SHRI SUDHIR KUMAR AGRAWAL, v. THE ITO 5(2),

ITA 198/IND/2008 | misc
Pronouncement Date: 03-03-2010 | Result: Partly Allowed

Appeal Details

RSA Number 19822714 RSA 2008
Assessee PAN ADBPA8173E
Bench Indore
Appeal Number ITA 198/IND/2008
Duration Of Justice 1 year(s) 10 month(s) 12 day(s)
Appellant SHRI SUDHIR KUMAR AGRAWAL,
Respondent THE ITO 5(2),
Appeal Type Income Tax Appeal
Pronouncement Date 03-03-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 03-03-2010
Date Of Final Hearing 02-03-2010
Next Hearing Date 02-03-2010
Assessment Year misc
Appeal Filed On 21-04-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA AM ITA NO 198/IND/08 A.Y. 2004-05 SUDHIR KUMAR AGARWAL INDORE APPELLANT PAN ADBPA8173E VS INCOME TAX OFFICER 5(2) INDORE RESPONDENT APPELLANT BY SHRI KAMLESH JAIN ADVOCATE RESPONDENT BY SMT. APARNA KARAN SR. DR O R D E R PER JOGINDER SINGH JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED CIT(A) DATED 31 ST JANUARY 2008 WHEREIN THE FIRST GROUND RAISED IS T HAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THE FACT S IN ASSESSING THE CAPITAL GAINS AT RS.1 84 060/- WITHOUT APPRECIATING AND CONSIDERING THE EXPLANATION AND SUBMISSIONS PUT FORTH BY THE AS SESSEE. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI KAMLESH JAIN LEARNED COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN THE LEARNED SENIOR 2 DR. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSE SSEE DID NOT PRESS THIS GROUND THEREFORE THIS GROUND OF THE ASSESSEE IS DISMISSED AS NOT PRESSED. 2. THE NEXT GROUND RAISED IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. AO ERRED IN ESTI MATING THE HOUSEHOLD EXPENSES AT RS.90 000/- AGAINST RS. 35 00 0/- SHOWN BY THE ASSESSEE RESULTING INTO ADDITION OF RS.55 000/- FO R LOW HOUSEHOLD WITHDRAWALS. IT WAS PLEADED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS RESIDING IN A JOINT FAMILY WHE REIN THERE ARE TWO SMALL SCHOOL GOING CHILDREN OF THE ASSESSEE AND ONE OF HIS BROTHER. IT WAS FURTHER CONTENDED THAT THE ASSESSEE IS LIVING A MODERATE LIFE THEREFORE THE ALLEGED ADDITION IS NOT JUSTIFIED. O N THE OTHER HAND THE LEARNED SR. DR DEFENDED THE ADDITION ON THE PLEA TH AT IN COMPARISON TO THE INCOME OF THE ASSESSEE THE HOUSEHOLD WITHDR AWAL IS TOWARDS LOWER SIDE. THE IMPUGNED ADDITION WAS DEFENDED. 3. ON PERUSAL OF RECORD AND CONSIDERING THE SUBMISS IONS PUT FORTH BY THE LEARNED RESPECTIVE COUNSELS IT IS SEEN THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM VARIOUS SOURCES LIKE RENTAL INCOME SHARE PROFIT FROM THE REGISTERED FIRM INTE REST FROM BANK LONG 3 TERM CAPITAL GAINS AND IS RESIDING IN A JOINT FAMIL Y. ADMITTEDLY THE ASSESSEE IS SHARING A COMMON KITCHEN AND THE TOTAL WITHDRAWALS MADE BY THE JOINT FAMILY MEMBERS ARE RS.3 35 000/-. THE AO MADE ADDITION OF RS.55 000/- AS LOW HOUSEHOLD WITHDRAWALS AND ADD ED TO THE INCOME OF THE ASSESSEE. THE AMOUNT OF RS. 29 400/- WAS UTI LISED FOR SCHOOL FEES AND THE REMAINING AMOUNT WAS CONTRIBUTED TO TH E COMMON POOL FOR HOUSEHOLD EXPENSES. THE ASSESSEE IS ALSO NOT P AYING ANY RENT FOR RESIDENCE. THE FOLLOWING WITHDRAWALS FOR HOUSEHOLD EXPENSES WERE MADE BY THE JOINT FAMILY :- BY ASSESSEE RS. 42 500 SMT. NIRMALA RS.55 000 MAST. ADITYA RS.11 000 SMT. CHITRA RS.42 000 SMT. RAKHI RS.40 000 SHRI RAMNARAYAN RS.42 500 SHRI SANJAY RS.1 02 000 TOTAL WITHDRAWALS 3 35 000 DURING ASSESSMENT PROCEEDINGS THE ASSESSEE ALSO FU RNISHED COPIES OF THE BILLS ISSUED BY MPEB FOR ELECTRICITY CHARGES AN D ALSO TELEPHONE BILLS FOR THE WHOLE YEAR. DURING HEARING IT WAS CL AIMED THAT THERE ARE ONLY THREE SCHOOL GOING CHILDREN WHEREAS IN THE IMP UGNED ORDER VIDE PARA 2.6 THE LEARNED CIT(A) HAS ALSO MENTIONED THA T THERE ARE THREE 4 SCHOOL GOING CHILDREN AND SIX ADULT MEMBERS. THE TO TAL ELECTRICITY AND TELEPHONE EXPENSES ARE RS.26 529/- AND RS. 4816/- RESPECTIVELY. THUS THE TOTAL EXPENSES FOR EDUCATION ELECTRICITY AND TELEPHONE COME TO RS.72 445/- LEAVING THE AMOUNT OF RS.2 62 555/- FOR FOOD VEGETABLES MILK AND OTHER EXPENSES WHICH IN OUR V IEW IS SUFFICIENT TO MEET OUT THE DAILY NEEDS THEREFORE WE ARE SATI SFIED WITH THE EXPLANATION OF THE ASSESSEE. THE OBSERVATION OF TH E LEARNED SR. DR THAT IN COMPARISON TO THE INCOME THE HOUSEHOLD WI THDRAWALS ARE LESS WE ARE NOT AGREEING WITH THIS OBSERVATION BECAUSE I NCOME IS NOT THE ONLY CRITERIA TO DETERMINE THE HOUSEHOLD WITHDRAWAL S RATHER IT DEPENDS ON VARIOUS OTHER FACTORS ALSO. HOWEVER WE ARE OF THE VIEW THAT IF TOTAL HOUSEHOLD WITHDRAWALS ARE KEPT IN JUS TRAPOSITION WITH THE SIZE OF THE FAMILY CLAIMED LIVING STANDARD EXPENS ES ON EDUCATION AND OTHER EXPENSES THE WITHDRAWALS ARE REASONABLE THE REFORE THIS GROUND OF THE ASSESSEE IS ALLOWED.\ 4. THE LAST GROUND PERTAINS TO CHARGING OF INTEREST U/S 234B AT RS.16 430/- WHICH IS OF CONSEQUENTIAL NATURE. HENCE THE AO IS DIRECTED TO RECOMPUTE SUCH INTEREST HAVING REGARD T O THE ADDITION DELETED BY US. 5 IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 3 RD MARCH 2010 SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 3 RD MARCH 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE. *DBN/