Income-tax Officer, Nashik V. Madanlal Ramchandra Chandak, Nashik

ITA 987/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9926 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 02-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS VINITA MENON
• Assessee Lawyers: SUBODH L RATNAPARAKHI
• Keywords: Salary income
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI R.K. PANDA, AM ITA NO. 987/PN/2011 (ASSESSMENT YEAR: 2008-09) INCOME-TAX OFFICER, WARD 1(2) NASIK APPELLANT VS. SHRI MADANLAL R. CHANDAK S-4 UTILITY CENTRE, 2 ND FLOOR SHARANPUR ROAD, NASIK PAN ACJPC 5407 C RESPONDENT APPELLANT BY: MRS. VINITA MENON RESPONDENT BY: SHRI SUBODH L. RATNAPARAKHI DATE OF HEARING: 15-10-2012 DATE OF PRONOUNCEMENT: 29-10-2012 ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)- NASIK DATED 18-5-2011 FOR A.Y. 2008-09 DELETING THE ADDITION OF RS. 70,00,000/- MADE ON PROTECTIVE BASI S ON ACCOUNT OF UNACCOUNTED/UNEXPLAINED INCOME OF THE ASSESSEE. 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALARY, BUSINESS, CAPITAL GAINS, HOUSE PROPERTY AND OTHER SOURCES. I N THIS CASE, THERE WAS AIR INFORMATION THAT THE ASSES SEE MADE CASH DEPOSITS IN EXCESS OF RS. 10,00,000/- IN A BANK. THE AO SCRUTINIZED THE RETURN AND MADE AN ADDITION OF RS. 70,00,000/- IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS ON ACCOUNT OF CASH DEPOSITED IN THE SAID BANK. ON APPEAL, THE CIT(A)_ 2 ITA NO 987/PN/11 MADANLA L R CHANDAK A.Y. 2008-09 DELETED THE SAID ADDITION. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 4. WE FIND THAT THE AO HAS NOT QUOTED ANY PARTICULAR SECTION WHILE MAKING THE IMPUGNED ADDITI ON OF R. 70,00,000/- AND THAT HE HAS NEITHER INVOKED S EC. 68 NOR SEC.69 OF THE ACT. IT IS THEREFORE, CRYSTA L CLEAR THAT THE IMPUGNED ADDITION DOES NOT FALL U/S 68 AS THE SAME IS NOT A CASH CREDIT IN THE BOOKS OF ACCOUNT O F THE ASSESSEE. FURTHER, IT IS SETTLED POSITION OF LAW THAT FOR INVOKING SEC. 69 OF THE ACT, THERE SHOULD BE A PRESUPPOSITION TO THE EXISTENCE OF INVESTMENT BY TH E ASSESSEE WHICH MUST BE CONCLUSIVELY ESTABLISHED WIT H THE EVIDENCE. IT IS ALSO A SETTLED POSITION OF LAW THAT PROTECTIVE INCLUSION OF WEALTH IS PERMISSIBLE ONLY WHERE SUBSTANTIVE ASSESSMENT IS MADE IN THE HANDS O F ANOTHER PERSON. THE AO HAS CATEGORICALLY RECORDED A FINDING THAT THE AMOUNT OF RS. 70,00,000/- IS UNACCOUNTED AND UNEXPLAINED CONCEALED INCOME OF ANOTHER PERSON AND IS LIABLE TO BE TAXED THEREON ON SUBSTANTIVE BASIS. NEITHER OF THE PARTIES BROUGHT TO OUR KNOWLEDGE THE ISSUE OF ADDITION OF SAME AMOUNT AS SUBSTANTIVE ADDITION. THEREFORE, IT IS NOT THE INVESTMENT OF THE ASSESSEE. IN THE CIRCUMSTANCES THEREFORE, THERE WAS NO JUSTIFICATION FOR MAKING TH E IMPUGNED ADDITION AS THE IMPUGNED CASH DEPOSIT DID NOT BELONG TO THE ASSESSEE AND THE CIT(A) WAS JUSTI FIED IN DELETING THE SAME. WE ACCORDINGLY UPHOLD THE ORDER OF THE CIT(A). 3 ITA NO 987/PN/11 MADANLA L R CHANDAK A.Y. 2008-09 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 29 TH CCTOBER 2012. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 29 TH OCTOBER 2012 ANKAM COPY TO:- 1. ASSESSEE 2. DEPARTMENT 3. THE CIT (A) II PUNE 4. THE CIT II PUNE 5. THE D.R. B BENCH, I.T.A.T., PUNE. BY ORDER //TRUE COPY// SR. P.S. I.T.A.T., PUNE