Mrs. Veena Gopichand Manjani, Haldwani v. ITO, Haldwani

ITA 1681/DEL/2013 | 2008-2009
Pronouncement Date: 16-04-2014 | Result: Allowed

Appeal Details

RSA Number 168120114 RSA 2013
Assessee PAN BICPM6446D
Bench Delhi
Appeal Number ITA 1681/DEL/2013
Duration Of Justice 1 year(s) 25 day(s)
Appellant Mrs. Veena Gopichand Manjani, Haldwani
Respondent ITO, Haldwani
Appeal Type Income Tax Appeal
Pronouncement Date 16-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 16-04-2014
Date Of Final Hearing 23-01-2014
Next Hearing Date 23-01-2014
Assessment Year 2008-2009
Appeal Filed On 22-03-2013
Judgment Text
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER AND SHRI A. T. VARKEY JUDICIAL MEMBER ITA NO. 1681 /DEL/ 2013 (ASSESSMENT YEAR: 2008 - 09 ) VEENA GOPICHAND MANJANI TARA PALACE TEHRIPULIA HALDWANI PAN BIC PM6446D VS. ITO WARD - 3 HALDWANI (APPELLANT) (RESPONDENT) APPELLANT BY : ASHWANI TANEJA ADV DR. RAKESH GUPTA SR. ADV. & SOMIL AGARWAL ADV. RESPONDENT BY: NIDHI SRIVASTAVA SR . DR O R D E R PER A. T. VARKEY JUDICIAL MEMBER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - II DEHRADUN DATED 21.01.013 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. THE ORDER OF THE LEARNED ASSESSING OFFICER IS BAD IN LAW AND CONTRARY TO FACTS OF THE CASE IN AS MUCH AS THE ADDITION OF RS. 21 80 000/ - IS CONCERNED AS HAVING BEEN MADE WITHOUT CONSIDERATION OF HEAVY CASH BALANCE LEFT BY THE LATE HUSBAND AND AMOUNTS RECEIVED FROM CLOSE R ELATIVES (SON) AND FRIENDS. 2. THE LD A.O. OUGHT TO HAVE UNDERSTOOD THE AVAILABILITY OF HEAVY CASH AND FLOATING WORKING CAPITAL FROM THE TRANSACTIONS OF THE BANK ACCOUNT MAINTAINED JOINTLY BY THE ASSESSEE AND HER SON AS BACK AS YEAR 200 0 CONTINUED TILL D ATE COUPLED WITH RECEIPT OF GIFTS AND OTHER AMOUNTS FROM IN LAWS AND SON ON DIFFERENT DATES THROUGH PROPER BANKING CHANNELS DULY ACCEPTED BY THE LD A.O. 3. THE LD CIT(APPEALS - II) MISREAD THE TOTAL DEPOSITS AS RS. 55 27 052/ - CONFIRMING UNEXPLAINED DEPOSITS OF RS. 21 80 000/ - GIVING FINDING - AS SUBSTANTIAL AMOUNTS HAVING ALREADY BEEN CONSIDERED AS EXPLAINED BY LD ASSESSING OFFICER - WHILE ACTUAL DEPOSITS WERE ONLY RS. 24 30 000/ - THUS DENYING AND ACTUAL RELIEF TO THE ASSESSEE THOUGH INTENDING THE SAME. 4. I N VIEW OF THE ABOVE THE ADDITIONS THUS MADE ARE BAD I N LAW AND LIABLE TO BE DELETED. 5. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY OF THE GROUNDS OF APPEAL. 3. APROPOS ADDITION OF RS.21 80 000/ - MADE ON ACCOUNT OF CASH DEPOSITS IN BANK ACCOUNT OF THE ASSESSEE. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN UNEDUCATED WIDOW AGED ABOUT 67 YEARS. THE ASSESSEE HAD NOT FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR PAGE NO. 2 UNDER CONSIDERATION. THE ASSESSING OFFICER WAS IN RECEIPT OF AN AIR I NFORMATION TH AT THE ASSESSEE HAD MADE CASH DEPOSIT AMOUNTING TO RS. 55 27 052/ - IN HER SAVING BANK ACCOUNT NO. 411602010054772 MAINTAINED WITH UNION BANK OF INDIA HALDWANI . THE ASSESSING OFFICER ON VERIFICATION OF THE RECORDS CAME TO KNOW THAT THE ASSESSEE HAS NOT FIL ED ANY RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE AFTER RECORDING SUFFICIENT REASONS TO BELIEVE THAT RS. 55 27 052 / - H AS ESCAPED ASSESSMENT T HE ASSESSING OFFICER INITIATED SECTION 147 PROCEEDING AFTER ISSUANCE OF NOTI CE U/S 148 OF THE INCOME TAX ACT 1961 (HEREIN AFTER THE ACT) WAS ISSUED ON 12.01.2011. IN RESPONSE TO THE NOTICE U/S 148 THE ASSESSEE FILED HER RETURN OF INCOME ON 10.02.2011 DECLARING HER TOTAL INCOME FOR THE YEAR AT RS. NIL. THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 19.07.2011. THE ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDING. IN RESPONSE TO THE QUESTIONNAIRE THE ASSESSEE PRODUCED A COPY OF SAVING BANK ACCOUNT NO. 22361 MAINTAINED WITH CANARA B ANK . THEREAFTER THE ASSESSING OFFICER ADDED RS. 22 26 136/ - TO THE INCOME OF THE ASSESSEE AND COMPUTED RS. 12 23 040/ - AS NET TAX PAYABLE. 5 . AGGRIEVED BY THE SAID ORDER OF THE ASSESSING OFFICER THE ASSESSEE PREFERRED AN APPEAL BEFORE LD CIT(A) WHO WAS PLEASED TO DISMISS THE APPEAL AND CONFIRMED THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A) THE ASSESSEE IS BEFORE US. 6 . THE LD AR CONTENDED THAT THE ASSESSEE HAD DEPOSITED CASH OF RS. 21 80 000/ - DURING THE FINANCIAL YE AR 2007 - 08 IN HER SAVING BANK ACCOUNT NO. 411602010054772 MAINTAINED WITH UNION BANK OF INDIA HALDWANI WHICH THE ASSESSING OFFICER HAD ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED DEPOSITS. A CCORDING TO THE AR HER HUSBAND WAS A BUSINESS MAN OF THE AND SINCE HE SHIFTED FROM KANPU R TO H ALDWANI T HE ASSESSEE S HUSBAND HAD CLOSED HIS BANK ACCOUNT AT KANPUR AND TRANSFERRED THE ENTIRE MONEY IN HIS ACCOUNT AND DEPOSIT ED THE SAME IN THE SAVING S BANK ACCOUNT OF THE ASSESSEE . THE ASSESSEES SON IS A N NRI AN D IS WORKING IN DUBAI SINCE LONG AND HAS BEEN REGULARLY SENDING MONEY TO THE ACCOUNT OF HIS MOTHER THE ASSESSEE BY WAY OF DEMAND DRAFT (DD) OR BY ELECTRONIC MONEY TRANSFER . TO SHOW THE BONA - FIDE T HE LD AR TOOK OUR ATTENTION TO PAGE NO. 23 AND 24 OF TH E PAPER BOOK WHEREIN THE CASH FLOW HAS BEEN EXPLAINED FROM FINANCIAL YEAR 2001 - 02 TO FINANCIAL YEAR 2005 - 06. THE SAME IS AS FOLLOWS: - OPENING CASH BALANCE AS ON APRIL1 2000 RS. 1 50 000.00 DEC 26 2000 CASH RECEIVED ON CLOSURE OF KANPUR BANK A/C (MR. NA VIN MANJANI) RS. 79 972.50 DEC 26 2000 CASH RECEIVED ON CLOSURE OF KANPUR BANK A/C (RENU MANJANI) 2 56 403.65 CLOSING CASH AS ON MARCH 31 2001 4 86 376.15 PAGE NO. 3 F/Y 2002 - 03 DEMAND DRAFT/MAIL TRANSFER RECEIPT DATE REQUEST NO./ DD NO. AMOUNT IN INR NAME OF TRANSFEROR 07.05.2002 44 5 00 000.00 NAVEEN MANJANI 07.05.2002 45 5 00 000.00 NAVEEN MANJANI 16.04.2002 6449361 5 00 000.00 NAVEEN MANJANI TOTAL 15 00 000.00 NAVEEN MANJANI F/Y 2003 - 04 DEMAND DRAFT/MAIL TRANSFER RECEIPT DATE REQUEST NO/ DD NO. AMOUNT IN INR NAME OF TRANSFEROR 10.03.2004 57 2 00 000.00 NAVEEN MANJANI 27.04.2003 E/002038168 5 00 000.00 NAVEEN MANJANI 01.11.2003 389704 2 00 000.00 NAVEEN MANJANI 15.09.2003 200017373 1 00 000.00 NAVEEN MANJANI 15.09.2003 200017381 1 00 000.00 NAVEEN MANJANI 15.09.2003 200017390 1 00 000.00 NAVEEN MANJANI TOTAL 12 00 000.00 F/Y 2005 - 06 DEMAND DRAFT/MAIL TRANSFER RECEIPT DATE REQUEST NO/ DD NO. AMOUNT IN INR NAME OF TRANSFEROR 03.10.2005 2 00 000.00 NAVEEN MANJANI TOTAL 2 00 000. 00 7 . THE LD AR CON TENDS THAT THE COPY OF THE CHEQU ES DDS BANK TRANSFER MEMOS WERE ALL SUBMITTED BEFORE THE LD CIT(A) WHO IN TURN HAD SOUGHT A REMAND REPORT WHEREIN AFTER DUE ENQUIRY THE LD AO HAS STATED THAT RS. 29 00 000/ - FOUND IN THE BANK ACCOUN T OF THE ASSESSEE FROM FINANCIAL YEAR 2002 TO FINANCIAL YEAR 2005 HAVE BEEN SUFFICIENT LY CORROBORATED BY THE ASSESSEE. IT WAS ALSO POINTED OUT BY THE LD AR THAT THE ASSESSEES HUSBAND ALSO DID SOME FINANCING TO RELATIVES AND FRIENDS BY GIVING INTEREST FREE LOANS TO THEM . SOON A FTER THE DEMISE OF HER HUSBAND ON 16.03.2007 SHE WENT TO DUBAI AND STAYED WITH HER SON AND IN THE RELEVANT ASSESSMENT YEAR SHE HAD COME BACK TO INDIA FOR COLLECTING THE SAID AMOUNTS GIVEN TO HER RELATIVES AND FRIENDS AND THE CASH THU S COLLECTED FROM THEM WAS DEPOSITED IN HER SAVING BANK ACCOUNT. THEREFORE ACCORDING TO THE LD AR THE CASH DEPOSIT ED IN HER ACCOUNT WAS PROPERLY EXPLAINED HOWEVER THE LD CIT(A) DID NOT CARE TO LOOK IN TO THE DETAILS OF THE CASH FLOW INTO THE ACCOUNT OF THE ASSESSEE AND HAS NOT APPRECI ATED THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER IN THE RIGHT MANNER . THEREFORE THE LD AR PLEADED THAT THE ORDER OF THE PAGE NO. 4 LD CIT(A) MAY BE SET ASIDE. ON THE OTHER HAND THE LD DR RELIED ON THE ORDER OF THE ASSESSING OFFICE R AND LD CIT(A). ACCORDING T O HIM THE ASSESSEE WAS GIVEN AMPLE OPPORTUNITY TO BRING FORTH THE EVIDENCE TO SUPPORT THE CASH DEPOSITED IN THE ASSESSEES ACCOUNT. HOWEVER SINCE SHE FAILED TO PRODUCE CORROBORATIVE EVIDENCE TO SUPPORT HER CLAIM THE ASSESSING OF FICER MADE THE ADDITION AND IT WAS RIGHTLY CONFIRMED BY THE LD CIT(A) AND THEREFORE THE LD CIT(A)S ORDER NEED S NO INTERFERENCE. 8 . WE HAVE HEARD THE RIVAL SUBMISSION OF BOTH THE PARTIES AND HAVE PERUSED THE RECORDS. THE LD CIT(A) HAS STATED IN THE IMPUG NED ORDER THAT OUT OF THE TOTAL DEPOSITS IN THE ASSESSEES ACCOUNT WHICH WAS BROUGHT TO ADVERSE NOTICE WAS RS. 55 27 052/ - AND OUT OF WHICH RS. 21 80 000/ - HAS BEEN ADDED ONLY AS UNEXPLAINED INCOME. THEREFORE ACCORDING TO THE LD CIT(A) SUBSTANTIAL AMOUNTS HAVE ALREADY BEEN TREATED AS EXPLAINED BY THE ASSESSING OFFICER AND WHICH HAD BEEN DEDUCTED FROM THE TOTAL AMOUNT OF RS. 55 27 052/ - . THIS FIND ING OF THE LD CIT(A) WE FIND GETS NO SUPPORT FROM THE RECORDS WHICH ARE BEFORE US. THE AIR INFORMATION ABOUT THE DEPOSIT OF RS. 55 LAKHS IN ASSESSEES ACCOUNT IN THE RELEVANT ASSESSMENT YEAR HAS NOT BEEN FOUND CORRECT ; AND FROM THE RECORDS WE DO NOT FIND THAT THIS AMOUNT (55 LAKHS) HAS BEEN DEPOSITED IN THE ACCOUNT OF THE ASSESSEE AS REPORTED BY AIR INFORMATION . THE AMOUNT WHICH HAS BEEN ADDED AND TERMED AS DEPOSIT FROM UNDISCLOSED SOURCE I.E. RS. 21 80 000/ - BY THE ASSESSING OFFICER IS THE CASH WHICH HAS BEEN DEPOSITED IN THE RELEVANT ASSESSMENT YEAR IN THE ASSESSEES ACCOUNT. FROM A PERUSAL OF THE RECORD WE FIND T HAT IN THE FINANCIAL YEAR 2001 - 02 THE ASSESSEE HAD DEPOSITED RS. 486376.15 IN HER ACCOUNT LIKEWISE IN FINANCIAL YEAR 2002 - 03 SHE DEPOSITED RS. 15 00 000.00 ; LIKEWISE IN FINANCIAL YEAR 2003 - 04 SHE DEPOSITED RS. 12 00 000.00 ; IN FINANCIAL YEAR 2005 - 06 SHE D EPOSITED RS. 2 00 000.00 IN HER ACCOUNT ; MOREOVER THE ASSESSING OFFICER IN HIS REMAND REPORT TO THE LD CIT(A) HAS MADE A FINDING THAT RS. 29 00 000/ - IN THE BANK ACCOUNT OF THE ASSESSEE FOR THE PERIOD FROM FINANCIAL YEAR 2002 TO FINANCIAL YEAR 200 5 HAVE BE EN FULLY CORROBORATED BY THE ASSESSEE. IN THE LIGHT OF THE SAID CRUCIAL FINDING OF THE ASSESSING OFFICER IN THE REMAND REPORT THE LD CIT(A) SHOULD HAVE CAREFULLY LOOKED INTO THE EXPLANATION RENDERED BY THE ASSESSEE AND SHOULD HAVE CONSIDERED WHETHER THE E XPLANATION GIVEN BY HER THAT HER HUSBAND S INCOME WAS DEPOSITED IN HER ACCOUNT IN THE YEAR 2002 AFTER THEY SHIFTED FROM KANPUR TO HALDWANI ; AND HER SON IN DUBAI USED TO SENT HER MONEY BY DD/MONEY TRANSFER ; AND SHE HAD TO OFTEN WITHDR E W MONEY FOR THE TRE ATMENT OF HER AILING HUSBAND ; AND ALSO HER CLAIM THAT THE DEPOSIT IN HER ACCOUNT WAS WITHDRAWN TO GIVE INTEREST FREE LOAN TO RELATIVES AND FRIEND S ; AND WHEN THE SAID LOAN S WERE RETURNED BACK BY THE BORROWERS IT WAS DULY DEPOSITED BACK IN HER ACCOUNT IN THE RELEVANT ASSESSMENT YEAR AS SHE HAD COME BACK TO INDIA FROM DUBAI NEEDS TO HAVE BEEN CONSIDERED. IT IS NOT THE CASE OF THE AO THAT THE OLD WIDOW WAS PAGE NO. 5 ENGAGED IN ANY BUSINESS ACTIVITY. SO THE DEPOSIT OF THE IMPUGNED 21LAKHS HAS TO BE SEEN IN THE BACKGR OUND OF THE FINDING OF THE AO IN HIS REMAND REPORT THAT A SUM OF RS . 29 LAKHS DEPOSIT ED IN HER ACCOUNT HAS BEEN SUFFICIENTLY CORROBORATED FOR YEAR 2002 TO YEAR 2005. FURTHER TAKING INTO CONSIDERATION THE AGE OF THE WIDOWED ASSESSEE IT NEED TO BE SEEN WHE THER SHE COULD HAV E EARNED THIS 21 LAKHS DURING THIS A.Y. WHEN ADMITTEDLY SHE IS A HOUSE WIFE AND WAS IN DUBAI WITH HER SON AND RETURNED ONLY FOR FEW MONTHS TO INDIA. IN THE SAID SCENARIO THE AUTHORITIES BELOW SHOULD HAVE CONSIDERED WHETHER THE EXPLANATIO N AND THE EVIDENCE ADDUCED BY THE ASSESSEE RENDERS A PLAUSIBLE EXPLANATION ABOUT THE SOURCE OF THE INCOME AND IF THE ANSWER IS IN THE AFFIRMATIVE T HE N THE IMPUGNED AMOUNT WOULD STAN D EXPLAINED. SINCE THE LD CIT(A) HAS NOT GIVEN ANY REASON TO SUBSTANTIATE HIS FINDING AND HAD ERRONEOUSLY STATED FACTS IN THE IMPUGNED ORDER WHICH IN OUR CONSIDERED VIEW NEED TO BE ADJUDICATED CAREFULLY BY THE LD CIT(A) AGAIN DE - NOVO . IN OUR CONSIDERED OPINION THE AUTHORITIES BELOW OUGHT TO HAVE APPLIED THE PEAK THEORY WHICH IS RECOGNIZED BY THE COURTS; HOWEVER WE FIND THAT NO SUCH EXERCISE HAS BEEN DONE BY THE LOWER AUTHORITIES BEFORE PASSING THE IMPUGN ED ORDER. THEREFORE THIS ASPECT ALSO MAY BE LOOKED INTO BEFORE PASSING THE ORDER. IN THE LIGHT OF THE AFORESAID FACTS AND CIRCUM STANCES THE IMPUGNED ORDER IS SET ASIDE AND WE REMAND THE CASE BACK TO THE FILE OF THE LD CIT(A) WHO SHALL AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE MAY PASS A REASONED ORDER AFTER TAKING INTO CONSIDERATION THE AFORESAID FACTS DISCUSSED ABOVE. 9 . IN THE RESULT THE APPEAL PREFERRED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 . 04 .2014. - SD/ - - SD/ - (SHAMIM YAHYA) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 16 / 04 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI