The ITO, Ward-1(1),, Bhavnagar v. Smt. Ashaben Nileshkumar Gupta, Bhavnagar

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.S. SAINI ACCOUNTANT MEMBER DATE OF HEARING:19.04.2010 DRAFTED ON:19.04.201 0 ITA NO.1371/AHD/2008 ASSESSMENT YEAR : 2001-2002 I.T.O. WARD-1(1) AAYKAR BHAVAN NAKUBAUG NEAR JASHONATH CIRCLE BHAVNAGAR. V/S SMT. ASHABEN NILESHBHAI GUPTA 12A RADHAKRISHNA ANJANESHWAR PARK TILAKNAGAR BHAVNAGAR. PAN NO. AEEPG 6386 E (APPELLANT) (RESPONDENT) ITA NO.1373/AHD/2008 ASSESSMENT YEAR : 2001-2002 I.T.O. WARD-1(1) AAYKAR BHAVAN NAKUBAUG NEAR JASHONATH CIRCLE BHAVNAGAR. V/S SHRI NILESH R. GUPTA 12A RADHAKRISHNA ANJANESHWAR PARK TILAKNAGAR ROAD TILAKNAGAR BHAVNAGAR. PAN NO. ABSPG 8546 L (APPELLANT) (RESPONDENT) FOR DEPT. : SHRI RAJA RAM SAH SR. DR FOR ASSESSEE : SHRI DHIREN SHAH C.A. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THESE ARE THE APPEALS FILED BY THE REVENUES AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XX AHMEDABAD DATED 28.12.2007 FOR ASSESSMENT YEAR 2001-02. 2. GROUND NOS. 1 TO 4 OF THE APPEAL IN ITA NO.1371 /AHD/2008 RELATES TO THE DELETION OF PROTECTIVE ADDITION MADE IN THE HANDS OF THE - 2 - WIFE OF SHRI NILESHBHAI R.GUPTA WHEREAS THE GROUND NOS. 1 TO 4 OF THE APPEAL IN ITA NO.1372/AHD/2008 RELATES TO THE DELET ION OF SUBSTANTIVE ADDITION MADE BY THE LEARNED ASSESSING OFFICER IN T HE HANDS OF SHRI NILESHBHAI R. GUPTA. THE SAID GROUNDS ARE AS FOLLOW S. 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.60 000/- MADE BY THE ASSESSING O FFICER ON PROTECTIVE BASIS ON ACCOUNT OF PURCHASE OF PLOT OF LAND AS UNEXPLAINED INVESTMENT U/S 69 OF THE I.T.ACT. 2. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.2 85 000/- MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS ON ACCOUNT OF PURCHASE OF SHOP AS UNEXPLAINED INVESTMENT U/S 69 OF THE I.T.ACT. 3. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.5 24 000/- MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS ON ACCOUNT OF SALE TRANSACTION OF PROPERTIES ON 30.09.2000 AS UNEXPLAINED INVESTMENT U/S 69 OF THE I.T.ACT. 4. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.24 000/- MADE BY THE ASSESSING O FFICER ON SUBSTANTIVE BASIS ON ACCOUNT OF KVP AS UNEXPLAINED INVESTMENT U/S 69 OF THE I.T.ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNE D ASSESSING OFFICER TREATED INVESTMENT MADE IN PURCHASE OF PLOT ON 22.09.2000 RS.60 000/- RS.2 85 000/- IN THE PURCHASE OF SHOP ON 22.12.2000 AND INVESTMENT OF RS.5 24 000/- IN THE PROPERTY ON 30.0 9.2000 AS INVESTMENT BY SHRI NILESHKUMAR R. GUPTA AND ADDED THE SAME IN HIS INCOME AS NO PERMISSION FOR GOVERNMENT WAS TAKEN AS PER CONDUCT RULES. HE SIMULTANEOUSLY MADE ADDITION OF THE SAME AMOUNT IN THE HANDS OF SMT. ASHABEN N. GUPTA AS UNEXPLAINED INVESTMENT UNDER SE CTION 69 OF THE INCOME TAX ACT 1961 ON PROTECTIVE BASIS. THE LEAR NED ASSESSING OFFICER ALSO MADE ADDITION OF RS.24 000/- INVESTMEN T IN KVP AS - 3 - UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE UNDER S ECTION 69 OF THE ACT. 4. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETED THE PROTECTIVE ADDITION MADE I N THE HANDS OF SMT. ASHABEN N. GUPTA OBSERVING THAT THE ASSESSEE HAS FI LED COPY OF BALANCE SHEET ALONG WITH RETURN OF INCOME. THE ASSESSEE HAS ALSO FILED COPY OF GIFT DEED IN RESPECT OF GIFT RECEIVED DURING THE YE AR OF RS.45 000/-. THE ASSESSEE HAS ALSO FILED CONFIRMATION OF LOAN OF R.S 58 000/- RECEIVED FROM VARIOUS PERSONS. THUS THE SOURCE OF INVESTMENT HAS BEEN DULY EXPLAINED WITH SUPPORTING EVIDENCES IN THE FORM OF AFFIDAVITS IN RESPECT OF GIFTS AND CONFIRMATION FOR LOANS RECEIVED. THE ASSESSEE PRODU CED BOOKS OF ACCOUNT ALONGWITH SUMMARY OF CASH BOOK SHOWING SOURCES AND INVESTMENT. THE LEARNED ASSESSING OFFICER HAS NOWHERE ESTABLISHED T HAT ASSESSEE HAS MADE INVESTMENT OF RS.60 000/- IN PLOT OUT OF UNEXP LAINED SOURCE. THEREFORE HE DELETED THE ADDITION OF RS.60 000/- M ADE ON PROTECTIVE BASIS FOR PURCHASE OF LAND. 5. WE REGARD TO ADDITION OF RS.2 85 000/- ON ACCOU NT OF INVESTMENT IN SHOP THE LEARNED COMMISSIONER OF INC OME TAX(APPEALS) OBSERVED THAT RS. 1 25 000/- WAS PAID BY THE ASSESS EE AND SUBSEQUENTLY THE AGREEMENT TO SALE OF SHOP ENTERED ON 22.12.2000 FOR SHOP AT KAKA SHOPPING CENTER FOR AN AMOUNT OF RS.2 85 000/- WAS CANCELLED ON 2.05.2001 AND THE CANCELLATION DOCUMENT IS ALSO FUR NISHED. FROM THE COPY OF ASSESSEES BALANCE SHEET IT EVIDENT THAT T HE ASSESSEE HAS REFLECTED THE INVESTMENT OF RS.1 25 000/- IN HER BALANCE SHEE T FILED WITH THE RETURN ON INCOME. THE ASSESSEE HAS ALSO EXPLAINED THE SOUR CE OF INVESTMENT AS OUT OF SALE OF GOLD WHICH IS SUPPORTED BY CONFIRMAT ION AND SALE BILL OF - 4 - GOLD OF M/S. SONI CHAMANLAL J. BHINDI. VERIFICATION OF WHICH SHOWS THAT THE ASSESSEE HAS RECEIVED SALE CONSIDERATION OF RS. 1.25.019/- FROM SALE OF GOLD. HENCE THE LEARNED COMMISSIONER OF INCOME TA X(APPEALS) HELD THAT THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIE D IN MAKING THE ADDITION OF RS.2 85 000/- AND DELETED THE SAME. 6. WITH REGARD TO THE PROTECTIVE ADDITION OF RS.5 24 000/- ON ACCOUNT OF INVESTMENT IN PROPERTY THE LEARNED COMM ISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT THE INVESTMENT IN THE P LOT OF LAND AT 392/35/A-1 JAMNAGAR ON 29.11.2000 ADDITION WAS AL READY MADE BY THE LEARNED ASSESSING OFFICER IN THE ASSESSMENT YEAR 2 001-02. THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR BARTER S YSTEM WITH SHRI JOGENDRA K. RIDHANI AND THE COST OF LAND WAS AGREED FOR RS.5 24 000/- AND ONLY RS.60 000/- WAS PAID BY THE ASSESSEE ON 30 .09.2000. THE SAID AGREEMENT WAS SUBSEQUENTLY CANCELLED AND AMOUNT OF RS.60 000/- WAS REPAID TO THE ASSESSEE BY SHRI JOGENDRA K. RIDHANI AND A COPY OF AGREEMENT HAS BEEN FURNISHED BY THE ASSESSEE. THE S OURCE OF INVESTMENT WAS EXPLAINED TO BE OUT OF OPENING BALANCE GIFT REC EIVED AND LOAN TAKEN FOR WHICH GIFT DEED AND CONFIRMATION WERE FILED. TH E LEARNED ASSESSING OFFICER HAS NOT ESTABLISHED THAT THE ASSESSEE MADE INVESTMENT OF RS.5 24 000/- IN THE PROPERTY. THEREFORE THE LEARN ED COMMISSIONER OF INCOME TAX(APPEALS)HELD THAT THE ADDITION OF RS.5 2 4 000/- MADE BY THE LEARNED ASSESSING OFFICER ON PROTECTIVE BASIS WAS N OT JUSTIFIED AND DELETED THE SAME. 7. WITH REGARD TO THE ADDITION OF RS.24 000/- BEIN G INVESTMENT IN KVP THE LEARNED COMMISSIONER OF INCOME TAX(APPE ALS) OBSERVED THAT THE ASSESSEE HAS PRODUCED BOOKS OF ACCOUNT BEF ORE THE LEARNED ASSESSING OFFICER AND SUBMITTED CASH BOOK SHOWING - 5 - SOURCE OF INVESTMENT IN KVP. FROM VERIFICATION OF R ECORDS EXPLANATION OF ASSESSEE IN RESPECT OF INVESTMENT IN KVP IS FOUN D TO BE IN ORDER AND THE ADDITION OF RS.24 000/- IS DELETED. 8 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS WIFE OF SHRI NILESH R. GUPTA WHO IS AN INSPECTOR IN THE EXCISE DEPARTMENT. AN OPERATION BY ANTI CORRUPTION BUREAU (IN SHORT ACB) WAS CONDUCT ED IN THE CASE OF SHRI NILESH R. GUPTA ON 4.11.2001. ASSESSEE FILED H ER RETURN OF INCOME FOR ASSESSMENT YEAR 2001-02 WHICH IS UNDER APPEAL O N 11.04.2001 I.E. BEFORE THE CONDUCT OF OPERATION BY THE ANTI CORRUPT ION BUREAU IN THE CASE OF SAID SHRI NILESH R. GUPTA. THE LEARNED ASS ESSING OFFICER THEREAFTER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 147 ON 29.12.2006. IN THE SAID ASSESSMENT THE LEARNED ASSESSING OFFICER ADDED RS.60 000/- ON ACCOUNT OF INVESTMENT IN LAND RS.2 85 000/- ON ACCOUNT OF INVESTMENT IN SHOP AND RS.5 24 000/- ON ACCOUNT OF INVESTMENT IN PROPERTY AT JAMNAGAR IN TH E HANDS OF THE ASSESSEE ON PROTECTIVE BASIS BY TREATING THE SAME A S UNEXPLAINED INVESTMENT AND ALSO MADE ADDITION OF THE SAME AMOUN T IN THE HANDS OF SAID SHRI NILESH R. GUPTA ON SUBSTANTIVE BASIS. WE FIND THAT THE CIT(A) HAS FOUND THAT THE ACTUAL INVESTMENT WAS NOT RS.8 9 3 000/-(RS.60 000/- + 2 85 000/- + 5 24 000/- + 24 000/-) AND ACTUAL INVE STMENT DURING THE YEAR UNDER CONSIDERATION WAS RS.2 69 000/-(RS.60 000/- + 1 25 000/- + 60 000/- + 24 000/-) ONLY. THE LEARNED COMMISSIONE R OF INCOME TAX(APPEALS) FURTHER FOUND THAT THE ABOVE INVESTMEN T WAS SHOWN BY THE ASSESSEE IN HER BALANCE SHEET FILED WITH THE DEPART MENT ALONGWITH HER RETURN OF INCOME AND THE SOURCE OF SUCH INVESTMENT WAS COVERED BY - 6 - OPENING CAPITAL GIFTS RECEIVED BY THE ASSESSEE LO AN RECEIVED BY THE ASSESSEE AND SALE OF GOLD ORNAMENTS. THUS THE LEA RNED COMMISSIONER OF INCOME TAX(APPEALS) FINDING THAT THE SOURCE OF I NVESTMENT OF RS.2 69 000/- BEING FULLY EXPLAINED BY THE ASSESSEE HE DELETED THE ENTIRE ADDITION OF RS.8 93 000/-. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE LEARNED ASSESSING OFFICER AND THE LEARNED AUTHORISED REPRESENTATIVE OF THE AS SESSEE RELIED UPON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND ALSO FILED A PAPER BOOK WHEREIN HE HAS FILED COPIES OF BALANCE SHEET COMPUTATION OF TOTAL INCOME FILED ALONGWITH THE RET URN OF INCOME OF THE ASSESSEE COPY OF GIFT DEEDS LOAN CONFIRMATIONS AN D COPY OF SALE BILLS OF THE OLD GOLD ORNAMENTS WHICH WERE ALSO FILED BEFORE THE LEARNED ASSESSING OFFICER. WE FIND THAT THE LEARNED COMMISS IONER OF INCOME TAX(APPEALS) HAS AFTER GOING THROUGH THE CONNECTED DOCUMENTS FOUND THAT THE ACTUAL INVESTMENT FILED BY THE ASSESSEE DU RING THE YEAR UNDER CONSIDERATION IN RESPECT OF THREE PROPERTIES AND IN VESTMENT IN KVP IN QUESTION WAS ONLY RS.2 69 000/- AND NOT RS.8 93 000 /- BY THE LEARNED ASSESSING OFFICER. THE ABOVE FINDING OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) COULD NOT BE DISPUTED BY THE LE ARNED DEPARTMENTAL REPRESENTATIVE BEFORE US AND NO MATERIAL WAS BROUG HT BEFORE US TO CONTROVERT THE ABOVE FINDING OF THE LEARNED COMMISS IONER OF INCOME TAX(APPEALS). FURTHER IT IS OBSERVED THAT THE CLAI M OF THE ASSESSEE OF RECEIVING GIFT OF RS.45 000/- LOAN OF RS.78 000/- AND SALE PROCEEDS OF GOLD ORNAMENTS RS.1 25 019/- WERE NOT FOUND TO BE F ALSE OR INCORRECT BY THE LEARNED ASSESSING OFFICER. THUS THE ABOVE RECE IPTS BY THE ASSESSEE ALONGWITH OPENING CAPITAL AND TUITION INCOME EARNED BY THE ASSESSEE EXPLAINS THE SOURCE OF INVESTMENT OF RS.2 69 000/- AS HELD BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) COULD NOT BE CO NTROVERTED BY THE - 7 - REVENUE. WE FIND THAT NO SPECIFIC ERROR IN THE ORD ER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) COULD BE POINTE D OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. IN THE ABOVE F ACTS AND CIRCUMSTANCES OF THE CASE WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX(APPEALS). THEREFORE THE APPEAL FILED BY THE REVENUE ON THE A BOVE FOUR GROUNDS IS DISMISSED. 9. GROUND NO. 5 OF THE APPEAL IN THE CASE OF SMT. ASHABEN N. GUPTA RELATES TO ADDITION OF RS.2 37 227/- ON ACCOU NT OF FD WITH BANKS. 10. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARN ED ASSESSING OFFICER OBSERVED THAT INVESTMENT IN FD IS TREATED A S INVESTMENT BY SHRI NILESH R. GUPTA AND ADDED IN HIS INCOME. ALSO NO P ERMISSION FROM GOVERNMENT WAS TAKEN AS PER GOVERNMENT RULES. HOWEV ER THE AMOUNT OF RS.2 37 227/- IS ADDED TO THE TOTAL INCOME OF THE A SSESSEE AS HER UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT ON SUBSTANTIVE BASIS. 11. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT AFTER GOING THROUGH THE VARIOUS PAPERS AND DOCUMENTS IT IS EVIDENT THAT FD OF RS.25 000/- BEL ONGING TO THE ASSESSEE PERTAINS TO ASSESSMENT YEAR 2000-01. THE LEARNED AS SESSING OFFICER HAS ALSO NOWHERE ESTABLISHED THIS FD OF RS.25 000/- DOE S NOT PERTAIN TO ASSESSMENT YEAR 2000-01. THE ASSESSEE IS A REGULAR INCOME TAX ASSESSEE AND FILING HER INCOME TAX RETURN REGULARLY. THE CO NTENTION OF THE ASSESSEE THAT THE SOURCE OF INVESTMENT IN THE FD OF RS.25 00 0/- IS FROM GIFT RECEIVED FROM SMT. SHANTIDEVI GUPTA AND THE EXPLANA TION FOR THE SAME WAS OFFERED IN ASSESSMENT YEAR 2000-01 WAS FOUND TO BE PLAUSIBLE SINCE - 8 - THE ASSESSEE HAS FILED COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2000-01 AND NO ADDITION WAS MADE BY THE LEARNED ASS ESSING OFFICER IN ASSESSMENT YEAR 2000-01. IN RESPECT OF FDS FOR RS. 50 000/- RS. 62 227/- RS.50 000/- AND RS. 50 000/- THAT THE CO NTENTION OF THE ASSESSEE THAT THE SAME ARE PERTAINING TO THE HUSBAND OF ASSE SSEE SHRI NILESH R. GUPTA AND THE SAME WERE CONSIDERED IN THE ORIGINAL ASSESSMENT PROCEEDING FOR ASSESSMENT YEAR 2001-02 IN HIS CASE IS PLAUSIBLE SINCE THE ASSESSEE HAS FURNISHED COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2001-02 PASSED BY THE ITO WARD 3(4) JAMNAGAR AND F ROM VERIFICATION OF COPY OF ASSESSMENT ORDER IT IS SEEN THAT THE ITO HA S MADE DISCUSSIONS ABOUT THE FOUR FDRS IN PARA 6 PAGE 2 OF THE ASSESS MENT ORDER THEREFORE HE HELD THAT THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.2 37 227/- AND DELETED THE SAME. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. WE FIND THAT OUT OF TOTAL FDRS OF RS.2 37 227/- THE LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) FOUND THAT INVESTMENT IN FDRS O F RS.25 000/- WAS MADE BY THE ASSESSEE IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2000-01 AND NOT DURING THE PREVIOUS YEAR RELEV ANT TO THE ASSESSMENT YEAR UNDER APPEAL. FURTHER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ALSO FOUND THAT THE BALANCE FDR S OF RS.2 12 000/- WAS PURCHASED BY SHRI NILESH R. GUPTA AND NOT BY TH E ASSESSEE AND THE SAME WAS CONSIDERED IN THE HANDS OF THE SAID SHRI N ILESH R. GUPTA. THUS THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ON THE BASIS OF HIS ABOVE FINDINGS DELETED THE ENTIRE ADDITION OF RS.2 37 227/- MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF INVESTMENT IN FDRS. WE FIND THAT NO ERROR IN THE ABOVE FINDING OF THE LEARNED C OMMISSIONER OF - 9 - INCOME TAX(APPEALS) COULD BE POINTED OUT BY THE REV ENUE BEFORE US. WE THEREFORE FIND NO MERIT IN THIS GROUND OF APPEAL O F THE REVENUE WHICH IS HEREBY DISMISSED. 13. THE GROUND NO.6 OF THE APPEAL IN THE CASE OF S MT. ASHABEN N. GUPTA RELATES TO RELATES TO ADDITION OF RS.1 74 336/-. 14. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARN ED ASSESSING OFFICER OBSERVED THAT INVESTMENT IN SAVINGS BANK AC COUNT IN VARIOUS BANKS IS TREATED AS INVESTMENT BY SHRI NILESH R. GU PTA AND ADDED IN HIS INCOME. ALSO NO PERMISSION FROM GOVERNMENT WAS TAKE N AS PER GOVERNMENT RULES. HOWEVER THE AMOUNT OF RS.1 74 336 /- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS HER UNEXPLAINED INV ESTMENT UNDER SECTION 69 OF THE ACT ON SUBSTANTIVE BASIS. 15. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT AFTER GOING THROUGH THE PAPERS AND DOCUMENTS IT SEEN THAT RS.98 871/- RELATES TO CRED IT ENTRY FOR FY 2000-01 WITH BANK OF BARODA ACCOUNT NO.11524 IN THE NAME OF SHRI NILESH R. GUPTA AND SMT. ASHABEN N. GUPTA AND RS.75 000/- AS PER CREDIT ENTRY FOR FY 2000-01 WITH BANK OF BARODA ACCOUNT NO.115 62 IN THE NAME OF SMT. ASHA GUPTA AND NILESH GUPTA. THUS FROM ABOVE IT IS CLEAR THAT RS.98.871/- IN THE BANK ACCOUNT NO.11524 PERTAINS T O NILESH GUPTA HUSBAND OF THE ASSESSEE. THE CONTENTION OF THE AS SESSEE IS THAT ADDITION OF RS.98 871/- WAS MADE IN THE CASE OF SHRI NILESH R. GUPTA IN ASSESSMENT YEAR 2001-02 BY THE LEARNED ASSESSING OF FICER WHICH WAS DELETED IN APPEAL BY THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS). FROM VERIFICATION OF COPY OF ASSESSMENT ORDER AND L EARNED - 10 - COMMISSIONER OF INCOME TAX(APPEALS)S ORDER THE CO NTENTION OF THE ASSESSEE IS FOUND TO BE CORRECT. AS REGARD THE BAL ANCE AMOUNT OF RS.75 465/- THE ASSESSEE HAS EXPLAINED THAT RS.8 0 00/- WAS OUT OF CASH AVAILABLE AND RS.67 465/- WAS OUT OF PROFIT ON SALE OF SHARES REFLECTED IN THE RETURN OF INCOME IN SUPPORT OF WHICH THE ASSESS EE HAS FILED SUMMARY OF CASH BOOK WHEREIN RS.8000/- IS APPEARING ON THE DEBIT SIDE AS TUITION INCOME AND THEREFORE THE CONTENTION OF THE ASSESSE E THAT THE CASH OF RS.8 000 IS AVAILABLE IS FOUND TO BE IN ORDER. IN R ESPECT OF RS.67 465/- THE CONTENTION OF THE ASSESSEE IS THAT IT IS FROM T HE PROFIT ON SALE OF SHARES REFLECTED IN THE INCOME TAX RETURN FILED FOR ASSESS MENT YEAR 2001-02 IS FOUND TO BE CORRECT. FROM THE COPY OF ACKNOWLEDGEM ENT OF RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2001-02 ALONG WITH COMPUTATION OF INCOME AND INCOME EXPENDITURE ACCOUNT. THEREFORE T HE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HELD THAT THE L EARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.1 74 336/- AND DELETED THE SAME. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. THE LEARNED ASSESSING OFFICER OBSERVING THAT THERE WAS CREDIT OF RS.98 871/- IN SAVING BANK ACCOUNT NO.11524 MADE WITH BANK OF B ARODA AND RS.75 465/- IN SB ACCOUNT NO.11562 MADE WITH BANK O F BARODA ADDED RS.1 74 336/- TO THE INCOME OF THE ASSESSEE ON PROT ECTIVE BASIS. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOUND T HAT SAVING ACCOUNT NO.11524 MADE WITH BANK OF BARODA WAS OWNED BY SHRI NILESH R. GUPTA HUSBAND OF THE ASSESSEE AND NOT BY THE AS SESSEE. THEREFORE THE ADDITION OF RS. 98 871/- IS TO BE CONSIDERED IN THE HANDS OF THE SAID SHRI NILESH R. GUPTA AND NOT IN THE HANDS OF THE ASSESSE E. FURTHER IN RESPECT - 11 - OF CREDIT OF RS.75 465/- IN ACCOUNT NO. 11562 WITH BANK OF BARODA THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOUND T HAT RS.67 465/- WAS OUT OF SALE PROCEEDS OF SHARES HELD BY THE ASSE SSEE AND RS.8 000/- WAS OUT OF TUITION INCOME SHOWN BY ASSESSEE IN HER RETURN OF INCOME. AS THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOU ND THAT SOURCE OF ENTIRE DEPOSITS IN SB ACCOUNT NO.11562 STANDS EXPLA INED BY THE ASSESSEE WITH REFERENCE TO HER RETURN OF INCOME HE DELETED THE ADDITION OFRS.1 74 336/-. WE FIND THAT THE LEARNED DEPARTMEN TAL REPRESENTATIVE RELIED UPON THE ORDER OF THE LEARNED ASSESSING OFFI CER AND COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LE ARNED COMMISSIONER OF INCOME TAX(APPEALS). WE FIND THAT NO MATERIAL COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT SB ACCOUNT NO.11 524 MAINTAINED WITH BANK OF BARODA WAS OWNED BY THE ASSESSEE. FURT HER IT IS ALSO OBSERVED THAT THE REVENUE COULD NOT CONTROVERT THE FINDINGS OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) TO THE EFFECT OF DEPOSIT OF RS.67 465/- WAS OUT OF SALE OF SHARES HELD BY TH E ASSESSEE AND RS.8 000/- WAS OUT OF DISCLOSED TUITION INCOME OF T HE ASSESSEE. IT IS ALSO OBSERVED THAT THE TUITION INCOME DISCLOSED BY THE A SSESSEE WAS ACCEPTED BY THE DEPARTMENT AS TRUE AND CORRECT. IN THE ABOVE CIRCUMSTANCES WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNED COMM ISSIONER OF INCOME TAX(APPEALS). IT IS CONFIRMED AND THE GROUND OF APP EAL OF THE REVENUE IS DISMISSED. 17. GROUND NO.7 OF THE APPEAL IN THE CASE OF SMT. ASHABEN N. GUPTA RELATES TO ADDITION OF RS.15 000/- AS UNEXPLA INED INVESTMENT UNDER SECTION 69 OF THE ACT. - 12 - 18. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARN ED ASSESSING OFFICER OBSERVED THAT INVESTMENT IN LLOYDS FINANCE LTD. IS TREATED AS INVESTMENT BY SHRI NILESH R. GUPTA AND ADDED IN HIS INCOME. ALSO NO PERMISSION FROM GOVERNMENT WAS TAKEN AS PEER GOVERN MENT RULES. HOWEVER THE AMOUNT OF RS.15 000/- IS ADDED TO THE T OTAL INCOME OF THE ASSESSEE AS HER UNEXPLAINED INVESTMENT UNDER SECTIO N 69 OF THE ACT ON SUBSTANTIVE BASIS. 19. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT THE CONTENTION OF THE AS SESSEE IS THAT THREE FIXED DEPOSITS OF RS.5 000/- EACH OF LLOYDS FINANCE ARE DATED 25.04.1997 25.04.1997 AND 14.05.1997 AND THEREFOR E THE INVESTMENTS WERE MADE IN THE FY 1997-98 THE SOURCE OF THE SAME HAS BEEN EXPLAINED BY FILING THE COPY OF BALANCE SHEET WHEREIN THE SAI D INVESTMENT IS DULY REFLECTED. THEREFORE THE LEARNED COMMISSIONER OF I NCOME TAX(APPEALS) HELD THAT THE LEARNED ASSESSING OFFICER WAS NOT JUS TIFIED IN MAKING THE ADDITION OF RS.15 000/- AND DELETED THE SAME. 20. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. THE LEARNED ASSESSING OFFICER MADE ADDITION OF RS.15 00 0/- ON ACCOUNT OF INVESTMENT IN FIXED DEPOSITS WITH LLOYDS FINANCE LT D. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETED THE ABO VE ADDITION BY OBSERVING THAT THE SAID INVESTMENT WAS MADE BY THE ASSESSEE ON 25.04.1997 25.04.1997 AND 14.05.1997 AND NOT DURIN G THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION . NO MATERIAL WAS BROUGHT BEFORE US TO CONTROVERT THE ABOVE FINDING O F THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). THEREFORE WE DO NOT FIND ANY - 13 - MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. HENC E THE SAME IS DISMISSED. 21. GROUND NO.8 OF THE APPEAL OF THE ASHABEN GUPTA IS DIRECTED AGAINST ADDITION OF RS.2 80 795/- ON ACCOUNT OF CAS H AS UNEXPLAINED UNDER SECTION 69 OF THE ACT. 22. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARN ED ASSESSING OFFICER OBSERVED THAT THIS IS TREATED AS INVESTMENT BY SHRI NILESH R. GUPTA AND ADDED IN HIS INCOME. ALSO NO PERMISSION F ROM GOVERNMENT WAS TAKEN AS PEER GOVERNMENT RULES. HOWEVER THE AMO UNT OF RS.2 80 795/- IS ADDED TO THE TOTAL INCOME OF THE A SSESSEE AS HER UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT ON SUBSTANTIVE BASIS. 23. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT SINCE ADDITION OF RS.9 7 1 770/- WAS MADE IN THE CASE OF SHRI NILESH R. GUPTA FOR ASSESSMENT YEA R 2002-03 AND ON APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPE ALS) VIDE ORDER DATED 30.02.2006 CONFIRMED THE SAID ADDITION THERE FORE THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER IN THE HANDS OF THE ASSESSEE IS NOT BASED ON COGENT REASONS EXCEPT ON SUSPICION AND DOU BT. THE LEARNED ASSESSING OFFICER HAS NOT ESTABLISHED THAT THE CASH OF RS.2 80 795/- IS THE UNEXPLAINED INVESTMENT OF THE ASSESSEE. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT IF ANY ADDITION W AS TO BE MADE IT HAS TO BE MADE IN THE HANDS OF THE NILESH R. GUPTA HUSBAND OF THE ASSESSEE AND THE LEARNED ASSESSING OFFICER SHRI NI LESH GUPTA HAS ALREADY MADE ADDITION OF RS.9 71 770/- ON ACCOUNT O F UNEXPLAINED CASH IN THE ASSESSMENT YEAR 2002-03 AND CONFIRMED BY THE LEARNED - 14 - COMMISSIONER OF INCOME TAX(APPEALS) THEREFORE THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.2 80 795/- IN THE HANDS OF THE ASSESSEE AND DELETED THE SAME. 24. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. THE LEARNED ASSESSING OFFICER OBSERVED THAT THE CASH OF RS.2 80 795/- WAS FOUND ON 4.11.2001 DURING THE OPERATION CONDUCTED B Y ANTI CORRUPTION BUREAU IN THE CASE OF NILESH R. GUPTA. THE LEARNED ASSESSING OFFICER ADDED THIS CASH ON PROTECTIVE BASIS IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02. WE FIND THAT THE CASH WAS FOUND ON 4.11.2001 WHICH IS BEYOND THE PREVIOUS YEAR RELEVANT TO THE A SSESSMENT YEAR UNDER APPEAL. THEREFORE NO ADDITION ON ACCOUNT OF AFORES AID CASH FOUND ON 4.11.2001 CAN BE LEGALLY MADE IN THE ASSESSMENT OF ASSESSMENT YEAR 2001-02. THUS WE DO NOT FIND ANY MERIT IN THIS GRO UND OF APPEAL OF THE REVENUE. HENCE THE SAME IS DISMISSED. ITA NO.1373/AHD/2008 25. IN THIS APPEAL THE REVENUE HAS TAKEN THE FOLL OWING GROUNDS OF APPEAL:- 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE C ASE IN DELETING THE ADDITION OF RS.60 000/- MADE BY THE ASSESSING O FFICER ON PROTECTIVE BASIS ON ACCOUNT OF PURCHASE OF PLOT OF LAND 29.9.2000. 2. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE C ASE IN DELETING THE ADDITION OF RS.2 85 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INVESTMENT MADE FOR PURCHASE OF SHOP AT RAJKOT. 3. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE C ASE IN DELETING THE ADDITION OF RS.5 24 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SALE TRANSACTION OF PROPERTIES ON 30. 09.2000. - 15 - 26. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) IN RESPECT OF ABOVE GROUNDS OF APPEAL HAS HELD AS FOLL OWS: 27. THE ASSESSEE HAS FILED COPY OF BALANCE SHEET W ITH THE RETURN OF INCOME FILED BY SMT. ASHABEN NILESH GUPTA WIFE O F THE ASSESSEE WHEREIN INVESTMENT IN LAND OF RS.60 000/- IS APPEAR ING. THAT APART SIMILAR ADDITION WAS MADE IN ASSESSMENT YEAR 2001- 02 IN THE CASE OF SMT. ASHABEN NILESH GUPTA VIDE ORDER DATED 26.12.20 06 PASSED UNDER SECTION 143(3) READ WITH SECTION 147 FOR WHICH SHE IS ALSO IN APPEAL BEFORE HIM AND FROM VERIFICATION OF PAPERS IT IS SE EN THAT SHE HAS EXPLAINED SOURCE OF INVESTMENT IN LAND. THEREFORE HE HELD THAT THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKI NG ADDITION IN THE HANDS OF THE ASSESSEE OF RS.60 000/- AND DELETED TH E SAME. 28. AS REGARDS THE ADDITION OF RS.2 85 000/- ON AC COUNT OF SHOP SITUATED AT KAKA SHOPPING CENTRE THE LEARNED COMMI SSIONER OF INCOME TAX(APPEALS) HELD THAT SMT. ASHABEN N. GUPTA HAD PU RCHASED THE SHOP BY ENTERING INTO AN AGREEMENT TO SALE WITH SHRI YAS HVANT N. TRIVEDI ON 22.12.2000 FOR RS.2 85 000/- AND ONLY RS.1 25 000/- WAS PAID FOR THE SAME WHICH WAS REFLECTED IN THE BALANCE SHEET FILE D BY SMT. ASHABEN N. GUPTA WITH THE RETURN OF INCOME OF ASSESSMENT YEAR 2001-02. THE LEARNED ASSESSING OFFICER HAS NOT ESTABLISHED THAT THE SHOP DOES NOT BELONG TO SMT. ASHABEN N.GUPTA WHO IS AN INCOME TAX ASSESSEE FILING HER RETURN OF INCOME REGULARLY. THE LEARNED COMMIS SIONER OF INCOME TAX(APPEALS) HELD THAT IF ANY ADDITION IS CALLED FO R THE SAME IS TO BE MADE IN THE HANDS OF SMT. ASHABEN N. GUPTA AND DELE TED THE ADDITION OF RS.2 85 000/-. - 16 - 29. AS REGARDS THE ADDITION OF RS.5 24 000/- ON AC COUNT OF INVESTMENT IN PROPERTY ON 30.09.2000 THE LEARNED C OMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT THE WIFE OF THE A SSESSEE MADE AN INVESTMENT OF RS.60 000/- IN THE PLOT OF LAND AT 39 2/35/A-1 JAMNAGAR ON 22.09.2000 FOR WHICH ADDITION WAS MADE BY THE LEARN ED ASSESSING OFFICER IN THE ASSESSMENT MADE IN THE HANDS OF THE SMT. ASHABEN N. GUPTA. THE LEARNED ASSESSING OFFICER HAS NOWHERE E STABLISHED THAT THE ASSESSEE NILESHBHAI R. GUPTA HAS MADE ANY INVESTMEN T IN THE PROPERTY OF RS.5 24 000/-. THEREFORE HE DELETED ADDITION OF RS .5 24 000/- MADE IN THE HANDS OF SHRI NILESHBHAI R. GUPTA. 30. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. WE FIND THAT THE ADDITION OF SAME AMOUNT WAS ALSO MADE IN T HE CASE OF SMT. ASHABEN N. GUPTA WIFE OF THE ASSESSEE WHICH WAS DEA LT BY US IN DETAIL IN PARA NO.8 OF THE ORDER ABOVE IN THE CASE OF SAID SM T. ASHABEN N. GUPTA. IT IS OBSERVED THAT THE ACTUAL INVESTMENT IN THE TH REE PROPERTIES IN QUESTION WAS NOT RS. 8 69 000/- (RS.60 000/- + RS.2 85 000/- + RS.5 24 000/-) BUT RS. 2 45 000/- (RS.60 000/- + RS .1 25 000/- + RS.60 000/-). FURTHER IT ALSO OBSERVED THAT THE INV ESTMENT WAS MADE IN THE NAME OF SMT. ASHABEN N. GUPTA AND NOT IN THE NA ME OF THE ASSESSEE. IN THE CASE OF SMT. ASHABEN N. GUPTA WE FIND THAT THE SAID INVESTMENT MADE BY HER OUT OF HER EXPLAINED SOURCES IN WHICH N O DEFECT WAS FOUND BY THE LEARNED ASSESSING OFFICER. IN VIEW OF OUR AB OVE DECISION IN THE CASE OF SMT. ASHABEN N. GUPTA AND IN ABSENCE OF ANY MATERIAL BROUGHT BEFORE US TO SHOW THAT THE ACTUAL INVESTMENT IN THE PROPERTIES IN QUESTION WAS IN FACT MADE BY THE ASSESSEE WHEREAS THE AGREEM ENT BEAR THE NAME OF SMT. ASHABEN N. GUPTA ALONE WE DO NOT FIND ANY ERR OR IN THE ORDER OF - 17 - THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). IT IS CONFIRMED AND THE GROUND OF THE REVENUE IS DISMISSED. 31. IN THE RESULT BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 23 RD DAY OF APRIL 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 23 RD APRIL 2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XX AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 19.04.2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 20.04.2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 21.04.2010 ---------- --------- BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 22.04.2010 --------- ---------- BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 22.04.2010 -------- ------------ 6. KEPT FOR PRONOUNCEMENT ON 23.04.2010 -------- ------------ 7. FILE SENT TO THE BENCH CLERK 23.04.2010 ----- --------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------