R.Mohana, CHENNAI V. ITO, CHENNAI

ITA 888/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8882 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAHADEVAN
• Assessee Lawyers: T N SEETHARAMAN
• Section: 143(3); 133(6)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . . . , . , & BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.888/MDS/2016 ( / ASSESSMENT YEAR: 2011-12) SMT. R.MOHANA, 1/227, (OLD NO.206) BAJANAI KOIL STREET MEDAVAKKAM, CHENNAI-600 100. VS THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE-22, CHENNAI. PAN: BRXPM2104E ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. T.N.SEETHARAMAN, ADVOCATE /RESPONDENT BY : MR. SAHADEVAN, JCIT /DATE OF HEARING : 9 TH JUNE, 2016 /DATE OF PRONOUNCEMENT : 16 TH AUGUST, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- 10, CHENNAI DATED 29.01.2016 IN ITA NO.11/CIT(A)-1 0/2014- 15 PASSED UNDER SECTION 143(3) R.W.S 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN ITS APPEALS, HOWEVER, THE CRUX OF THE ISSUE IS AS FOLLO WS:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ADDITION OF RS.52 LAKHS MADE BY THE LEARNED ASSESSING OFFICER BEING UNEXPLAINED CASH DEPOSITS. 2 ITA NO.888/MDS/2016 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL FILED HER RETURN OF INCOME ON 19.01.201 2 FOR THE ASSESSMENT YEAR 2011-12 ADMITTING INCOME OF RS.2,30 ,157/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER T HE ASSESSMENT WAS COMPLETED BY THE LEARNED ASSESSING O FFICER UNDER SECTION 143(3) OF THE ACT ON 27.02.2014 WHERE IN HE MADE ADDITION OF RS.52.00 LAKHS AS UNEXPLAINED CASH DEPOSITS AND RS.25,878/- AS UNDISCLOSED INCOME FROM OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS, IT WAS OBSERVED BY THE LEARNED ASSESSING OFFICER THAT AS PER AIR, THE ASSESSEE HAD DEPOSITED CASH IN HER SAVING BANK ACCOUNT WITH ANDHRA BANK, MEDAVAKKAM BRANCH, CHENNA I AGGREGATING TO RS.52,00,000/- AND EARNED INTEREST OF THE SAME RS.25,878/-. COPY OF BANK ACCOUNT STATEMENT W AS ALSO OBTAINED FROM THE BANKER BY ISSUANCE OF NOTICE UNDE R SECTION 133(6) OF THE ACT. WHEN QUERIED, THE ASSESSEE REPLI ED VIDE LETTER DATED 27.02.2014 THAT SHE HAD DEPOSITED THE AMOUNTS OUT OF THE SALE PROCEEDS OF THEIR FAMILYS AGRICULT URAL LAND NEAR THERKUPATTU VILLAGE. HOWEVER, THE LEARNED ASSESSIN G OFFICER TREATED THE AMOUNT OF RS.52.00 LAKHS AS UNEXPLAINED CASH 3 ITA NO.888/MDS/2016 DEPOSIT AND ADDED TO THE INCOME OF THE ASSESSEE AND ALSO ADDED INTEREST ACCRUED OUT OF THE SAME TO THE TUNE OF RS.25,878/- AS INCOME FROM OTHER SOURCES. 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) CONFIRMING THE ORDER OF THE LEARNED ASSES SING OFFICER BY OBSERVING AS UNDER:- 7.3 I HAVE PERUSED THE AO'S OBSERVATION MENTIONED ABOVE UNDER PARA 7.1 AND THE APPELLANT'S SUBMISSION UNDER PARA 7.2. BY ISSUE OF NOTICE U/S. 133(6) OF THE INCOME TAX ACT 1961, THE AO HAS COLLECTED THE DETAILS OF CASH DEPOSITS IN THE APPELLANT'S BANK ACCOUNT TO THE TUNE OF ` 52 LAKHS. WHEN THIS FACT WAS PUT FORTH TO THE APPELLANT, SHE HAD CLAIMED THAT THE CASH DEPOSITED WAS OUT OF SALE PROCEEDS OF AGRICULTURAL LAND NEAR THERKUPATTU VILLAGE, HOWEVER, SHE COULD NOT PRODUCE THE DETAILS IN CONNECTION WITH THE SALE OF AGRICULTURAL LAND. THEREFORE, THE APPELLANT AND HER REPRESENTATIVE ACCEPTED BEFORE THE AO THAT THE AFORESAID CASH DEPOSITS IN BANK COULD BE BROUGHT TO TAX AS UNEXPLAINED CASH DEPOSITS. HOWEVER, BEFORE THE CIT(A), THE APPELLANT HAS TAKEN A COMPLETELY DIFFERENT STAND STATING THAT THE APPELLANTS TWO SONS AND DAUGHTER SOLD THE AGRICULTURAL LAND AND THE SALE CONSIDERATION OF ` 52 LAKHS WAS GIVEN TO THE APPELLANT FOR SAFE KEEPING. IT IS PERTINENT TO NOTE THAT THE MONEY WAS IMMEDIATELY WITHDRAWN WITHIN ONE MONTH AS CASH. THE CONFIRMATION LETTER CANNOT BE RELIED UPON FOR THE FOLLOWING REASONS: A) THE CONFIRMATION LETTER DOES NOT MENTION THE DETAILS OF SALE OF AGRICULTURAL LAND SUCH AS THE SURVEY NUMBER, THE NAME AND 4 ITA NO.888/MDS/2016 ADDRESS OF THE BUYER, WHEN THE SALE TOOK PLACE AND SO ON, B) THE CONFIRMATION LETTER IS NOT ACCOMPANIED BY ANY DOCUMENTARY EVIDENCE SUCH AS COPY OF SALE AGREEMENT / SALE DEED, PATTA, CHITTA ADANGAL AND SO ON. C) IN THE CONFIRMATION LETTER, IT IS MENTIONED THAT THE AFORESAID AMOUNT WAS GIVEN TO THE APPELLANT BY CASH 'OUT OF ADVANCE PAYMENT / SALE PROCEEDS OF AGRICULTURAL LAND'. IT IS NOT CLEAR WHETHER THE SAID AMOUNT WAS PAID OUT OF SALE ADVANCE OR SALE PROCEEDS. AN ADVANCE IS GIVEN TOWARDS SALE AGREEMENT. BUT THE SALE PRICE IS CRYSTALISED AT THE TIME OF REGISTRATION OF SALE DEED. IT IS NOT CLEAR WHETHER THE AFORESAID AGRICULTURAL LAND WAS EITHER SOLD AND REGISTERED OR THE APPELLANT'S CHILDREN MERELY GOT AN ADVANCE TOWARDS SALE AGREEMENT. D) THE PAN AND IT ASSESSMENT PARTICULARS OF THE APPELLANT'S CHILDREN ARE NOT MENTIONED IN THE CONFIRMATION LETTER. THEREFORE, IT IS PRESUMED THAT THEY ARE NOT ASSESSED TO TAX. IN THE ABSENCE OF IT ASSESSMENT PARTICULARS IT IS NOT POSSIBLE TO CROSS VERIFY WHETHER THE AFORESAID CASH DEPOSIT WAS ACCOUNTED FOR IN SOMEONES HAND. E) THE CONFIRMATION LETTER FURTHER STATES THAT THE AFORESAID CASH WAS GIVEN TO THE APPELLANT FOR SAFE KEEPING . THEREFORE, IT IS IMPLIED THAT THE APPELLANTS CHILDREN DO NOT HAVE BANK ACCOUNTS. THE APPELLANTS CHILDREN HAVE NOT GIVEN SUCH UNDERTAKING IN THE CONFIRMATION LETTER. 7.3.1 IN VIEW OF THE ABOVE MENTIONED FACTS THE FOLLOWING POINTS ARE GLARING AGAINST THE APPELLANT: A) THE APPELLANTS STAND BEFORE THE ASSESSING OFFICER IS CONTRADICTORY TO THE STAND TAKEN BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). B) NO DOCUMENTARY PROOF WHATSOEVER HAS BEEN GIVEN BEFORE THE ASSESSING OFFICER OR THE COMMISSIONER OF INCOME TAX (APPEALS) IN CONNECTION WITH THE APPELLANTS CLAIM OF SALE 5 ITA NO.888/MDS/2016 OF AGRICULTURAL LAND. C) THERE IS NO CONVINCING REASON WHY THE MONEY WAS DEPOSITED IN CASH AND WITHDRAWN IN CASH. D) THE DETAILS OF BUYERS IN BOTH THE CASES OF SALE OF AGRICULTURAL LAND HAVE NOT BEEN REVEALED FOR THE PURPOSE OF THE DEPARTMENT TO CROSS VERIFY. D) BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) NO PROOF WAS SUBMITTED THAT THE APPELLANTS CHILDREN IN FACT OWNED THE LAND AND SOLD THE SAME WHICH RESULTED IN THE AMOUNT OF ` 52 LAKHS IN CASH. 7.3.2 IN VIEW OF THE AFORESAID REMARKS, I AM CONVINCED THAT THE ASSESSING OFFICERS ADDITION OF ` 52 LAKHS ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK IS TO BE UPHELD. THE APPELLANTS GROUNDS O F APPEAL ARE DISMISSED. 5. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED A PAPER BOOK CONTAINING 1 TO 21 PAGES WHE REIN HE FILED THE CONFIRMATION LETTER DATED 02.1.2016 FROM THE ASSESSEES HUSBAND, SONS AND DAUGHTER STATING THAT THEY HAD HANDED OVER RS.52.00 LAKHS OUT OF THE SALE PROCEEDS OF AGRICULTURAL LAND MEASURING 1 ACRE 18 CENTS TO THE ASSESSEE. THE PAPER BOOK ALSO CONTAINS THE SALE DEED OF AGRIC ULTURAL LAND EXECUTED BY THEM FOR SALE CONSIDERATION OF RS.1,54,21,000/-. THE BANK STATEMENT OF THE APPELLA NT IS ALSO FURNISHED. FROM THE ORDER OF THE LEARNED ASSESSING OFFICER, IT 6 ITA NO.888/MDS/2016 APPEARS THAT EITHER THESE DOCUMENTS WERE NOT PLACED BEFORE HIM FOR VERIFICATION OR HE HAS NOT TAKEN NOTE OF TH ESE DOCUMENTS. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO NOT GIVEN DUE WEIGHTAGE FOR THES E DOCUMENTS PLACED BEFORE US. THEREFORE, IN THE INTER EST OF JUSTICE WE REMIT BACK THE ENTIRE MATTER TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR FRESH CONSIDERATION A ND TO PASS APPROPRIATE ORDER AS PER MERIT AND LAW AFTER TAKING NOTE OF THESE DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE US AND ALSO ANY OTHER FRESH EVIDENCE PRODUCED BEFORE HIM. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 16 TH AUGUST, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 16 TH AUGUST, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 7 ITA NO.888/MDS/2016 4. - /CIT 5. + 1 /DR 6. /GF .