Smt . Santosh Devi, Hardoi V. ITO-3(3), Bareilly

ITA 709/LKW/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0182 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEELAM AGRAWAL
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 709/LKW/2017 ASSESSMENT YEAR: 2009 - 10 SMT. SANTOSH DEVI AZAD NAGAR MADHOGANJ, HAR DOI V. INCOME TAX OFFICER 3(3) HARDOI T AN /PAN : APDPD4175R (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI SANJAY SAXENA, C.A. RESPONDENT BY: SMT. NEELAM AGRAWAL, D.R. DATE OF HEARING: 31 0 7 201 8 DATE OF PRONOUNCEMENT: 03 0 8 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A), BAREILLY DATED 17/8/2017 AS PER GROUNDS OF APPEAL ON RECORD. 2 . AT THE TIME OF HEARING BEFORE US, L D. A.R. OF THE ASSESSEE APPRISED THE BENCH THAT THE G ROUNDS OF APPEAL CONTAINS ONE ISSUE RELATING TO THE JURISDICTIONAL ISSUE THAT WHETHER THE ASSESSING OFFICER I.E. INCOME TAX OFFICER, WARD 3(3), HARDOI PASSING THE REASSESSMENT ORDER WAS WITHOUT JURISDICTION. LD. D.R. WANTED TO SEE THE RECORDS. THEREAFTER , LD. A.R. OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING ALL THE GROUNDS RAISED IN THE GROUNDS OF APPEAL EXCEPT GROUND NO.3 , WHICH IS AS FOLLOWS: - 3. THAT THE LD. CIT(A), BAREILLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN RESPECT OF CASH DEPOSITS OF RS.14,80,000/ - IN SB ACCOUNT TREATING AS UNEXPLAINED. ITA NO.709/LKW/2017 PAGE 2 OF 4 3 . IT IS THE CASE OF THE REVENUE AS APPEARING IN THE ASSESSMENT ORDER ON THE ISSUE THAT THE ASSESSEE WAS ASKED TO EXPLAIN CASH DEPOSIT OF RS.35,00,000/ - WITH SUPPORTING DOCUMENTARY EVIDENCE. LD. A.R. OF THE ASSESSEE STATED BEFORE THE ASSESSING OFFICER THAT ALL THESE DEPOSITS ARE OUT OF WITHDRAWAL MADE FROM THE SAME ACCOUNT ON EARLIER DATES. A PERUSAL OF ACCOUNT STATEMENT REVEALS THAT CASH WITHDRAWALS FROM SB ACCOUNT HA VE BEEN MADE ON VARIOUS DATES IN THE MONTH OF APRIL, 2008; WHEREAS ALL THE CASH DEPOSITS HAVE BEEN MADE IN THE MONTH OF MARCH, 2009 ONLY. DURING ASSESSMENT PROCEEDINGS , LD. A.R. OF THE ASSESSEE WAS SPECIFICALLY ASKED TO ESTABLISH THAT CASH WITHDRAWN FROM BANK BY DIFFERENT PERSONS WAS ON BEHALF OF ASSESSEE. HE HAS ALSO BEEN ASKED TO EXPLAIN AS TO WHY CASH WAS KEPT IDLE WITH THE ASSESSEE THROUGHOUT THE YEAR AND DEPOSITED IN THE LAST MONTH OF THE RELEVANT FINANCIAL YEAR. VIDE REPLY DATED 19.12.2016, LD. A.R. OF THE ASSESSEE STATED THAT CASH WITHDRAWALS MADE IN THE MONTH OF APRIL, 2008 WAS KEPT WITH THE ASSESSEE HERSELF AND SHE LATER ON DEPOSITED THE SAME IN HER ACCOUNT IN THE MONTH OF MARCH, 2009. LD. A.R. OF THE ASSESSEE STATED THAT AMOUNTS HAD BEEN WITHDRAW N BY DIFFERENT PERSONS IN CASH FROM THE BANK ON BEHALF OF THE ASSESSEE BEING A LADY. NO FORCE WAS FOUND IN THE REPLY OF ASSESSEE AS ON VARIOUS OCCASIONS IN THE MONTH OF APRIL, 2008, CASH WAS WITHDRAWN BY THE ASSESSEE HERSELF AS IS EVIDENT FROM ACCOUNT STAT EMENT. ASSESSING OFFICER OBSERVED THAT O UT OF TOTAL CASH WITHDRAWAL MADE IN THE MONTH OF APRIL, 2008, RS.20,20,000/ - WAS WITHDRAWN BY THE ASSESSEE HERSELF AND REST AMOUNT WAS PAID TO DIFFERENT PERSONS. WHEREAS, IN THE MONTH OF MARCH, 2009, TOTAL CASH DEP OSITS WERE OF RS.35,00,000/ - . THEREFORE , ASSESSEE FAILED TO ESTABLISH THE SOURCE OF CASH DEPOSITS TOTALING TO RS.14,80,000/ - [35,00,000 - 20,20,000]. THE SAME IS TREATED AS UNEXPLAINED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO.709/LKW/2017 PAGE 3 OF 4 4 . AT THE TIME OF HEARING B EFORE US, LD. A.R. OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND VEHEMENTLY ARGUED THAT ASSESSEE HAD WITHDRAWN RS.20,20,000/ - FROM SB ACCOUNT; RS.9,75,000/ - BY HIS SON, MR ANKUSH RUNGTA ON 19/4/2008 IN CASH AND RS. 21,40,000/ - HA S BEEN WITH DRAWN IN CASH BY THE EMPLOYEES OF THE FIRM, M/S GAURI PATI UDYOG IN WHICH ASSESSEE IS A PARTNER TILL DATE. NECESSARY BANK CERTIFICATE HAS BEEN FILED WITH THE REVENUE. IT IS THE CONTENTION OF THE LD. A.R. OF THE ASSESSEE THAT THE AMOUNTS WITHDR AWN IN CASH BY THE SON AND THE EMPLOYEES OF THE FIRM, IN WHICH ASSESSEE IS A PARTNER, AGGREGATING TO RS.31,15,000/ - ARE CONCERNED, THEN THERE WILL NOT BE ANY UNEXPLAINED AMOUNT. 5 . THE LD. D.R. SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6 . WE HAVE PERUSED TH E CASE RECORDS, HEARD THE RIVAL CONTENTIONS AND WE FIND THAT THE ISSUE IN DISPUTE BEFORE US AS IS EVIDENT HEREINABOVE REQUIRES A DETAILED FACTUAL VERIFICATION AND, THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO FACTUALLY VERIFY THE STATUS OF WITHDRAWALS FROM SB ACCOUNT AND ADJUDICATE THE ISSUE AFRESH AFTER PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 / 0 8 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD AUGUST , 201 8 JJ: 3107 ITA NO.709/LKW/2017 PAGE 4 OF 4 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . D R