Shri Manubhai Motibhai Patel, Anand V. The ACIT.,Anand Circle, Anand

ITSSA 89/AHD/2013

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9663 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-11-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Corroborative evidences

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' &' &' &' ( & ' ( & ' ( & ' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) IT(SS)A NO.89/AHD/2013 [ASSTT.YEAR : 2009-2010] MANUBHAI MOTIBHAI PATEL C/O. M/S.J.D. PATEL VAIBHAV COMMERCIAL CENTRE GREEN ROAD, ANAND 388 001. PAN : ADUPP 4129 L /VS. ACIT, ANAND CIRCLE ANAND. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : MS. ARTI N. SHAH ( / 0 &/ REVENUE BY : SHRI SUBHASH BAINS 2 / %3'/ DATE OF HEARING : 13 TH NOVEMBER, 2013. 456 / %3'/ DATE OF PRONOUNCEMENT : 13-12-2013 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-2010 IS DIREC TED AGAINST THE ORDER OF THE CIT(A)-IV, BARODA DATED 4.12.2012. 2. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS U NDER: IT(SS)A NO.89/AHD/2013 -2 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.2,55,000/- ON ACCOUNT OF UNEXPLAINED BANK CREDITS MADE BY THE AO. 3. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED TH AT THE ASSESSEE HAS EXPLAINED THE SOURCE OF EACH AND EVERY CREDIT E NTRY IN HIS BANK ACCOUNT, AND THEREFORE, THE ADDITION MADE ON ACCOUN T OF UNEXPLAINED BANK ACCOUNT BY THE REVENUE WAS WHOLLY UNJUSTIFIED. SHE REFERRED TO CASH FLOW STATEMENT FILED BEFORE THE TRIBUNAL, AND ALSO THE VARIOUS ENTRIES AS REPRODUCED BY THE CIT(A) IN HIS APPELLAT E ORDER, AND SUBMITTED THAT THE ADDITION HAS BEEN MADE ONLY DUE TO SOME TIME GAP OF THREE-AND-HALF MONTHS IN THE WITHDRAWALS FROM T HE BANK ACCOUNT AND DEPOSIT THEREON MADE BY THE ASSESSEE. SHE SUBM ITTED THAT THERE IS NO LAW TO PROHIBIT THE ASSESSEE FROM KEEPING CASH W ITHDRAWAL FROM THE BANK WITH HIM AND TO REDEPOSIT THE SAME IN HIS BANK ACCOUNT AFTER SOMETIME. 4. THE LEARNED CIT-DR HAS OPPOSED THE SUBMISSIONS O F THE LEARNED COUNSEL FOR THE ASSESSEE. HE REFERRED TO R ELEVANT PORTIONS OF THE APPELLATE ORDER PASSED BY THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE, AND SUBMITTED THAT THE CIT(A) HAS ALREADY ALLOWED RELIEF OF ` 1,00,000/- WHEREVER REQUIRED IN THE FACTS OF THE C ASE, AND HAS PASSED A WELL REASONED ORDER TO SUSTAIN THE BALANCE ADDITI ON OF ` 2,55,000/-. HE SUBMITTED THAT THE CIT(A) HAS EXAMINED EACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWALS MADE FROM THE BANK ACCOUNT BY THE ASSESSEE, AND HAS RECORDED A FINDING THAT THERE WAS A HUGE GA P BETWEEN ALLEGED CASH WITHDRAWALS AND CASH DEPOSIT IN THE BANK ACCOU NT, AND IN VIEW OF THIS FACT, THE EXPLANATION OF THE ASSESSEE COULD NO T BE ACCEPTED. HE SUBMITTED THAT IT IS NOT CORRECT TO SAY THAT THE GA P OF WITHDRAWALS AND DEPOSITS IN THE BANK ACCOUNT IS OF THREE-AND-HALF M ONTHS AND THE FACT IS IT(SS)A NO.89/AHD/2013 -3 THAT FOR SOME ENTRIES, THE GAP IS MORE. HE RELIED ON ORDERS OF THE AO AND THE CIT(A) AND SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE AO FOR DECIDING AFRESH IN ACCORDANCE WI TH LAW. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND HAVE PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND AL SO COPIES OF VARIOUS DOCUMENTS FILED BY THE ASSESSEE IN HIS COMP ILATION FILED BEFORE THE TRIBUNAL. WE FIND THAT THE ASSESSEE HAS FILED AN EXPLANATION EXPLAINING ITS BANK DEPOSITS MADE BY HIM. IT IS NO T THE CASE OF THE DEPARTMENT THAT THE AMOUNT OF DEPOSITS MADE BY THE ASSESSEE IN HIS BANK ACCOUNTS ARE NOT COVERED BY THE AMOUNT OF WITH DRAWALS MADE FROM THE BANK ACCOUNT BY THE ASSESSEE. THE REASONI NG OF THE CIT(A) WHILE SUSTAINING THE ADDITION THAT THERE BEING HUGE GAP BETWEEN THE CASH WITHDRAWALS AND THE CASH DEPOSITS IN THE BANK, AND THEREFORE THE EXPLANATION OF THE ASSESSEE COULD NOT BE ACCEPTED, IS NOT SUSTAINABLE IN LAW. THE GAP BETWEEN THE CASH WITHDRAWALS AND CASH DEPOSITS IN SOME ENTRIES IS MORE THAN THREE-AND-HALF MONTHS. THE SUSPICION OF THE DEPARTMENT THAT THERE BEING GAP BETWEEN CASH WI THDRAWALS AND CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE, THE AMOUNT WITHDRAWN FROM THE BANK MAY HAVE BEEN SPENT BY THE ASSESSEE SOMEWHERE ELSE, IS NOT SUPPORTED BY ANY EVIDENCE BR OUGHT ON RECORD. HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, AND TO COVER SOME POSSIBLE EXPENDITURE WHICH MIGHT HAVE BEEN MADE BY THE ASSESSEE, OUT OF ITS BANK WITHDRAWALS, WE HOLD THAT THAT ENDS OF JUSTICE SHALL BE MET IF AN ADDITION OF ` 75,000/- IS SUSTAINED OUT OF THE TOTAL ADDITION OF ` 2,55,000/- SUSTAINED BY THE CIT(A) AND THE BALANCE ADDITION IS DELETED, AND THE GROUND OF APPEAL NO.1 OF THE ASSESSEE IS PARTLY ALLOWED. IT(SS)A NO.89/AHD/2013 -4 6. THE GROUND NO.2 OF THE ASSESSEE IS AS UNDER: 2. THE LD.CIT(A) HAS ERRED IN LAW AS WELL AS ON FA CTS IN CONFIRMING THE ADDITION OF ` 1,32,925/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND. 7. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A CASH FLOW STATEMENT OF THE RELEVANT ACCOUNTING YEAR 2008-2009 AS WELL AS PRECEDING ACCOUNTING YEAR 2007-2008. WE FIND THAT THE ASSESSEES SHARE OF PURCHASE OF LAND AMOUNTING TO ` 1,32,925/- IS WHOLLY COVERED BY THE CASH ON HAND, AS PER THE CASH FLOW STATEMENT OF THE ASSESSEE, WHEREIN THE WITHDRAWALS OF THE DIFFERENT AMOUNTS HA VE BEEN MADE ON DIFFERENT DATES FROM VARIOUS BANK ACCOUNTS OF THE A SSESSEE. THERE IS NO EVIDENCE BROUGHT ON RECORD ON BEHALF OF THE REVE NUE TO SUGGEST THAT THE AMOUNTS WITHDRAWN FROM THE BANK ACCOUNT OF THE ASSESSEE WERE UTILIZED ELSE-WHERE BY THE ASSESSEE. THE CASH FLOW STATEMENT WAS FILED BY THE ASSESSEE BEFORE THE AO AS WELL AS BEFORE THE CIT(A), AND THEREFORE, IT CANNOT BE SAID TO BE AN ADDITIONA L EVIDENCE FILED BEFORE THE TRIBUNAL. THE OBSERVATION OF THE LEARNE D CIT(A) THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE CASH BALANC E WITH HIM BY FILING SUPPORTING EVIDENCE AND CASH FLOW STATEMENT DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR DURING REMAND PROCEEDI NGS, IS DEVOID OF ANY MERIT. INVESTMENT IN HALF SHARE IN LAND IS DUL Y COVERED BY THE WITHDRAWALS FROM THE BANK ACCOUNTS OF THE ASSESSEE WITH DIFFERENT BANKS, AND NO FURTHER CORROBORATIVE OR SUPPORTING E VIDENCE COULD POSSIBLY BE PRODUCED BY THE ASSESSEE. THE ASSESSEE HAS FILED DETAILS OF VARIOUS WITHDRAWALS FROM ITS BANK ACCOUNT BEFORE THE AO AS WELL AS CIT(A). IN THESE FACTS AND CIRCUMSTANCES OF THE CA SE, WE HOLD THAT NO CASE OF ADDITION OF ` 1,32,925/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IT(SS)A NO.89/AHD/2013 -5 IN LAND COULD BE MADE OUT BY THE DEPARTMENT, WHICH IS ACCORDINGLY DELETED, AND THE GROUND NO.2 OF THE ASSESSEE IS ALL OWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD