Smt. Jyoti Asai, Bhopal V. ACI3(1) , Bhopal

ITA 847/Ind/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4036 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-12-2020
• Assessment Year: 2010-2011
• Appeal Filed On: 19-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N D PATWA A RS
• Keywords: Set aside
• Section: 264

Judgement Text

I.T.A. 847 OF 2017 SMT. JYOTI ASAI 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.847/IND/2017 ASSESSMENT YEAR:2010-11 SMT. JYOTI ASAI E-101/10, SHIVAJI NAGAR BHOPAL / VS. A CIT 3(1) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. AFHPA4045D APPELLANT BY S/SHRI ASHISH GOYAL & N.D. PATWA, ARS REVENUE BY SHRI HARSHIT BARI, SR. DR DATE OF HEARING: 04.01.2021 DATE OF PRONOUNCEMENT: 12.01.2021 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)(IN SHORT LD. CIT(A)-2, BHOPAL DATED 10.03.2015 PERTAINING TO ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD SMT. JYOTI ASAI /ITANO.847/IND/2017 2 CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 6,75,500/- BEING OPENING CASH BALANCE AND PROFESSIONAL INCOME SHOWN IN THE CASH FLOW OF ASSESSEE, IN HANDS OF HER HUSBAND SHRI DEEPAK ASAI, AND DELETED THE PROTECTIVE ADDITION MADE IN T HE HANDS OF THE ASSESSEE WITHOUT CONSIDERING THE EXPLANATION OF FERED B THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE SAID CASH BALANCE AND PROFESSIONAL INCOME IS OUT OF EXPLAINED SOURCES OF ASSESSEE AND ALREADY DISCLOSED IN RETURN FILED U/S 153A. THUS, THE ORDER PASSED BY THE LD CIT(A) IS UNJUST, UNFAIR AND BAD IN LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 14,74,005/- (MADE AS PER PARA 9 OF ASSESSMENT ORDER) BEING INVESTMENT IN ICI CI PRUDENTIAL INSURANCE POLICY, IN HANDS OF HER HUSBAN D SHRI DEEPAK ASAI, AND DELETED THE PROTECTIVE ADDITION MA DE IN THE HANDS OF THE ASSESSEE WITHOUT CONSIDERING HE EXPLAN ATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE SAID INVESTMENT IS OUT OF EXPLAINED SOURCES OF ASSESSEE AND ALREADY DISCLOSED IN RETURN FILED U/S ~ -3A. THUS, THE ORDER PASSED BY THE LD CIT(A) IS UNJUST, UNFAIR AND BAD I N LAW. 3. THAT ONE FACT AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 4,55,500/- (AS PER PARA NO. 88 OF THE ASSESSMENT ORDER) FOR PAYMENTS MADE AGAIN ST AT AT AKRITI GREENS, BHOPAL IN HANDS OF HER HUSBAND SHRI DEEPAK ASAI, AND DELETED THE PROTECTIVE ADDITION MADE IN T HE HANDS OF THE ASSESSEE WITHOUT CONSIDERING HE / EXPLANATION O FFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE SAID INVESTMENT IS OUT OF EXPLAINED SOURCES OF ASSESSEE AND ALREADY DISCLOSED IN RETURN FILED U/S 153A. THUS, THE ORDER PASSED BY THE LD CIT(A) IS UNJUST, UNFAIR AND BAD IN LAW. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 2,00,000 - (AS PER PARA NO. 8A OF THE ASSESSMENT ORDER) FOR PAYMENTS MADE A GAINST RENOVATION OF HOUSE AT E-8, COMFORT GARDEN, IN HAND S OF HER HUSBAND SHRI DEEPAK ASAI. AND DELETED SMT. JYOTI ASAI /ITANO.847/IND/2017 3 THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE AS SESSEE WITHOUT CONSIDERING HE EXPLANATION OFFERED BY THE A SSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE AID INVESTMEN T IS OUT OF EXPLAINED SOURCES OF ASSESSEE AND ALREADY DISCLOSED IN RETURN FILED U, 1-3A. THUS, THE ORDER PASSED BY THE LD CIT (A) IS UNJUST, UNFAIR AND BAD IN LAW. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,000/- (MADE AS PER PARA 10F OF ASSESSMENT ORDER) BEING CASH MADE BY ASSESSE E IN HER S.B ALC. NO.63051699883 WITH STATE BANK OF INDORE, KOLA ROAD, BHOPAL, IN HANDS OF HER HUSBAND SHRI DEEPAK ASAI, A ND DELETED THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE AS SESSEE WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE SAID CASH DEPOSIT IS DULY REFLECTED IN THE CASH FLOW STATEMENT OF ASSESS EE AND ALREADY OFFERED IN RETURN FILED. THUS, THE ORDER PA SSED BY THE LD CIT A IS UNJUST, UNFAIR AND BAD IN LAW 6. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 10,000/- MADE AS PER PARA 1OE OF ASSESSMENT ORDER) BEING CASH DEPOSITS M ADE BY ASSESSEE IN HER B A/C. NO. 53020703267 WITH STATE B ANK OF INDORE, SHAHPURA, BHOPAL. IN HANDS OF HER HUSBAND S HRI DEEPAK ASAI, AND DELETED THE PROTECTIVE ADDITION MA DE IN THE HANDS OF THE ASSESSEE WITHOUT CONSIDERING HE EXPLAN ATION OFFERED BY THE ASSESSEE AN WITHOUT CONSIDERING THE FACT THAT THE SAID CASH DEPOSIT IS DULY REFLECTED IN THE CASH FLO W - STATEMENT OF ASSESSEE AND ALREADY OFFERED IN RETURN FILED. TH US, THE ORDER PASSED B Y TH E 1D. CIT(A ) IS UNJUST, UNFAIR AND BAD IN LAW. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 12,74,264/- (MADE AS PER PARA 1OA OF ASSESSMENT ORDER) BEING CREDITS BY ASSE SSEE IN A NO. 028301508839 WITH ICICI BANK, BHOPAL, IN HANDS OF HER HUSBAND SHRI DEEPAK ASAI. AND DELETED THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE SMT. JYOTI ASAI /ITANO.847/IND/2017 4 ASSESSEE WITHOUT CONSIDERING THE EXPLANATION OFFERE D BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE CASH DEPOSIT IS DULY REFLECTED IN THE CASH FLOW STATEMENT OF ASS ESSEE AND ALREADY OFFERED IN RETURN FILED. THUS, THE ORDER PA SSED BY THE LD CIT(A) IS UNJUST, UNFAIR AND BAD IN LAW. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 3.36,960/- (MADE AS PER PARA 11 OF ASSESSMENT ORDER) BEING COST OF BEIJING TOUR UNDERTAKEN B.. ASSESSEE, HER HUSBAND AND CHILDREN, IN HANDS OF HER HUSBAND SHRI DEEPAK ASAI. AND DELETED THE PROTE CTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE WITHOUT CONSIDERING HE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE SAID EXPENDITURE IS DULY REFLECTE D IN THE CASH FLOW STATEMENT OF ASSESSEE AND ALREADY OFFERED IN R ETURN FILED. THUS, THE ORDER PASSED BY THE LD CIT(A) IS UNJUST, UNFAIR AND BAD IN LAW. THE APPELLANT CARVES LEAVE TO ADD, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL. 2. THE APPEAL IS DELAYED BY 986 DAYS. TO THIS EFFECT, TH E LD. COUNSEL FOR THE ASSESSEE HAS FILED AN APPLICATION STATING THAT THIS CASE RELATES TO SEARCH IN CASE OF DEEPAK ASAI AN D JYOTI ASAI AND OUT OF 7 YEARS, 6 YEARS WERE DECIDED IN CASE OF JYOTI ASAI VIDE ORDER 30.07.2018. IN THOSE CASES AL SO THERE WAS A DELAY OF 920 DAYS THAT WHICH WAS CONDONED B Y THIS VERY BENCH VIDE ORDER DATED 30.07.2018(SUPRA). ON THE OTHER HAND, LD. DR COULD NOT CONTROVERT THE SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE . SMT. JYOTI ASAI /ITANO.847/IND/2017 5 SINCE THE REASONS FOR DELAY ARE SAME, THEREFORE, FALLOW ING OUR EARLIER ORDER DATED 30.07.2018, THE DELAY IS COND ONED. 3. AT THE OUTSET OF HEARING, LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT ALL THE GROUNDS RAISED IN THE PRESENT AP PEAL ARE COVERED BY THE EARLIER ORDER DATED 30.07.2018(SUPR A). ON THE OTHER HAND, LD. SR. DR ALSO SUBMITTED THAT THE GROUNDS ARE COVERED BY THE EARLIER ORDER DATED 30.07.2018(SUPRA). 4. HAVING GONE THROUGH THE MATERIAL, ORDER DATED 30.07.2018(SUPRA) AND RIVAL SUBMISSIONS, WE FIND THAT AL L THE GROUNDS RAISED IN THE PRESENT APPEAL ARE COVERED BY THE EARLIER ORDER DATED 30.07.2018(SUPRA). WE FIND THAT TH E IDENTICAL GROUNDS ALSO RAISED IN THE PRESENT APPEAL WERE DECIDED BY US AS UNDER: GROUND NO. RELEVANT PAGE OF ORDER DATED 30.07.2018(SUPRA). 1 PG. 253 PARA 331 - 334 2 PG. 264 PARA 347 - 353 3 PG. 264 PARA 345 - 346 4 PG 261 PARA 340 - 344 5 PG 276 PARA 378 - 381 6 PG. 275 PARA 374 - 377 7 PG. 267 PARA 355 - 357 8 PG. 287 PARA 403 - 407 SMT. JYOTI ASAI /ITANO.847/IND/2017 6 5. WE FIND THAT EARLIER VIDE ORDER DATED 30.07.2018, TH E APPEALS I.S. IT(SS) NO.322 TO 327/IND/2017 FOR THE PREVIOUS ASSESSMENT YEARS 2004-05 TO 2009-10 WERE ALLOWED FOR STATISTICAL PURPOSES. THE RELEVANT/OPERATIVE PORTION OF THE ORDER IS REPRODUCED FOR READY REFEREN CE: WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE CASE OF HU SBAND OF THE ASSESSEE IN FOREGOING PARAGRAPHS OF THIS ORDER, WE HAVE DECIDED THE ISSUE IN DIFFERENT ASSESSMENT YEARS AND HAVE ALSO OBSERVED THAT IN RESPECT OF THE EARNING OF PROFESSI ONAL INCOME, COMMISSION AND INVESTMENT IN VARIOUS ITEMS, WE HAVE GIVEN LIBERTY TO THE ASSESSING OFFICER TO EXAMINE AND CON SIDER IN THE HANDS OF THE APPELLANT ASSESSEE ON SUBSTANTIVE BASI S. WE, THEREFORE, HEREBY SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE TO THE FILE OF AO TO FRAME ASSESSMENT IN THE LIGHT OF OUR OBSERVATIONS/FINDING MADE IN THE CASE OF SHRI DEEKA K ASAI. 6. IN VIEW OF THE ABOVE, SINCE WE HAVE ALREADY DEALT WITH T HE IDENTICAL ISSUES AS ABOVE, WE HEREBY SET ASIDE THE IMPUGNED ORDER FOR THE PRESENT YEAR ALSO AND RESTORE THE ISSUES TO THE FILE OF THE AO TO FRAME ASSESSMENT IN T HE LIGHT OF OUR OBSERVATIONS/FINDINGS MADE VIDE ORDER DATED 30.07.2018 (SUPRA). SMT. JYOTI ASAI /ITANO.847/IND/2017 7 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12.01.202 1. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 12/01/2021 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE