Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 6519 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 24 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
24-04-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Assessment Year
2008-2009
Appeal Filed On
30-03-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 789/AHD/2017 (ASSESSMENT YEAR: 2008-09) SHRI BHARATJI K RAJPUT. AT KUDER, POST SAMODA TALUKA PATAN , GUJARAT V/S THE INCOME TAX OFFICER, WARD-I, PATAN (APPELLANT) (RESPONDENT) PAN: AIZPR 9829H APPELLANT BY : SHRI JIMIT SHAH, A.R. RESPONDENT BY : SHRI SOMOGYAN PAL, , SR. D.R . ( )/ ORDER DATE OF HEARING : 08 -02-201 9 DATE OF PRONOUNCEMENT : 24 -04-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A), GANDHINAGAR, AHMEDABAD DATED 27.02.2017 PER TAINING TO A.Y. 2008- 09 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: 1. THE ID.AO AS WELL AS THE ID. CIT (A) HAS ERRED I N LAW AND IN CONSIDERING THE FACTS OF THE CASE AND HAS DISALLOWED THE GIFT RECEIVED FR OM THE RELATIVES OF THE ITA NO. 789/ AHD/2017 . A.Y. 2008-09 2 APPELLANT. THE LD. CIT (A) HAS DISALLOWED THE GIFT OF RS.1,25,000/- FROM HIS MOTHER, RS.75,000/- FROM HIS WIFE AND RS.4,5 0,000/- FROM H IS FATHER. 2. THE LD. CIT (A) HAS ERRED IN LAW AND HAS ERRED I N CONSIDERING THE DOCUMENTS PLACED ON RECORD AND HAS MADE THE ADDITION WITHOUT CONSIDERING THE STATEMENTS RECORDED BY THE ID.AO DURING THE COURSE OF REMAND R EPORT PROCEEDINGS. 3. THE LD. CIT (A) AS WELL AS THE ID. AO HAS ERRED IN LAW AND IN FACTS OF THE CASE AND HAS MADE THE ENTIRE ADDITION ON THE BASIS OF THE PR ESUMPTION BASIS. THUS THE ADDITION MADE BY THE ID.AO AND UPHELD BY THE ID. CI T (A) NEEDS TO BE DELETED. 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN LEVYING INTEREST U/S 234A/B /C OF THE ACT. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN INITIATING PENALTY U/S 271( L)(C) OF THE ACT. 2. DURING THE ASSESSMENT PROCEEDING THE ASSESSEE FILED HIS RETURN OF INCOME ON 14/10/2015 DECLARING TOTAL INCOME AT RS. 78,812/- A ND AGRICULTURE INCOME AT RS. 2,02,150/-. THE FOLLOWING ISSUE AROSE FOR DISCU SSION DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THE ASSESSEE HAS MADE THE CASH DEPOSITS OF RS. 10,7 2,800/- IN SAVING BANK ACCOUNT NO. 247010100063151 WITH THE AXIS BANK ACCO UNT. DURING THE ASSESSMENT PROCEEDINGS IT IS COME TO THE NOTICED TH AT THE ASSESSEE IS ALSO HAVING SAVING BANK ACCOUNT NO. 07821000007295 WITH HDFC BA NK WHEREIN THE ASSESSEE HAS MADE THE CASH DEPOSIT AT RS. 5,04,500/ - DURING THE F.Y. 2007-08. THE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF AGG REGATE CASH DEPOSITS AT RS. 15,77,300/- (1072800+504500) IN HIS SAVINGS BANK AC COUNTS WITH SUBSTANTIAL EVIDENCES. ITA NO. 789/ AHD/2017 . A.Y. 2008-09 3 4. IN RESPONSE TO THE NOTICE THE ASSESSEE HAS FURNISHE D THE BOOKS OF ACCOUNT ALONGWITH THE BANK STATEMENT AND CASH BOOK. THE ASS ESSEE HAS ALSO FURNISHED THE COPY OF FORM NO. 12 (AGRICULTURE LAND RECORD). 5. ON VERIFICATION OF THE LAND RECORD IT IS NOTICED TH AT IN LAND AT SURVEY NO. 167/1 ADMEASURING 10345 SQ. METER LAND, IN LAND RECORD CO LUMN OF CROP GROWN NAME WRITTEN AS 'USELESS FARM' (PADTAR LAND)'. AS REGARD S THE SURVEY NO. 10/ PAIKI 2 ADMEASURING 4995 SQ. METER LAND IT HAS BEEN WRITTEN AS 'NO INFORMATION AVAILABLE' IN, LAND RECORD. IT IS NOTICED THAT THE ASSESSEE HAS SHOWN OPENING CASH ON HAND AT RS. 4,25,255/-, AGRICULTURE INCOME AT RS. 2,02,000/- AND UNSECURED LOAN AT RS. 2,03,500/-. THE ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDENCE AS REGARDS TO OPENING CASH ON H AND AT RS. 4,25,255/-. FURTHER, THE ASSESSEE HAS ALSO NOT FURNISHED ANY SU PPORTING SALE BILLS OF AGRICULTURE SALE PRODUCTS WITH REGARDS TO THE AGRIC ULTURE INCOME. SINCE THE ASSESSEE HAS FAILED TO FURNISH THE SOURCE OF CASH D EPOSITS AT RS. 15,77,300/- (1072800+504500) IN SAVING BANK ACCOUNTS THE ASSESS EE VIDE THIS OFFICE LETTER BEARING NO. ITO/WD-1 /PATAN/142(1 )/RBK/SHOW CAUSE/ 2015-16 DATED 15/09/2015 ASKED TO SHOW CAUSE AS TO WHY THE CASH D EPOSIT OF RS. 15,77,300/- SHOULD NOT BE TREATED AS DEPOSITED FROM THE UNACCOU NTED SOURCE OF INCOME AND ADDED TO YOUR TOTAL INCOME. 6. IN RESPONSE TO THE SHOW CAUSE NOTICE THE ASSESSEE V IDE HIS LETTER DATED 19/10/2015 STATED THAT WHATEVER CASH DEPOSITED BY H IM IN THE AXIS BAN ACCOUNT AND HDFC BANK ACCOUNTED IS DEPOSITED BY WIT HDRAWING FROM THE SAID BANK ACCOUNTS AND REDEPOSIT. THEREFORE, INSTEAD OF MAKING ADDITION OF ENTIRE CASH DEPOSIT TAKE THE PEAK OF MY CASH AND MAKE THE ADDITION ACCORDINGLY. ITA NO. 789/ AHD/2017 . A.Y. 2008-09 4 7. THE REPLY OF THE ASSESSEE HAS CONSIDERED CAREFULLY AND FOUND THERE IS SOME FORCE IN THE CONTENTION OF THE ASSESSEE'S REPLY. TH EREFORE, THE CALCULATION OF PEAK CASH AMOUNT IS WORKED AS UNDER: DATE OP. BALANCE WITHDRAWAL DEPOSIT BALANCE 04.04.2007 2000 20 00 04.04.2007 2000 500 2500 18.04.2007 2500 2400 100 19.04.2007 100 20000 20100 19.04.2007 20100 20000 40100 20.04.2007 40100 400 40500 03.05.2007 40500 10000 50500 04.05.2007 50500 2000 52500 21.05.2007 52500 1500 54000 29.05.2007 54000 2500 51500 05.06.2007 51500 200 51300 06.06.2007 51300 1 00000 - 48300 J. 07.06.2007 - 48300 9900 - 58200 I 09,06.2007 - 58200 50000 - 108200 12.06.2007 - 108200 25000 - 133200 15.06.2007 - 133200 8500 - 141700 22.06.2007 - 141700 8200 - 133500 25.06.2007 - 133500 700 - 132800 25.06.2007 - 132800 20000 - 112800 29.06.2007 - 112800 2000 - 110800 10.07.2007 - 110800 500 - 100300 1 1 .07.2007 - 110300 2000 - 108300 ITA NO. 789/ AHD/2017 . A.Y. 2008-09 5 12.07.2007 - 108300 4000 - 104300 13.07.2007 - 104300 100 - 104200 24.07.2007 - 104200 500 103700 25.07.2007 - 103700 10000 - 113700 28.07.2007 - 113700 2000 - 111700 01.08.2007 - 111700 1700 - 113400 01.0 8.2007 - 113400 23000 - 136400 01.08.2007 - 136400 17000 - 153400 02.08.2007 - 153400 3000 - 156400 02.08.2007 - 156400 2500 - 158900 07.08.2007 - 158900 45000 - 203900 08.08.2007 - 203900 10000 - 213900 1 3.08.2007 - 213900 4500 - 218400 1 6.08.2007 - 218400 2000 - 220400 17.08.2007 - 220400 15000 6000 - 229400 21.08.2007 - 229400 80000 - 149400 21.08.2007 - 149400 4000 - 145400 22.08.2007 - 145400 . 18000 - 163400 29.08.2007 - 163400 50000 - 21 3400 03.09.2007 - 213400 2500 - 210900 06.09.2007 - 210900 7500 - 203400 12.09.2007 - 203400 2000 - 201400 21.09.2007 - 201400 1 50000 - 51400 24.09.2007 - 51400 2500 - 48900 24.09.2007 - 48900 20000 - 28900 ITA NO. 789/ AHD/2017 . A.Y. 2008-09 6 25.09.2007 - 289 00 20000 - 8900 25.09.2007 - 8900 20000 . 11100 26.09.2007 111 00 12000 23100 03.10.2007 23100 6500 16600 04.10.2007 16600 28000 - 11400 05.10.2007 - 11400 49500 - 60900 06.10.2007 - 60900 49900 - 110800 15.10.2007 - 110800 1000 - 111800 22.10.2007 - 111800 49500 - 161300 24.10.2007 - 161300 49900 - 211200 25.10.2007 - 211200 49500 - 260700 26.10.2007 - 260700 48500 - 309200 29.10.2007 - 309200 4000 - 313200 02.11.2007 - 313200 2500 - 315700 05.11.2007 - 315700 35000 - 350700 06.11.2007 - 350700 45000 - 395700 07.11.2007 - 395700 4500 1 5000 - 407200 21.11.2007 - 407200 1 0000 - 417200 22.1 1.2007 - 417200 1 2000 - 529200 03.12.2007 - 529200 15000 - 514200 06.12.2007 - 514200 15000 - 499200 10.12.2007 - 499200 6000 - 493200 24.12.2007 - 493200 18000 - 475200 31.12.2007 - 475200 1000 - 474200 08.01 .2008 - 474200 20000 - 454200 08.01.2008 - 454200 20000 - 434200 ITA NO. 789/ AHD/2017 . A.Y. 2008-09 7 10.01.2008 - 4 34200 200000 - 634200 1 1 .01 .2008 - 634200 75000 - 709200 16.01.2008 - 709200 1 0000 - 719200 16.01.2008 - 719200 5000 - 724200 23.01.2008 - 724200 83000 - 807200 24.01.2008 - 807200 70000 - 877200 25.01.2008 - 8777200 1000 00 - 977200 08.02.2008 - 9 77200 7000 - 984200 13.02.2008 - 984200 3500 PEAK BALANCE - 987700 1 6.02.2008 - 987700 11000 - 976700 18.02.2008 - 976700 1500 - 978200 03.03.2008 - 978200 6000 - 972200 . 05.03.2008 - 972200 70000 - 832200 05.03.2008 - 832200 20000 - 812200 05.03.2008 - 812200 1 80000 - 632200 260.32008 - 632200 3000 - 635200 8. THE REPLY OF THE ASSESSEE DATED 19.10.2015 CONSIDER ED AND PEAK CASH OF HDFC BANK AND AXIS BANK ACCOUNT WHEREIN THE ASSESSEE HAS MADE THE CASH DEPOSIT IS WORKED OUT AS ABOVE AND PEAK CASH AT RS.9,87,700/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 9. AGAINST THE ADDITION OF RS. 9,87,700/-, ASSESSEE PR EFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 10. NOW ASSESSEE HAS COME BEFORE US. ITA NO. 789/ AHD/2017 . A.Y. 2008-09 8 11. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. SO FAR AN AMOUNT OF RS. 1,25,000/- IS CONCERNED, THIS AMOUNT WAS TAKEN BY THEASSESSEE FROM HIS MOTHER KANTABEN RAJPUT. SHE APPEARED BEFOR E THE ASSESSING OFFICER DURING REMAND PROCEEDING AND STATED ON OATH THAT SH E IS ENGAGED IN DAIRY FARMING. SHE EARNS INCOME FROM DAIRY FARMING ACTIVI TIES. SHE DOES NOT HAVE ANY PERMANENT ACCOUNT NUMBER AND NEITHER DOES HAS ANY B ANK ACCOUNT AND SHE IS MOTHER OF THE ASSESSEE AND FURTHER STATED THAT HER INCOME IS APPROXIMATELY RS. 1,00,000/- PER ANNUM AND FROM HIS PAST SAVINGS. SHE HAD DEPOSIT OF RS. 1,25,000/- AS WELL AS ALSO SUBMITTED AN AFFIDAVIT T O THIS EFFECT. AND DEPARTMENT COULD NOT BROUGHT ANYTHING AGAINST THE STATEMENT OF THE MOTHER OF THE ASSESSEE. THUS, STATEMENT OF KANTABEN RAJPUT CANNOT BE DISCAR DED, IT CAN BE EASILY BELIEVED THAT A HOUSE WIFE MUST HAVE BEEN AN AMOUNT OF RS. 1,25,000/- AS IN INDIAN FAMILY SYSTEM THERE IS TENDENCY THAT HOUSE W IFE GENERALLY KEEP SOME MONEY WITH THEM FROM THEIR PAST SAVING FOR EMERGENC Y PURPOSE. THEREFORE, IN INDIA HOUSE WIFE IS ALSO CALLED LAXMI (GODDESS OF W EALTH). THEREFORE, WE ALLOW THE CLAIM OF THE ASSESSEE. 12. THE ASSESSEE HAS CLAIMED TO HAVE RS. 75,000/- FROM HIS WIFE AND RS. 4,50,000/- FROM HIS FATHER, THE A.O. HAS RECORDED STATEMENTS O F BOTH THE PERSONS WERE RECORDED AND PARTIES ADMITTED THAT THEY HAVE GIVEN GIFT TO THE APPELLANT OUT OF ANIMAL HUSBANDRY BUSINESS AND THEY HAVE ALSO FIELD AFFIDAVIT BEFORE THE LD. A.O. AND HIS FATHER IS HAVING AGRICULTURAL LAND 2.54 HEC TARE. AND BEFORE THE A.O. DURING REMAND PROCEEDINGS, ONE PERSON PROPRIETARY O F VARDHMAN TRADERS, PATAN ALSO APPEARED BEFORE THE LD. A.O. TO WHOM APP ELLANT HAS SOLD AGRICULTURE PRODUCE AND COPIES OF BILLS ETC. WERE SUBMITTED WIT H THE A.O. AND LD. A.O. COULD NOT BROUGHT ANYTHING ON RECORD WHICH PROVE TH AT THESE DETAILS ARE INCORRECT. IT IS FACT THAT FAMILY MEMBERS ARE HAVIN G INCOME FROM DAIRY FARMING ITA NO. 789/ AHD/2017 . A.Y. 2008-09 9 AND AGRICULTURE ACTIVITIES AND THEIR STATEMENTS HAV E BEEN RECORDED BY THE A.O. THUS, CLAIM OF THE ASSESSEE CANNOT BE REJECTED. THU S, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 13. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 04 - 2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 24 /04/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD
