Narendra Ramswarup Shakadwipi, Nashik V. Assistant Commissioner of Income-tax,

ITA 878/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7266 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-10-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 08-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 878 /PUN/20 15 / ASSESSMENT YEAR : 2007 - 08 NARENDRA RAMSWARUP SHAKADWIPI, PLOT NO. 15, ANAND THIKAN, OPPO. GANPATI MANDIR, SAVARKAR NAGAR, ANANDWALI, GANGAPUR ROAD, NASHIK - 422 013. PAN : ARIPS9816R ....... / APPELLANT / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, NASHIK. / RESPONDENT A SSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI ACHAL SHARMA / DATE OF HEARING : 26.10.2017 / DATE OF PRONOUNCEMENT : 30 .10.2017 / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 12, PUNE DATED 27.04.2015 FOR ASSESSMENT YEAR 2007 - 08. THE SOLITARY ISSUE RAISED BY ASSESSEE IN APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS.20,00,000/ - MADE U/S. 69 OF THE INCOME TA X ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2 ITA NO.878 /PUN/2015 A.Y. 2007 - 08 2. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WAS CARRIED OUT ON ASHOKA GROUP. THE RESIDENCE OF ASSESSEE WAS ALSO COVERED UNDER THE SAID SEARCH AND SEIZURE ACTION. THE ASSESSEE IS AN EMPLOYEE OF M/S. ASHOKA BUILDCON LTD. DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR UNDER APPEAL, THE ASSESSEE HAD PURCHASED AGRICULTURAL LAND AT GAT NO. 262 ADMEASURING 2 HECT. 54 ARES AT TELEGAON, TAL: IGATPURI FOR CONSIDERATION OF RS.27,80,000/ - . THE ENTIRE CONSIDERATION WAS PAID BY WAY OF CHEQUES. THE ONLY DISPUTE IS WITH REGARD TO CHEQUE PAYMENT OF RS.11,92,500/ - PAID ON 29.11.2006. JUST BE FORE THE DATE OF ENCASHMENT OF CHEQUE, CASH AMOUNT OF RS. 20,00,000/ - WAS DEPOSITED I N THE BANK ACCOUNT OF ASSESSEE ON 20.11.2006. THE ASSESSING OFFICER ASKED THE ASSESSEE ABOUT THE SOURCE OF SAID DEPOSIT OF RS. 20,00,000/ - . THE ASSESSEE EXPLAINED THAT ON 17.11.2006, ASSESSEE HAD WITHDRAWN RS. THE ASSESSEE EXPLAINED THAT ON 17.11.2006, ASSESSEE HAD WITHDRAWN RS. 20,00,000/ - FROM SAME BANK ACCOUNT AND THE SAME AMOUNT WAS DEPOSITED ON 20.11.2006. THE ASSESSEE IN SUPPORT OF HIS SUBMISSION FURNISHED A COPY OF BANK STATEMENT. THE EXPLANATION FURNISHED BY THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER OF INCOME TAX (APPEALS). THE LD. AR REFERRED TO THE ACCOUNT STATEMENT OF RUPEE CO - OPERATIVE BANK LTD. AT PAGE NO. 5 TO 14 OF THE PAPER BOOK AND REITERATED THAT ON 17.11.2006, ASSESSEE HAD WITHDRAWN RS. 2 0,00,000/ - AND THEREAFTER, ON 20.11.2006 ASSESSEE DEPOSITED RS.20,00,000/ - IN CASH . THE ASSESSEE ISSUED A CHEQUE FOR RS. 11,92,500/ - TOWARDS PART CONSIDERATION FOR PURCHASING A GRICULTURAL PROPERTY. THE LD. AR FURTHER SUBMITTED THAT THESE BACK TO BACK TRANSA CTIONS WOULD CLEARLY INDICATE THAT AMOUNT OF RS.20,00,000/ - DEPOSITED BY THE ASSESSEE ON 20.11.2006 IS THE SAME WHICH WAS 3 ITA NO.878 /PUN/2015 A.Y. 2007 - 08 WITHDRAWN BY ASSESSEE ON 17.11.2006. THE LD. AR FURTHER CONTENDED THAT SINCE THE ASSESSEE IS A SALARIED EMPLOYEE, HE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT OR EVEN THE CASH BOOK. 3. SHRI ACHAL SHARMA REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ADDITION OF RS. 20,00,000/ - . THE LD. DR POINTED THAT THE ASS ESSEE HAS NOT PROPERLY MAINTAINED BOOKS OF ACCOUNTS. THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS) HAVE CAT EGORICALLY RECORDED THE FINDING OF FACT THAT BOOKS OF ACCOUNT WERE PREPARED AFTER SEARCH AND HENCE, ARE NOT RELIABLE. THE LD. DR PRA YED FOR REJECTING THE APPEAL OF ASSESSEE AND UPHOLDING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE ONLY ISSUE RAISE D IN APPEAL IS THE SOURCE OF RS. 20,00,000/ - DEPOSITED BY ASSESSEE IN ITS BANK ACCOUNT BEFORE ISSUING CHEQUE FOR RS. 11,92,500/ - . THE ASSESSEE HAS EX PLAINED THAT RS. 20,00,000/ - DEPOSITED I N BANK ACCOUNT ON 20.11.2006 IS THE SAME THAT WAS WITHDRAWN BY ASSESSEE ON 17.11.2006. THE PROXIMITY OF TWO TRANSACTIONS I.E. WITHDRAWAL OF CASH RS. 20,00,000/ - ON 17.11.2006 AND DEPOSIT OF EQUIVALENT AMOUNT ON 20.11.2006 SUPPORTS THE EXPLANATION FURNISHED BY ASSESSEE THAT IT COULD BE SAME AMOUNT WHICH WAS WITHDRAWN B Y ASSESS EE TWO DAYS BACK. THERE IS NO GROUND OF SUSPICION OR TO DISBELIE VE THE STATEMENT OF ASSESSEE. THE DEPARTMENT HAS NOT PLACED ON RECORD ANY MATERIAL TO INDICATE THAT APART FROM PURCHASE OF AGRICULTURAL LAND, THE ASSESSEE HAS UTILIZED THE SUM OF RS. 20,00,000/ - WITHDRAWN FROM BANK IN ANY OTHER 4 ITA NO.878 /PUN/2015 A.Y. 2007 - 08 MANNER. IN SO FAR AS THE OBSERVATION OF AUTHORITIES BELOW IS CONCERNED, THAT THE ASSESSEE HAS NOT PROPERLY MAINTAINED BOOKS OF ACCOUNT OR THE BOOKS OF ACCOUNT HAVE BEEN PREPARED AFTER SEARCH , THEY ARE OF NO RELE VANCE IN THE FACTS OF PRESENT ISSUE IN APPEAL. THE ASSESSEE HAS HIMSELF ADMITTED THE FACT THAT HE WAS NOT MAINTAINING BOOKS OF ACCOUNT AND HE WAS NOT REQUIR ED BEING A SALARIED EMPLOYEE. THE WITHDRAWAL OF RS. 20,00,000/ - ON 17 .11.2006 AND DEPOSIT OF THE SA ME AMOUNT ON 20 .11.2006 IS EVIDENT FROM THE STATEMENT OF BANK ACCOUNT PLACED ON RECORD BY THE ASSESSEE. W E FIND MERIT IN THE EXPLANATION FURNISHED BY ASSESSEE , ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE R ESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED ON MONDAY , THE 30 TH DAY OF OCTOBER , 201 7 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( /VIKAS AWASTHY ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 30 TH OCTOBER , 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 12, PUNE. 4. THE CIT - 12, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .