Shri Dilipkumar Chandulal Shah, Ahmedabad V. The Income tax Officer,Ward-2, Anand

ITSSA 249/AHD/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 3092 (ITAT-AHMEDABAD)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 07-05-2012
• Court: TRIBUNAL

Judgement Text

IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, A HMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.(SS) A.NO.249/AHD/2012 (ASST. YEA R: 2001-02) SHRI DILIPKUMAR C.SHAH PROP. OF TRANSMECH PRODUCTS 142-A, G.I.D.C..ESTATE, VALLABH VIDYANAGAR, ANAND (APPELLANT) VS. INCOMETAX OFFICER, WARD-2, STATION ROAD, ANAND. (RESPONDENT) PAN: ACDPC 3737B APPELLANT BY : MR. ANIL R. SHAH RESPONDENT BY : MR. S.K. GUPTA, CIT (D.R.) ( )/ ORDER DATE OF HEARING : 9 - 7 -2012 DATE OF PRONOUNCEMENT : 5 -10-2012 PER: SHRI ANIL CHATURVEDI, A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT (A)- IV, BARODA DATED 10-2-2012 FOR THE ASSESSMENT YEAR 2001-02. 2. THE ASSESSEE HAS RAISED GROUNDS OF APPEAL IN TWO PARTS (I) ON LEGALITY AND (II) ON MERITS. IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 2 3. GROUNDS MENTIONED IN PART-I I.E. ON LEGALITY ARE NOT PRESSED AND THEREFORE, NOT ADJUDICATED. GROUNDS IN PART-II ARE ON MERITS AND ARE AS UNDER:- 1. IT IS SUBMITTED BY YOUR APPELLANT THAT DURING C OURSE OF ASSESSMENT PROCEEDING BEFORE ITO DURING PROCEEDINGS TO GIVE EFFECT TO THE ORDER U/S.254 OF THE ACT AND ALSO BEFORE LD. CIT (A) HAD FILED FULL FACTS AND FIGURES AND EVIDENCE IN SUPPORT OF C LAIM THAT DEPOSIT OF RS.1,00,000/- WAS FULLY EXPLAINED AND WAS NOT LIABL E TO BE ADDED. IT WAS FURTHER SUBMITTED THAT RS.1,00,000/- WAS NOT LIABLE TO BE ADDED AS CASH CREDIT AND THAT SEC.68/69 DOES NOT APPLY TO THE FACTS OF THE CASE. 2. IT IS SUBMITTED THAT YOUR APPELLANT HAD BALANCE AVAILABLE AT OPENING OF THE YEAR AND HAD EARNING OF THE YEAR AVA ILABLE FOR CASH DEPOSIT WHICH HAS BEEN UTILIZED AND THEREFORE THE A BOVE ADDITION IS NOT LIABLE TO BE ADDED. 3. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES RS.1,00 ,000/- AS DEPOSIT IN BANK BEING DULY EXPLAINED AND SUPPORTED BY EVIDENCE BE DELETED. 4. ASSESSEE IS A PROPRIETOR OF TRANSMECH PRODUCT AN D FILED RETURN OF INCOME ON 1-8-2002 DECLARING TOTAL INCOME OF RS.61, 598/-.THEREAFTER A SEARCH WAS CARRIED OUT IN THE CASE OF OSWAL GROUP O F CASES AND IN THE CASE OF ASSESSEE ON 19-1-2006. DURING THE COURSE O F SEARCH IT WAS NOTICED THAT ASSESSEE HAD DEPOSITED CASH OF RS.1 LAC IN HIS BANK ACCOUNT. SINCE THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF DEPOSI TS, THE A.O. CONCLUDED IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 3 THAT THE DEPOSIT WAS MADE OUT OF HIS UNDISCLOSED IN COME AND ACCORDINGLY AN ADDITION OF RS.1 LAC WAS MADE TO THE INCOME. BEI NG AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE CIT (A). CIT ( A) VIDE ORDER DATED 4-11- 2008 CONFIRMED THE ADDITION MADE BY A.O. THEREAFTER , THE ASSESSEE PREFERRED APPEAL BEFORE ITAT. ITAT VIDE ORDER DATED 3-7-2009 (ITA NO.1116 & 1117) SET ASIDE THE ISSUES TO THE FILE OF A.O. FOR CONSIDERING THE EVIDENCES FILED IN RESPECT OF AMOUNT CREDITED IN BA NK. PURSUANT TO THE DIRECTIONS OF ITAT, NOTICE WAS ISSUED BY THE A.O. T O ASSESSEE TO FURNISH THE NECESSARY EVIDENCES. 5. DURING THE COURSE OF REASSESSMENT PROCEEDINGS TH E ASSESSEE SUBMITTED A STATEMENT SHOWING JOINT FAMILY INCOME A ND SURPLUS OF FUNDS. FROM THE STATEMENT FURNISHED, A.O. NOTICED THAT TH E ASSESSEE HAD SHOWN ACCUMULATED SURPLUS OF RS.1,66,237/- BY WAY OF CASH DEPOSITS AND GIFTS RECEIVED DURING THE YEAR, THE DETAILS OF WHICH WERE AS UNDER:- 6-3-2000 BY CASH WITHDRAWALS RS. 30,000 31-3-2000 BY FAMILY SURPLUS FUND RS. 40,586 BY GIFTS RECEIVED DURING F.Y.1999- 00 RS. 21,000 31-3-2001 BY FAMILY SURPLUS FUND RS. 49,651 BY GIFTS RECEIVED DURINGF.Y. 2000- 01 RS. 25,000 TOTAL RS.1,66,237 IT WAS FURTHER SUBMITTED THAT OUT OF THE ACCUMULATE D SURPLUS OF RS.1,66,237/-,THE CASH DEPOSITS WERE MADE IN THE BA NK ACCOUNT AS UNDER:- ON 14-10-2000 50,000 ON 30-10-2000 12,000 ON 14-11-2000 38,000 TOTAL 1,00,000 IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 4 6. THE ASSESSEE FURTHER SUBMITTED THAT OUT OF THE A BOVE DEPOSITS, THE ASSESSEE MADE PART PAYMENT TO BUILDER FOR PURCHASIN G A HOUSE BY WAY OF CHEQUE OF RS.50,000/- EACH ON 16-10-2000 AND 16-11- 2000. 7. THE A.O. NOTICED THAT THE CASH GIFTS OF RS.46,00 0/- (RS.21,000 & 25,000) WERE NEVER OFFERED FOR TAX BY THE ASSESSEE IN THE RELEVANT ASSESSMENT YEAR AND HE THEREFORE REJECTED THE CONTE NTION OF THE ASSESSEE. THE A.O. DID NOT ACCEPT THE CONTENTIONS OF THE ASSE SSEE WITH RESPECT TO CASH DEPOSITS OF RS.1 LAC. THE A.O. THEREFORE MADE ADDITION OF RS.1 LAC ON ACCOUNT OF UNEXPLAINED CASH CREDIT. AGGRIEVED BY TH E ACTION OF A.O., THE ASSESSEE CARRIED THE MATTER BEFORE CIT (A). CIT (A) VIDE HIS ORDER DATED 10-2-2012 CONFIRMED THE ADDITION MADE BY THE A.O. B Y HOLDING AS UNDER; 6.1. THE APPELLANT HAS ENCLOSED A CHART SHOWING IN COME EARNED BY HIM FROM A.Y. 2000-01 TO A.Y. 2002-03 WHICH SHOWS F OR THAT A.Y 2002-03 BY WAY OF BUSINESS INCOME INCLUDING INCOME FOR A.Y. 2001- 02. HE HAD RS.74,651/- AS OPENING BALANCE AND ALSO INCOME OF ASSESSMENT YEAR OF RS.61,369/- FREELY AVAILABLE AFT ER MEETING EXPENSES. BUT THE ENTIRE SUBMISSION OF THE APPELLAN T IS NOT SUPPORTED BY DOCUMENTARY PROOF. THE APPELLANT HAS SHOWN TO HA VE CASH WITHDRAWAL ON 6-3-2000 OF RS.30,000/-. FURTHER IT I S NOT EXPLAINED BY THE APPELLANT THAT THIS CASH WITHDRAWAL OF RS.30,00 0/- WAS MADE FROM WHICH BANK AND HOW THE SAME WAS DEPOSITED IN CASH, . IN THIS REGARD DOCUMENTARY EVIDENCE ARE NOT FILED BY THE APPELLANT . THE APPELLANT HAS NOT BEEN ABLE TO FURNISH THE DETAILS OF BANK AC COUNT ETC. FROM WHERE THIS CASH WITHDRAWAL OF RS.30,000/- WAS MADE BY HIM. THE APPELLANT HAS FURTHER SUBMITTED THAT THERE WAS FAMI LY SURPLUS INCLUDING GIFTS OF RS.61,586/- ON 1-4-2000. BUT THI S SUBMISSION OF THE APPELLANT IS ALSO NOT FOUND TO BE TENABLE. THE APPE LLANT HAS NOT BEEN ABLE TO EXPLAIN AS TO WHEN AND HOW THE GIFT WAS REC EIVED AND WHAT WAS THE AMOUNT OF THE GIFT. THE APPELLANT HAS NOT F URNISHED THE DETAILS OF THE PERSON FROM WHOM GIFT WAS RECEIVED.. THE APP ELLANT HAS NOT FURNISHED THE CONFIRMATION FROM THE PERSON FROM WHO M THE GIFT IS IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 5 CLAIMED TO HAVE BEEN RECEIVED. AGAIN THE APPELLANT HAS NOT DISCLOSED ANY AMOUNT OF GIFT IN HIS RETURN OF INCOME AS FILED IN THE YEAR UNDER CONSIDERATION OR FOR EARLIER YEARS. AT THIS PLACE I T MAY BE MENTIONED THAT DURING THE COURSE OF REASSESSMENT PROCEEDING, THE A.O. ON VERIFICATION OF RECORDS NOTICED THAT THE CLAIM OF A PPELLANT IN RESPECT OF GIFT RECEIVED DURING F.Y. FROM 1999-2000 TO 2000-01 AMOUNTING TO RS.46,000/- (RS.21,000 + 25,000) HAS NEVER BEEN OFF ERED FOR TAXATION FOR THE RELEVANT ASSESSMENT YEARS. THUS AS PER THE A.O. THE CONTENTION OF THE APPELLANT IN THIS REGARD IS NOT A CCEPTABLE. AGAIN THE APPELLANTS CONTENTION AS MADE ABOVE WITH REGARD TO FAMILY SURPLUS IS ALSO NOT BASED ON DOCUMENTARY EVIDENCES. THE APPELL ANT HAS NOT EXPLAINED THE FAMILY SURPLUS AMOUNT ALONG WITH DETA ILS OF HIS FAMILY MEMBERS. FURTHER THE FUNDS AVAILABLE WITH THE OTHER FAMILY MEMBERS CANNOT BE MERGED WITH THE INCOME OF THE APPELLANT. SINCE ALL THE FAMILY MEMBERS ARE INDEPENDENT AND ALSO AS THE APPE LLANT HAS NOT SHOWN ANY BORROWING FROM ANY OF HIS FAMILY MEMBERS AND, THEREFORE, THE ABOVE EXPLANATION OF THE APPELLANT CANNOT BE AC CEPTED. CONSIDERING ALL THESE FACTS, I HOLD THAT THE A.O. H AS MADE ADDITION OF RS.1 LAKH ON ACCOUNT OF UNEXPLAINED CASH CREDIT COR RECTLY AND THEREFORE THE SAME IS CONFIRMED. 8. AGGRIEVED BY THE ORDER OF CIT (A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 9. ASSESSEE BEFORE US SUBMITTED THAT THE CASH DEPOS IT OF RS.1 LAC WAS MADE FROM CASH WITHDRAWAL OF RS.30,000/- MADE ON 6- 3-2000 AND OPENING SURPLUS INCLUDING GIFTS OF RS.61,586/-.THE ASSESSEE WAS ALSO HAVING BUSINESS INCOME OF RS.74,651/-. HE THUS URGED THAT IN VIEW OF THESE FACTS THE ADDITION MADE BY A.O. BE DELETED. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAS EXPLAINED THE SOURCE OF CA SH DEPOSITS FROM CASH WITHDRAWAL, OPENING BALANCE CONSISTING OF GIFTS AND BUSINESS INCOME. THE IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 6 ASSESSEES EXPLANATION THAT THE GIFTS RECEIVED IN E ARLIER YEARS WERE OF SMALL AMOUNTS AND NOT LIABLE TO TAX AND THEREFORE NO RETU RN WAS FILED. THIS EXPLANATION, CONSIDERING THE AMOUNT APPEARS TO BE P LAUSIBLE EXPLANATION. IN VIEW OF TOTALITY OF FACTS, WE ARE OF THE VIEW TH AT NO ADDITION IS CALLED FOR IN THE PRESENT CASE. WE THEREFORE DIRECT THE DELETION OF ADDITION MADE BY A.O. THUS, THIS GROUND OF APPEAL IS DISMISSED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 5- 10- 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) IV, BARODA. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD IT(SS) A . NO.249/AHD/2012 ASST YEA R 2001- 02. . 7 1.DATE OF DICTATION 22 - 8 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 3,4,25 / 9 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER