Smt.Kakul Yadav W/o Shri Surendra Singh Yadav, Bhopal V. DCIT-1Central,Bhopal, Bhopal

ITSSA 321/Ind/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4764 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 15-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 143(3); 153A; 132

Judgement Text

SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO.321/IND/2017 ASSESSMENT YEAR 2014-15 REVENUE BY S MT. ASHIMA GUPTA, CIT ASSESSEE BY SHRI ASHISH GOYAL, ADV DATE OF HEARING 0 9 .05 .2019 DATE OF PRONOUNCEMENT 16 . 0 5 .2019 O R D E R PER MANISH BORAD, AM. THIS APPEAL IS FILED AT THE INSTANCE OF THE ASSESSE E PERTAINING TO ASSESSMENT YEAR 2014-15 AND IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-3 (IN SHORT CI T(A)), BHOPAL DATED 30.08.2017 WHICH IS ARISING OUT OF THE ORDER U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961(IN SHORT THE ACT ) DATED 28.10.2016 FRAMED BY DCIT (CENTRAL)-I, BHOPAL. SMT. KAKUL YADAV, W/O SHRI SURENDRA SINGH YADAV, C-55, PADAM NABH NAGAR, BHOPAL VS. DEPUTY COMMISSIONER OF INCOME TAX -1(CENTRAL), BHOPAL ( APPELLANT ) (RESPONDENT ) PAN NO. A ZEPA0219J SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 2 2. THE INSTANT APPEAL IS TIME BARED BY 18 DAYS. AP PLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT HAS BEEN PLACED BEFORE US. LD. COUNSEL FOR THE ASSESSEE HAS PRAYED FOR CONDONA TION OF DELAY BUT LD. DEPARTMENTAL REPRESENTATIVE OPPOSED. WE HA VE PERUSED THE RECORD AND OBSERVE THAT THE ASSESSEE WAS SUFFER ING FROM CHIKUNGUNYA DURING THE MONTH OF NOVEMBER WHICH REST RAINED HER TO CARRY OUT THE REGULAR AFFAIRS. WE ARE CONVINCED THAT THE ASSESSEE HAD A REASONABLE CAUSE FOR DELAY IN FILING OF APPEA L BY 18 DAYS. WE ACCORDINGLY CONDONE THE DELAY IN THE INTEREST OF JU STICE AND ON HUMANITARIAN GROUNDS AND ADMIT THE APPEAL FOR ADJUD ICATION. 3. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL; 1. THAT ON THE FACTS OF THE CASE AND IN THE CIRCUMS TANCES OF THE CASE AND IN LAW, THE FINDINGS OF LEARNED CIT(APPEAL)-II ARE BAD AND OPPOSED TO FACTS, EQUITY AND LAW AND ARE, THEREFORE, UNSUSTAINABLE IN LAW. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(APPEAL) ERRED IN VIOLATING THE PRINCIPLES O F NATURAL JUSTICE BY NOT PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE, THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED A.O ERRED IN MAKING A SCRUT INY SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 3 ASSESSMENT U/S 153A READ WITH SECTION 143(3) OF THE ACT AS WELL AS LD. CIT(APPEAL) HAS ALSO DISMISSED THE A PPEAL WITHOUT PROPER JUSTIFICATION. 4. BECAUSE THE LD. COMMISSIONER IT(APPEALS)-I HAS DISMISSED THE APPEAL OF ASSESSEE AND CONFIRMED THE ADDITIONS OF RS.700000.00 LACS AS CASH DEPOSITS WIT HOUT APPROPRIATE OPPORTUNITY OF HEARING. 5. THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY OF T HE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS ONE OF THE PARTNER IN M/S. REGAL SA MARTH KRISHNA BUILDERS WHICH BELONGS TO REGAL HOME GROUP ENGAGED IN THE BUSINESS OF REAL ESTATE. SEARCH U/S 132 OF THE ACT WAS CARRIED OUT ON 13.08.2014 AT THE RESIDENTIAL PREMISES OF THE AS SESSEE AS WELL AS LOCKER NO.307, APEX BANK, BHOPAL. NOTICE U/S 153A WAS ISSUED TO FILE RETURN OF INCOME FOR THE ASSESSMENT YEARS 2009 -10 TO 2014-15. THE INSTANT APPEAL RELATES TO ASSESSMENT YEAR 2014- 15. THE ASSESSEE HAD FILED RETURN OF INCOME FOR 2014-15 DEC LARING INCOME OF RS.2,17,790/- ON 31.03.2015. THE NOTICES U/S 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE. VIDE QUESTIONNAIRE U/S 1 42(1) OF THE ACT DATED 28.6.2016 ASSESSEE WAS ASKED TO SUBMIT DETAIL S OF BANK SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 4 ACCOUNTS IN HER NAME. THE ASSESSEE SUBMITTED COPY OF BANK STATEMENT OF HER BANK ACCOUNTS HELD WITH ICICI BANK AND KRISHNA MERCANTILE CO-OP BANK LTD. LD. A.O NOTICED THAT IN KRISHNA MERCANTILE CO-OP BANK LTD DURING FINANCIAL YEAR 20 13-14 A SUM OF RS. 7 LAKHS WAS DEPOSITED ON VARIOUS DATES STARTING FROM 24.02.2014 TILL 15.3.2014 AND EXCEPT ONE DEPOSIT OF RS.14,000/- THE REMAINING AMOUNT OF RS.6,85,000/- WERE DEPOSITED IN 14 INSTALLMENTS AT RS.49,000/- EACH. THE ASSESSEE WAS ASKED ABOUT THE SOURCE OF THE CASH DEPOSIT. IT WAS CONTENDED B Y ASSESSEE THAT ACCUMULATED CASH WITHDRAWALS WERE SUFFICIENT TO COV ER THE ALLEGED CASH DEPOSIT. SUBMISSION OF THE ASSESSEE COULD NOT GET FAVOUR FROM THE LD. A.O AND HE MADE THE ADDITION OF RS.7,00,000 /- FOR UNDISCLOSED CASH DEPOSIT IN BANK ACCOUNT. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AGAINST THE ALLE GED ADDITION OF RS.7,00,000/- AND PARTLY SUCCEEDED AS LD. CIT(A) DE LETED THE ADDITION FOR CASH DEPOSIT OF RS.14,000/- DUE TO SMA LLNESS OF THE AMOUNT AND CONFIRMED THE REMAINING ADDITION OF RS.6 ,86,000/-. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 5 6. LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE WR ITTEN SUBMISSIONS PLACED ON RECORD SUBMITTED THAT THE CAS H BOOK IS PREPARED SHOWING VARIOUS TRANSACTIONS OF CASH INFLO W AND OUTFLOW. THE ALLEGED CASH DEPOSIT IS OUT OF THE CASH IN HAND AVAILABLE WITH THE ASSESSEE. THE OPENING CASH IN HAND AS ON 1.4.2 012 AND 1.8.2012 HAS NOT BEEN CHALLENGED BY THE REVENUE AUT HORITIES. THUS THE ALLEGED CASH DEPOSITS STANDS DULY EXPLAINED AND THEREFORE NO ADDITION WAS CALLED FOR. 7. PER CONTRA DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES AND ALSO CONTENDED THAT WHY THE ASSESSEE AFTER WITHDRAWING CASH KEPT I T IN HAND FOR A LONG TIME WITHOUT ANY PURPOSE AND MORE SO WHEN THE ASSESSEE WAS HAVING CASH IN HAND OF RS.4,81,005/- WHY DID SHE W ITHDRAW CASH OF RS.1,45,000/- AND RS.3,00,000/- DURING APRIL, 20 13 AND JUNE, 2013. THE LD. DR PLEADED THAT THE CONTENTION OF THE LD. COUNSEL HAS NOT MERITS AND ADDITION SHOULD BE SUSTAINED. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THOUGH THE ASSESSEE HAS RAISED 5 GROUNDS OF APPEAL GROUND NO.1,2,3 & 5 ARE GENERAL IN NATURE AN D THE SOLE SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 6 GRIEVANCE IS RAISED IN GROUND NO.4 FOR THE ADDITION OF UNEXPLAINED CASH OF RS.6,86,000/- (WRONGLY MENTIONED AT RS.7,00 ,000/- IN THE GROUNDS OF APPEAL) BY LD. CIT(A). WE OBSERVE THAT THE ASSESSEE WAS SEARCHED U/S 132 OF THE ACT ON 13.8.2014 BEING PART OF THE REGAL GROUP IN WHICH ASSESSEES HUSBAND WAS ONE OF THE PARTNER IN M/S REGAL SAMARTH KRISHNA BUILDERS. DURING THE ASSESSM ENT PROCEEDINGS FOR THE BLOCK PERIOD ASSESSMENT YEAR 2 009-10 TO ASSESSMENT YEAR 2015-16 CONSOLIDATED ASSESSMENT WAS FRAMED. FOR ASSESSMENT YEAR 2014-15 LD. A.O ON NOTICING THA T IN FEBRUARY 2014 TO MARCH 2015 CASH OF RS.49,000/-WAS DEPOSITED 14 TIMES. ASSESSEE WAS UNABLE TO CONVINCE BOTH THE LOWER AUTH ORITIES ABOUT THE SOURCE OF ALLEGED CASH DEPOSITED. 9. CASH FLOW STATEMENTS HAVE BEEN FILED BEFORE THE LOWER AUTHORITIES AND ALSO BEFORE US. FROM PERUSAL OF TH E SAME WE OBSERVE THAT OUT OF CASH BALANCE OF RS.9,51,605/- A S ON 31.1.2014, A SUM OF RS.6,86,000/- IS CLAIMED TO HAVE BEEN DEPO SITED WHICH IN OUR VIEW WAS SUFFICIENT ENOUGH TO COVER UP THE ALLE GED CASH DEPOSITS. REVENUE AUTHORITIES HAS NOT DOUBTED THE GENUINENESS OF THE CASH IN HAND AS ON 1.4.2012 AS WELL AS 1.8.2012 AS NO ADDITION SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 7 HAVE BEEN MADE DURING THE ASSESSMENT YEAR 2013-14. CASH HAS BEEN WITHDRAWN FROM THE BANK ACCOUNT. THERE IS NO FINDING OF REVENUE AUTHORITIES FOR ANY ALLEGATION FOR THE GENU INENESS OF THE AMOUNT CREDITED IN THE BANK ACCOUNTS OTHER THAN CA SH. KEEPING THE CASH IN HAND IDLE FOR ALMOST A YEAR RANGING FRO M RS.4,91,005/- FROM FEBRUARY, 2013 TO RS.9,51,605/- AT THE END OF JANUARY, 2014 CANNOT BE A BASIS TO REJECT THE CLAIM OF THE ASSESS EE. THERE IS NO BAR UNDER THE INCOME TAX ACT WHICH RESTRICTS A PERS ON FROM KEEPING CASH IN HAND IDLE FOR A CERTAIN PERIOD. 10. IN THESE GIVEN FACTS AND CIRCUMSTANCES OF THE C ASE WE ARE OF THE CONSIDERED VIEW THAT THE CASH FLOW STATEMENT CL EARLY DEPICTS THAT THE ASSESSEE WAS HAVING SUFFICIENT CASH IN HAN D FROM GENUINE SOURCES WHICH WAS USED TO MAKE DEPOSITS TOTALING TO RS.6,86,000/- DURING FEBRUARY, 2014 AND MARCH, 2014. AS THE ASSE SSEE HAS BEEN SUCCESSFUL TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT NO ADDITION WAS CALLED FOR RS.6,86,000/- F OR UNEXPLAINED CASH DEPOSIT. WE ACCORDINGLY DELETE THE ADDITION O F RS.6,86,000/- AND ALLOW THE APPEAL OF THE ASSESSEE. SMT. KAKUL YADAV IT(SS)A NO.321/IND/2017 8 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . THE ORDER PRONOUNCED IN THE OPEN COURT ON 16.05.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 16 MAY, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER ASSISTANT REGISTRAR, ITAT, INDORE