Smt. R. Shanti, Bangalore V. ITO, Bangalore

ITA 726/BANG/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2297 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-06-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 22-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SUNDARARAJAN
• Section: 143(3)

Judgement Text

ITA NO.726 OF 2011 R SHANTI, BANGALORE PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES, BANGALORE BEFORE SHRI N. BARATHVAJA SANKAR, VICE PRESIDENT AN D SHRI GEORGE GEORGE K. JUDICIAL MEMBER ITA NO.726/BANG/2011 (ASSESSMENT YEAR: 2008-09) SMT. R. SHANTI C-1, 1104 L&T SOUTH CITY APARTMENTS, ARIKERE MICO LAYOUT, BANNERGHATTA ROAD, BANGALORE 500076 PAN: AVTPS 2580 F VS. INCOME TAX OFFICER 4(3) BANGALORE (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI NARENDRA SHARMA DEPARTMENT BY: SHRI A. SUNDARARAJAN, DR DATE OF HEARING: 17/06/2013 DATE OF PRONOUNCEMENT: 21/06/2013 O R D E R PER GEORGE GEORGE K. J.M. THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRE CTED AGAINST THE ORDER OF THE CIT (A)-II BANGALORE DATED 15.03.2 011 IN RELATION TO THE ASSESSMENT YEAR 2008-09. THE GROUNDS RAISED IN THE MEMORANDUM OF APPEAL READS AS FOLLOWS: 1. THE ORDER OF THE LEARNED CIT(A)-II IS OPPOSED T O LAW AND FACTS OF THE CASE. 2. THE LEARNED CIT (A) HAS ERRED IN PASSING THE ORD ER WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE APP ELLANT 3. THE LEARNED CIT (A) HAS ERRED PASSING THE ORDER WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT TO S UBMIT THE REJOINDER TO THE REPORT OF THE ASSESSING OFFICE R. 4. THE LEARNED CIT (A) ERRED IN SUSTAIN THE ADDITIO N OF RS.1,50,000 WITHOUT CONSIDERING THE EXPLANATION GIV EN BY THE APPELLATN. 5. THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.3,00,000 WITHOUT CONSIDERING THE EXPLANATION AND DETAILS SUBMITTED BY THE APPELLANT . ITA NO.726 OF 2011 R SHANTI, BANGALORE PAGE 2 OF 6 2. THE ASSESSEE IS AN INDIVIDUAL. THE RETURN OF INCOME WAS FILED ON 25.03.2009DECLARING A TOTAL INCOME OF RS.1 ,36,320. THE ASSESSMENT WAS TAKEN UP FOR SCRUTINY AND THE ASSESS MENT ORDER UNDER SECTION 143(3) WAS COMPLETED VIDE ORDER DATED 24.12.2010 FIXING THE TOTAL INCOME OF RS.9,37,263 BY MAKING TH E FOLLOWING ADDITION: A) INVESTMENT IN MUTUAL FUNDS RS. 5,00,943 B) CASH CREDIT RS. 3,00,000 3. BRIEF FACTS IN RELATION TO THE ABOVE TWO ADDITIONS ARE AS FOLLOWS: INVESTMENTS IN MUTUAL FUNDS : 4. ASSESSING OFFICER HAD MENTIONED IN THE IMPUGNED ASSESSMENT ORDER THAT AS PER THE AIR INFORMATION RE CEIVED, THE ASSESSEE HAD MADE THE FOLLOWING INVESTMENT IN THE M UTUAL FUNDS: A) 17.01.2008 SBI MUTUAL FUND RS.2,00,943 B) 05.12.2007 MUTUAL FUNDS - RS. 75,000 C) 31.03.2008 CHEQUE - RS. 75,000 D) 05.12.2007 MUTUAL FUND - RS. 75,000 E) 05.12.2007 MUTUAL FUND - RS. 75,000 5. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH DET AILS OF THE INVESTMENTS MADE IN THE MUTUAL FUNDS. ON THE APPOIN TED DAY THE ASSESSEE COULD NOT FURNISH THE DETAILS SINCE AC CORDING TO THE ASSESSEE HER HUSBAND WAS HOSPITALIZED AT COIMBATORE . HOWEVER, THE DETAILS WERE SUBMITTED ON 29.12.2010 I.E. SUBSE QUENT TO COMPLETION OF ASSESSMENT. 5.1 AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT (A) CONFIRMED ADDITION OF RS.1,50,000 OUT OF RS.5,00,943. THE RELEVANT FINDIN GS OF THE CIT (A) READ AS FOLLOWS: 4.4 AS REGARDS THE TRANSACTION/INVESTMENT OF RS.75,000 ON 5/12/2007 AND RS.75,000 ON 31.3.2008, NO DETAILS HAVE BEEN FURNISHED AND ITA NO.726 OF 2011 R SHANTI, BANGALORE PAGE 3 OF 6 HENCE, I AM CONSTRAINED TO UPHOLD THE ADDITION OF THE SAME 6. AGGRIEVED BY THE CONFIRMATION OF THE ADDITION TO TH E TUNE OF RS.1,50,000 BY THE CIT (A), THE ASSESSEE IS IN A PPEAL BEFORE US. THE SUBMISSION OF THE ASSESSEE ARE DETAILED BELOW: INVESTMENT MADE: MUTUAL FUND ON 05.12.2007 RS.75,0 00 MUTUAL FUND: 31.03.2008 RS.75,000 THE ASSESSING OFFICER HAS MADE THE ADDITION AS INVE STMENT IN MUTUAL FUND AS PER THE INFORMATION RECEIVED BY H IM. THE APPELLANT HAS VERIFIED ALL THE BANK STATEMENTS AND COULD NOT FIND THE ENTRIES. THIS IS BECAUSE THE APPELLANT HAD NOT MADE ANY SUCH INVESTMENT AS STATED BY THE ASSESSING OFFICER. FURTHER AS PER THE RULES OF THE MUTUAL FUN D ONE CANNOT MAKE THE INVESTMENTS IN CASH. THE INVESTMENT IN MUTUAL FUND SHOULD BE MADE IN ACCOUNT PAYEE CHEQUE AND THE FUND WILL ALLOT IN THE NAME OF THE ACCOUNT HOLD ER ONLY. HENCE AS PER THE BANK PASS BOOK, IT IS EVIDENT THAT THE APPELLANT HAS NOT WITHDRAWN ANY AMOUNT AS STATED BY THE ASSESSING OFFICER ON 05.12.2007 OR ON 31.03.2008. T HE ASSESSING OFFICER HAS NOT GIVEN ANY DETAILS OF INVE STMENT MADE. HE HAS MERELY STATED THAT THE APPELLANT HAD INVESTED WITHOUT GIVING ANY FURTHER DETAILS OF MUTU AL FUND IN WHICH THE FUNDS WERE INVESTED. WITHOUT THE DETAI LS OF INVESTMENT IT IS NOT POSSIBLE FOR THE APPELLANT TO GIVE DETAILS. EVEN THOUGH THE APPELLANT MADE THE REQUEST THE ASSESSING OFFICER COULD NOT FURNISH THE DETAIL. HEN CE THESE ADDITIONS WERE WITHOUT ANY BASIS AND IN THE ABSENCE OF THE SAME THE ADDITION NEEDS TO BE DELETED. 7. THE LEARNED DR PRESENT WAS DULY HEARD. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER HAS MADE THE ADDITION BASED ON THE AIR INFORMATION RECEIVED BY H IM. IT IS A CLAIM OF THE ASSESSEE THAT SHE HAS NOT MADE ANY INV ESTMENT IN MUTUAL FUND ON 05.12.2007 AND ON 31.03.2008. THE AS SESSING OFFICER HAD NOT GIVEN ANY DETAILS OF INVESTMENT MAD E BY THE ASSESSEE. THEREFORE, THE ASSESSEE WAS NOT IN A POSI TION TO GIVE AN EFFECTIVE REPLY. IN THE INTEREST OF JUSTICE AND EQU ITY, WE ARE OF THE VIEW THAT THE ASSESSEE OUGHT TO BE GRANTED AN OPPOR TUNITY TO REBUT THE MATERIAL ON WHICH THE ASSESSING OFFICER H AS PLACED RELIANCE FOR MAKING THE ABOVE SAID ADDITIONS OF RS. 1,50,000. ITA NO.726 OF 2011 R SHANTI, BANGALORE PAGE 4 OF 6 SINCE NO DETAILS ARE COMING FORTH WITH REGARD TO TH E DETAILS ON THE ABOVE SAID ADDITION, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER TO THE ASSESSING OFFICER FOR DE NOVA CONSIDERATION. IT IS ORDERED ACCORDINGLY. HENCE GROUND NO.4 IS ALLOWED F OR STATISTICAL PURPOSES. ADDITION OF RS.3,00,000 CASH DEPOSIT : 9. THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.3. 00 LAKHS TO THE ASSESSEES INCOME, FOR THE REASON THAT THERE WAS A CASH DEPOSIT OF RS.3,00,000 MADE IN THE ASSESSEES SAVINGS BANK A/C ON 05.03.2008 AND THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE FOR THE SAME. ON FURTHER APPEAL, IT WAS CONT ENDED BEFORE THE CIT (A) THAT THE ASSESSEE THAT HAD ADVANCED A SUM OF RS.3.00 LAKHS TO A FAMILY ASTROLOGER IN THE EARLIER YEAR AND THIS SUM WAS RECEIVED BACK BY WAY OF CASH WHICH WAS DEPO SITED IN THE BANK A/C. THESE FACTS WERE SUBMITTED BY THE ASS ESSEE IN HER LETTER DATED 29.12.2010 WHICH WAS NOT CONSIDERED BY THE ASSESSING OFFICER. THE LEARNED CIT (A) HOWEVER, REJ ECTED THE CLAIM OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. THE RELEVANT FINDINGS OF THE CIT (A) READS AS FOLLOWS: 5.3 THE APPELLANT HAS FURNISHED BANK STATEMENT BEARING NO.01190028060 WITH STATE BANK OF INDIA WHICH REVEALS THAT AN AMOUNT OF RS.2,50,000 WAS PAID TO ONE SHRI S.G. UPADHYA ON 7.6.2004. FURTHER IT WAS ALSO CONTENDED THAT RS.50,000 WAS PAID IN CASH IN EARLIER YEAR. HOWEVER, N CONFIRMATION HAS BEEN FURNISHED TO SUBSTANTIATE THIS CLAIM. MERE STATEMENT THAT HE HAS BEEN PAID THROUGH CHEQUE ITSELF WILL NOT PROVE THE GENUINENESS OF TRANSACTION UNLESS BASIC INFORMATION IS FURNISHED VIZ. IDENTIFICATION AND CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF THE TRANSACTION. THE ONUS OF PROVING THE TRANSACTIO N LIES ON THE APPELLANT. HOWEVER, SHE HAS FAILED TO D O THE SAME. IN VIEW OF THE FACTS STATED ABOVE, I AM NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE ASSESSING OFFICER. HENCE THE ADDITION OF RS.3,00,000 IS CONFIRMED. ITA NO.726 OF 2011 R SHANTI, BANGALORE PAGE 5 OF 6 10. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 11. THE CONTENTION OF THE ASSESSEE WITH REGARD TO THE ADDITION IS REITERATED WHICH READS AS FOLLOWS: THE APPELLANT HAS DEPOSITED RS.3,00,000 IN CASH. THIS AMOUNT WAS RECEIVED FROM HER FAMILY ASTROLOGER IN CASH. APPELLANT HAD ADVANCED RS.2,50,000 AND RS.50,000 IN CASH IN THE EARLIER YEARS. THE SAME WAS RETURNED BY THE ASTROLOGER SRI SHAMBU SHANKAR UPADHYA, RESIDING AT 5/6 BANASHANKARI NILAYA MARUTHI NAGAR, 1 ST MAIN ROAD, 2 ND CROSS. 12. THE LEARNED DR SUPPORTED THE ORDERS OF THE INCOME T AX AUTHORITIES. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE BEFORE TH E AO AND THE CIT (A)HAD FILED A LETTER FROM SHRI SHAMBU SHANKAR UPADHYA CONFIRMING REPAYMENT OF INTEREST FREE LOANS AVAILED BY HIM FROM THE ASSESSEE. SAME WAS RECONFIRMED BY AN AFFIDAVIT EXECUTED BY THE ABOVE SHRI SHAMBU GOPALKRISHNA UPADHYA. THE REL EVANT PORTION OF AFFIDAVIT READ AS FOLLOWS: 2. I STATE THAT FOR MY CERTAIN PERSONAL NECESSITIE S, I HAD APPROACHED SMT. R. SHANTHI TO LEND SOME MONEY. 3. I STATE THAT I HAD RECEIVED A INTEREST FREE AMOU NT OF RS.3,00,000 BEING RS.2,50,000 VIDE CHEQUE NO.00344137 AND THE SAME WAS REALIZED IN MY BANK A/C ON 07.06.2004 AND ANOTHER SUM OF RS.50,000 IN CASH BOTH TOTALING TO RS.3,00,000 FROM SMT. R. SHANTHI DURING THE FINANCIAL YEAR 2004-05 I.E. ON 05.03.2008. 4. I STATE THAT THE AMOUNT OF RS.3,00,000 WAS RE- PAID BY ME TO SMT. R. SHANTHI BY CASH OUT OF MY PERSONAL EARNINGS AND I DO NOT OWE ANY MONEY TO SMT. R. SHANTHI AS ON THE DATE OF EXECUTION OF THIS AFFIDAVIT. 5. I STATE THAT THIS AFFIDAVIT IS EXECUTED FOR A SPECIFIC REASON FOR RE-CONFIRMING THE TRANSACTION WITH SMT. R. SHANTHI AT HER REQUEST. ITA NO.726 OF 2011 R SHANTI, BANGALORE PAGE 6 OF 6 14. THE CIT (A) HAS CONFIRMED THE ADDITION ON THE GROUN D THAT THE GENUINENESS OF THE SAID LOAN TRANSACTION I S NOT PROVED. THE ASSESSEE HAD FURNISHED LETTER FROM SHRI SHAMBHU GOPALKRISHNA UPADHYA WHICH WAS PLACED BEFORE THE AS SESSING OFFICER AND THE CIT (A) AND THE SAME WAS RECONFIRME D BY AN AFFIDAVIT EXECUTED BY SHRI SHAMBU GOPALKRISHNA UPAD HYA WHICH HAS NOT BEEN TAKEN NOTE OF OR CONSIDERED BY THE ASS ESSING OFFICER AND THE CIT(A) WHILE DISMISSING THE PLEA OF THE ASS ESSEE. THEREFORE, WE REMAND THE ISSUE TO THE ASSESSING OFF ICER TO CONSIDER THE MATTER AFRESH AND TAKE PROPER DECISION IN ACCORDANCE WITH THE LAW AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. THEREFORE GROUND NO.5 RAISED IS ALLOWED FOR STATISTICAL PURPO SES. 15. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE, 2013 SD/- SD/- (N. BARATHVAJA SANKAR) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER BANGALORE, DATED 21 ST JUNE, 2013. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCHES, BANGALORE