Shri Narendra V. Jadhav, Aurangabad V. ITO (Central), Aurangabad

ITA 874/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2002 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 22-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 20-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Assessee Lawyers: V L JAIN
• Keywords: Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.874/PN/2011 (ASSTT. YEAR : 2006-07) NARENDRA V. JADHAV .. APPELLANT 10, SHRINIKETAN COLONY, JALNA ROAD, NEAR COSMOS BANK, AURANGABAD. PAN NO. ACYPJ2434R VS. ITO (CENTRAL) .. RESPONDENT AURANGABAD APPELLANT BY : SHRI V.L. JAIN RESPONDENT BY : SHRI MUKESH VERMA DATE OF HEARING : 08-03-2013 DATE OF PRONOUNCEMENT : 12-03-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE CONSOLIDATED ORDER DATED 07-04-2011 OF THE CIT(A) AURANGABAD REL ATING TO A.Y. 2006-07. 2. ADDITION OF ` 5,75,000/- U/S.68 OF THE INCOME TAX ACT BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) IS TH E ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH U /S.132 OF THE INCOME TAX ACT WAS CONDUCTED ON 21-02-2008 AT THE BUSINESS AND RESIDENTIAL PREMISES OF DIFFERENT MEMBERS/CONCERNS OF THE YOG GROUP OF AURA NGABAD. THE ASSESSEE WAS ALSO COVERED UNDER THE SAID SEARCH. IN RESPONS E TO NOTICE ISSUED U/S.153A THE ASSESSEE FILED RETURN OF INCOME DECLAR ING TOTAL INCOME OF ` 9,65,430/- AND AGRICULTURAL INCOME OF ` 1,80,500/-. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED FROM THE BA NK STATEMENT THAT THE ASSESSEE HAS DEPOSITED CASH OF ` 75,000/- ON 11-04-2005 AND ` 5 LAKHS ON 19- 2 01-2006 IN CENTRAL BANK OF INDIA. ON BEING ASKED B Y THE ASSESSING OFFICER TO EXPLAIN THE SOURCE OF CREDIT OF THE SAID AMOUNT ALONG WITH VARIOUS OTHER CREDITS THE ASSESSEE REPLIED THAT THE AMOUNT OF ` 75,000/- IS OUT OF AGRICULTURAL INCOME. SIMILARLY, THE AMOUNT OF ` 5 LAKHS WAS EXPLAINED TO BE OUT OF GIFT OF ` 3,50,000/- RECEIVED FROM SMT.K.V. JADHAV, AGRICULTU RAL INCOME AND PERSONAL SAVINGS. 4. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE ARGUMENTS ADVANCED BY THE ASSESSEE ON THE GROUND TH AT NO SUCH DOCUMENTARY EVIDENCE WAS FILED TO EXPLAIN THE AGRICULTURAL INCO ME RECEIVED IN CASH ON THOSE SPECIFIC DATES. FURTHER, THE ASSESSEE HAS NO T GIVEN THE DETAILS OF WITHDRAWALS FROM WHICH HE HAD PERSONAL SAVINGS ON T HOSE SPECIFIC DATES. AS REGARDS THE GIFT OF ` 3,50,000/- RECEIVED IN CASH FROM SMT. K.V. JADHAV, ASSESSEE COULD NOT FILE ANY DOCUMENTARY PROOF. HE, THEREFORE, REJECTED THE EXPLANATION OF THE ASSESSEE AND MADE ADDITION OF ` 5,75,000/- U/S.68 OF THE INCOME TAX ACT. 5. IN APPEAL THE LEARNED CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER BY HOLDING AS UNDER : 9.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, ASSESSMENT ORDER AND REMAND REPORT OF THE ASSESSING OFFICER DATED 24-02- 2011 AND SUBMISSION OF THE APPELLANT. ON PERUSAL OF THE SAME IT IS OBSERVED T HAT THE CLAIM OF THE APPELLANT THAT NO CASH IS DEPOSITED IN THE CENTRAL BANK A/C.N O.5344 IS FOUND TO BE INCORRECT. THEREFORE, THE ADDITION MADE BY THE ASS ESSING OFFICER OF RS.75,000/- U/S.68 IS CONFIRMED. AS REGARDS CASH DEPOSIT OF RS .5,00,000/- ON 19-01-2006 IN CENTRAL BANK OF INDIA A/C NO.5344, THE APPELLANT HA S CLAIMED THAT THE SAID CASH DEPOSIT IS SOURCED OUT OF CASH GIFT OF RS.3,50,000/ - FROM SMT. K.V. JADHAV AND BALANCE FROM REALIZATION OF DEBTORS OF VISHWA PAPER MILLS. HOWEVER, THE APPELLANT HAS NOT FILED ANY EVIDENCE IN SUPPORT OF HIS CONTENTIONS. IN VIEW OF THE ABOVE FACTS, I AM OF THE CONSIDERED VIEW THAT THE A SSESSING OFFICER IS JUSTIFIED IN MAKING ADDITION OF RS.5,00,000/- U/S.68 OF THE ACT AND HENCE THE SAME IS CONFIRMED. GROUND NO.1 FOR A.Y. 2006-07 STANDS DIS MISSED. 5.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 3 6. THE LEARNED COUNSEL FOR THE ASSESSEE DREW THE AT TENTION OF THE BENCH TO PARAS 4 TO 6 OF THE CIT(A)S ORDER AND SUBMITTED THAT THE CIT(A) HAS ACCEPTED THE AGRICULTURAL INCOME OF ` ,180,000/- PER ANNUM FROM A.Y. 2002- 03 TO 2008-09 RESPECTIVELY IN CASE OF THE ASSESSEE. THEREFORE, HE IS NOT JUSTIFIED IN NOT ACCEPTING THE AMOUNT OF ` 1,80,000/- TO EXPLAIN THE DEPOSIT OF ` 5,75,000/-. SO FAR AS THE GIFT RECEIVED AMOUNTING TO ` 3,50,000/- IS CONCERNED, HE SUBMITTED THAT THE ASSESSING OFFICER IN THE ASSESSMENT OF SMT. K.V. JADHAV HAS NOT REJECTED THE CLAIM OF GIFT MADE BY HER TO THE ASSESSEE. SO FAR AS THE BALANCE AMOUNT IS CONCERNED HE SUBMIT TED THAT THE SAME IS OUT OF PAST SAVINGS. HE ACCORDINGLY SUBMITTED THAT NO ADDITION U/S.68 IS CALLED FOR. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER AND TH E CIT(A). 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. IN THE INSTA NT CASE WE FIND THE ASSESSING OFFICER MADE ADDITION OF ` 75,000/- AND ` 5,00,000/- RESPECTIVELY U/S.68 ON THE GROUND THAT THE ASSESSEE COULD NOT EX PLAIN THE AGRICULTURAL INCOME, CASH GIFT AND PERSONAL SAVINGS. WE FIND TH E LEARNED CIT(A) HAS ALSO UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE G ROUND THAT THE ASSESSEE COULD NOT FILE ANY EVIDENCE TO SUPPORT HIS CONTENTI ON REGARDING SOURCE OF THE ABOVE 2 DEPOSITS. WE FIND FROM THE ORDER OF THE CI T(A) THAT AT PARA 5 OF THE ORDER HE HAS ACCEPTED AGRICULTURAL INCOME OF ` 1,80,000/- PER ANNUM IN THE CASE OF THE ASSESSEE FROM A.Y. 2002-03 TO 2008-09. THE RELEVANT OBSERVATIONS OF THE CIT(A) READS AS UNDER : 4 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CONSIDERING THE CROPS GROWN BY THE APPELLANT AND TH E INCOME OF THE AGRICULTURISTS IN THE AREA AND THE FACTS OF THE CAS E, THE AGRICULTURAL INCOME OF THE APPELLANT IS TO BE CONSIDERED AT RS.15,000/- PER AC RE, I.E. RS.1,80,000/- PER ANNUM FOR TWELVE ACRES. THE APPELLANT HAS SHOWN AGRICUL TURAL INCOME OF LESS THAN RS.1,80,000/- IN A.YRS. 2002-03, 2003-04, 2004-05, 2005-06 AND 2007-08 AND HENCE ADDITION ON ACCOUNT OF AGRICULTURAL INCOME IN THESE YEARS IS DELETED. THE APPELLANT HAS CLAIMED AGRICULTURAL INCOME AT RS.1,8 0,500/- AND RS.1,81,780/- IN A.Y. 2006-07 AND 2008-09 RESPECTIVELY, I.E. ABOVE R S.1,80,000/-. THE ADDITION ON ACCOUNT OF AGRICULTURAL INCOME IS THEREFORE CONFIRM ED TO THE EXTENT OF RS.500/- AND RS.1,780/- IN A.Y. 2006-07 AND 2008-09 RESPECTI VELY. THE AO IS DIRECTED ACCORDINGLY. THE GROUNDS OF APPEAL RELATING TO REJ ECTION OF AGRICULTURAL INCOME FOR A.YS. 2002-03 TO 2005-06 AND 2007-08 ARE ALLOWE D AND PARTLY ALLOWED FOR A.YRS. 2006-07 AND 2008-09. WE THEREFORE FIND FORCE IN THE SUBMISSION OF THE LE ARNED COUNSEL FOR THE ASSESSEE THAT AN AMOUNT OF ` 1,80,000/- SHOULD BE ALLOWED TO BE EXPLAINED TOWARDS THE DEPOSIT OF ` 5,75,000/-. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO DELETE ADDITION OF ` 1,80,000/- FROM THE ADDITION OF ` 5,75,000/-. 9. SO FAR AS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SMT. K.V. JADHAV HAS MADE A CASH GIFT OF ` 3,50,000/- AND HAS CLAIMED IN HER RETURN OF INCOME AND THE ASSESSING OFFICER HAS ACCE PTED THE SAME WE FIND THE SAME NEEDS VERIFICATION AT THE LEVEL OF THE ASS ESSING OFFICER. SINCE THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S. 143(3) AND SINCE NOTHING CONTRARY WAS BROUGHT TO OUR NOTICE BY THE L EARNED DEPARTMENTAL REPRESENTATIVE ON THE SUBMISSION OF THE LEARNED COU NSEL FOR THE ASSESSEE THAT THE GIFT HAS NOT BEEN DISBELIEVED BY THE ASSESSING OFFICER IN THE SCRUTINY ASSESSMENT, THEREFORE, WE DIRECT THE ASSESSING OFFI CER TO VERIFY THE RECORDS AND IN CASE SMT. K.V. JADHAV HAS SHOWN TO HAVE MADE A CASH GIFT OF ` 3,50,000/- TO THE ASSESSEE AND IF NO OBJECTION HAS BEEN RAISED BY THE ASSESSING OFFICER IN THE SCRUTINY ASSESSMENT FOR SU CH CASH GIFT THEN THE ASSESSING OFFICER HAS TO ACCEPT THE AMOUNT OF ` 3,50,000/- AS EXPLAINED FOR THE DEPOSIT OF ` 5,75,000/-. 5 9.1 SO FAR AS THE BALANCE AMOUNT OF ` 45,000/- IS CONCERNED THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT EXPLAIN WITH CON CRETE EVIDENCE REGARDING THE SOURCE TOWARDS DEPOSIT IN THE BANK ACCOUNT. TH EREFORE, IN ABSENCE OF ANY MATERIAL BEFORE US TO TAKE A POSITIVE VIEW THE ADDI TION OF ` 45,000/- IS SUSTAINED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 12 TH DAY OF MARCH, 2013. SD/- SD/- ( SHAILENDRA KUMAR YADAV ) ( R.K . PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 12 TH MARCH 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-AURANGABAD. 4. THE CIT, AURANGABAD. 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLAT E TRIBUNAL, PUNE.