Shri Sudhirbhai Pravinkant Thaker, Ahmedabad V. The Income tax Officer,Ward-5(1), Ahmedabad

ITA 788/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94446 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D V SINGH SRDR
• Assessee Lawyers: PRITESH L SHAH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.788/AHD/2012 ( / ASSESSMENT YEAR : 2008-09) SUDHIRBHAI PRAVINKANT THAKER 409, ASHIRWAD PARAS OPP.KRISHNA BUNGLOWS CORPORATE ROAD NR.PRAHALADNAGAR GARDEN AHMEDBAD-38015 / VS. THE INCOME TAX OFFICER WARD-5(1) AHMEDABAD ./ ./ PAN/GIR NO. : ABBPT 3929 K ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI PRITESH L.SHAH, AR #' % $ / RESPONDENT BY : SHRI D.V. SINGH, SR.DR &'( % ) / DATE OF HEARING 12/08/2015 *+, % ) / DATE OF PRONOUNCEMENT 21/09/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XI, AHMEDABA D [CIT(A) IN SHORT] DATED 29/02/2012 PERTAINING TO ASSESSMENT Y EAR (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APP EAL:- ITA NO.788/AHD/ 2012 SUDHIRBHAI PRAVINKANT THAKER VS. ITO ASST.YEAR 2008-09 - 2 - 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITIO N MADE BY THE AO OF RS.10,44,800/- BEING AMOUNT OF CASH DEPOSITED TO BANK CONSIDERING THE SAME AS INCOME FROM UNDISCLOSED SOU RCES WHICH IS REQUESTED TO BE QUASHED. YOUR APPELLANT PRAYS FOR LEAVE DO ADD, TO ALTER AN D/OR TO AMEND THE ABOVE GROUND BEFORE THE FINAL HEARING OF THE APPEAL . 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 30/11/2010, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION OF RS.11,27,800/- BEING THE CASH DEPOSITED IN THE SAVING BANK ACCOUNT WITH ICICI BANK LTD., BANDRA, MUMBAI. TH E ASSESSEE SUBMITTED BEFORE THE AO THAT THE DEPOSITS WERE OUT OF THE WITHDRAWALS FROM THE SAME ACCOUNT. THE EXPLANATION OF THE ASSE SSEE WAS NOT ACCEPTED BY THE AO ON THE GROUND THAT THE CASE WAS WITHDRAWN IN THE FIRST WEEK OF JULY-2006, WHEREAS THE DEPOSITS WERE IN THE MONTH O F JUNE-2007. AGAINST THE SAID ASSESSMENT ORDER, ASSESSEE PREFERR ED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSION S, REDUCED THE ADDITION TO THE EXTENT OF RS.10,44,800/-. AGGRIEVE D BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 3. THE LD.COUNSEL FOR THE ASSESSEE ARGUED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADDITION. HE SUBM ITTED THAT THE ASSESSEE HAS MAINTAINED CASH BOOK AND BANK PASSBOOK AND THE SAME WERE ITA NO.788/AHD/ 2012 SUDHIRBHAI PRAVINKANT THAKER VS. ITO ASST.YEAR 2008-09 - 3 - FURNISHED BEFORE THE AO AND THE LD.CIT(A). HE SUBM ITTED THAT BANK STATEMENT FOR TWO YEARS FOR THE AYS 2006-07 & 2007- 08 WERE SUBMITTED. HE SUBMITTED THAT THE SOURCE OF CASH WAS, THEREFORE , ESTABLISHED. HE SUBMITTED THAT THE CASH BOOK REVEALS THE CLEAR POSI TIVE BALANCE OUT OF WHICH THE CASH HAS BEEN DEPOSITED BUT THE AUTHORITI ES BELOW FAILED TO APPRECIATE THE FACT. HE SUBMITTED THAT THE LD.CIT( A) ERRED IN FOLLOWING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL VS. CIT REPORTED AT 240 ITR 801 (SC). HE SUB MITTED THAT IN THE PRESENT CASE, THERE ARE DIRECT EVIDENCES DEMONSTRAT ING THAT THE ASSESSEE WAS HAVING CASH BALANCE. HE SUBMITTED THAT NO LAW PROHIBITS THE ASSESSEE FOR KEEPING THE CASH. THE LD.COUNSEL FOR THE ASSES SEE PLACED RELIANCE ON THE JUDGEMENT(S) OF HONBLE GUJARAT HIGH COURT REND ERED IN THE CASE OF CIT VS. SHAILESH RASIKLAL MEHTA REPORTED AT 176 TAX MAN 270 (GUJ.) AND OF CIT VS. MANOJ INDRAVADAN CHOKSHI REPORTED AT 50 TAXMANN.COM 419(GUJ.). THE LD.COUNSEL FOR THE ASSESSEE ALSO PL ACED RELIANCE ON THE JUDGEMENT OF HONBLE DELHI HIGH COURT RENDERED IN T HE CASE OF CIT VS. PESTO CHEM INDIA LTD. REPORTED AT 240 ITR 672(DELHI ). 3.1. ON THE CONTRARY, SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE EXPLANATION AS FURNISH ED BY THE ASSESSEE CAUSED DOUBT AS IS EVIDENT FROM THE FACT THAT THE C ASH WAS WITHDRAWN ON VARIOUS DATES (I.E. 1/0/2006, 06/07/2006 AND 26/06/ 2007) DURING THE YEARS ITA NO.788/AHD/ 2012 SUDHIRBHAI PRAVINKANT THAKER VS. ITO ASST.YEAR 2008-09 - 4 - 2006 & 2007. HOWEVER, THE CASH WAS DEPOSITED IN TH E YEARS 2007 & 2008. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS RELIED UPON BY THE LD.COU NSEL FOR THE ASSESSEE. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E ASSESSEE HAD DEPOSITED THE CASH OF RS.11,27,800/- STARTING FROM 07/06/200 7 TO 31/02/2008. THE CASH WITHDRAWN FROM THE BANK WAS OF RS.4,20,000/- O N 01/07/2006, RS.4,90,000/- ON 06/07/2006, RS.83,000/- ON 26/06/2 007, RS.51,000/- ON 20/11/2007, RS.1,28,000/- ON 14/12/2007 AND RS.2,00 ,000/- ON 07/01/2008. HOWEVER, THE CASH WAS DEPOSITED ON 0 7/06/2007 OF RS.2 LACS, ON 08/06/2007 OF RS.2 LACS, ON 11/06/200 7 OF RS.1,50,000/-, ON 12/06/2007 OF RS.2 LACS, ON 13/06/2007 OF RS.2,25,0 00/-. THE TOTAL DEPOSITS TILL 13/06/2007 WAS OF RS.9,75,000/- AND T HE AMOUNT WITHDRAWN TILL 06/07/2006 WAS OF RS.9,10,000/- (RS.4,20,000 + 4,90,000). REST OF THE DEPOSITS OF THE TOTAL ADDITION WERE MADE ON 18/ 06/2007, 26/06/2007 AND 13/02/2008. HOWEVER, WITHDRAWAL AFTER 06/07/20 06, THE ASSESSEE HAD WITHDRAWN ON 26/06/2007 OF RS.83,000/-, ON 20/1 1/2007 OF RS.51,000/-, ON 14/12/2007 OF RS.1,28,000/- AND ON 07/01/2008 OF RS.2,00,000/-. FROM 20/11/2011 TO 07/01/2008 THE A SSESSEE HAD WITHDRAWN TOTAL AMOUNT OF RS.3,79,000/-. HOWEVER, CASH WAS DEPOSITED IN THE BANK ACCOUNT AFTER 13/06/2007 OF RS.1,52,800 /-. SO FAR AS THE ITA NO.788/AHD/ 2012 SUDHIRBHAI PRAVINKANT THAKER VS. ITO ASST.YEAR 2008-09 - 5 - AMOUNT OF RS.83,000/- IS CONCERNED, I.E. MATCHING F ROM WITHDRAWALS AND DEPOSITS AND REST OF THE AMOUNT, THERE IS A GAP BET WEEN WITHDRAWALS AND DEPOSITS OF THE AMOUNT. IN RESPECT OF DEPOSIT MADE ON 13/02/2008 IS ALSO WITHIN ONE MONTH FROM THE WITHDRAWAL OF AMOUNT ON 0 7/01/2008. IN RESPECT OF OTHER ENTRIES, THE CASH WITHDRAWAL IS EV EN BEFORE ONE YEAR OF DEPOSIT OF THE AMOUNT. THE CONTENTION OF THE ASSES SEE IS THAT THE AMOUNT WAS KEPT AS CASH IN HAND. THE AUTHORITIES HAVE DOU BTED ABOUT THE EXPLANATION FURNISHED BY THE ASSESSEE. THE AUTHORI TIES BELOW HAVE DOUBTED THE SOURCE OF THE CASH DEPOSITS, HOWEVER, T HE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT HE HAD WITHDRAW N THE AMOUNT FROM HIS BANK ACCOUNT AND THERE IS NO FINDING BY THE AUTHORI TIES BELOW THAT THE CASH WITHDRAWN BY THE ASSESSEE WAS UTILIZED FOR ANY OTHER PURPOSE. IN THE ABSENCE OF SUCH FINDING, ADDITION IS NOT JUSTIF IED. WE FIND MERIT INTO THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE T HAT THERE IS NO DISPUTE THAT THE AMOUNT WHICH WAS WITHDRAWN BY THE ASSESSEE ON VARIOUS DATES DURING THE YEAR 2006 WAS AVAILABLE WITH HIM FOR MAK ING DEPOSITS. IN THE ABSENCE OF FINDING THAT THE AMOUNT WHICH WAS PREVIO USLY WITHDRAWN BY THE ASSESSEE HAD BEEN UTILIZED FOR ANY OTHER PURPOS E MERELY ON THE BASIS OF CONJECTURE THAT THE AMOUNT MIGHT HAVE BEEN UTILI ZED FOR ANY OTHER PURPOSE AND WAS NOT AVAILABLE WITH THE ASSESSEE FOR MAKING THE DEPOSITS, WE ARE UNABLE TO ACCEPT THE REASONING OF THE AUTHOR ITIES BELOW. IN OUR CONSIDERED VIEW, WHEN THE ASSESSEE HAS DEMONSTRATED THAT HE HAD WITHDRAWN CASH FROM THE BANK AND THERE IS NO FINDIN G BY THE AUTHORITIES ITA NO.788/AHD/ 2012 SUDHIRBHAI PRAVINKANT THAKER VS. ITO ASST.YEAR 2008-09 - 6 - BELOW THAT THIS CASH AVAILABLE WITH THE ASSESSEE WA S INVESTED OR UTILIZED FOR ANY OTHER PURPOSE, IN THAT EVENT, IT IS NOT OPE N TO THE AUTHORITY TO MAKE THE ADDITION ON THE BASIS THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF DEPOSITS. MOREOVER, THE AUTHORITIES BELOW HAVE NOT DISPUTED THE FACT THAT THE ASSESSEE HAD WITHDRAWN AMOUNT OF RS.9,10,000/- BEFORE THE DEPOSITS MADE ON VARIOUS DATES DURING THE FY 2007-08. THER EFORE, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE AO IS D IRECTED TO DELETE THE ADDITION. THUS, GROUND RAISED IN THE ASSESSEES AP PEAL IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 21 ST DAY OF SEPTEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 21/ 09 /2015 0)..& , '.&../ T.C. NAIR, SR. PS ITA NO.788/AHD/ 2012 SUDHIRBHAI PRAVINKANT THAKER VS. ITO ASST.YEAR 2008-09 - 7 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-XI, AHMEDABAD 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 14.9.15 (DICTATION-PAD 13+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..14.9.2015 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.21.9.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.9.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER