SHRI SHAILESH MEHTA, Indore V. THE ACIT 2(1), Indore

ITSSA 15/IND/2015

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2359 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEV VARSHNEY
• Assessee Lawyers: DEVENDRA BANSAL
• Section: 153A

Judgement Text

SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI O.P. MEENA, AM IT(SS)A NOS. 13 TO 17/IND/2015 A.YS.2006-07 TO 2010-11 SHAILESH MEHTA INDORE PAN ACRPM 6516A ::: APPELLANT VS ACIT 2(1) INDORE ::: RESPONDENT IT(SS)A NOS. 19 TO 21/IND/2015 A.YS.2008-09 TO 2010-11 SMT. ARCHANA MEHTA INDORE PAN ACRPM 6515D ::: APPELLANT VS ACIT 2(1) INDORE ::: RESPONDENT IT(SS)A NOS. 7 TO 12/IND/2015 A.YS.2006-07 TO 2010-11 SMT. BHARTI MEHTA INDORE PAN AENPM 6160N ::: APPELLANT VS ACIT 2(1) INDORE ::: RESPONDENT SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 2 APPELLANT S BY SHRI ANIL KAMAL GARG & SHRI DEVENDRA BANSAL RESPONDENT BY SHRI RAJEEV VARSHNEY DATE OF HEARING 23.8.2016 DATE OF PRONOUNCEMENT 2 2 .9.2016 O R D E R PER SHRI D.T. GARASIA, JM THESE APPEALS HAVE BEEN FILED BY DIFFERENT ASSESSEES FOR THE ASSESSMENT YEARS MENTIONED ABOVE AGAINST THE ORDERS OF THE LEARNED CIT(A)-I, INDORE, ALL DATED 22.9 .2014. SINCE COMMON ISSUE IS INVOLVED IN THESE APPEALS, THEY ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. SINCE THE FACTS OF ALL THESE CASES ARE SIMILAR WITH E ACH, WE WOULD LIKE TO DISCUSS THE FACTS OBTAINING IN IT(SS ) A NOS. 13 TO 17/IND/2015 AND THE DECISION ARRIVED AT IN THESE APPEALS, SHALL GOVERN ALL OTHER APPEALS. SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 3 3. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE HAS EARNED INCOME FROM TRADING IN MCX OF RS.3,09,562/-, RS.3,60,139/-, RS.3,56,976/-, RS.3,79,341/- AND RS.4,50,571/- AND INCOME FROM OTHER SOURCES OF RS.5,161/-, RS.12.50/-, RS.24,414/- AND RS.13,997/-, (SALARY) RS.1,00,000/- & RS.1,44,000/-. THE ASSESSEE H AS NOT MAINTAINED THE BOOKS OF ACCOUNTS WITH RESPECT TO T HE BUSINESS OR PROFESSION CARRIED ON BY HER AS REQUIRED U/S 44AA(2) OF THE IT ACT. SINCE THE INCOME FROM THE BU SINESS OR PROFESSION EXCEEDS ONE LAKH TWENTY THOUSAND RUPEE S THEREFORE PENALTY PROCEEDINGS U/S 271A ARE INITIATED SEPARATELY FOR NON MAINTENANCE OF BOOKS OF ACCOUNTS. 4. DURING THE YEAR THE ASSESSEE HAS DEBITED RS.50,996 /-, RS.42,102/-, RS.51,766/-, RS.93,820/- AND RS.97,231/ - AS HOUSEHOLD EXPENSES. THE TOTAL INCOME OF THE ASSESSEE FOR REFERENCE YEAR IS RS.2,49,198/- AND RS.2,70,175/- WH EREAS DURING F.Y. 2005-06 THE WITHDRAWAL ON HOUSEHOLD WERE SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 4 SHOWN AT RS.50,004/-, RS.52,004/- AND RS.52,004/- FOR LIFE INSURANCE PREMIUM AND TUITION FEES OF RS.25,500/ -, RS.33,600/-, RS.43,699/-, RS.49,910/- AND RS.55,500 /- FOR ONE CHILD. TOTAL OF THESE TWO IS MUCH MORE THAN T HE EXPENDITURE SHOWN ON ACCOUNT OF HOUSEHOLD ARTICLES. 5. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF MEMBERS OF HIS FAMILY, THEIR OCCUPATION, PAN ANNUAL INCOME AND WITHDRAWAL BY THEM FOR HOUSEHOLD EXPENSES . THE ASSESSEE WAS ALSO REQUIRED TO JUSTIFY WITHDRAWALS FO R HOUSEHOLD EXPENSES KEEPING IN VIEW THE SIZE OF THE FAMILY. IN RESPONSE THE ASSESSEE FURNISHED A CHART EXPLAINING T HE DETAIL OF HOUSEHOLD EXPENSES BUT WITHOUT ANY DOCUMENT ARY EVIDENCE. ON PERUSAL OF THE SAME IT WAS OBSERVED THAT G THE EXPENDITURE ON HOUSEHOLD HAS DECREASED/INCREASED FROM RS.2,57,646/- OF F.Y. 2004-05 TO RS.1,83,740/-, RS.1,77,376/-, RS.2,36,850/-, RS.3,39,778/- AND RS.3,43,855/- IN F.Y.2005-06, 2006-07, 2007-08, 200 8-09 SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 5 AND F.Y. 2009-10 WHICH IS NOT AT ALL POSSIBLE LOOKING TO THE INFLATION, HIGH STANDARD OF LIVING AND SOCIAL STATUS OF T HE FAMILY OF THE ASSESSEE. THE ASSESSEE COULD NOT FURNIS H ANY JUSTIFICATION FOR SUCH A DECREASE IN HOUSEHOLD EXPENSE S, THEREFORE, THE ESTIMATED AMOUNT OF RS.75,000/-, RS.1,00,000/-, RS.1,25,000/-, RS.1,50,000/- AND RS.1,75,000/- IS CONSIDERED AS INCURRED TOWARDS HOUSE HOLD EXPENSES BY THE ASSESSEE. SINCE THE ASSESSEE COULD N OT OFFER ANY SATISFACTORY EXPLANATION, THEREFORE, THE DIFFE RENCE OF RS.24,004/-, RS.57,898/-, RS.73,234/-, RS.56,180 /- AND RS.77,769/- IS ADDED TO THE INCOME OF THE ASSESSEE. 6. BEING AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT(A) BUT IN VEIN. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS SEARCH IN THE ASSESSEE GROUP O N 25.11.2010 AT THE RESIDENTIAL PREMISES OF BROTHER OF THE SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 6 ASSESSEE AND ALSO IN RESPECT OF ONE BANK LOCKER BEARING NO. 383 MAINTAINED BY THE ASSESSEE WITH STATE BANK OF INDIA, PATRAKAR COLONY, INDORE. SUBSEQUENTLY, A NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN PURSUANCE TO THE NOTICE, THE ASSESSEE WAS DIRECTED TO FURNISH THE RETURN AND THE ASSESSEE HAS DECLARED THE INCOME WHICH WAS FILED IN THE ORIGINAL RETURN OF INCOME. THE ASSESSING OFFICER MAD E THE ADDITION OF RS. 24,004/- IN THE ASSESSMENT YEAR 2006-0 7, RS. 57,898/- IN THE ASSESSMENT YEAR 2007-08, RS. 73,2 34/- IN THE ASSESSMENT YEAR 2008-09, RS. 56,180/- IN THE ASSESSMENT YEAR 2009-10 AND RS. 77,769/- IN THE ASSESSMENT YEAR 2010-11 ON ACCOUNT OF LOW HOUSEHOLD EXPENSES. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT DURING THE COURSE OF SEARCH NOT A SINGLE DOCUMENT WAS FOUND ON ACCOUNT OF ALLEGED LOW WITHDRAWAL BY THE ASSES SEE IN ALL THE ASSESSMENT YEARS, UNDER CONSIDERATION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 7 ASSESSMENT PROCEEDINGS HAVE BEEN COMPLETED AND THE ADDITION IS NOT BASED ON ANY INCRIMINATING MATERIAL AND TH E DOCUMENTS FOUND DURING THE COURSE OF SEARCH. THE ASSESSMENT IS MADE ENTIRELY ON THE BASIS OF INFORMATION AND DETAILS PROVIDED BY THE ASSESSEE HIMSELF. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, NO INCRIMINATING MATERIAL OR OTHER DOCUMENTS WERE COLLECTED. THE LEARNE D COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FAMILY OF THE ASSESSEE CONSISTS OF HIMSELF, HIS WIFE, SMT. BHARTI M EHTA, TWO CHILDREN, HIS BROTHER CHITRESH, SISTER-IN-LAW, SMT. KALPANA MEHTA AND TWO MINOR CHILDREN OF BROTHER. IT WAS ALSO SUBMITTED THAT ALL THE MEMBERS REFERRED TO ABOVE AR E MEMBERS OF HUF RESIDING UNDER A COMMON ROOF AND WITH COMMON KITCHEN IN THE RESIDENTIAL HOUSE SITUATED AT E- 17, SAKET NAGAR, INDORE. SMT. BHARTI MEHTA, CHITRESH MEHTA AND ARCHANA MEHTA HAVE INDEPENDENT SOURCE OF INCOME. MOREOVER, CHITRESH MEHTA IS THE KARTA AND ALSO HAVING SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 8 INDEPENDENT INCOME AND THEY ARE ASSESSED TO TAX. THEREFORE, THE ASSESSEE HAD ALREADY SHOWN HOUSEHOLD EXPENSES AGGREGATING TO RS.1,77,376/-, RS. 2,36,850/- , RS.3,39,778/- AND RS. 3,43,855/- AND 5,12,928/- FOR T HE ASSESSMENT YEARS UNDER CONSIDERATION. THEREFORE, AS PE R THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (2015) 61 TAXMAN. 412 (DEL), NO ADDITION CAN BE MADE IN THE ASSESSMENT YEARS UNDER CONSIDERATION. 8. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, SUBMISSIONS OF THE PARTIES AND THE DOCUMENTS PLACED ON RECORD. WE FIND THAT THE ASSESSEE IS RESIDI NG IN A SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 9 JOINT FAMILY UNDER A COMMON ROOF AND KITCHEN. ALL OTH ER MEMBERS RESIDING THEREIN HAVE ALSO CONTRIBUTED TO TH E HOUSEHOLD EXPENSES. THE ASSESSEE HAS ALSO SHOWN ADEQUATE WITHDRAWALS FROM THE BANK. THEREFORE, IN THE WAKE OF THESE FACTS AS ALSO FOLLOWING THE DECISION OF T HE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (2015) 61 TAXMAN. 412 (DEL), IN ITA NOS. 13 TO 16/IND/2015, ITA NOS. 19 AND 20/IND/2015, ITA NOS. 7 TO 10/IND/2015 THE ORDERS OF THE AUTHORITIES BELOW ARE S ET ASIDE AND THIS GROUND OF APPEALS IS ALLOWED WHEREAS IN IT A NO. 17/IND/2015, ITA NO. 21/IND/2015, ITA NOS. 11 AN D 12/IND/2015, IN OUR OPINION, IT WOULD BE REASONABLE T O RESTRICT THE ADDITION TO 50%. WE ORDER ACCORDINGLY. 10. IN THE RESULT, IN ITA NOS. 13 TO 16/IND/2015, I TA NOS. 19 AND 20/IND/2015 AND ITA NOS. 7 TO 10/IND/2015 ARE ALLOWED WHEREAS ITA NO. 17/IND/2015, ITA NO. SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 10 21/IND/2015, ITA NOS. 11 AND 12/IND/2015 ARE PARTLY ALLOWED. PRONOUNCED IN OPEN COURT ON 22 SEPTEMBER, 2016 SD/- SD/- (O.P. MEENA) (D.T. G ARASIA) ACCOUNTANTMEMBER JUDICIAL MEMB ER 22 SEPTEMBER, 2016 DN/- SHAILESH MEHTA & OTHERS IT(SS) A NOS. 13 TO 17/IND/2015 AND OTHERS 11