Kum.Rizwana Yusufali Tinwala, Ahmedabad v. The Income tax Officer,Ward-5(1),, Baroda

ITA 1441/AHD/2009 | 2006-2007
Pronouncement Date: 23-09-2011 | Result: Dismissed

Appeal Details

RSA Number 144120514 RSA 2009
Assessee PAN AAVPT5933L
Bench Ahmedabad
Appeal Number ITA 1441/AHD/2009
Duration Of Justice 2 year(s) 4 month(s) 18 day(s)
Appellant Kum.Rizwana Yusufali Tinwala, Ahmedabad
Respondent The Income tax Officer,Ward-5(1),, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 23-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 23-09-2011
Date Of Final Hearing 20-09-2011
Next Hearing Date 20-09-2011
Assessment Year 2006-2007
Appeal Filed On 05-05-2009
Judgment Text
. .. . . .. . . .. .!' !' !' !' !' !' !' !' # # # # $ $ $ $ IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SHR I A.MOHAN ALONKAMONY A.M.) . ITA NO. 1441 / AHD./2009 : ' %&- 200 6 -200 7 KUMARI RIZWANA Y. TINWALA BARODA VS- I.T.O. WARD-5(1) BARODA (PAN : AAVPT 5933L) ()* /APPELLANT) ( + )* /RESPONDENT ) )* - . / APPELLANT BY : SHRI ANIL R. SHAH + )* - . / RESPONDENT BY : SHRI SAMIR TEKRIWAL SR.D.R. /'0 - 1# / DATE OF HEARING : 20/09/2011 2!% - 1# / DATE OF PRONOUNCEMENT : 23/09/2011 / ORDER PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 17-02-2009 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-V BARO DA FOR THE ASSESSMENT YEAR 2006-2007. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. SHE IS LIC AGENT AND PARTNER IN TWO FIRMS. IN THE ASSESSMENT YEAR UN DER APPEAL SHE FILED THE RETURN OF INCOME ON 31.03.2006 AND DECLARED THE TOTAL INCOME AT RS.1 26 650/-. THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) ON 10.10.2008 A T A TOTAL INCOME OF RS.9 36 700/-. IN THIS ASSESSMENT ORDER THE AO MADE ADDITION OF R S.7 60 050/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE SAVINGS BANK A/C. NO .24824 OF BANK OF INDIA RAOPURA BARODA. THE DETAILS OF THESE DEPOSITS ARE LISTED BY THE AO IN PARA 4 OF THE ASSESSMENT ORDER. 3. ON APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE FI LED A DETAILED CHART OF ALL OUTGOING AND ALL INCOMING CHEQUES. AS PER THIS CHAR T AT THE END OF THE FINANCIAL YEAR ITA NO. 1441-AHD-09 2 SHARES ALLOTTED WERE WORTH RS.86 098/- ONLY. ON THI S BASIS IT WAS PLEADED THAT THERE IS NO SCOPE OF ADDITION AS ALL THE ENTRIES ARE EXPLAIN ABLE AND ALSO CONCEDED THE FACT THAT IN ALTERNATIVE PEAK CREDIT MAY BE CONSIDERED. 3.1 AFTER CONSIDERING THE AFORESAID SUBMISSIONS IN THE IMPUGNED ORDER THE LD. CIT(A) CONFIRMED THE ADDITION TO THE EXTENT OF RS.2 82 102/- GIVING RELIEF OF RS.4 77 948/- TO THE ASSESSEE FOR THE DETAILED REAS ONS GIVEN IN PARA 7.2 WHICH READS AS UNDER: 7.2 IT MAY BE NOTED HERE THAT EVEN THOUGH THE EXPLA NATION OF THE AR IS PRIMA- FACIE ACCEPTABLE HE HAS NOT ANSWERED THE QUESTION AS TO WHY THE SAME WAS NOT DISCLOSED WHILE INDIRECTLY ADMITTING THE FACT THAT THE BANK ACCOUNT IS RELATED TO APPELLANT'S UNACCOUNTED TRANSACTIONS. IN SUCH A SCE NARIO CORRECT APPROACH IS TAXING THE PEAK AMOUNT APPEARING IN THE BANK ACCOUN T AS THE APPELLANT HAS DEMONSTRATED THAT INVESTMENTS MADE FOR ALLOTMENT OF SHARES AND REFUNDS OF SHARE APPLICATION MONEY HAVE OCCURRED ON A REGULAR BASIS. IN VIEW OF THIS THE AMOUNT APPEARING ON 13.01.2006 OF RS.2 28 102/- BEI NG THE BIGGEST IS TAKEN AS PEAK CREDIT AND THE SAME IS TAXABLE AS APPELLANT'S UNDISCLOSED INVESTMENT IN SHARES AND ADVANCES. THUS THE APPELLANT GETS A REL IEF OF RS.4 77 948/- (RS. 7 60 050 MINUS RS. 2 82 102/-) AND THUS THESE GROU NDS ARE PARTLY ALLOWED. 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: 1. (A) THE CIT (A) HAS ERRED IN UPHOLDING THE ADDI TION MADE BY THE A.O. U/S.68 OF THE ACT PARTICULARLY BECAUSE THE APPELLAN T IS NOT MAINTAINING ANY BOOKS OF ACCOUNTS AND THE CREDIT DOES NOT APPEAR IN THE BOOKS OF 'ACCOUNTS. (B) YOUR APPELLANT SUBMITS THAT ANY CREDIT IN THE B ANK ACCOUNT AND APPEARING IN THE BANK PASS-BOOK DOES NOT AMOUNT TO CREDIT IN THE BOOKS OF ACCOUNTS AND THEREFORE SECTION 68 DOES NOT APPLY AND THE ENTIRE ADDITION OF RS.7 60 050 MADE BY THE A.O. IS REQUIRED TO BE DELETED. 2.(A) WITHOUT PREJUDICE TO ABOVE AND ACCEPTING THE PRINCIPAL OF 'PEAK CREDIT' YOUR APPELLANT SUBMITS THAT THE AMOUNT OF RS.2 28 1 02/- AS ARRIVED AT BY THE CIT(A) IS ERRONEOUS IN AS MUCH AS RS.2 17 0007- INC LUDED IN THE 'PEAK CREDITS' IS NOT A CASH CREDIT AND IT IS PROVED BY EVIDENCE B EYOND DOUBT THAT THE APPELLANT HAD RECEIVED RS.2 17 0007- (RS.1 08 500 + 1 08 500) ON DEATH OF HER FATHER. (B) THEREFORE THE SAID AMOUNT OF RS.2 17 000/- WAS AVAILABLE WITH HER DULY EXPLAINED AND THEREFORE IT DOES NOT AMOUNT TO CASH CREDIT U7S.68 AND ITA NO. 1441-AHD-09 3 THEREFORE FOR ARRIVING AT 'PEAK CREDIT' OF RS.2 17 000/- BE OMITTED AND ONLY THE BALANCE OUGHT TO HAVE BEEN CONSIDERED AS A 'PEAK CR EDIT' LIABLE TO BE ADDED. IT IS THEREFORE SUBMITTED THAT RELIEFS CLAIMED ABOV E BE ALLOWED AND THE ORDER OF THE ASSESSING OFFICER BE MODIFIED ACCORDINGLY. 5. AT THE TIME OF HEARING BEFORE US ON BEHALF OF T HE ASSESSEE SHRI ANIL R. SHAH APPEARED AND FILED A PAPER BOOK CONTAINING 27 PAGES WHICH INTER ALIA INCLUDE THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A). WI TH REGARD TO THE GROUND NO.1 THE LD. COUNSEL OF THE ASSESSEE FAIRLY CONCEDED THAT TH IS PLEA WAS NOT TAKEN BEFORE THE LD. CIT(A). HE SUBMITTED THAT THE PLEA RAISED IN GROUND NO.1 IS PURELY LEGAL ONE. THEREFORE THIS CAN BE TAKEN EVEN FOR THE FIRST TIM E BEFORE THE TRIBUNAL. ON MERIT HE SUBMITTED THAT PROVISION OF SECTION 68 DOES NOT APP LY WHERE BOOKS OF ACCOUNTS ARE NOT MAINTAINED AND THERE ARE ENTRIES IN BANK PASS-BOOK. IN SUPPORT OF THIS RELIANCE IS PLACED ON THE FOLLOWING DECISIONS: I) SMT. MADHU RAITANI VS- ACIT ITRS TRIB. VOL.1 0 PAGE 91 (GAU) T.M. II) ANAND RAM RAITANI VS- CIT IN 223 ITR 544 (GAU .) III) CIT-VS- TAJ BOREWELLS REPORTED IN 291 P.232 ( MADRAS) IV) CIT-VS- BHAICHAND H GHANDHI REPORTED IN 141 IT R 67 (BOM.) V) ORISSA CORPORATION PVT. LTD. REPORTED IN 159 I TR 78 (SC) VI) MAYAVATI REPORTED IN [2008] 19 SOT 460 (DELHI)/ [2011] 12 TAXMAN COMMUNICATION 306 (DELHI). AFTER REFERRING TO THE AFORESAID DECISIONS HE CONT ENDED THAT THE ASSESSEE IS NOT MAINTAINING THE BOOKS OF ACCOUNTS AND ADDITION OF R S.7 60 050/- IS MADE UNDER SECTION 68 OF THE ACT. THEREFORE ON THIS GROUND ALONE ADD ITION TO THE EXTENT OF RS.2 28 102/- SUSTAINED BY THE LD. CIT(A) BE DELETED. 5.1 WITH REGARD TO GROUND NO.2 THE COUNSEL OF THE ASSESSEE POINTED OUT THAT THE ASSESSEE AND HER MOTHER WENT TO COLLECT RS.1 62 650 /- FROM THE BANK. THE SAID AMOUNT WAS DEPOSITED IN THE ASSESSEES BANK ACCOUNT AS PE R THE DETAILS GIVEN AT PAGE 13 OF THE PAPER BOOK. THE COUNSEL OF THE ASSESSEE POINTED OUT THAT THE CORRECT AMOUNT OF PEAK HAS NOT BEEN CALCULATED. THEREFORE CREDIT OF RS.1 62 650/- BE ALSO ALLOWED. ITA NO. 1441-AHD-09 4 6. ON THE OTHER HAND SHRI SAMIR TEKRIWAL SR.D.R. APPEARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). THE LD. D.R. POINTED OUT THAT NOWHERE IN THE ASSESSMENT ORDER THE AO HAS ST ATED THAT HE IS MAKING THE ADDITION UNDER SECTION 68 OF THE I.T. ACT 1961. FURTHER NO WHERE IN THE IMPUGNED ORDER THE LD. CIT(A) HAS STATED THAT HE IS CONFIRMING THE ADDITIO N UNDER SECTION 68 OF THE I.T. ACT 1961. ON THE CONTRARY BEFORE THE LD. CIT(A) THE C OUNSEL OF THE ASSESSEE HAS FURNISHED THE WORKING OF PEAK WITH THE REQUEST TO THE LD. CIT (A) TO CONFIRM THE ADDITION ONLY TO THE EXTENT OF PEAK. THE LD. D.R. ALSO DREW OUR ATTE NTION TO WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A) WHICH ARE CONTAINED IN PAGE N OS. 1 AND 2 OF THE PAPER BOOK. BEFORE THE LD. CIT(A) THE ASSESSEE HAS NOT TAKEN T HE PLEA REGARDING CASH TO THE EXTENT OF RS.1 62 650/- ALLEGED TO BE RECEIVED BY THE ASSE SSEE FROM THE MONEY COLLECTED AT HER FATHERS DEATH ALONGWITH THE MOTHER. THIS PLEA IS NOTHING BUT AFTER-THOUGHT. THEREFORE AT THIS STAGE THIS PLEA CANNOT BE ENTER TAINED. 7. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE PLEA NOW RAISED IN GROUND NO.1 WAS NOT RAISED BEFORE ANY OF THE DEPARTMENTAL AUTHORITI ES BELOW. THE POWERS OF THE LD. CIT(A) ARE CO-TERMINUS WITH THAT OF THE AO. HAD THE ASSESSEE TAKEN THIS PLEA BEFORE THE LD. CIT(A) THE LD. CIT(A) OUGHT TO HAVE MENTIO NED THE CORRECT SECTION UNDER WHICH ADDITION OF RS.7 60 050/- WAS MADE BY THE AO. BE THAT IT MAY BE NEITHER THE AO IN THE ASSESSMENT ORDER HAS MENTIONED THAT HE IS MAKING ADDITION OF RS.7 60 050/- UNDER SECTION 68 OF THE I.T. ACT NOR THE LD. CIT(A) IN THE IMPUGNED ORDER MENTIONED THAT HE IS CONFIRMING THE ADDITION TO THE EXTENT OF RS.2 28 102/- UNDER SECTION 68 OF THE I.T. ACT 1961. ON THIS GROUND THE PLEA RAISED IN GROUND NO.1 IS REJECTED. 7.1 NOW COMING TO THE GROUND NO.2 WE ARE OF THE VI EW THAT THE PLEA RAISED IN THIS GROUND IS NOTHING BUT AFTER-THOUGHT. BEFORE THE LD. CIT(A) THE ASSESSEE HAS FURNISHED A DETAILED CHART OF ALL OUTGOING AND ALL INCOMING C HEQUES. IT WAS ALSO CONTENDED THAT FROM THE BANK ACCOUNT NO. 24824 OF BANK OF INDIA R AOPURA BARODA THE ASSESSEE IS MAKING INVESTMENT IN SHARES I.E. SHARES ARE APPLIED REFUND IS ALSO RECEIVED AND DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL SHARES ALLOTTED WERE ITA NO. 1441-AHD-09 5 WORTH RS.86 098/- ONLY. BEFORE THE LD. CIT(A) IT W AS ALSO CONCEDED THAT ONLY PEAK CREDIT MAY BE CONSIDERED. ON THIS BASIS THE LD. CI T(A) IN THE IMPUGNED ORDER HAS WORKED OUT THE PEAK OF RS. 2 28 102/-. THE PLEA REG ARDING AVAILABILITY OF RS.1 62 650/- WAS NOT RAISED BEFORE ANY OF THE DEPARTMENTAL AUTHO RITIES BELOW. LOOKING TO THE CONSPECTUS FACTS OF THE CASE WE ARE CONVINCED THAT THE PEAK CREDIT OF RS. 2 28 102/- HAS BEEN CORRECTLY WORKED OUT BY THE LD. CIT(A). WE THEREFORE FIND NO INFIRMITY IN THE ORDERS OF THE LD. CIT(A). HENCE WE DECLINE TO INTERFERE. THIS GROUND OF APPEAL IS ALSO REJECTED. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 3 - 2!% 4' & 23 / 09 /2011 ! 5 - 60 7 THIS ORDER PRONOUNCED IN COURT ON 23/09/2011. SD/- SD/- (A.MOHAN ALANKAMONY) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23/09/2011 - -- - +18 +18 +18 +18 98%1& 98%1& 98%1& 98%1&- -- - 1. )* 2. + )* 3. 1 /= 4. /=- - 5. 8@6 +1' 7 6. 6B C3 D/ F 7 TALUKDAR/ SR. P.S.