Yuvraj Vijay Shinde, Ahmednagar V. Income-tax Officer,

ITA 729/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2928 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 11-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Unexplained cash credit; Gift; Additional evidence
• Section: 143(3); 142(1)

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , !, # $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.729/PN/2014 ASSESSMENT YEAR : 2008-09 YUVRAJ VIJAY SHINDE, MAIN ROAD SHRIRAMPUR, DIST. AHMEDNAGAR. PAN : AVMPS8799M . APPELLANT VS. THE INCOME TAX OFFICER, WARD 4, AHMEDNAGAR. . RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 11.01.2016 / DATE OF PRONOUNCEMENT: 27.01.2016 % / ORDER PER PRADIP KUMAR KEDIA, AM : THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS AGA INST THE ORDER OF CIT(A)-IT/TP, PUNE DATED 24.01.2014 RELATING TO ASS ESSMENT YEAR 2008-09 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL :- 1. CIT APPEALS CONFORMED THE ADDITIONS OF RS.40,60 8/- WHICH MAY PL BE DELETED. 2. CIT APPEALS ALSO CONFORMED THE ADDITIONS OF RS.5 ,50,893/- WHICH MAY PL BE DELETED OR REDUCE. 3. APPELLANT PRAYS FOR JUST AND EQUITABLE RELIEF. 4. APPELLANT PRAYS FOR DELETION OF INTEREST CHARGED U/S 234, SAME MAY BE DELETED. 5. APPELLANT PRAYS TO ADD, ALTER, AMEND, MODIFY AND /OR WITHDRAW THE GROUND/S OF APPEAL AS CIRCUMSTANCES MAY DEMAND. 2 ITA NO.729/PN/2014 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF SERVICE OF NOTICE. LD. DEPARTMENTAL REPRESENTAT IVE, SHRI DHEERAJ KUMAR JAIN APPEARED ON BEHALF OF THE RESPONDENT/REVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE IN PERSON OR THROUGH AUT HORIZED REPRESENTATIVE INSPITE OF SERVICE OF NOTICE, WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE AFTER HEARING THE RESPONDENT/REVENUE O N MERITS IN TERMS OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 19 63. 4. BRIEFLY STATED, AS EMERGING FROM THE ORDERS OF T HE AUTHORITIES BELOW. THE ASSESSEE CARRIES ON BUSINESS OF RETAIL TRADING IN FOOT WEAR. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 WAS FILED ON 25.03.2009 DECLARING TOTAL INCOME OF RS.1,20,330/-. THE ASSESSING OFFIC ER IN ITS ASSESSMENT ORDER ADDED RS.44,608/- ON ACCOUNT OF PROFIT EARNED FROM THE BUSINESS OF SALE OF DISH ANTENNA RECHARGE VOUCHERS AND ALSO MADE ADDITIONS O N ACCOUNT OF UNEXPLAINED CASH CREDITS IN THE BANK ACCOUNT TO THE TUNE OF RS. 5,50,893/-. 5. IT IS SEEN FROM THE ASSESSMENT ORDER THAT THE AS SESSEE REMAINED RECALCITRANT IN COMPLIANCE OF STATUTORY NOTICES ISS UED UNDER SECTION 143(2) AND 142(1) OF THE ACT. THE ASSESSEE ATTENDED BEFORE AS SESSING OFFICER AFTER GREAT DEAL OF DEFIANCE OF STATUTORY NOTICES AND FILED ONL Y INCOMPLETE DETAILS. SIMILAR OBSERVATIONS MADE BY THE CIT(A) ABOUT NON-ATTENDANC E BEFORE HIM. ON THE BASIS OF AIR INFORMATION, THE ASSESSING OFFICER CAR RIED OUT ENQUIRIES WITH THE ASSESSEE REGARDING CASH DEPOSIT OF RS.12,27,693/- I N THE SAVINGS ACCOUNT MAINTAINED BY THE ASSESSEE WITH IDIB BANK DURING TH E YEAR. THE ASSESSEE EXPLAINED THAT ALONG WITH HIS RETAIL BUSINESSES OF RUNNING BATA SHOWROOM, HE HAS SOLD DISH ANTENNA RECHARGE VOUCHERS ON WHICH HE HAS RECEIVED 6% DISCOUNT. THIS DISCOUNT IS REFLECTED IN HIS PURCHA SE BILLS. OUT OF THE DISCOUNT RECEIVED, HE HAS PASSED ON 5% DISCOUNT TO THE CUSTO MERS AND HAS EARNED GROSS PROFIT OF 1%. HE HAS FINALLY INCURRED LOSSES AFTER DEDUCTING EXPENSES OF THE BUSINESS AND THEREFORE HE DID NOT CLAIM THE LOSS IN THE RETURN. THE ASSESSING OFFICER WORKED OUT THE AMOUNT OF PURCHASE OF DISH C ARD VOUCHERS OF RS.6,36,192/- ON WHICH SALE VALUE WAS COMPUTED AT R S.6,76,800/-. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS EA RNED PROFIT @ 6% WHICH 3 ITA NO.729/PN/2014 COMES TO RS.40,608/-. THE ASSESSING OFFICER DID NO T ALLOW THE DEDUCTION OF 5% DISCOUNT ALLEGEDLY PASSED ON TO THE CUSTOMERS IN THE ABSENCE OF PROOF OF GRANTING OF ANY SUCH DISCOUNT BY THE ASSESSEE. CON SEQUENTLY, THE ASSESSING OFFICER TAXED THE PROFIT OF RS.40,608/- FROM THIS B USINESS ACTIVITY. AS REGARDS CASH DEPOSITS, THE ASSESSING OFFICER OBSERVED THAT OUT OF TOTAL CASH DEPOSITS OF RS.12,27,693/-, DEPOSITS OF RS.6,76,800/- STANDS EX PLAINED BEING SALE AMOUNT OF DISH ANTENNA CARD VOUCHERS. THE ASSESSING OFFIC ER ADDED BALANCE AMOUNT OF CASH DEPOSIT OF RS.5,50,893/- IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE. 6. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE ASSESSEE DID NOT AVAIL ORAL HEARING BUT FILED WRITTEN SUBMISSIONS BEFORE THE CIT(A) AND TAKEN A S TAND THAT THE ASSESSEE HAD RECEIVED GIFT FROM GRANDFATHER OUT OF FREEDOM FIGHT ER PENSION RECEIVED BY HIM AND HIS GRANDFATHER ALSO HAD CASH BALANCE AVAILABLE WITH HIM. SOME MONEY HAS BEEN STATED TO HAVE COME FROM GRANDMOTHER BY WI LL. IN SUPPORT OF THIS ASSERTION, THE ASSESSEE ENCLOSED A LETTER FROM THE GRANDFATHER AND PHOTOCOPY OF WILL FROM GRANDMOTHER BEFORE THE CIT(A). HE ALSO C ONTENDED THAT THE AFORESAID AMOUNT OF CASH DEPOSITS INCLUDES CERTAIN CHEQUE ENTRIES AS WELL AS TRANSFER ENTRIES. THE ASSESSEE INTER-ALIA SOUGHT REDUCTION OF RS.1,35,000/- WITHDRAWN FROM THE BANK ACCOUNT AND RE-DEPOSITED TH E SAME AGAIN IN THE BANK. THE CIT(A) EXAMINED THE CONTENTIONS OF THE ASSESSEE AND OBSERVED THAT THEORY OF GIFT RECEIVED FROM GRANDFATHER IS AN AFTERTHOUGH T. THE WILL OF THE ASSESSEES GRANDMOTHER, AS SUBMITTED, IS ALSO DATED 14.05.1998 , WHICH IS TEN YEARS BEFORE THE IMPUGNED CASH DEPOSITS. HE OBSERVED THAT NO ON E KEEPS CASH IDLE FOR SUCH A LONG TIME IN NORMAL BEFORE IT DEPOSITING INTO THE BANK ACCOUNT. AS REGARDS TRANSFER ENTRIES AND CHEQUE DEPOSITS AS ALLEGED, TH E CIT(A) REMANDED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR GRANT ING SUITABLE CREDIT, IF ANY, AFTER VERIFICATION. WITH REGARD TO CONTENTION ON R S.1,35,000/- BEING WITHDRAWAL AND RE-DEPOSIT THEREOF, THE CIT(A) HELD THAT CREDIT IS ALREADY GRANTED AGAINST TURNOVER OF RS.6,76,800/- OF DISH C ARD VOUCHERS AND WHICH TAKES INTO ACCOUNT THE AFORESAID WITHDRAWALS AND DE POSITS. HE, THEREFORE, DECLINED TO GRANT CREDIT FOR THE AMOUNT OF RS.1,35, 000/-. 4 ITA NO.729/PN/2014 7. AS REGARDS ADDITION OF RS.40,608/-, OWING TO DEN IAL OF 5% DISCOUNT PURPORTEDLY GRANTED BY THE ASSESSEE TO ITS CUSTOMER S, THE CIT(A) DECLINED TO ACCEPT THE CLAIM OF THE ASSESSEE IN THE ABSENCE OF ANY SUBSTANTIVE DOCUMENT. 8. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN FURTHER APPEAL BEFORE US. 9. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE A UTHORITIES BELOW AND OTHER MATERIAL PLACED ON RECORD. WE FIND THAT THE CIT(A) HAS DEALT WITH ALL THE CONTENTIONS OF THE ASSESSEE OBJECTIVELY AND HAS COM E TO A REASONABLE FINDING. THE RELEVANT OPERATIVE PARAS OF THE ORDER OF THE CI T(A) ARE REPRODUCED HEREUNDER :- 2.5 I HAVE CONSIDERED THE FACTS AND ARGUMENTS OF T HE APPELLANT. I DEAL WITH EACH OF THE ARGUMENT AS UNDER: 2.6 REGARDING THE ADDITIONAL GROUND OF APPEAL ON GR ANTING DEDUCTION UNDER CHAPTER VI-A, I ADMIT THE SAME AND DIRECT THE LEARN ED AO TO GRANT THE DEDUCTION AS PER LAW ON THE BASIS OF THE EVIDENCE FURNISHED BY T HE APPELLANT OF INVESTMENT OR EXPENDITURE. 2.7 REGARDING CREDIT FOR THE GIFT RECEIVED FROM THE GRANDFATHER, I FIND THAT THIS WAS NOT RAISED BEFORE THE LEARNED AO. THIS EXPLANAT ION IS CLEARLY AN AFTERTHOUGHT. SECONDLY, THE WILL OF THE APPELLANT'S MOTHER IS DAT ED 14.05.1998, TEN YEARS BEFORE THE CASH DEPOSITS. NO ONE KEEPS CASH IDLE FOR SUCH A L ONG TIME FOR DEPOSITING IN TO THE APPELLANT'S BANK ACCOUNT AFTER TEN YEARS. THEREFORE , NEITHER I ADMIT THIS ADDITIONAL EVIDENCE NOR I CONSIDER THAT CREDIT SHOULD BE GRANT ED ON THE BASIS OF THIS ARGUMENT. 2.8 THE APPELLANT HAS SUBMITTED THAT SOME OF THE EN TRIES IN THE BANK ACCOUNTS ARE TRANSFER ENTRIES. I DO NOT AGREE WITH THE APPEL LANT AS THE LEARNED AO HAS STATED IN THE ASSESSMENT ORDER THAT SHE RECEIVED AIR INFOR MATION REGARDING THE CASH DEPOSITS OF RS 12,27,693 IN THE SAVINGS ACCOUNTS. H OWEVER, IN THE INTEREST OF JUSTICE, I DIRECT THE LEARNED AO TO COMPUTE THE TOTAL OF CAS H DEPOSIT AGAIN AND EXCLUDE ANY ENTRY, WHICH IS NOT A CASH DEPOSIT OUT OF TOTAL OF RS 12,27,693. 2.9 REGARDING GRANTING CREDIT TO WITHDRAWAL OF RS 1 ,35,000, IT MAY BE MENTIONED THAT THIS CREDIT IS ALREADY GRANTED AGAINST THE TUR NOVER OF RS 6,76,800 OF DISH CARD VOUCHERS. ANY FURTHER CREDIT CAN ONLY BE GIVEN ON T HE BASIS OF THE EVIDENCE AS TO IT IS THE SAME AMOUNT, WHICH WAS WITHDRAWN EARLIER IS DEP OSITED BACK IN THE BANK ACCOUNT. IN ABSENCE OF SUCH EVIDENCE, I HOLD THAT C REDIT OF WITHDRAWAL OF RS 1,35,000 CANNOT BE GRANTED. 2.10 THE APPELLANT HAS SUBMITTED THAT THE ADDITION OF RS 40,608 SHOULD BE DELETED AS THE LEARNED AO HAS NOT CONSIDERED 5 % DISCOUNT G RANTED BY IT TO ITS CUSTOMERS. I FIND THAT THE PHOTOCOPIES OF THE BILLS FURNISHED BY THE APPELLANT WERE NOT PRODUCED BEFORE THE LEARNED AO. THE LEARNED AO HAS STATED TH AT THE APPELLANT DID NOT PRODUCE ANY EVIDENCE OF DISCOUNT PASSED ON TO HIS C USTOMERS. ACCORDINGLY, THE EVIDENCE PRODUCED BEFORE ME IS NOT RELIABLE AND I D O NOT ADMIT THE SAME. NO INTERFERENCE IS REQUIRED ON ADDITION MADE OF RS 40, 608. I DISMISS THESE GROUNDS OF APPEAL. 5 ITA NO.729/PN/2014 2.11 IN VIEW OF THE ABOVE DISCUSSION, I CONSIDER TH AT THE ADDITION MADE BY THE LEARNED AO OF RS 5,50,893 IS PROPER. I CONFIRM THE SAME. 10. WE FIND THAT THE FINDINGS OF THE CIT(A) ARE AFT ER PROPER APPRECIATION OF THE FACTS AND MATERIAL PLACED BEFORE HIM. WE FIND OURSELVES IN FULL AGREEMENT WITH THE CONCLUSION ARRIVED AT BY THE CIT(A) AND DO NOT FIND ANY INFIRMITY THEREIN. ACCORDINGLY, NO INTERFERENCE WITH THE ORD ER OF THE CIT(A) IS CALLED FOR. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED ON THIS 27 TH DAY OF JANUARY, 2016. SD/- SD/- ( SUSHMA CHOWLA ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER # / ACCOUNTANT MEMBER PUNE ; DATED : 27 TH JANUARY, 2016. % & '() *)' / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-IT/TP, PUNE; 4) THE CIT-IT/TP, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. %+ / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE