M/s Sabina Gill, Chandigarh V. Income Tax Officer W 2(3), Chandigarh

ITA 862/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9078 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: YOGENDRA MITTAL
• Assessee Lawyers: ASHOK KUMAR SOOD
• Keywords: Gift; Deemed to accrue or arise in india
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 862/CHD/2016 ASSESSMENT YEAR : 2010-11 MS. SABINA GILL, VS THE ITO, HOUSE NO. 71, WARD 2(3), SECTOR 18-A, CHANDIGARH. CHANDIGARH. PAN: AICPG2143A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHOK KUMAR SOO D RESPONDENT BY : SHRI YOGENDRA MITTAL DATE OF HEARING : 20.09.2016 DATE OF PRONOUNCEMENT : 23.09.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDERS OF LD. CIT(APPEALS)-I, CHANDIGARH DATED 25.04.2016 FOR ASSESSMENT YEARS 2010-11, CHALLENGIN G THE ADDITION OF RS. 16,37,500/- MADE UNDER SECTION 69A OF THE INCOME TAX ACT ON ACCOUNT OF UNEXPLAINED CAS H DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE ON THIS ISSUE ARE TH AT CASH DEPOSITS AMOUNTING TO RS. 23,75,000/- WERE MAD E IN THE ASSESSEE'S SAVING BANK ACCOUNT NO. 0107100018850 WITH HDFC BANK, SECTOR-7D CHANDIGARH, JOINTLY HELD WITH HER HUSBAND SH. 2 HARDAMAN SINGH GILL. IT WAS SUBMITTED DURING THE ASSESSMENT PROCEEDINGS THAT THE CASH DEPOSITS WERE MADE OUT OF THE SALE CONSIDERATION RECEIVED ON SELL ING OF AGRICULTURAL LAND AND POPULAR TREES BY HER HUSBA ND. ON INVESTIGATION BY THE ASSESSING OFFICER, IT WAS FOUND THAT OUT OF THE TOTAL SALE CONSIDERATION OF RS. 18,37,500/-, AN AMOUNT OF RS. 11,00,000/- WAS RECEIVED BY THE ASSESSEES HUSBAND VIDE TWO CHEQUES OF RS. 5,00,000/- AND RS. 6,00,000/- RESPECTIVELY. ON FURTHER INFORMATION RECEIVED U/S 133(6) OF THE ACT FROM THE BUYER OF THE LAND, IT WAS FOUND THAT AN AMOUNT OF RS. 7,37,500/- WAS PAID BY THE BUYER IN CASH IN RES PECT OF TWO PROPERTIES. IN REGARD TO THE CLAIM THAT A PA RT OF TOTAL CASH DEPOSITS WAS MADE FROM THE CASH RECEIVED ON ACCOUNT OF SALES OF POPULAR TREES, THE ASSESSING OF FICER MADE FURTHER INQUIRY AND FOUND THAT THE COPY OF GIRDWARI FOR THE F.Y. 2003-04 DOES NOT EVIDENT THAT ANY POPULAR TREE WERE GROWN. IT WAS ALSO FOUND THAT THE COPY OF RECEIPT ISSUED BY ONE SH. KULWANT SINGH IN LIEU OF PURCHASE OF POPULAR TREES WAS ALSO FAKE AND INGENUINE. IN VIEW OF THE ABOVE FACTS EMERGED AFTER MAKING DETAILED INQUIRY BY THE ASSESSING OFFICER, C ASH AMOUNTING TO RS. 7,37,500/- ONLY WAS CONSIDERED TO HAVE BEEN DEPOSITED IN THE BANK ACCOUNT OF ASSESSEE OUT OF SALE CONSIDERATION OF THE LAND SOLD BY HER HUSBAND. REMAINING CASH DEPOSITS IN THE BANK ACCOUN T TO THE TUNE OF RS. 16,37,500/- WAS CONSIDERED 3 UNEXPLAINED AND DEEMED TO BE THE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES U/S 69A OF THE AC T. 3. THE ADDITION WAS CHALLENGED BEFORE LD. CIT(APPEALS) AND SUBMISSION WAS FILED DURING THE PRESENT PROCEEDINGS. THE ASSESSEE HAS REITERATED TH E SUBMISSION MADE BEFORE THE ASSESSING OFFICER. THE ASSESSEE CLAIMS THAT CASH DEPOSITS OF RS. 4,90,000/ - AND RS. 15,86,000/-., MADE ON 06.07.2009 AND 07.07.2009 RESPECTIVELY, WAS TRANSFERRED TO HER HUSBAND'S ACCOUNT ON 09.07.2009 AND THEREFORE THE R EAL OWNER OF THE CASH IS HER HUSBAND. IT IS, THEREFORE, SUBMITTED THAT IN VIEW OF THE SAME, NO ADDITION ON THIS ACCOUNT SHOULD HAVE BEEN MADE IN THE HAND OF THE ASSESSEE. 4. THE LD. CIT(APPEALS), HOWEVER, CONFIRMED THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. HIS FINDINGS IN PARA 6.2 OF THE IMPUGNED ORDER ARE REPRODUCED AS UNDER : 6.2 I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT AND PERUSED THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS MADE RELEVANT INVESTIGATION DURING THE ASSESSMENT PROCEEDINGS TO BRING OUT THE CORRECT FACTS OF THE CASE. ON DEEPER SCRUTINY OF TH E BANK TRANSACTIONS AND SALE DEEDS, THE ASSESSING OFFICER HAS CONCLUSIVELY PROVEN THAT A SUM OF RS. 11,00 ? 000/-WAS RECEIVED BY THE APPELLANT IN CHEQUE AS SALE CONSIDERATION OF THE LAND. CALLING O F INFORMATION U/S 133{6) FROM THE BUYER OF THE LAND, 4 THE ASSESSING OFFICER FURTHER BROUGHT THE TRUTH THA T AN AMOUNT OF RS. 7,37,500/- WAS ONLY PAID IN CASH BY THE BUYER. EXAMINATION OF THE DOCUMENTS PRODUCED BEFORE THE ASSESSING OFFICER IN FORM OF GIRDWARI, CASH RECEIPTS AND LETTER OF LUMBERDAR, IT WAS REVEALED THAT THESE WERE NOT GENUINE DOCUMENTS. SUCH OBSERVATION OF THE ASSESSING OFFICER WAS NOT REBUTTED BY THE APPELLANT DURING THE PRESENT PROCEEDINGS. NO FURTHER EVIDENCES ARE BROUGHT BY THE APPELLANT DURING THE PRESENT PROCEEDINGS IN SUPPORT OF THE SOURCE OF THE REMAINING CASH DEPOSIT OF RS. 16,37,500/-. THE ARGUMENT OF THE APPELLANT THAT SHE CEASES TO BE THE OWNER OF THE CASH BY TRANSFERRING THE FUNDS FROM HER ACCOUNT TO THE ACCOUNT OF HER HUSBAND HAS NO LOGIC. SUCH TRANSFER OF FUNDS MAY BE ON ACCOUNT OF LOAN OR GIFT GIVEN TO HER HUSBAND. MERE TRANSFER O F THE FUNDS FROM ONE ACCOUNT TO ANOTHER ACCOUNT DOES NOT ABSOLVE THE TRANSFEROR TO EXPLAIN THE SOURCE OF SUCH FUNDS. UNDER ALL CIRCUMSTANCES THE SOURCE OF SUCH CASH DEPOSITS HAS TO BE EXPLAINED BY THE TRANSFEROR WHICH THE APPELLANT HAS FAILED TO EXPLAIN. IN VIEW OF THE ABOVE DISCUSSION, IT IS HEL D THAT THE APPELLANT HAS FAILED TO EXPLAIN THE SOURCE SATISFACTORILY AND THEREFORE THE DECISION OF THE ASSESSING OFFICER TO CONSIDER THE REMAINING CASH DEPOSITS OF RS. 16,37,500/- AS DEEMED INCOME OF THE APPELLANT U/S 69A OF THE ACT IS UPHELD. GROUND OF APPEAL NO, 2 IS DISMISSED. 5. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM NOT INCLINED TO INTERFERE WITH THE ORDERS OF AUTHORITIE S BELOW. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ACCOUNT IN QUESTION WAS JOINTLY HELD BY THE ASS ESSEE WITH HER HUSBAND SHRI HARDAMAN GILL AND ASSESSEE HA S 5 NO OTHER SOURCE OF INCOME EXCEPT SALARY. THEREFORE , CASH DEPOSITED IN THE BANK ACCOUNT SHOULD BE CONSIDERED IN THE HANDS OF HUSBAND OF THE ASSESSEE. COPY OF THE BANK STATEMENT IS FILED AT PAGE 1-2 OF THE PAPER BOOK. THE ARGUMENTS OF LD. COUNSEL FOR THE ASSESSEE ARE NOT TENABLE. THE ASSESSEE HAS MAINTAI NED THE BANK ACCOUNT IN QUESTION AS FIRST/PRIMARY HOLDE R AND NAME OF HER HUSBAND HAVE BEEN MENTIONED AS JOIN T HOLDER IN THE BANK STATEMENT. SINCE THE NAME OF TH E ASSESSEE IS APPEARING AS FIRST PERSON OPERATING THE BANK ACCOUNT, THEREFORE, BURDEN IS UPON ASSESSEE TO PROV E THAT ASSESSEE WAS NOT OWNER OR BENEFICIARY OWNER OF THE SAID BANK ACCOUNT IN QUESTION. HOWEVER, NO EVIDENC E IN THIS REGARD HAVE BEEN FILED BEFORE AUTHORITIES BELO W AND FURTHER MERE, DENIAL OF JOINT ACCOUNT BY THE ASSESS EE IS NOT SUFFICIENT TO DISCHARGE THE ONUS UPON ASSESSEE. SINCE THE JOINT ACCOUNT IS MAINTAINED BY THE ASSESS EE AS FIRST AND PRIMARY PERSON AND HER HUSBAND IS ONLY JOINT HOLDER, THEREFORE, THE ASSESSEE IS OWNER AS W ELL AS BENEFICIARY OWNER OF THE BANK ACCOUNT IN QUESTION H ELD BY HER JOINTLY WITH HER HUSBAND. THE SOURCE OF DEP OSIT IN BANK ACCOUNT SHALL HAVE TO BE PROVED BY ASSESSEE . 5(I) THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTE NDED THAT THE CASH DEPOSITED IN THIS BANK ACCOUNT ON 06.07.2009 AND 09.07.2009 HAVE BEEN TRANSFERRED TO THE ACCOUNT OF HUSBAND OF THE ASSESSEE SHRI HARDAMAN GI LL ON 6 09.07.2009 CLEARLY PROVES THAT THE REAL OWNER OF TH E CASH IS HER HUSBAND. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS NOT CONVINCING AND IS NOT ACCEPTABLE. THERE IS A CASH DEPOSIT OF RS. 4,90,000/- IN BANK ACCOUNT OF THE ASSESSEE ON 06.07.2009, FURTHER CASH OF RS. 15,86,0 00/- HAVE BEEN DEPOSITED IN THE BANK ACCOUNT OF THE ASSE SSEE ON 09.07.2009 AND ON THE SAME DAY ON 09.07.2009, RS. 1 9 LACS HAVE BEEN TRANSFERRED FROM BANK ACCOUNT OF ASS ESSEE THROUGH BANKING CHANNEL IN THE SEPARATE ACCOUNT OF SHRI HARDAMAN GILL I.E. HUSBAND OF THE ASSESSEE. IT IS, THEREFORE, CLEAR THAT HUSBAND OF THE ASSESSEE SHRI HARDAMAN GILL WAS MAINTAINING SEPARATE BANK ACCOUNT ON THE DATE OF DEPOSITS OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE. WHEN HUSBAND OF THE ASSESSEE WAS MAINTAI NING SEPARATE BANK ACCOUNT AND HER HUSBAND WAS ALLEGEDLY OWNER OF THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE, AS ARGUED, THERE WAS NO REASON FOR HUSBAN D OF THE ASSESSEE TO MAKE DEPOSIT OF THE ENTIRE CASH IN THE BANK ACCOUNT OF THE ASSESSEE. HUSBAND OF THE ASSESSEE C OULD HAVE MADE SUCH CASH DEPOSIT IN HIS OWN BANK ACCOUNT MAINTAINED BY HIM INDEPENDENTLY. NO REASONS HAVE B EEN GIVEN AS TO WHY HUSBAND OF THE ASSESSEE WOULD MAKE A DEPOSIT OF HUGE CASH IN THE ACCOUNT OF HIS WIFE WIT HOUT ANY REASONS WHEN HE WAS MAINTAINING SEPARATE BANK ACCOU NT. IN THE INITIAL REPLY SUBMITTED BEFORE ASSESSING OFF ICER THE ASSESSEE EXPLAINED THAT SHE HAS SOLD AGRICULTURE LA ND DURING THE YEAR UNDER CONSIDERATION FOR RS. 23 LACS AND 7 SUCH CONSIDERATION OF SALE WAS DEPOSITED IN JOINT A CCOUNT. WHEN THE ASSESSING OFFICER ASKED THE ASSESSEE TO EX PLAIN THE SOURCE OF THE DEPOSITS BY FILING DOCUMENTARY EV IDENCE, THE ASSESSEE IMMEDIATELY CHANGED HER STATEMENT AND SUBMITTED BEFORE ASSESSING OFFICER THAT IT WAS HER HUSBAND SHRI HARDAMAN GILL WHO HAD SOLD AGRICULTURAL LAND A ND ALSO POPLAR TREES DURING THE YEAR UNDER CONSIDERATI ON FROM WHICH CASH WAS DEPOSITED IN JOINT BANK ACCOUNT. TH US, THERE IS A CLEAR CONTRADICTION IN THE EXPLANATION O F THE ASSESSEE BEFORE ASSESSING OFFICER. 5(II) THE ASSESSEE FILED TWO COPIES OF SALE DEEDS T O SHOW THAT HER HUSBAND HAS SOLD AGRICULTURAL LAND TO SHRI DHARAM PAL AND THE ASSESSING OFFICER AFTER ANALYZIN G SALE DEEDS FOUND THAT TOTAL SALE CONSIDERATION WAS RS. 18,37,500/- AND SALE CONSIDERATION OF RS. 11 LAS WA S RECEIVED THROUGH TWO CHEQUES. THE ONLY CASH RECEIV ED OUT OF SALE CONSIDERATION OF AGRICULTURAL LAND WAS RS. 7,37,500/- FOR WHICH ASSESSING OFFICER HAS BEEN MOR E GENEROUS IN GIVING BENEFIT TO THE ASSESSEE. THE FI NDINGS OF A.O. HAVE NOT BEEN REBUTTED BY ASSESSEE. THUS, NEIT HER THE ASSESSEE NOR HER HUSBAND HAS BEEN ABLE TO PROVE AVAILABILITY OF ANY SOURCE IN CASH FOR THE PURPOSE OF MAKING CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICER ALSO CONSIDERED THE SALE OF POPLA R TREES BY HUSBAND OF THE ASSESSEE AND FOUND THAT EVEN IN GIRD AWARI OF EARLIER YEARS, NO POPLAR TREES HAVE BEEN GROWN U P ON THE LAND THEREFORE, RECEIPTS WERE FOUND FAKE AND INGENU INE AND 8 NOT SUPPORTED BY ANY COGENT EVIDENCE. EVEN BEFORE ME, NO EVIDENCE OR MATERIAL HAVE BEEN PRODUCED TO PROVE SO URCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSE E. THE EXPLANATION OF THE ASSESSEE IS, THEREFORE, INCORRE CT THAT HUSBAND OF THE ASSESSEE WAS HOLDER OF THE JOINT BAN K ACCOUNT. THE ASSESSEE, THEREFORE, FAILED TO EXPLAI N SOURCE OF THE CASH DEPOSIT IN HER BANK ACCOUNT OF WHICH AS SESSEE IS THE FIRST ACCOUNT HOLDER AND HER HUSBAND IS ONLY A JOINT ACCOUNT HOLDER, THEREFORE, ENTIRE ADDITION HAVE BEE N CORRECTLY CONSIDERED IN THE HANDS OF THE ASSESSEE. SINCE THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THE CA SH DEPOSIT IN HER BANK ACCOUNT, THEREFORE, AUTHORITIES BELOW W ERE JUSTIFIED IN MAKING AND CONFIRMING THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. I DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. SAME IS, ACCORDINGLY, DISMISSED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 23 RD SEPTEMBER, 2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD