Jayashree Anant Rajegaonkar, Nashik V. Income-tax Officer,

ITA 855/PUN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0983 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 28-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Business income

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NOS.855 TO 857/PN/2016 % % / ASSESSMENT YEARS : 2005-06 TO 2007-08 JAYASHREE ANANT RAJEGAONKAR, SHUBHAM, MODEL COLONY, COLLEGE ROAD, NASHIK 422 002 PAN : ACPPR9344F . / APPELLANT V/S ITO, CENTRAL - I, NASHIK . / RESPONDENT / APPELLANT BY : NONE (WRITTEN SUBMISSION) / RESPONDENT BY : SHRI S.K. RASTOGI, CIT / ORDER PER R.K. PANDA, AM : THE ABOVE 3 APPEALS FILED BY THE ASSESSEE ARE DIRECTED A GAINST THE COMMON ORDER DATED 10-02-2016 OF THE CIT(A)-12, P UNE RELATING TO THE ASSESSMENT YEARS 2005-06 TO 2007-08 RESPECTIV ELY. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN ALL THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND ARE B EING DISPOSED OF BY THIS COMMON ORDER. / DATE OF HEARING :09.08.2016 / DATE OF PRONOUNCEMENT:31.08.2016 2 ITA NOS.855 TO 857/PN/2016 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, A WRITTEN SUBMISSION HAS BEEN FILED. THEREFORE, THESE APPEALS ARE BEIN G DECIDED ON THE BASIS OF THE WRITTEN SUBMISSION FILED AND AFTE R HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. FIRST WE TAKE UP ITA NO.855/PN/2016 FOR A.Y. 2005-06 AS THE LEAD CASE. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND IS A CIVIL CONTRACTOR AND ALSO HAVING INCOME FRO M OTHER SOURCES, REMUNERATION FROM M/S. SUJOYIT INFRASTRUCT URE LTD., DIVIDEND, ETC. THE ASSESSEE HAD FILED ORIGINAL RETURN OF INCOM E ON 31-08-2005 DECLARING TOTAL INCOME OF RS.1,62,700/-. A SEAR CH AND SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CONDUCTED IN T HE SUYOJIT GROUP OF CASES ON 17-09-2010. THE ASSESSEE BELONGS TO THE SAME GROUP. IN RESPONSE TO NOTICE U/S.153A OF THE I.T. ACT, 1961 ISSUED ON 10-01-2012 THE ASSESSEE FILED HER RETURN OF INCOME DE CLARING TOTAL INCOME OF RS.1,62,700/-. 3.1 THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT A RED EXECUTIVE DIARY WAS FOUND AT THE RESIDENTIAL PREMISES OF SHRI ANANT KESHAV RAJEGAONKAR AS PER ANNEXURE A8 TO THE PANCHANAMA. IN THE SAID DIARY THE FOLLOWING ENTRY WAS FOU ND IN THE NAME OF THE ASSESSEE : SR. NO. PAGE NO. OF DIARY DATE AMOUNT 1 74 BACKSIDE 30 - 12 - 2004 15,000 4. THE AO OBSERVED THAT THE ASSESSEE HAS RECEIVED TH E ABOVE MENTIONED AMOUNT. HOWEVER, THE SAID AMOUNT IS NOT REFLECTED IN THE REGULAR BOOKS OF ACCOUNT OF THE ASSESSEE. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHETHER THE ABOVE TRANSACTIO N HAS BEEN RECORDED IN THE REGULAR BOOKS OF THE ASSESSEE. THE ASS ESSEE 3 ITA NOS.855 TO 857/PN/2016 EXPLAINED THAT THESE ENTRIES ARE IN THE NATURE OF HOUSEH OLD EXPENDITURE AND ARE REFLECTED IN THE CAPITAL ACCOUNT FOR T HE RELEVANT PERIOD 5. HOWEVER, THE AO WAS NOT SATISFIED WITH THE ABOVE EXPLA NATION OF THE ASSESSEE. HE OBSERVED THAT IT IS ONLY A DEFENCE FOR NAME SAKE AS IT IS FALSE, INCORRECT AND DEVOID OF ANY SUBSTANCE. HE FU RTHER OBSERVED THAT IN THE STATEMENT RECORDED ON OATH U/S.1 31 OF THE I.T. ACT ON 09-11-2010, SHRI ANANT RAJEGAONKAR HAD ACCEPTE D THAT MOST OF THE TRANSACTIONS IN THE DIARY ARE UNDISCLOSED RECEIPTS AND EXPENDITURES. THEREFORE, HE WAS OF THE OPINION THAT ADMIT TED FACTS NEED NOT BE PROVED SINCE THE LEGAL PRINCIPLE THAT PROOF IS NOT AT ALL REQUIRED WHEN THERE IS ADMISSION. SINCE THE ABOVE AMOUNT OF RS.15,000/- WAS NOT REFLECTED IN THE BOOKS OF THE ASSESSE E, THEREFORE, THE AO MADE ADDITION OF RS.15,000/- TO THE TOTA L INCOME OF THE ASSESSEE AS UNACCOUNTED RECEIPTS. 6. SIMILAR ADDITION OF RS.40,000/- HAS BEEN MADE BY THE AO FOR A.Y. 2006-07 AND RS.31,000/- IN A.Y. 20007-08. 7. BEFORE CIT(A) IT WAS SUBMITTED THAT THE RED COLOUR DIAR Y WAS WRITTEN AND MAINTAINED BY MRS. JAYSHREE ANANT RAJEGAONKA R WHO WAS ALSO DIRECTOR IN M/S. ANANT TECHNOCRATS PVT. LTD. T HE SAID DIARY CONTAINED DETAILS OF TRANSFER OF CASH TO AND FROM THE ASSESSEE COMPANY FOR STAFF AND OTHER PARTIES AND ALSO INCLUDED DETA ILS OF HOUSEHOLD EXPENSES, PERSONAL TRAVELLING EXPENSES, PETTY CA SH EXPENSES, LABOUR PAYMENTS ETC. THE DIARY ALSO RECORDED AMOUNTS RECEIVED FROM VARIOUS PARTIES IN THE NORMAL COURSE OF BUSIN ESS. IT WAS CLAIMED THAT AS PER POLICY OF THE COMPANY M/S. ANANT TECHNOCRATS PVT. LTD. AND M/S. SUYOJIT INFRASTRUCTURE PV T. LTD. IN 4 ITA NOS.855 TO 857/PN/2016 WHICH ASSESSEE WAS DIRECTOR, PART OF THE CASH IN HAND O F THE ASSESSEE WAS KEPT AT THE RESIDENCE FOR THE SAKE OF CO NVENIENCE AND SAFETY. THEREAFTER ASSESSEE CONTENDED THAT ALL THE TRAN SACTIONS RECORDED IN THE DIARY WERE DULY REFLECTED IN THE BOOKS O F ACCOUNT OF THE COMPANY AND NONE OF THE TRANSACTIONS WERE OUTSIDE THE BOOKS OF ACCOUNT. IT WAS CONTENDED THAT SHRI ANANT RAJEGAONK AR NEVER STATED THAT MOST OF THE TRANSACTIONS IN THE DIARY WERE UNDISCLOSED RECEIPTS AND EXPENDITURE. IT WAS STATED THAT THE NAME OF THE PERSONS WRITTEN ON THE DIARY, WHO HAD RECEIVED THE CASH , WERE EMPLOYEES ACTING AS COURIER OF THE MONEY AND THE PAYMEN TS WERE MADE FOR THE PURPOSE OF BUSINESS WHICH WERE RECORDED IN THE BOOKS OF THE ASSESSEE. CONFIRMATIONS OF THE COURIERS WERE ALSO FILE D. SINCE THE ASSESSEE DID NOT FILE COMPLETE STATEMENT OF SHRI ANAN T RAJEGAONKAR RECORDED ON 09-11-2010 THE CIT(A) SPECIFICA LLY REQUESTED THE ASSESSEE VIDE ORDER SHEET DATED 29-10- 2015 TO FILE THE COPY OF THE STATEMENT ON NEXT DATE OF HEARING 18-11-2 015. HOWEVER, THE ASSESSEE NEITHER ATTENDED THE HEARING NOR FILED THE COPY OF THE STATEMENT. 8. THE CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION GIVEN B Y THE ASSESSEE AND UPHELD THE ACTION OF THE AO BY OBSERVING AS UNDER : 3.2 I HAVE CONSIDERED THE ASSESSMENT ORDER AND SUBMISSION S FILED BY THE APPELLANT. EXPLANATION FURNISHED BY THE APPELLAN T AND HER HUSBAND IN REGARDING CONTENTS OF THE DIARY HAS NOT BEEN CONSIST ENT. THEY HAD TAKEN SHIFTING STANDS DURING THE SEARCH, ASSESSMENT PROCEE DINGS AND APPELLATE PROCEEDINGS. AT THE TIME OF SEARCH, IT WA S STATED THAT TRANSACTIONS RELATED TO PAYMENTS GIVEN TO LABOUR, PERSO NAL EXPENSES, DETAILS OF RECEIPTS PREVIOUSLY OWNED BY THE DIRECTOR AND RELATIVES DEPOSIT AMOUNT WERE RECORDED. IT WAS ALSO ADMITTED THA T MOST OF THE UNDISCLOSED RECEIPTS AND BUSINESS TRANSACTIONS OF MR. BADG UJAR WERE RECORDED IN THE DIARY. BEFORE THE AO, APPELLANT SUBM ITTED ENTRIES WERE IN THE NATURE OF HOUSEHOLD EXPENSES AND REFLECTED IN H ER CAPITAL ACCOUNT AND DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS SUBMITTED THAT ENTRIES RECORDED WERE MONEY TAKEN BY OFFICE STAFF OF M/S. SUYOJIT INFRASTRUCTURE LTD. FOR BUSINESS PURPOSE AND CASH AT HER RESIDENCE WAS PART OF CASH IN HANDS OF THE COMPANY AND EXPENSES WERE RECORDED IN THE 5 ITA NOS.855 TO 857/PN/2016 BOOKS OF THE COMPANY. THE APPELLANT OR HER HUSBAND N OWHERE MENTIONED AT THE TIME OF SEARCH THAT ENTRIES RECORDED IN THE DIARY WERE THE REGULAR BUSINESS TRANSACTIONS APPEARING IN THE BOOKS OF ACCOUNTS OF ANY COMPANY. ON THE CONTRARY IT WAS ADMITTED THAT M OST OF THE UNACCOUNTED TRANSACTIONS AND UNDISCLOSED RECEIPTS WERE R ECORDED IN THE DIARY. APPELLANT LATER ON PREPARED THE CASH BOOK OF THE COMPANY AND TRIED TO LINK THAT PAYMENTS RECORDED IN THE DIAR Y WERE REGULAR TRANSACTIONS OF THE COMPANY. CASH BOOK SO PREPARED AFTE R THE SEARCH IS NOT CREDIBLE AND THEREFORE I UPHOLD THE ADDITION MA DE BY AO OF RS.15,000/- BEING UNDISCLOSED BUSINESS RECEIPTS FOR THE YE AR UNDER CONSIDERATION. GROUND RAISED BY THE APPELLANT IS HEREB Y DISMISSED. 9. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 10. THE ASSESSEE IN ITS WRITTEN SUBMISSION HAS MENTIONED T HAT THE CASH CARRIED BY M/S. DHEERAJ SASANE FROM THE RESIDENCE OF ASSESSEE IS THE CASH BELONGING TO M/S. SUYOJIT INFRASTRUCTURE PVT . LTD. AND IS CARRIED FROM THE RESIDENCE OF THE DIRECTOR OF THE SAID CO MPANY TO THE OFFICE OF M/S. SUYOJIT INFRASTRUCTURE PVT. LTD. THE ASSESS EE WAS JUST HOLDING THE CASH AS A BAILEE. SO FAR AS A.Y. 2006-07 IS CO NCERNED, IT HAS BEEN MENTIONED IN THE WRITTEN SUBMISSION THAT THE AS SESSEE CARRIED THE CASH OF M/S. SUYOJIT INFRASTRUCTURE PVT. LTD. AND KEPT AT HER RESIDENCE ON BEHALF OF THE SAID COMPANY. THE ASSESSE E ACTED AS A BAILEE HAVING THE CUSTODY OF THE CASH OF THE COMPANY. THE NOTING ON PAGE NO.12 OF THE SEIZED DIARY MENTIONS RS.10,000/- TAKEN BY THE ASSESSEE FROM HER HOME FOR HER TRIP TO SOLAPUR BUT DUE TO UNFORESEEN CIRCUMSTANCES SHE COULD NOT VISIT SOLAPUR, THER EFORE, THE CASH TAKEN BY HER WAS GIVEN IN THE OFFICER OF M/S. SUYOJIT INFRASTRUCTURE PVT. LTD. AS PER NOTING ON PAGE NO.73 (BA CKSIDE) OF THE SEIZED DIARY, THE AMOUNT OF RS.10,000/- MENTIONED THER EIN WAS USED BY THE ASSESSEE FOR HER OWN PERSONAL PURPOSES. I N THE ABOVE CASE, THE CASH IS TREATED AS UNEXPLAINED RECEIPTS BY THE AO AND 6 ITA NOS.855 TO 857/PN/2016 ADDITION OF RS.40,000/- IS MADE WHICH IS NOT JUSTIFIED. SIMILAR SUBMISSION HAS BEEN GIVEN BY THE ASSESSEE FOR A.Y. 2007-08. 11. IT HAS FURTHER BEEN MENTIONED IN THE SAID WRITTEN SU BMISSION THAT THE FACTS OF THE IMPUGNED APPEALS ARE IDENTICAL TO TH E DECISION IN THE CASE OF M/S. SUYOJIT INFRASTRUCTURE PVT. LTD. WHERE THE ADDITIONS MADE BY THE AO ON THE BASIS OF THE SAID RED DIA RY WHICH WAS ANNEXED AS A8 TO THE PANCHNAMA WERE DELETED BY T HE APPELLATE AUTHORITIES. IT HAS BEEN MENTIONED THAT THE CONFIRMATIONS AS WELL AS AFFIDAVITS OF ALL THE ABOVE PERSONS WHO HAVE TAKEN CASH FR OM THE RESIDENCE OF THE ASSESSEE DESCRIBING THE FACT THAT THEY WERE JUST CARRIERS FOR THE CASH ARE PLACED IN THE PAPER BOOK. FUR THER, THE EVIDENCE OF CASH COMMENT AS PER AUDITED BOOKS OF ACCOUN T ARE ALSO ENCLOSED IN THE PAPER BOOK. 12. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND HEAVILY RELIED ON THE ORDER OF THE CIT(A). 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE ORDER O F THE TRIBUNAL IN THE CASE OF SHRI ANANT KESHAV RAJEGAONKA R. THERE IS NO DISPUTE TO THE FACT THAT DURING THE COURSE OF SEAR CH IN THE SUYOJIT GROUP OF CASES ON 17-09-2010 A RED DIARY WAS S EIZED AS PER ANNEXURE A8 TO THE PANCHANAMA. IN THE SAID RED DIARY, IN THE BACKSIDE OF PAGE 74, AN AMOUNT OF RS.15,000/- WAS MENTIONE D AGAINST THE NAME OF THE ASSESSEE ON 30-12-2004. SINCE THE ABOVE AMOUNT WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE THE AO MADE ADDITION IN THE ORDER PASSED U/S.143(3) R.W.S.1 53A WHICH HAS BEEN UPHELD BY THE CIT(A). IT IS THE SUBMISSION OF THE 7 ITA NOS.855 TO 857/PN/2016 ASSESSEE IN THE WRITTEN SUBMISSION THAT SIMILAR ADDITION WAS DELETE D IN THE HANDS OF SHRI ANANT KESHAV RAJEGAONKAR BY THE C IT(A) AND ON FURTHER APPEAL BY THE REVENUE THE TRIBUNAL HAS DISMISSE D THE APPEAL FILED BY THE ASSESSEE AND THEREFORE THIS ADDITION SH OULD ALSO BE DELETED. HOWEVER, WE DO NOT FIND ANY MERIT IN THE ABOV E SUBMISSION OF THE ASSESSEE. IN THE CASE OF SHRI ANANT KE SHAV RAJEGAONKAR THE SEIZED DOCUMENT CONTAINED CASH RECEIP TS ISSUED BY THE ASSESSEE TO MR. GULAB AND MRS. YOGITA BADGUJAR AMOU NTING TO RS.19 LAKHS. IT WAS EXPLAINED BY THE ASSESSEE THAT THE SAID AMOUNT WAS RECEIVED BY HIM IN HIS CAPACITY AS DIRECTOR OF SUJOY IT INFRASTRUCTURE PVT. LTD. ON BEHALF OF THE PARTNERSHIP FIRM M/S. SUYOJIT BAUG AS ADVANCE AGAINST SALE OF SHOPS L1 AND L2 IN THE PROPOSED PROJECT OF M/S. SUYOJIT BAUG. BEFORE THE TRIBU NAL THE ASSESSEE HAS PROVED THE EXISTENCE OF THE PARTNERSHIP FIR M CALLED M/S. SUYOJIT BAUG WHICH WAS DISBELIEVED BY THE AO ON THE GROUND THAT M/S. SUYOJIT BAUG DID NOT FILE ANY RETURN OF INCOME. U NDER THOSE CIRCUMSTANCES, THE TRIBUNAL HAD UPHELD THE ORDER O F THE CIT(A) IN DELETING THE ADDITION OF RS.19 LAKHS MADE IN THE HA NDS OF THE ASSESSEE. HOWEVER, HERE THE FACTS ARE COMPLETELY D IFFERENT. AN AMOUNT OF RS.15,000/- HAS BEEN SHOWN AGAINST THE NAME O F THE ASSESSEE WHICH HAS NOT BEEN DISCLOSED BY HER. FURTHER, THE SAID DIARY WAS IN THE HAND-WRITING OF THE ASSESSEE HERSELF. THEREFORE, TH E DECISION OF THE TRIBUNAL IN THE CASE OF SHRI ANANT KESHAV RAJEGAONKAR RELIED ON BY THE ASSESSEE IN THE WRITTEN SU BMISSION IS OF NO USE. IN VIEW OF THE ABOVE DISCUSSION AND IN VIEW OF T HE DETAILED REASONINGS BY THE CIT(A) WE FIND NO INFIRMITY IN HIS OR DER. ACCORDINGLY, THE SAME IS UPHELD AND THE GROUNDS RAISED B Y THE ASSESSEE IS DISMISSED. 8 ITA NOS.855 TO 857/PN/2016 14. IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN ITA NOS . 856/PN/2016 AND 857/PN/2016 FOR A.YRS. 2006-07 AND 200 7-08 RESPECTIVELY. FACTS BEING SIMILAR, THEREFORE, FOLLOWING THE REA SONINGS GIVEN ABOVE, THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 15. IN THE RESULT, ALL THE 3 APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-08-2016. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 31 ST AUGUST , 2016. LRH'K ' (*+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. % ( ) - THE CIT(A)-12, PUNE 4. % S / THE CIT-12, PUNE 5. ( ++, , , , IQ.KS / DR, ITAT, A PUNE; 6. 0 / GUARD FILE. / BY ORDER , ( + //TRUE COPY// 23 + , / SR. PRIVATE SECRETARY ,, IQ.KS / ITAT, PUNE