Smt. Neeta Kishore Patel, Vapi v. The Income tax Officer,Ward-2,, Vapi

ITA 1097/AHD/2012 | 2008-2009
Pronouncement Date: 13-10-2016 | Result: Dismissed

Appeal Details

RSA Number 109720514 RSA 2012
Assessee PAN AJEPP3221D
Bench Ahmedabad
Appeal Number ITA 1097/AHD/2012
Duration Of Justice 4 year(s) 4 month(s) 25 day(s)
Appellant Smt. Neeta Kishore Patel, Vapi
Respondent The Income tax Officer,Ward-2,, Vapi
Appeal Type Income Tax Appeal
Pronouncement Date 13-10-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 13-10-2016
Date Of Final Hearing 05-10-2016
Next Hearing Date 05-10-2016
Assessment Year 2008-2009
Appeal Filed On 18-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH AHMEDABAD BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER ./ ITA NO. 1097/AHD/2012 / ASSESSMENT YEAR : 2008-09 SMT. NEETA KISHOR PATEL B/106 OMKAR SOCIETY OPP. ROTARY CLUB VAPI PAN : AJEPP 3221 D VS ITO WARD-2 VAPI / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.D. CHHEDA AR REVENUE BY : SMT. SONIA KUMAR SR DR / DATE OF HEARING : 05/10/2016 / DATE OF PRONOUNCEMENT: 13/10/2016 / O R D E R THIS IS ASSESSEES APPEAL CHALLENGING THE ADDITION OF RS.15 32 000/- ATTRIBUTABLE TO UNEXPLAINED BANK DEPOSITS AS INCOME FROM OTHER SOURCES. 2. BRIEF FACTS ARE ASSESSEE FILED HER RETURN OF I NCOME AT RS.1 32 500/- ON 31.03.2010. IN THE RETURN OF INCOME PROFIT U/S 44A F WAS SHOWN AT RS.2 32 502/- ON TOTAL RECEIPT OF RS.4 96 820/-. T HE ASSESSING OFFICER HAD RECEIVED AN AIR INFORMATION THAT THE ASSESSEE HAD D EPOSITED THE CASH OF RS.15 32 000/- FOR THE YEAR IN QUESTION IN HER AXIS BANK VAPI ACCOUNT. IT WAS FOUND THAT THE ASSESSEE HAS BEEN CARRYING ON SH ARE TRADING BUSINESS WHICH WAS NOT DISCLOSED IN HER RETURN OF INCOME. T HE ASSESSEE FILED A REVISED COMPUTATION ALONG WITH COPY OF AUDIT REPORT . THE ASSESSING OFFICER ASKED FOR SOURCE AND EXPLANATION OF CASH DEPOSITED IN THE AXIS BANK ACCOUNT. ACCORDING TO AO THE REVISED AUDIT REPORT AND COMPUTATION WERE AN AFTERTHOUGHT WHEN THE ASSESSEE WAS CAUGHT INDULG ING IN UNDISCLOSED SHARE TRADING BUSINESS. THE ADVERSE INFERENCE WAS D RAWN BY AO ON FOLLOWING FACTS:- SMC-ITA NO. 1097/AHD/2012 NEETA KISHOR PATEL VS. ITO AY : 2008-09 2 (I) THE THEORY OF RETAIL BUSINESS RESULTING INCOME OF R S.2 32 502/- FROM SALES PROCEEDS OF RS.4 96 820/- WAS A MAKE BEL IEF STORY; (II) AT THE END OF EVERY MONTH SALES PROCEEDS OF THE AL LEGED RETAIL BUSINESS WAS BROUGHT IN CASH BOOK; (III) THE SALE OF EVERY MONTH WAS ALMOST THE SAME FIGURE IN THE RANGE OF RS.40 000/- TO RS.42 000/-; (IV) THE BOOKS WERE PREPARED ONLY FOR ADJUSTMENTS TO SHO W SOME SEMBLANCE OF AVAILABILITY OF CASH; (V) THE ASSESSEE HAD SHOWN RECEIPT OF SOME ALLEGED COMM ISSION OF RS.1 00 250/- FROM SIX DIFFERENT PERSONS IN THE RAN GE OF RS.15 750/- TO RS.18 500/- THROUGH CASH WHICH AGAIN WAS INDICA TIVE OF ADJUSTMENT TO DEMONSTRATE AVAILABILITY OF CASH; (VI) THE ASSESSEE HAD NO COMMISSION INCOME; (VII) THERE WERE FREQUENT CASH WITHDRAWALS AND RE-DEPOSIT S; AND IN ASSESSEES SHARE TRADING BUSINESS THERE WAS NO PLAC E FOR CASH TRANSACTIONS. THE LD. ASSESSING OFFICER THUS DID NOT ACCEPT THE A SSESSEES ALLEGED BUSINESS AND THE MAKE BELIEVE STORY; AND RELYING ON THE HONBLE SUPREME COURTS JUDGMENT IN THE CASE OF SUMATI DAYAL V. CIT (1995) 214 ITR 801 MADE THE ADDITION. 3. AGGRIEVED THE ASSESSEE PREFERRED FIRST APPEAL W HERE THE ASSESSEE RELIED ON FOLLOWING JUDGMENT:- I) CIT VS. PRAGATI CO-OPERATIVE BANK LTD 278 IT R 170 (GUJ. HC) II) ACIT VS. SMT. MEERA DEVI 14 SOT 190 (ALLAHAB AD ITAT) III) UMACHAIAN SHAW & BIOS VS. CIT (1959) 37 ITR 2 71 (SC) IV) MOHD VS. ITO AHMEDABAD ITAT 26 DTR 329 V) TOLARAM DAGA VS. CIT 59 ITR 632 VI) CIT VS. P. MOHANAKALA 291 ITR 278 SC SMC-ITA NO. 1097/AHD/2012 NEETA KISHOR PATEL VS. ITO AY : 2008-09 3 4. THE LD. CIT(A) UPHELD THE ADDITION AND DISMISSED THE APPEAL. 5. AGGRIEVED THE ASSESSEE IS IN SECOND APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT:- (A) THE BOOKS OF ACCOUNTS OF THE ASSESSEE HAVE NOT BE EN REJECTED; (B) IN THE ABSENCE OF ANY REJECTION OF BOOKS THE BOOKS ENTRIES BECOME RELIABLE EVIDENCE AND CANNOT BE DISCARDED ON PRESUM PTION THAT THE ASSESSEE MUST HAVE USED THE CASH SOMEWHERE ELSE OR IN SHARE TRADING BUSINESS; (C) RELIANCE IS PLACED ON HONBLE GUJARAT HIGH COURT JU DGMENT IN THE CASE OF CIT VS. MANOJ INDRAVADAN CHOKSHI REPORTED IN [2014] 50 TAXMANN.COM 419 (GUJ.) HOLDING AS UNDER:- THE AFORESAID IS CONFIRMED BY THE LEARNED TRIBUNAL BY IMPUGNED JUDGMENT AND ORDER BY OBSERVING IN PARA 4 AS UNDER: '4. NOW THE REVENUE IS BEFORE US. LD. SR. D.R. VEHE MENTLY ARGUED THAT THE APPELLANT USED WHATEVER CASH WITHDRAWAL FR OM THE BANK FOR OTHER PURPOSES HE HAD NOT ESTABLISHED DIRECT LINKA GE BETWEEN CASH WITHDRAWN AND CASH DEPOSIT. THEREFORE A.O. WAS RIG HT TO MAKE THE ADDITION OF RS.39 70 500/-. NO ONE APPEARS FROM THE ASSESSEE SIDE. THEREFORE WE DECIDE THIS CASE ON THE BASIS OF FACT S AVAILABLE IN FILE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AS SESSEE HAD PRODUCED CASH BOOK AND COPY OF THE BANK ACCOUNT. TH E APPELLANT SUBMITTED BEFORE THE A.O. THAT CASH WITHDRAWAL FROM THE BANK WAS RE- DEPOSITED IN THE BANK ACCOUNT. THE A.O. DID NOT FIN D ANY DISCREPANCY BETWEEN CASH WITHDRAWAL FROM THE BANK AND CASH AVAI LABLE IN THE CASH BOOK ON A PARTICULAR DATE. THE APPELLANT HAD NOT CL AIMED ANY EXPENDITURE ON ACCOUNT OF INTEREST PAYMENT. THE APP ELLANT HAD FILED THE CONFIRMATION OF THE PERSONS FROM WHOM LOANS WER E GIVEN. THE APPELLANT NEITHER PAID INTEREST NOR EARNED ANY INCO ME ON ACCOUNT OF INTEREST ON ADVANCE. THIS ASPECT HAS NOT BEEN DOUBT ED BY THE A.O. THERE IS NO LIMIT IN CASH WITHDRAWING THE RE-DEPOSI TING IN THE BANK ACCOUNT. THE ASSESSEE HAS OFFERED A PLAUSIBLE AND S ATISFACTORY EXPLANATION BEFORE THE A.O. FOR EACH FINANCIAL TRAN SACTION. HE HAD NOT BROUGHT ON RECORD ANY EVIDENCE WHICH PROVES THAT CA SH WITHDRAWAL SMC-ITA NO. 1097/AHD/2012 NEETA KISHOR PATEL VS. ITO AY : 2008-09 4 HAD BEEN INVESTED SOMEWHERE ELSE AND CASH BALANCE I N THE CASH BOOK IS ARTIFICIAL. THUS WE CONFIRM THE ORDER OF THE CIT(A ).' 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE A RE IN COMPLETE AGREEMENT WITH THE VIEW TAKEN BY THE LEARNED TRIBUN AL AS WELL AS THE LEARNED CIT(A) RESTRICTING THE ADDITION TO THE EXTE NT OF RS.7 95 160/-. UNDER THE CIRCUMSTANCES AS THERE ARISE NO SUBSTANT IAL QUESTION OF LAW PRESENT TAX APPEAL DESERVES TO BE DISMISSED AND IS ACCORDINGLY DISMISSED. IT IS CONTENDED THAT THE FACTS IN THE CASE OF MANOJ INDRAVADAN CHOKSHI (SUPRA) ARE AT PARITY WITH ASSESSEES CASE. THEREFORE THERE IS NO JUSTIFICATION IN HOLDING THAT THE CASH DEPOSITED BY THE ASSESSEE IN AXIS BANK ACCOUNT IS INCOME FROM OTHER SOURCES AND THE ADDITION MAY BE DELETED. 7. LD. DR ON THE OTHER HAND CONTENDS THAT THE ALL EGED AXIS BANK ACCOUNT IS AN UNDISCLOSED ACCOUNT OF THE ASSESSEE. THE ASSESSEE ON ONE HAND CLAIMS THAT IT MAINTAINS REGULAR BOOKS OF ACCOUNTS ON THE OTHER HAND IT IS EVIDENT FROM THE RECORD THAT SHE WAS RAMPANTLY ENGA GED IN UNDISCLOSED SHARE TRADING BUSINESS. THIS INFORMATION WAS RECEI VED FROM AIR AND WHEN CONFRONTED BY THE AO THE ASSESSEE COOKED UP A STOR Y AND BOOKS TO SOMEHOW OR OTHER TO JUSTIFY THE AVAILABILITY OF CAS H. THE LD. AO HAS GIVEN NUMBER OF INSTANCES TO DEMONSTRATE THAT THE TRANSAC TIONS REFLECTED IN THE ALLEGED BOOKS OF ASSESSEE WERE NOT RELIABLE AND NOT CORROBORATED. THERE IS NO MERIT IN THE ASSESSEES CONTENTION THAT THE BOOK S OF THE ACCOUNTS HAVE BEEN ACCEPTED BY THE AO. IT IS EVIDENT FROM ASSESS EES OWN ADMISSION THAT INITIALLY IN THE ORIGINAL RETURN ONE SET OF BOOKS W AS FILED AND ON CONFRONTATION OF AIR INFORMATION BOOKS WERE REVISED . THEREFORE THE ENTIRE CONDUCT OF THE ASSESSEE SMACKS OF COMPLEXITY OF THE AUDITOR AND ASSESSEE IN FUDGING THE ACCOUNTS. THE CASE LAWS RELIED ON BY TH E ASSESSEE ARE APPLICABLE TO THE FACTS WHERE THE ASSESSEE MAINTAINED PROPER B OOKS OF ACCOUNTS. IN THIS SMC-ITA NO. 1097/AHD/2012 NEETA KISHOR PATEL VS. ITO AY : 2008-09 5 CASE THERE IS AMPLE DEMONSTRATIVE EVIDENCE THAT TH E ASSESSEE WAS WANTONLY INDULGING IN UNDISCLOSED TRANSACTIONS AND BANK ACCO UNT. IN THESE CIRCUMSTANCES THE BURDEN WILL BE ENTIRELY ON THE A SSESSEE TO EXPLAIN THE NATURE OF TRANSACTIONS WHICH ARE IN HER EXCLUSIVE K NOWLEDGE. THE BURDEN CANNOT BE SHIFTED TO THE DEPARTMENT BY NOT PROVIDIN G INFORMATION. IF THE ASSESSEE DOES NOT COME UP WITH PROPER EXPLANATION A ND CORROBORATIVE EVIDENCE THE IT AUTHORITIES WILL BE PERFECTLY JUST IFIED IN DRAWING CONSIDERABLE ADVERSE INFERENCE AND APPLYING THE HON BLE SUPREME COURT JUDGMENT IN THE CASE OF SUMATI DAYAL (SUPRA). THER E IS NO PARITY OF FACTS BETWEEN THE ASSESSEES CASE AND THE CASE OF MANOJ I NDRAVADAN CHOKSHI (SUPRA). THERE IS NO INFIRMITY IN THE ORDERS OF TH E AUTHORITIES BELOW WHICH MAY BE UPHELD. 8. I HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. I FIND CONSIDERABLE MERIT IN THE CONTENTIONS OF THE LD. DR . THE CONDUCT OF THE ASSESSEE IS FULL OF LAPSES AND LATCHES; AND LACKS BONA FIDES. THE ORIGINAL RETURN WAS DELIBERATELY FILED WITH INACCURATE PARTICULARS. WHEN THE AO CONFRONTED THE AIR INFORMATION THE ASSESSEE COOKED UP A STORY TO COVER-UP THE GAPS AND CLAIMING THAT THE DEPOSITS IN THE BANK ACCOUNT WERE MADE OUT OF EARLIER WITHDRAWALS. IN SUCH SUSPICIOUS CIRCUMSTANCES THE BURDEN OF EXPLAINING THE ENTRIES OF TRANSACTIONS AS CONTENDED SQUARELY LIES ON THE ASSESSEE AS ALL THE RELEVANT FACTS ARE WITHIN HER KNOWLEDGE. SINCE THE ASSESSEE FAILED TO DISCHARGE HER BURDEN IN EFFECTIVE TERMS THE IT AUT HORITIES ARE JUSTIFIED IN DRAWING SUITABLE INFERENCE. THE RELIANCE ON HONBLE SUPREME COURT JUDGMENT IN THE CASE OF SUMATI DAYAL (SUPRA) IS FUL LY APPLICABLE. THE CASE LAW IN THE CASE OF MANOJ INDRAVADAN CHOKSHI (SUPRA) AND OTHER CASE LAWS CITED BEFORE LD. CIT(A) HAVE NO PARITY OF FACTS INA SMUCH AS THE ASSESSEES CONDUCT IS HIGHLY QUESTIONABLE AND THE EXPLANATION IS FULL OF GAPING HOLES SMC-ITA NO. 1097/AHD/2012 NEETA KISHOR PATEL VS. ITO AY : 2008-09 6 AND INCONSISTENCIES. IN VIEW THEREOF I SEE NO INFI RMITY IN CONFIRMING THE ADDITION MENTIONED ABOVE. ACCORDINGLY THE ASSESSE ES APPEAL IS DISMISSED. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 13 TH OCTOBER 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 13/10/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. / DR ITAT AHMEDABAD 6. / GUARD FILE . / BY ORDER TRUE COPY / ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD