B.Nava Durga, Guntur V. THE DCIT, CIRCLE - 1, Eluru

ITA 9/VIZ/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6477 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V APPALA RAJU
• Keywords: Unexplained cash credit; Loose papers; Document seized; Tax effect
• Section: 133A; 68; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER ITA NO. 09 / VIZ /201 4 (ASST. YEAR : 20 0 8 - 0 9 ) SMT. B. NAVA DURGA, W/O B.J.K. MURALIDHAR, D.NO. 4 - 7 - 11A, KESARAPALLIVARI STREET, AGRAHARAM, ELURU. V S . IT O , WARD - 1, ELURU . PAN NO. AKMPB 2326 A (APPELLANT) (RESPONDENT) ITA NO. 14 / VIZ /201 4 (ASST. YEAR : 20 08 - 09 ) IT O , WARD - 1, ELURU . VS. SMT. B. NAVA DURGA, W/O B.J.K. MURALIDHAR, D.NO. 4 - 7 - 11A, KESARAPALLIVARI STREET, AGRAHARAM, ELURU. PAN NO. AKMPB 2326 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C. SUBRAHMANYAM FC A. DEPARTMENT BY : SHRI V. APPALA RAJU SR. DR DATE OF HEARING : 18 / 1 2 /201 7 . DATE OF PRONOUNCEMENT : 20 / 1 2 /201 7 . O R D E R THESE ARE THE CROSS APPEAL S BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , GUNTUR , DATED 30 /0 9 /201 3 FOR THE ASSESSMENT YEAR 200 8 - 09 . 2 ITA NO. 123 /VIZ/2014 (KOLLURI RAMASWAMY) ITA NO. 09/VIZ/2014 2. THERE IS A DELAY OF 14 DAYS IN FILING OF THIS APPEAL. THE ASSESSEE HAS FILED AN AFFIDAVIT , WHEREIN SHE EXPLAINED THAT SHE WAS SUFFER ING FROM VIRAL FEVER AND AS PER THE ADVICE OF THE DOCTOR, SHE TOOK BED REST. AFTER RECOVERING FROM SICKNESS, THIS APPEAL IS FILED BY DELAY OF 14 DAYS. WE FIND THAT THERE IS A SUFFICIENT CAUSE FOR NOT TO FILE THIS APPEAL IN TIME , T HEREFORE, IT IS A FIT CASE TO CONDONE THE DE LAY. ACCORDINGLY, DELAY IS CONDONED. 3 . FACTS OF THE CASE, IN BRIEF, ARE THAT A SURVEY OPERATION UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') WAS CONDUCTED IN THE CASE OF ASSESSEES HUSBAND SRI B.J.K. MURALIDHAR ON 16/11/2007. DURING THE COURSE OF SURVEY, CERTAIN LOOSE SHEETS OF PAPER/DOCUMENTS WERE FOUND AND IMPOUNDED AS ANNEXURE A/CMC/4. PAGE NO. 37 OF THIS BUNDLE OF LOOSE PAPERS CONTAINED HAND WRITTEN RECO R DINGS OF TRANSACTIONS OF RS. 29,00, 305/ - . THE ASSESSEES HU S BA N D SRI B.J.K. MURALIDHAR , DURING HIS SWORN STATEMENT RECORDED ON 24/12/2010 , HAS STATED THAT THE TRANSACTIONS CONTAINED ON THE SAID PAGE NO. 37 PERTAIN TO HIS WIFE SMT. B. NAVA DURGA I.E. ASSESSEE. IN VIEW OF THE ABOVE, THE ASS ESSING OFFICER ISSUED A NOTICE UNDER SECTION 148 ON 24/12/2010 . IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09 ON 3 ITA NO. 123 /VIZ/2014 (KOLLURI RAMASWAMY) 04/07/2011, ADMITTING TOTAL INCOME OF RS. 1,31,092/ - , BESIDES AGRICULTURAL INCOME OF RS. 2,52,020/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS CALLED EXPLANATION FROM THE ASSESSEE IN RESPECT OF UNEXPLAINED CASH CREDITS OF RS. 29,00,305/ - . BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS NOT FILED ANY MATERIAL OR ANY DETAILS. THEREFORE, THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS. 29,00,305/ - UNDER SECTION 69A OF THE ACT. 4 . ON APPEAL BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT THE ASSESSEE IS NOT DOING ANY BUSINESS, THE RE FORE NO ADDITION CAN BE MADE UNDER S ECTION OF 69A OF THE ACT. THE LD. CIT(A) AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, CONFIRMED THE ORDER OF THE ASSESSING OFFICER TO THE EXTENT OF RS. 16,61,487/ - AND RELIEF OF RS. 12,38,827/ - WAS GRANTED BY OBSERVING AS UNDER: - 5.4 A PERUSAL OF THE SEIZED DOCUMENT SHOWS THAT AS ON 01/09/2007 THE CASH BALANCE IN THE HANDS OF THE APPELLANT WAS RS. 29,00,305/ - . THIS AMOUNT HAS THEN BEEN RECORDED AS GIVEN TO VARIOUS PERSONS. SOME OF THE NOTINGS INDICATE PAYMENT FOR PURCHASE OF FERTILIZERS AND - REPA YMENTS OF LOANS OBTAINED. ON 02.09.2007, AN AMOUNT OF RS.8,00,000/ - HAS BEEN DEPOSITED IN STATE BANK OF INDIA TOWARDS REPAYMENT OF A LOAN. THUS, IT IS CLEAR THAT THE APPELLANT WAS IN POSSESSION OF RS.29,00,305/ - IN CASH, WHICH HAS BEEN UTILIZED TOWARDS VAR IOUS ITEMS OF EXPENDITURE/INVESTMENT/ REPAYMENT OF LOANS. AT THE OUTSET, IT MAY BE NOTED THAT SECTION 68 APPLIES TO CREDITS APPEARING IN THE BOOKS OF ACCOUNTS AND FOR WHICH NO SATISFACTORY EXPLANATION REGARDING THE NATURE AND SOURCE THEREOF IS OFFERED BY T HE APPELLANT. THE DOCUMENT SEIZED DOES NOT CONSTITUTE BOOKS OF ACCOUNT. HOWEVER, THAT DOES NOT CHANGE THE FACT THAT THE SOURCE OF THE CASH BALANCE RECORDED ON THIS SHEET OF PAPER REMAINS UNEXPLAINED. MOREOVER, THE ENTRIES RECORDED INCLUDING REPAYMENT OF BA NK LOAN CLEARLY INDICATE THAT SUCH ENTRIES REFLECT THE TRUE STATE OF AFFAIRS IN RESPECT OF THE APPELLANT AND HENCE SHE ALONE HAS TO EXPLAIN THE SOURCE OF THIS CASH BALANCE OF 4 ITA NO. 123 /VIZ/2014 (KOLLURI RAMASWAMY) RS.29,00,305/ - . A PERUSAL OF THE RETURNS FILED BY HER AND OTHER SUBMISSIONS MADE SHOW THAT THE AGRICULTURAL INCOME OF RS.3,60,827/ - CLAIMED BY HER AND RS.1,75,000/ - CLAIMED BY HER HUSBAND SRI BI.K.MURALIDHAR HAS BEEN REFLECTED IN THEIR RESPECTIVE RETURNS OF INCOME. MOREOVER, THE PROCEEDS ON SALE OF GOLD (BALATHODUGU) BY THE APPELLANT A MOUNTING TO RS.4,03,000/ - HAS ALSO BEEN REFLECTED IN HER RETURN OF INCOME. FURTHER, THE ASSESSING OFFICER HAS ACCEPTED RECEIPT OF CASH LOAN OF RS.2,00,000/ - FROM ONE SRI N.RAMAKRISHNA, FOR WHICH PENALTY HAS BEEN LEVIED IN THE CASE OF SRI B.J.K.MURALIDHAR. THUS, OUT OF THE TOTAL CASH BALANCE OF RS.29,00,325/ - , THE AMOUNTS WHICH STAND EXPLAINED THROUGH RETURNS OF INCOME FILED BY THE APPELLANT AND HER HUSBAND ARE RS.11,38,827/ - . A FURTHER CREDIT OF RS.1,00,000/ - IS BEING ALLOWED KEEPING IN VIEW PAST SAVINGS OF THE FAMILY. HOWEVER, THE OTHER SOURCES CLAIMED BY THE APPELLANT ARE CASH LOANS FROM VARIOUS PERSONS, FOR WHICH NO EVIDENCE HAS BEEN FURNISHED AND WHICH WOULD EVEN OTHERWISE BE VIOLATIVE OF SECTION 269SS. SECONDLY, THERE IS NO EVIDENCE ON RECORD TO SUGGEST THAT THERE WAS A HUF IN THE NAME OF SRI B.VENKATA RAMAIAH AND THAT MEMBERS OF THE HUF GAVE RS. 5,00,000/ - IN RASH TO SRI B.J.K.MURALIDHAR FOR RELINQUISHING HIS CLAIM ON THE ASSETS OF THE HUF. A COPY OF AN AGREEMENT PURPORTING TO BE EVIDENCE OF RECEIPT OF RS. 5,00,000/ - ALLEGEDLY PAID BY OTHER MEMBERS OF HUF TO SRI BJ.K.MURALIDHAR CANNOT BE RELIED UPON. IT DOES NOT EXPLAIN THE SOURCE OF RS.5,00,000/ - IN THE HANDS OF THE SO CALLED MEMBERS OF THE HUF, NOR DOES IT OFFER ANY EXPLANATION REGARDING THE SOURCE OF THE MONEY WITH THE HUF. THUS, IT IS CLEAR THAT PAGE 37 OF THE SEIZED DOCUMENT RECORDS THAT THE APPELLANT WAS THE OWNER OF RS. 29,00,305/ - IN CASH, OUT OF WHICH SHE HAS BEEN ABLE TO EXPLAIN THE SOURCES OF RS. 12,38,827/ - . THE BALANCE AMOUNT OF RS. 16, 61,487/ - IS TREATED AS UNEXPLAINED MONEY UNDER SECTION 69A OF THE INCOME TAX ACT. 5. ON APPEAL BEFORE US, THE ASSESSEE HAS NOT FILED ANY DETAILS AND NO EXPLANATION HAS BEEN GIVEN. IN VIEW OF THE ABOVE, WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSE D BY THE LD. CIT(A). THUS, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 6 . SO FAR AS OTHER SOURCE OF INCOME AMOUNTING TO RS. 67,628/ - , THE ASSESSEE HAS NOT FILED ANY MATERIAL NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. CIT(A) AND EVEN BEFORE US. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED. 5 ITA NO. 123 /VIZ/2014 (KOLLURI RAMASWAMY) 7 . SO FAR AS ANOTHER ISSUE WITH REGARD TO HOUSE PROPERTY OF RS.5,965/ - RAISED BY THE ASSESSEE , NO DETAILS WERE F ILED BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. CIT(A) AND EVEN BEFORE US ALSO. THEREFORE, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALSO DISMISSED. ITA NO. 14/VIZ/2018 8 . WHEN THIS APPEAL IS TAKEN UP FOR HEARING, LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS BELOW RS. 10 LAKHS. AS PER THE CBDT CIRCULAR NO.21/2015, DATED 10.12.2015 BEING RETROSPECTIVE IN NATURE, T HE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. THE LD. D.R. HAS NOT RAISED ANY OBJECTION. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND ACCORDINGLY DISMISSED. 9. IN THE RESULT, BOTH THE CROSS APPEALS FILED BY THE ASSE SSEE AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 20 TH DAY OF DEC. , 201 7 . SD/ - ( V. DURGA RAO ) JUDICIAL MEMBER DATED : 20 TH DECEMBER , 201 7 . VR/ - COPY TO: 6 ITA NO. 123 /VIZ/2014 (KOLLURI RAMASWAMY) 1. THE ASSESSEE - SMT. B. NAVA DURGA, W/O B.J.K. MURALIDHAR, D.NO. 4 - 7 - 11A, KESARAPALLIVARI STREET, AGRAHARAM, ELURU. 2. THE REVENUE ITO, WARD - 1, ELURU. 3. THE CIT, RAJAHMUNDRY. 4. THE CIT(A) , GUNTUR. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.