Shri Virender Kumar Jain, Gwalior v. ACIT, C-1, Gwalior

ITA 124/AGR/2009 | 2000-2001
Pronouncement Date: 06-07-2010 | Result: Partly Allowed

Appeal Details

RSA Number 12420314 RSA 2009
Assessee PAN ABWPJ4310P
Bench Agra
Appeal Number ITA 124/AGR/2009
Duration Of Justice 1 year(s) 3 month(s) 3 day(s)
Appellant Shri Virender Kumar Jain, Gwalior
Respondent ACIT, C-1, Gwalior
Appeal Type Income Tax Appeal
Pronouncement Date 06-07-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 19-07-2010
Date Of Final Hearing 06-07-2010
Next Hearing Date 06-07-2010
Assessment Year 2000-2001
Appeal Filed On 02-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH SMC AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER ITA NOS.124 & 125/AGR/2009 ASST. YEARS: 2000-01 & 1999-2000 SHRI VIRENDRA KUMAR JAIN VS. A.C.I.T. C-1 GWA LIOR. SARAFA BAZAR LASHKAR GWALIOR. (PAN : ABWPJ 4310 P). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V. BAPNA C.A. RESPONDENT BY : SHRI VINOD KUMAR JR. D.R. ORDER THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGA INST THE SEPARATE ORDERS OF THE CIT(A) DATED 01.12.2008. 2. GROUND NO.1 SINCE NOT PRESSED THE SAME STANDS D ISMISSED AS NOT PRESSED. 3. GROUND NO.2 RELATES TO THE SUSTENANCE OF ADDITIO N OF RS.7 000/- IN RESPECT OF LOW HOUSEHOLD EXPENSE. IN THE A.Y. 2000-01 THE A.O. N OTED THAT THE ASSESSEE HAS DECLARED WITHDRAWAL OF RS.20 000/- WHILE THE WIFES WITHDRAW N WAS RS.4 000/- FOR HOUSE HOLD EXPENSES WHILE THE HOUSEHOLD EXPENSES INCURRED BY THE ASSESS EE WERE RS.55 000/-. THEREFORE HE MADE THE ADDITION OF RS.26 000/- IN THE HANDS OF THE ASSESSE E AND RS.5 000/- IN THE HANDS OF THE WIFE. THE HOUSE HOLD EXPENSES HAD BEEN ESTIMATED BY THE A.O. ON THE BASIS THAT THE ASSESSEES ONE SON WAS PURSUING B.COM WHILE HIS DAUGHTER WAS ALSO DOING B. COM. THE CIT(A) REDUCED THE ADDITION TO RS.7 000/- BY ESTIMATING HOUSE HOLD EXPENSES AT RS. 36 000/-. 2 4. THE LD. A.R. REITERATED THE SUBMISSION MADE BEFO RE THE CIT(A) WHILE THE LD. D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND CONTENDE D THAT THE ADDITION FOR THE HOUSEHOLD EXPENSES HAS NOT BEEN MADE MERELY ON ESTIMATE BASIS BUT ON T HE BASIS OF THE FACT THAT THE ASSESSEES TWO CHILDREN WERE DOING GRADUATION AND THE INCURRENCE O F THE EXPENSES BY THE ASSESSEE AS PER THE CIT(A) IS @ RS.3 000/- PER MONTH WHICH IS MUCH MORE REASONABLE. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. I NOTED THAT THE A.O. HAS BROUGHT ON RECORD THE FACTS THAT THE ASSES SEE IS HAVING TWO CHILDREN AND DURING THE YEAR ONE SON AND ONE DAUGHTER BOTH WERE PURSUING B.COM. HE WAS PUTTING UP WITH HIS WIFE. THERE WERE MEMBERS IN THE FAMILY. THE EXPENSES INCURRED BY THE FAMILY FOR THE PERSONAL NEEDS OF THE FAMILY INCLUDING TWO CHILDREN IN MY OPINION AS ES TIMATED BY CIT(A) AMOUNTING TO RS.36 000/- ARE VERY REASONABLE. 6. THE LD. A.R. DID NOT DENY THAT BOTH THE CHILDREN WERE NOT PURSUING B.COM DURING THE YEAR. THE CIT(A) HAS GIVEN FINDING OF FACT AFTER V ERIFYING THE RECORDS AS WELL AS THE FACTS THAT THE ASSESSEE WAS LIVING IN ONE ROOM WITH THE COMMON KIT CHEN MESSING AND COMPRISING OF 5 BROTHERS AND THEIR FAMILIES. IN MY OPINION THE CIT(A) WAS FAIR ENOUGH TO SUSTAIN THE ADDITION TO THE EXTENT OF RS.7 000/-. UNDER THE FACTS OF THE IMPUG NED CASE IT IS NOT A FIT CASE WHICH WARRANT MY INTERFERENCE. I THEREFORE DISMISS THE GROUND TAK EN BY THE ASSESSEE. 7. THE GROUND NO.3 RELATES TO THE ADDITION OF RS.16 876/- TOWARDS THE PAYMENT OF LIC PREMIUM AND ALSO NOT ALLOWING REBATE UNDER SECTION 68 OF THE ACT. AT THE TIME OF HEARING THE LD. A.R. RESTRICTED HIS CONTENTION TO THE CLAIM OF THE DEDUCTION UNDER SECTION 88 FOR THE LIC PREMIUM 3 AS HE COULD NOT ADDUCE EVIDENCE THAT THE PAYMENT OF RS.60 876/- WAS MADE OUT OF THE RECEIPT OF THE REFUND FROM THE LIC. THE ASSESSMENT IN THE CAS E OF THE SEARCH UNDER SECTION 153A HAS TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. SECTION 153A NOWHERE DENIES THE REBATE TO THE ASSESSEE AVAILABLE UNDER SECTION 88 OF THE ACT. THE ASSESSEE HAS PAID THE LIC PREMIUM DURING THE YEAR UNDER CONSIDERATION AND THEREFORE IN MY OPINION HE IS ENTITLED FOR THE DEDUCTION UNDER SECTION 88 OF THE ACT. I ACCORDINGLY DIRECT THE A.O. TO ALLOW REBATE TO THE ASSESSEE UNDER SECTION 88 OF THE ACT. THIS GROUND THUS STANDS ALL OWED SO FAR IT RELATE TO THE CLAIM OF THE ASSESSEE UNDER SECTION 88 IS CONCERNED. 8. GROUND NO.4 RELATES TO THE SUSTENANCE OF THE ADD ITION OF RS.40 000/- ON THE BASIS OF LOOSE PAPER FOUND DURING THE COURSE OF SEARCH. 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. NOTED THAT THE ENTRIES TO THE EXPENSES OF RS.40 000/- WAS NOT SUBSTANTIATED AND E XPLAINED BY THE ASSESSEE AND ACCORDINGLY HE MADE THE ADDITION OF RS.40 000/- IN RESPECT OF THE ADVANCEMENT OF LOAN BY THE ASSESSEE. WHEN THE MATTER WENT BEFORE THE CIT(A) THE CIT(A) CONFI RMED THE ORDER OF THE A.O. AND REJECTED THE CONTENTION OF THE ASSESSEE THAT THE ADVANCE OF RS.4 0 000/- WAS MADE OUT OF THE DECLARATION MADE DURING THE COURSE OF SURVEY BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION BEFORE US THE LD. A.R. POINTED OUT THAT THERE HAD BEEN SURVEY IN THE CASE ON 03.09.2001 AND DURING THE COURSE OF SURVEY PROCEEDINGS THE ASSESSEE HAS MADE DECLARA TION IN RESPECT OF THE INCOME FOR THE A.Y. 2000-01 RS.70 000/- 2001-02 RS.1 50 000/- 2002-03 RS.2 00 000/- AND ACCORDINGLY THE ASSESSEE SUBMITTED THE RETURN. THUS IT WAS POINTED OUT THA T THE ASSESSEE HAS DECLARED RS.70 000/- FOR A.Y. 2000-01 WHICH WAS AVAILABLE FOR THE ASSESSEE T O ADVANCE AN AMOUNT OF RS.40 000/- WHICH 4 WAS ADDED DURING THE A.Y. UNDER CONSIDERATION AND C ONFIRMED BY THE CIT(A). THE ASSESSEE SHOULD BE ALLOWED A SET OFF OF RS.40 000/- AGAINST INCOME OF RS.70 000/-. 10. THE LD. D.R. ON THE OTHER HAND RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 11. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. I NOTED THAT THE ASSESSEE HAS DECLARED A SUM OF RS.70 000/- FOR THE A.Y. UNDER CONSIDERATION BY FILING REVISED RETURN ON 31.03.2002. WHEN THE SURVEY TOOK PLACE A T THE PREMISES OF THE ASSESSEE ON 03.09.2001. THE SUM OF RS.70 000/- THUS WAS AVAILABLE TO THE AS SESSEE FOR INVESTMENT AS THE SAME HAS BEEN EARNED BY THE ASSESSEE DURING THE A.Y. 2000-01. NO MATERIAL OR EVIDENCE HAS BEEN BROUGHT ON RECORD THAT THIS AMOUNT HAS BEEN INVESTED BY THE AS SESSEE SOMEWHERE ELSE. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE I AM OF THE VIEW THAT TH E ADDITION OF RS.30 000/- CANNOT BE SUSTAINED AND THE ASSESSEE CAN CLAIM SET OFF OF THE SAID INCO ME AGAINST THE SUM OF RS.70 000/- FOR THE A.Y. UNDER CONSIDERATION. THUS THIS GROUND OF APPEAL T HUS STANDS ALLOWED. 12. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.125/AGR/2009 A.Y. 1999-2000 13. GROUND NO.1 SINCE NOT PRESSED THE SAME STANDS DISMISSED AS NOT PRESSED. 14. GROUND NO.2 RELATES TO THE SUSTENANCE OF ADDITI ON OF RS.9874/- IN RESPECT OF LOW HOUSEHOLD EXPENSES. 5 15. AT THE TIME OF HEARING IT WAS CONTENDED THAT T HE ASSESSEE HAS MADE THE WITHDRAWAL OF RS.22 124/-. THE A.O. ESTIMATED THE HOUSEHOLD DRAW ING AT RS.36 000/- WHILE THE CIT(A) REDUCED THE HOUSE HOLD EXPENSES TO RS.32 000/- FOR THE WHOLE FAMILY AND SUSTAINED THE ADDITION AT RS.9876/-. IT WAS CONTENDED THAT A SUM OF RS.5 000/- HAS ALREADY BEEN ADDED IN THE CASE OF SMT. SADHNA JAIN AGAINST WHICH THE ASSESSEE IS NOT IN APPEAL. THEREFORE ADDITION SHOULD BE RESTRICTED TO RS.4876/-. 16. LD. D.R. RELIED ON THE ORDERS OF THE AUTHORITIE S BELOW. 17. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. I NOTED THAT THE CIT(A) CONFIRMED THE ADDITION TO THE EXTENT OF RS.9 876/-. THE SUM OF RS.5 000/- HAS ALREADY BEEN CONFIRMED BY THE CIT(A) IN THE HANDS OF SMT. S ADHNA JAIN COPY OF ORDER OF SMT. SADHNA JAIN WAS FILED BEFORE US. I ACCORDINGLY REDUCE THE ADDITION TO RS.4 876/-. THUS THIS GROUND OF APPEAL IS PARTLY ALLOWED. 18. GROUND NO.3 IS SIMILAR TO GROUND NO.3 TAKEN BY THE ASSESSEE IN ITA NO.124/AGR/2009. BOTH THE PARTIES AGREED THAT THE VIEW TAKEN BY THIS TRIBUNAL WHILE DISPOSING OF GROUND NO.3 IN A.Y. 2000-01 THE SAME VIEW MAY BE TAKEN IN THIS GRO UND ALSO. I HAVE CONFIRMED THE ORDER OF CIT(A) SO FAR IT RELATES TO THE ADDITION OF RS.16 8 76/- BUT I ACCEPTED THE CLAIM OF THE ASSESSEE AND IN RESPECT OF THE REBATE CLAIMED UNDER SECTION 88 A ND ACCORDINGLY DIRECTED THE A.O. TO ALLOW DEDUCTION TO THE ASSESSEE UNDER SECTION 88 OF THE A CT FOR RS.16 876/-. THUS THIS GROUND OF APPEAL STANDS ALLOWED TO THAT EXTENT AND THE A.O. I S DIRECTED TO ALLOW DEDUCTION TO THE ASSESSEE UNDER SECTION 88 IN RESPECT OF THE LIC PREMIUM. 19. GROUND NO.4 RELATES TO THE SUSTENANCE OF ADDITI ON OF RS.13 000/-. 6 20. THE FACTS RELATING TO THIS ADDITION ARE THAT DU RING THE COURSE OF SEARCH LOOSE PAPERS WERE FOUND CONSISTING OF PASS BOOK AND OF KUBER MUTUAL B ENEFITS IN THE NAME OF SMT. KOMAL MEHTA DAUGHTER AND IN THE NAME OF SHASHANK SON OF THE AS SESSEE AT RS.9 000/- AND RS.4000/- RESPECTIVELY MADE DURING THE YEAR. THE A.O. TREATE D THE SAID DEPOSIT AS UNDISCLOSED INCOME OF THE ASSESSEE AND REJECTED THE CONTENTION OF THE ASS ESSEE THAT THE MONEY BELONGED TO HIS SON AND DAUGHTER WERE OUT OF THE GIFT RECEIVED FROM ASSESSE ES WIFES PARENTS AND LATE MOTHER SMT. KAMLA BAI TATIA. WHEN THE MATTER WENT BEFORE THE CIT(A) THE CIT(A) CONFIRMED THE ACTION OF THE A.O. 21. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. IN MY OPINION THE PLEA TAKEN BY THE LD. A.R. IS PLAUSIBLE ONE. THIS IS A CUSTOM IN HINDU SOCIETY THAT THE GI FTS ARE GIVEN BY PARENTS AND GRAND PARENTS TO THEIR CHILDREN AT THE TIME OF THEIR BIRTH AND VARIO US OTHER FESTIVALS. IF THE ASSESSEE HAS CHOSEN TO KEEP THE GIFT IN THE SEPARATE ACCOUNT OF THE ASSESS EE THESE GIFTS CANNOT BE REGARDED TO BE THE INCOME OF THE ASSESSEE. THE DEPOSITS ARE IN THE NA ME OF THE DAUGHTER AND SON OF THE ASSESSEE WHICH IS APPARENT FROM COPY OF PASS BOOK OF KUBER M UTUAL BENEFIT. I THEREFORE DELETE THE ADDITION. 22. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 06.07.2010). SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 19 TH JULY 2010. 7 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TR IBUNAL AGRA TRUE COPY