Shri Abdul Aziz Abdul Rashid Shaikh, Surat v. The Income tax Officer, Ward-5(1),, Surat

ITA 1895/AHD/2010 | 2007-2008
Pronouncement Date: 21-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 189520514 RSA 2010
Assessee PAN ADRPS1715M
Bench Ahmedabad
Appeal Number ITA 1895/AHD/2010
Duration Of Justice 7 month(s) 19 day(s)
Appellant Shri Abdul Aziz Abdul Rashid Shaikh, Surat
Respondent The Income tax Officer, Ward-5(1),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 21-01-2011
Date Of Final Hearing 03-01-2011
Next Hearing Date 03-01-2011
Assessment Year 2007-2008
Appeal Filed On 02-06-2010
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI MAHAVIR SINGH JM AND D.C.AGRAWAL AM ABDUL AZIZ ABDUL RASHID SHAIKH 1/93 GULISTAN HOUSE 1 ST FLOOR GOLANDAZ STREET NANPURA SURAT. VS. THE INCOME-TAX OFFICER WARD 5(1) SURAT. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI R. N. VEPARI A.R. RESPONDENT BY:- SMT. SUMIT KAUR DR O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING GR OUNDS IN RELATION TO FOLLOWING ISSUES :- (1) UNEXPLAINED INVESTMENT OF RS.29 98 476/- BEING THE DEPOSIT IN JOINT ACCOUNT OF THE ASSESSEE. (2) UNEXPLAINED INVESTMENT IN FDR OF RS.3 95 902/-. (3) ADDITION UNDER SECTION 68 AMOUNTING TO RS.5 LAKHS. OTHERS ARE GENERAL IN NATURE IN RESPECT OF INTEREST UNDER SECTION 234A 234B 234C & 234D. 2. THE FACTS OF THE CASE ARE THAT ASSESSEE IS A PAR TNER IN FIRMS CALLED HOTEL CITIZEN HOTEL SAHIL AND CITIZEN RESTAURANT. HE DERIVES INCOME ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 2 FROM SALARY INTEREST ON CAPITAL AND SHARE INCOME F ROM THE FIRMS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO CARRIED OUT ENQUIRIES WITH THE BANK AND FOUND THAT ASSESSEE IS HOLDING AN ACCO UNT WITH HIS BROTHER NAMELY MOHAMMAD RAFIQ ABDUL RASHID SHAIKH. THE ACCO UNT NO. IS 17771 WITH BANK OF BARODA AND WAS NOT REFLECTED IN THE BOOKS OF THE ASSESSEE. DURING THE COURSE OF ACCOUNTING YEAR A SU M OF RS.24 57 000/- WAS DEPOSITED IN CASH AND IN ADDITION THERE WERE OT HER CREDITS AMOUNTING TO RS.5 01 476/-. AN INTEREST AMOUNT OF RS.1 862/- WAS ALSO CREDITED THEREIN. THE AO OBTAINED COPY OF THE BANK PAY-IN-SL IPS AND CHEQUES ISSUED IN RESPECT OF SAID BANK ACCOUNT AND NOTICED THAT SEVERAL TRANSACTIONS WERE DONE UNDER THE SIGNATURE OF THE A SSESSEE. EVEN ON THE VERIFICATION OF THE ACCOUNT OPENING FORM THE ASSESS EE HAS GIVEN HIS OWN IDENTITY AND PAN. ON THE BASIS OF ABOVE INFORMATION THE AO TREATED THE BANK ACCOUNT AS BELONGING TO THE ASSESSEE AND SOUGH T HIS EXPLANATION IN RESPECT OF THE AMOUNT FOUND CREDITED THEREIN. IT WA S EXPLAINED TO THE AO THAT ASSESSEE IS A JOINT HOLDER AND THEREFORE THE MONEY BELONG TO HIS BROTHER. THE AO VERIFIED ALL THE INCOME-TAX RETURNS OF HIS BROTHER AND FOUND THAT THEY DID NOT CONTAIN THE CORROBORATIVE E VIDENCE SUCH AS BALANCE SHEET OR PROFIT AND LOSS ACCOUNT CONTAINING ALLEGED DEPOSITS MADE BY THE BROTHER OF THE ASSESSEE. THE AO ACCORDINGLY TREATED THE DEPOSITS AS BELONGING TO THE ASSESSEE AND MADE THE ADDITION OF RS.29 58 676/- BEING THE DEPOSITS MADE THEREIN AND INTEREST OF RS.1 862/ -. 3. BEFORE THE LD. CIT(A) ASSESSEE FILED HIS OWN AFF IDAVIT STATING THAT HE HAS NOT MADE ANY DEPOSIT IN THAT BANK ACCOUNT. T HE LD. CIT(A) REJECTED THIS AFFIDAVIT AS IT DID NOT SATISFY THE CONDITIONS LAID DOWN UNDER RULE 46A(1). FINALLY HE CONFIRMED THE ADDITION HOLDING T HAT ASSESSEE FAILED TO EXPLAIN THE INVESTMENT MADE IN THE BANK ACCOUNT. ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 3 4. BEFORE US THE LD. AR FOR THE ASSESSEE SUBMITTED THAT ACCOUNT IS IN THE JOINT NAMES AND EVERY BODY HAS DEPOSITED MONEY THEREIN. HIS BROTHER HAD GIVEN HIM POWER OF ATTORNEY AND THEREFORE HE HAD DEPOSITED THE MONEY OF HIS BROTHER IN THE BANK. 5. ON THE OTHER HAND THE LD. DR SUBMITTED THAT THE RE IS NO EVIDENCE THAT HIS BROTHER COULD HAVE DEPOSITED THE MONEY IN THE BANK. THE LD. DR REFERRED TO PARA 4.6 FROM THE ASSESSMENT ORDER AS U NDER :- 4.6 IT MAY BE MENTIONED THAT ASSESSEE ARGUES THAT HE HAD NOT DEPOSITED CASH IN THE BANK ACCOUNT BUT IT IS FOUND FROM THE P AY IN SLIPS THAT CASH WAS DEPOSITED BY HIM. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE ASSESSEE HAS FAILED TO ESTABLISH THAT MONEY BELONGED TO HIS BROTHER. IT WAS ALSO CLAIMED BEFORE US THAT EVEN THE ACCOUNT IS IN THE NAME OF THE MOTHER THUS THER E WERE THREE JOINT OWNERS. IT IS UNDISPUTED FACT THAT ASSESSEE HAS FIL LED UP THE PAY IN SLIPS AND DEPOSITED THE MONEY IN THE BANK. THEREFORE THE AO WILL ENQUIRE AND WHERE THE ASSESSEE HAS FILLED UP THE PAY IN SLIPS THE MONEY DEPOSITED IN THE BANK AS PER SUCH SLIPS WOULD BELONG TO THE ASSE SSEE AND MONEY DEPOSITED THROUGH THE SIGNATURES OF OTHERS WOULD B ELONG TO OTHERS. THUS THE THREE OWNERS WOULD HAVE TO SEPARATELY EXPLAIN T HE MONEY DEPOSITED UNDER THEIR SIGNATURES. TO THE EXTENT IT IS NOT FOU ND SATISFACTORILY EXPLAINED AN ADDITION MAY BE MADE. WITH THE ABOVE D IRECTION WE RESTORE THE MATTER TO THE FILE OF AO. ACCORDINGLY THIS GROU ND OF ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. 7. THE NEXT ISSUE IS REGARDING FIXED DEPOSIT OF RS 3 95 902/-. IT WAS CLAIMED THAT FDR BELONGED TO HIS FATHER AND WAS DUL Y REFLECTED IN THE ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 4 BOOKS OF ASSESSEES FATHER. THE AO DID NOT FIND THE EXPLANATION SATISFACTORY AND THEREFORE PROPOSED THE ADDITION. BEFORE LD. CIT(A) ASSESSEE SOUGHT TO SUBMIT ADDITIONAL EVIDENCE IN TH E FORM OF A LETTER DATED 18.2.10 FROM NASEEMBANU ABDULRASHID SHAIKH CONFIRMI NG THE FACT THAT FDR BELONGED TO HIS LATE FATHER. THE LETTER WAS NOT ADMITTED ON THE GROUND THAT CONDITIONS LAID UNDER RULE 46A(1) ARE N OT SATISFIED. THE LD. CIT(A) ALSO FOUND THAT THE CLAIM OF ABOVE FDR REFLE CTED IN THE BALANCE OF LATE FATHER WAS NOT SUPPORTED BY A PROPER BALANC E SHEET SIGNED BY LATE FATHER. THERE WAS NO SUPPORTING EVIDENCE LIKE BANK STATEMENT LEDGER ACCOUNT FURNISHED BY THE ASSESSEE TO PROVE THAT SOU RCE OF THE MONEY OF FDR WAS HIS FROM FATHER. IT WAS ACCORDINGLY TREATED AS UNACCOUNTED AND ADDITION WAS CONFIRMED. 8. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE MATERIAL ON RECORD. SINCE THE ASSESSEE FAILED TO FURNISH EVIDEN CE IN SUPPORT OF THE CLAIM THAT FD BELONGED TO HIS FATHER THAT MONEY WA S DEPOSITED IN THE BANK ACCOUNT BY HIS FATHER. THE EXPLANATION OF THE ASSESSEE CANNOT BE PRIMA FACIE ACCEPTED. HOWEVER CERTAIN FACTS ARE NO T ON RECORD. IT HAS TO BE ENQUIRED WHEN THE FDRS WERE PURCHASED IN WHOSE NAMES WERE THE FD WHO HAD FILLED THE FORMS IN THE BANK FOR PURCHA SE OF FD IN WHOSE ACCOUNT THE INTEREST FROM THE FD WERE BEING CREDITE D; WHETHER THE FACTUM OF FD WAS EVER INTIMATED TO ANY AUTHORITY EITHER ON MORTGAGE OR OTHERWISE IF SO BY WHOM. IT IS FOR THE ASSESSEE TO SUBMIT THESE DETAILS AND IF HE FAILS TO DO SO THE AO WOULD BE JUSTIFIED IN M AKING THE ADDITION. WE ACCORDINGLY RESTORE THE MATTER TO THE AO TO GIVE A N OPPORTUNITY TO EXPLAIN THE ABOVE FACTS. ACCORDINGLY THIS GROUND I S ALSO ALLOWED BUT FOR STATISTICAL PURPOSES. ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 5 9. THE LAST ISSUE IS REGARDING UNEXPLAINED INVESTME NT IN FD OF RS.5 LAKHS. THE AO FOUND THAT ASSESSEE HAS CLAIMED TO HA VE RECEIVED GIFTS OF RS.2 50 000/- ON 30.11.2006 WHICH WAS INVESTED IN T HE FDR AND ANOTHER GIFT OF RS.2 50 000/- ON 2.12.2006. BOTH THESE GIFT S WERE INVESTED IN FD. DESPITE OPPORTUNITIES WERE GIVEN TO FURNISH EXPLANA TION AND DETAILS OF THE DONORS THEY WERE NOT PRODUCED FOR EXAMINATION. THE AO FOUND FOLLOWING FACTS ABOUT THESE GIFTS AND RESULTING FDS :- (A) THE ASSESSEE NEITHER FILED ANY EVIDENCE NOR PRODUCE D THE ALLEGED DONOR. (B) GIFTS ARE GIVEN/EXCHANGED ON CERTAIN CEREMONIOUS OC CASION ON RECIPROCAL BASIS. IN THE PRESENT CASE NO OCCASION HAS BEEN CITED BY THE ASSESSEE FOR SUCH A HUGE GIFT. (C) NO CONFIRMATION WAS FILED. WITHOUT PROVING THE CAPA CITY TO PART WITH SUCH HUGE SUMS TRANSACTION OF GIFT CANNOT BE ACCEPTED AS TRUE. (D) THE ASSESSEE HAS RECEIVED GIFT WITHIN 3 DAY ONLY I. E. 30.11.2005 TO 2.12.2006. (IT CAN NEVER BE COINCIDENTAL THAT ON ONE HAND ASSESSEE RECEIVES GIFT AND ON SAME DAY HE INVESTS I T). DONOR HAS NOT GIVEN SUCH A HUGE GIFT IN THE PAST. THUS THE AL LEGED GIFT IS STAGE MANAGED AND SEEMS TO BE RIDICULOUS AND CONTRA RY TO HUMAN CONDUCT AND BEHAVIOUR. (E) BANK ACCOUNT OF DONOR WAS NOT FURNISHED. SINCE THE ASSESSEE FAILED TO FURNISH ANY REPLY THE AO TREATED THE GIFTS AS NON-GENUINE AND RELYING ON VARIOUS JUDGMENTS IN HIS ORDER HE MADE THE ADDITION OF RS.5 LAKHS. THE LD. CIT(A) CONFIRMED TH E ADDITION FOR LACK OF EVIDENCE. HE IN THIS REGARD OBSERVED AS UNDER :- DURING THE COURSE OF APPELLATE PROCEEDINGS THE AR OF THE APPELLANT SUBMITTED THAT THE AFORESAID AMOUNTS OF RS. 5 LACS WERE RECEIVED BY THE APPELLANT FROM HIS FATHER LATE ABDULRASHID ABDULRAF IQ SHAIKH AND THE SAME ARE REFLECTED IN THE BOOKS OF ACCOUNTS OF THE APPELLANTS FATHER. FURTHER THE AR FURNISHED A LETTER DATED 18.2.2010 OF NASEEMBANU ABDULRASHID SHAIK I.E. THE WIDOW OF LATE ABDULRASHI D ABDULRAFIQ SHAIK CONFIRMING THE ABOVE TRANSACTIONS AND HAS ALSO FURN ISHED THE PAN OF THE ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 6 APPELLANTS FATHER COPY OF HIS IT ACKNOWLEDGEMENT BALANCE SHEET BANK STATEMENT LEDGER ACCOUNTS FOR THE YEAR UNDER CONSI DERATION IE. ASST. YEAR 2007-08 ETC. ACCORDINGLY THE AR PLEADED THAT THE A DDITION U/S 68 NEEDS TO BE DELETED. I HAVE CONSIDERED THE FACTS OF THE CASE THE ORDER OF THE AO AND THE SUBMISSIONS OF THE APPELLANT. IT IS SEEN THAT EVEN ON THIS ISSUE DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT HAD NOT FURNISHED ANY DETAILS AND CORROBORATIVE DOCUMENTARY EVIDENCES TO JUSTIFY THE GENUINENESS OF THE SAID GIFTS AS PRESCRIBED U/S 68 OF THE ACT WHEREAS ALL SUCH EVIDENCES HAVE BEEN FURNISHED DURING THE COURS E OF APPELLATE PROCEEDINGS. EVEN IN THIS REGARD THE APPELLANT HAS NOT FURNISHED ANY REASON WHATSOEVER TO PLEAD THAT HE WAS PREVENTED BY A SUFFICIENT CAUSE FROM PRODUCING THE SAID EVIDENCES BEFORE THE AO. FU RTHER THE AO VIDE ORDER SHEET ENTRY DATED 2.11.2009 HAD ASKED THE APP ELLANT TO PRODUCE EVIDENCES REGARDING THE SAID GIFTS AND HAS FINALIZE D THE ASSESSMENT ORDER ON 22.12.2009 I.E AFTER A PERIOD OF AROUND 50 DAYS AND HENCE IT COULD NOT BE SAID THAT THE AO HAD NOT GIVEN THE APPELLANT A P ROPER OPPORTUNITY TO FURNISH THE NECESSARY EVIDENCES. THEREFORE IN THE PRESENT CASE NONE OF THE CONDITIONS AS PRESCRIBED IN RULE 46A(1) FOR ADM ISSION OF ADDITIONAL EVIDENCE AT THE APPELLATE STAGE ARE SATISFIED. THER EFORE THE SAID EVIDENCES FURNISHED AT THE APPELLATE STAGE ARE EVEN NOT FIT FOR BEING ADMITTED AS THEY ARE MISLEADING AND CONTRARY TO THE ARGUMENTS OF THE APPELLANT. THUS IN THE PRESENT CASE IT IS ESTABLISH ED THAT THE APPELLANT HAS COMPLETELY FAILED TO PROVE THE GENUINENESS OF THE T RANSACTION AS ALSO THE CREDITWORTHINESS OF THE DEPOSITOR BEFORE THE AO INS PITE OF BEING GIVEN SUFFICIENT TIME AND OPPORTUNITY BY THE AO AND THE A PPELLANT HAS NEITHER GIVEN SATISFACTORY EXPLANATION NOR HAS HE FURNISHE D ANY CORROBORATIVE DOCUMENTARY EVIDENCES TO PROVE THE CASH CREDITS AS PER THE PROVISIONS OF SECTION 68 OF THE ACT. THEREFORE I HOLD THAT THE A O WAS JUSTIFIED IN TREATING THE SAID AMOUNTS OF RS. 5 LACS DEPOSITED I N THE BANK ACCOUNT OF THE APPELLANT AS UNEXPLAINED CASH CREDITS AND HENCE I UPHOLD THE ADDITION THEREOF MADE U/S 68 OF THE ACT. AS A RESUL T THE GROUND OF APPEAL NO.(III) IS DISMISSED. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THERE IS NO CASE FOR INTERFERENCE SO FAR AS THIS GROUND IS CONCERNED. AT NO STAGE ASSESSEE H AS FURNISHED ANY EVIDENCE IN SUPPORT OF THE CLAIM THAT HE HAS RECEIV ED ANY GIFTS. IT WAS ALSO NOT EXPLAINED AS TO WHAT EVIDENCE ASSESSEE HAD IN R ESPECT OF THESE GIFTS. ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 7 NO REASONS ARE ADVANCED AS TO WHY EVIDENCE IF ANY WERE NOT FURNISHED BEFORE THE AO. AS NEITHER THE IDENTITY OF THE CREDI TOR NOR HIS CREDIT WORTHINESS AND NOR THE GENUINENESS OF THE TRANSACTI ONS ARE EXPLAINED. IN RESPECT OF THE LETTER DATED 18.2.2010 FURNISHED BY THE ASSESSEE BEFORE LD. CIT(A) A COPY WAS ALSO ENCLOSED BEFORE US. IT IS ME NTIONED THAT AFORESAID TWO AMOUNTS HAD COME FROM HIS LATE FATHER WHO WAS A N ASSESSEE WITH PAN ADRPS 1715M AND WITHDRAWALS WERE MADE FROM HIS BOOKS. HOWEVER WE DO NOT FIND ANY NEXUS OF THESE WITHDRAW ALS FROM THE BANK WITH THE ALLEGED CLAIM OF GIFTS AND THEREFORE DO NOT CONSIDER IT NECESSARY TO RESTORE THIS MATTER FOR VERIFICATION. AS A RESUL T THIS GROUND OF ASSESSEE IS REJECTED. 11. OTHER REMAINING ISSUE IS REGARDING CHARGING OF INTEREST UNDER SECTION 234A 234B 234C & 234D WHICH IS CONSEQUENT IAL IN NATURE AND HENCE REJECTED. 12. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED BUT FOR STATISTICAL PURPOSES. `ORDER WAS PRONOUNCED IN OPEN COURT ON 21.1.11. SD/- SD/- (MAHAVIR SINGH) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD DATED : 21.1.11. MAHATA/- ITA NO.1895/AHD/2010 ASST. YEAR 2007-08 8 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD 1.DATE OF DICTATION 12/1/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 18/1/ 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..