IN THIS CASE, THE ASSESSING OFFICER HAS R ECEIVED INFORMATION FROM ITO (C I B ) THAT ASSESSEE HAS DEPOSITED CASH AGGREGATIN G TO THE AMOUNT OF RS. 10 LACS IN SAVING BANK ACCOUNT IN SBS/SBI S , RAJKOT. THEREAFTER, THE CASE OF THE ASSESSEE WAS REOPENED U/S. 147 OF THE ACT BY ISSUING OF NOTICE U/S.148 ON 19 TH MARCH, 2015. IN RESPONSE TO NOTICE U/S. 148, THE ASSESSEE HAS RE - FILED THE RETURN OF I NCOME DECLARING INCOME OF RS. 72 648/ - . THE ASSESSEE HAS D ERIVED INCOME FROM PENSION OF R S. 60839/ - AND INTEREST INCOME OF RS. 11890/ - . REGARDING CASH DEPOSITED OF RS 10 LACS , THE ASSESSEE HAS STATED THAT IT IS NOT UNACCOUNTED MONEY. IN TH IS CONNECTION, HE SUBMITTED THAT HE RETI R ED ON 18 TH FEB, 1982 FROM GUJARAT GOVERNMENT S PANCHAYAT VIBHAG AS A CLASS 3 SERVANT . HE RECEIVED TOTA L SUM OF RS . 50,000/ - AS A RETIREMENT BENEFIT, GRATUITY, LEAVE ENCASHMENT, PF ETC. HE FURTHER STA T ED THAT HE W A S L I VING WITH YOUNGER SON AND RECEIVED 500 PER MONTH FROM 1982 TO 1996 FROM HIS FIVE SONS AS MAINTENANCE AND THEREAFTER RS. 750/ - PER MONTH AS MAINTENANCE FROM THEM FOR 1997 ON - WARDS. HE STATED TH AT HE WAS NOT HAVING ANY BANK ACCOUNT EXCEPT WITH BRANCH OF STATE BANK OF SAURASTRA , RAJKOT. HE HAS ALSO STATED THAT HE HAS NO INTEREST IN INTEREST INCOME AS HE I.T.A NO. 68 /RJT /20 17 A.Y. 2008 - 09 PAGE NO UMARBHAI BAVALBHAI NOTIYAR VS. M/S. ITO 3 BELONGS TO MUSLIM COMMUNITY. HE EXPLAINED THAT THERE WAS TOTAL CASH SAVI NG OF RS. 10.38 LACS CONSISTING OF (RS. 50,000/ - GRATU ITY LEAVE ENCAS HMENT PF = RS. 7, 99 ,0 00/ - PENSION AMOUNT WITHDRAWN FROM MARCH, 1982 TO 6 TH AUGUST, 2007 + RS . 1,89 ,000/ - FROM 1998 TO 2007 CASH AMOUNT RECEIVED AS MAINTENANCE FROM HIS SONS ) WHICH WAS DEPOSITED IN HIS SAVING BANK ACCOUNT DUE TO FAMILY PERSONAL PROBLEM AN D INSECURITY. THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION OF T HE ASSESSEE ON THE GROUND THAT NO PRUDENT PERSON WOULD KEEP SUCH HUGE AMOUNT FOR SUCH LONG TIME AT HIS RESIDENCE. THE ASSESSING OFFICER HAS OBSERVED THAT ASSESSEE HAS DEPOSITED AMOUN T OF RS. 10 LACS OUT OF HIS INCOME FROM UNDISCLOSED SOURCE AS ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH IN HIS CASE SATISFACTORILY . THEREFORE, HE HAS MADE ADDITION OF RS. 10 LACS AS INCOME OF T HE ASSESSEE FROM UNDISCLOSED SOURCE . 4. AGGRIEVED ASSES SEE FILED APPEAL B E FORE HE LD. CIT(A). THE LD. CIT(A) B HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 5. I FIND THAT THE AO HAS HELD THE CASH DEPOSITS OF RS.10,00,000/ - IN ASSESSEE BANK A/C TO BE UN - EXPLAINED. BOTH DURING THE ASSE SSMENT AS WELL AS APPELLATE PROCEEDINGS THE PLEA OF THE ASSESSEE IS THAT HE IS A PENSIONER SINCE 1982 AND THE SAID CASH DEPOSITS WERE OUT OF HIS PENSION, RETIREMENT BENEFITS AND PAST SAVINGS. THE AO HAS BROUGHT OUT CONTRADICTION IN SUBMISSION OF ASSESSEE T HAT ON THE ONE HAND HE STATES THAT HE DOES NOT TRUST BANK AND ON THE OTHER HAND HE MAKES A DEPOSIT IN A BANK A/C. THE AO HAS ALSO OBSERVED CONTRADICTIONS IN SUBMISSIONS OF APPELLANT IN HIS EXPLANATIONS FILED ON VARIOUS DATES. 6. HAVING CONSIDERED FACTS AND CIRCUMSTANCES OF THE CASE AND RIVAL CONTENTIONS, 1 FIND THAT THE FACT THAT THE ASSESSEE IS PENSIONER SINCE 1982 IS UNCONTROVERTED. IT IS VERIFIABLE THAT PENSION RECEIPTS AND WITHDRAWALS ARE ABOUT RS. 7 LACS OVER A PERIOD OF ALMOST 25 YEARS. THE YEARLY PEN SION OF ASSESSEE 1982 - 83 WAS RS.5728/ - AND ABOUT RS. 53000/ - IN F.Y. 2006 - 07. THE -- RECEIPTS OF RS. 1000 P.A./RS. 800 P.A. FROM HIS 5 SONS INITIALLY AND 4 SONS LATER IS ALSO A FACT OF RECORD. EVEN ALL THESE SOURCES LEAVE A GAP OF RS. 3 LACS WHICH IS EXPLA INED TO BE OUT OF I.T.A NO. 68 /RJT /20 17 A.Y. 2008 - 09 PAGE NO UMARBHAI BAVALBHAI NOTIYAR VS. M/S. ITO 4 HIS SAVINGS. I AM OF THE CONSIDERED OPINION THAT THE CONTENTION THAT THE WHOLE OF PENSION AND THE MAINTENANCE CHARGES FROM SONS WAS SAVED BY ASSESSEE AND NOTHING WAS SPENT CANNOT BE ACCEPTED, THE AMOUNT ITSELF BEING MEAGER AND THERE BEING ADMITTEDLY NO OTHER SOURCE OF LIVELIHOOD, CENT - PERCENT SAVING CANNOT BE BELIEVED. AT THE SAME - TIME IT CANNOT BE DENIED THAT SOME PORTION OF HIS PENSION INCOME WOULD HAVE BEEN SAVED BY ASSESSEE AND COULD, BE THE SOURCE OF CASH DEPOSIT IN HIS BANK A/C. TO M EET ENDS OF JUSTICE I HOLD THAT 50% OF PENSION AMOUNT OF ABOUT RS. 7 LACS COULD HAVE BEEN SAVED BY ASSESSEE TO BE DEPOSITED IN BANK A/C. THUS DEPOSITS OF RS. 3,50,000/ - OUT OF SAVINGS ARE HELD TO BE GENUINE. BALANCE AMOUNT OF RS. 6,50,000/ - DEPOSITED IN CA SH IN BANK A/C IS HELD TO BE OUT OF UNEXPLAINED SOURCES AND ADDITION TO THIS EXTENT I.E., RS.6,50,000/ - IS CONFIRMED. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, NOBODY HAS ATTENDED THE HEARING FROM THE SIDE OF ASSESSEE. THE LD. DR HAS SUPP ORTED THE ORDER OF THE LD.CIT(A). HOWEVER, THE ASSESSEE HAS FILED PAPER BOOK DATED 30 TH NO V, 2017 CONTAINING INFORMATION LIKE COPY OF ORDER OF LD. CIT(A) SUBMISSION MADE BEFORE THE LD. CIT(A) AND ASSESSING OFFICER, PHOTOCOPY OF PASSBOOK ETC. I T WAS MENT IONED THAT THE ASSESSEE IS 92 YEAR S OLD . HE HAS BEEN RETIRED AS A GOVERNMENT SERVANT SINCE 22 ND FEB, 19 8 2 . THE SOURCE OF CASH DEPOSIT WAS AMOUNT RECEI VED FROM RETIREMENT BENEFIT LIK E GRATUITY, LEAVE ENCASHMENT , PENSION RECEIVED SINCE 1982 AND T HE MAINTE NANCE AMOUNT RECEIVED FROM HIS SONS . THE LD. CIT(A) OBSERVED THAT SOME PORTION OF THE PENSION AMOUNT AND T HE MAINTENANCE AMOUNT RECEIVED COULD HAVE BEEN SAVED AND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE . ON PERUSAL OF MATERIAL ON RECORD W E OBSERVED THAT IT IS UNDISPUTED FACT THAT ASSESSEE W A S RECEIVING PENSION AND MAINTENANCE FROM FIVE SONS. WE FURTHER OBSERVED BEING LOOKING TO THE AGE OF T HE PERSON HAVING NO OTHER FAMILY LIABILITY THERE IS POSSIBILITY OF SAVING FROM PART OF THE AMOUNT RECEIVED FRO M THE AFORESAID SOURCES . IN VIEW OF THE ABOVE FACTS AND A FTER CONSIDERING I.T.A NO. 68 /RJT /20 17 A.Y. 2008 - 09 PAGE NO UMARBHAI BAVALBHAI NOTIYAR VS. M/S. ITO 5 THE OLD AGE AND HAVING NO OTHER LIABILITY UPON THE ASSESSEE, WE OBSERVED THAT IT WILL BE APPROPRI ATE TO RESTRICT THE ADDITION TO THE EXTENT OF RS.3.5 AS AGAINST THE ADDITION OF RS . 6.5 LACS CONFIRMED BY DL. CIT(A) . THEREFORE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSE E IS PARTLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 12 - 01 - 201 8 SD/ - SD/ - (RAJPAL YADAV ) ( AMARJIT SING H ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 12 /01 /201 8 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER , ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT