Smt. Nirmala Todi, Howrah v. ITO, Ward - 47(1), Kolkata, Kolkata

ITA 2122/KOL/2010 | 2002-2003
Pronouncement Date: 28-01-2011

Appeal Details

RSA Number 212223514 RSA 2010
Assessee PAN ABYPT1684L
Bench Kolkata
Appeal Number ITA 2122/KOL/2010
Duration Of Justice 2 month(s) 2 day(s)
Appellant Smt. Nirmala Todi, Howrah
Respondent ITO, Ward - 47(1), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 28-01-2011
Date Of Final Hearing 06-01-2011
Next Hearing Date 06-01-2011
Assessment Year 2002-2003
Appeal Filed On 25-11-2010
Judgment Text
SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA () BEFORE . . . . . . . . ) [BEFORE HONBLE SRI D. K. TYAGI JM] ! ! ! ! / I.T.A NO. 2122/KOL/2010 '#$ %&' '#$ %&' '#$ %&' '#$ %&'/ // / ASSESSMENT YEAR : 2002-03 SMT. NIRMALA TODI -VS- INCOME-TAX OFFICER WD-47 (1) KOLKATA (PA NO. ABYPT 1684 L) ()* / APPELLANT ) (+)*/ RESPONDENT ) FOR THE APPELLANT: SRI M. D. SAHA FOR THE RESPONDENT : SRI S. BHADRA / ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 29.03.2010 FOR THE ASSESSMENT YEAR 2 002-03 ON THE FOLLOWING GROUNDS : 1. FOR THAT THE LD. CIT(A) ERRED IN UPHOLDING THE ACTION OF THE A.O. IN TREATING RS.2 50 000/- BEING CASH DEPOSITED TO THE ASSESSEE S BANK ACCOUNT OUT OF AVAILABLE CASH BALANCE AS UNDISCLOSED INCOME. 2. FOR THAT THE LD. CIT(A) ERRED IN UPHOLDING THE A CTION OF THE A.O. IN TREATING LOAN TRANSACTIONS OF RS.38 000/- AS BOGUS AND ADDED BACK AS UNEXPLAINED CREDIT. 2. FACTS IN BRIEF ARE THAT IN COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER EXAMINED THE BANK PASS BOOK OF THE ASSESSEE WITH UN ION BANK OF INDIA INDIA EXCHANGE PLACE BRANCH AND FOUND THAT ON 25.4.2001 THE ASSESSEE M ADE A CASH DEPOSIT OF RS.2 50 000/-. HE FURTHER FOUND THAT THE SAME AMOUNT WAS WITHDRAWN ON THE SAME DATE. THE ASSESSING OFFICER ISSUED SUMMONS U/S. 131 OF I. T. ACT TO THE ASSESS EE FOR PERSONAL APPEARANCE ON DIFFERENT DATES BUT THERE WAS NON-COMPLIANCE BY THE ASSESSEE. THOU GH WRITTEN REPLY WAS FILED BY THE ASSESSEE ONE DAY BEFORE THE DATE OF PASSING OF ASSESSMENT OR DER THE ASSESSING OFFICER DID NOT CONSIDER WRITTEN SUBMISSION OF THE ASSESSEE AS SHE DID NOT M AKE PERSONAL APPEARANCE IN RESPONSE TO THE NOTICE U/S. 131 OF THE ACT. HE ACCORDINGLY TREATE D THE SAID CASH DEPOSIT IN THE BANK AS UNDISCLOSED INCOME OF THE ASSESSEE. SIMILARLY THE ASSESSEE HAD SHOWN AN UNSECURED LOAN OF RS.38 000/- TAKEN FROM SMT. KAMALA SHARMA AND SRI N ETAI DHANG. THE LOAN WAS ALLEGEDLY RECEIVED BY THE ASSESEE THROUGH CASH. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO PRODUCE THE LOAN CREDITORS. THE DEPARTMENTAL INSPECTOR ALSO SUBMITTED A REPORT THAT NO SUCH PERSONS IN THE ABOVE NAMES WERE AVAILABLE AT THE GIVEN ADDRESS. IN ABSENCE 2 OF VERIFICATION THE A.O TREATED THESE LOANS AS UN EXPLAINED AND ADDED TO THE SAME. IN APPEAL THE LD. CIT(A) CONFIRMED BOTH THE ADDITIONS. BEING FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE SUBMITTED THE SOURCE OF CASH DEPOSIT IN TH E S.B ACCOUNT WITH UBI WAS OUT OF TEMPORARY LOANS RECEIVED FROM VARIOUS PARTIES AND F URNISHED THE DETAILS REGARDING NAME OF THE PARTY LOAN AMOUNT DATE OF RECEIPT OF LOAN AND DAT E OF REPAYMENT OF LOAN ETC. BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER DID NOT C ONSIDER THE SAME BECAUSE OF PERSONAL NON APPEARANCE BY THE ASSESSEE. NEITHER THE ASSESEE NOR THE LOAN CREDITORS APPEARED BEFORE HIM. THE LD. CIT(A) WHILE TAKING INTO CONSIDERATION THE WRITTEN SUBMISSIONS OF THE ASSESSEE CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER. AT T HE TIME OF REMAND PROCEEDINGS THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PRODU CE ALL LOAN CREDITORS ALONG WITH CERTAIN DOCUMENTARY EVIDENCES LIKE P&L ACCOUNT BALANCE SHE ET COPY OF I. T. RETURN BANK STATEMENT AND CASH FLOW STATEMENT. THE ASSESSEE PRODUCED AS MANY AS 14 LOAN CREDITORS WHO WERE EXAMINED BY THE ASSESSING OFFICER. HE ALSO CONTEND ED THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE PRODUCED THE LOAN CREDITORS AND DOCUMENTS SUBMITTED BY THE LOAN CREDITORS. HE ALSO CONTENDED THAT ALL THE LOAN CREDITORS HAVE SUBMITTE D THEIR WRITTEN REPLIES CONTAINING I. T. ACKNOWLEDGMENT STATEMENT OF ACCOUNTS PAN CARD VO TER ID LOAN CONFIRMATION BANK STATEMENT AND SOME OF THE CASH FLOW STATEMENTS. MO ST OF THE LOANS TAKEN ON TEMPORARY BASIS HAVE ALL BEEN REPAID DURING THE RELEVANT YEAR. THER EFORE THE ASSESSEE HAS DISCHARGED HER BURDEN BY PROVING THE EXISTENCE OF THE LOAN CREDITORS AND ALL THE LOAN CREDITORS HAVE CONFIRMED THE TRANSACTIONS WITH THE ASSESEE AND SHE IS NOT REQUIR ED FURTHER TO PROVE THE SOURCE OF THE SOURCES. HE ALSO CONTENDED THAT PROOF OF IDENTITY OF THE LOAN CREDITORS CAPACITY T O GIVE LOAN AND THE GENUINENESS OF THE TRANSACTION ARE ESTABLISHED. TH E A.O. HOWEVER WAS NOT SATISFIED WITH THE CREDITWORTHINESS OF THE CREDITOR AND MADE THE ADDITION AND THE LD. CIT(A) SUSTAINED THE SAME ON THE SAME GROUND OF CREDITWORTHINESS. HE ALS O CONTENDED THAT OUT OF RS.2 50 000/- RS.39 330/- IS A LOAN REPAYMENT OF RS.19 760/- AND RS.19 570/- FROM SRI INDER CHAND DALMIA AND SMT. SAROJ SHARMA RESPECTIVELY. THEREFORE THI S AMOUNT CANNOT BE ADDED BACK TO THE INCOME OF THE ASSESEE U/S. 68 OF THE I. T. ACT. 4. IN RESPECT OF GROUND NO. 2 HE ALSO CONTENDED THA T THE REASONS FOR ADDITION OF RS.38 000/- ON BEHALF OF THE ASSESSING OFFICER ARE THAT THE LOA N WAS RECEIVED BY THE ASSESSEE THROUGH CASH AND THE ASSESSEE FAILED TO PRODUCE THE LOAN CREDITO RS. IN THIS REGARD HE SUBMITTED THAT THE ASSESSEE PRODUCED I. T. ACKNOWLEDGEMENT BALANCE S HEET P&L ACCOUNT LOAN CONFIRMATION OF NIRMALA TODI PAN CARD VOTERS ID. THEREFORE THE ASSESEE HAS DISCHARGED HER BURDEN BY 3 PROVING THE EXISTENCE OF THE LOAN CREDITORS THEIR CAPACITY TO GIVE LOAN AND THE GENUINENESS OF THE TRANSACTION. HE LASTLY PRAYED THAT THE SOURCE O F CASH DEPOSIT OF RS.2 50 000/- IN THE BANK ACCOUNT AND UNSECURED LOANS OF RS.38 000/- STANDS E XPLAINED AND SHOULD BE DELETED. 5. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES AND PRAYED BEFORE THE BENCH TO CONFIRM THE SAME. 6. HEARD THE SUBMISSIONS OF BOTH THE SIDES AND CONSIDE RED THE MATERIAL PLACED ON RECORD. I FIND THAT THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS.2 50 000/- TO THE INCOME OF THE ASSESSEE AS THE SAME WAS FOUND CREDIT ED IN THE ASSESSEES BANK ACCOUNT BY CASH. WHEN THE ASSESSEE WAS ASKED TO EXPLAIN THIS CASH DEPOSIT THE ASSESEE FAILED TO GIVE ANY EXPLANATION WHATSOEVER DESPITE THE FACT TH AT ASSESSING OFFICER HAD GIVEN SEVERAL OPPORTUNITIES TO HER. BEFORE THE LD. CIT(A ) THE ASSESSEES CONTENTION WAS THAT SHE TOOK TEMPORARY LOAN OF RS.2 50 000/- FROM 14 PE RSONS. LD. CIT(A) ASKED FOR REMAND REPORT FROM THE ASSESSING OFFICER. THE REMA ND REPORT IS PART OF THE APPELLATE ORDER OF THE LD. CIT(A). IT IS CLEAR FROM THE REMA ND REPORT THAT THE CREDITORS HAD VERY MEAGER CASH IN HAND AND HAD VERY LOW WITHDRAWALS FO R THEIR HOUSEHOLD EXPENSES AND DESPITE THAT HAVE GIVEN INTEREST FREE ADVANCE OF AN AMOUNT MORE THAN THE AMOUNT OF THEIR DRAWINGS FOR THE WHOLE YEAR. THIS FACT DOES NOT AP PEAL TO THE COMMON SENSE AND IS AGAINST THE HUMAN PROBABILITIES AND CAST DOUBT ON T HE GENUINENESS OF THE TRANSACTION. AS THE ASSESSEE HAS FAILED TO PROVE THE CREDITWORTH INESS OF THE PERSONS FROM WHOM SHE HAS CLAIMED TO HAVE RECEIVED THIS TEMPORARY LOANS W HICH WAS FOUND DEPOSITED IN CASH IN THE BANK ACCOUNT OF THE ASSESSEE I AM OF THE CONSI DERED OPINION THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION AND THEREFORE THE LOWER AUTHORITIES WERE JUSTIFIED IN MAKING THIS ADDITION U/S. 68 OF T HE I. T. ACT. BEFORE ME THE LD. COUNSEL HAS SUBMITTED THAT OUT OF RS.2 50 000/- RS .39 330/- HAS BEEN RECEIVED FROM SRI INDER CHAND DALMIA AND SMT. SAROJ SHARMA AS REPAYME NT OF LOAN FROM THESE PERSONS THE LOANS WERE CLAIMED TO HAVE BEEN GIVEN IN THE EARLIER YEAR S. THIS FACT REQUIRES VERIFICATION AT THE END OF THE ASSESSING OFFICER. THEREFORE OUT OF TOTAL ADDITION OF RS.2 50 000/- MATTER RELATING TO REPAYMENT OF LOAN OF RS.39 330/- IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER VERIFICATION AND THE REST OF THE ADDITION IS HEREBY CONFIRMED. AS FAR AS GROUND NO. 2 IS CONCERNED IN RESPECT OF LOANS OF RS .38 000/- RECEIVED FROM SMT. KAMALA SHARMA AND SRI NETAI DHANG THE FACTS ARE SIMILAR AN D IDENTICAL. HERE ALSO THE DRAWINGS ARE LESS THAN THE AMOUNT ADVANCED TO THE ASSESEE AND ALSO TH ERE IS NO CASH IN HAND. SO THE ASSESSEE IN THESE TWO CASES HAS ALSO FAILED TO PROVE THE GENUIN ENESS OF THE TRANSACTION AS THE 4 CREDITWORTHINESS OF BOTH THE PERSONS HAVE NOT BEEN PROVED. THEREFORE THIS ADDITION IS ALSO HEREBY CONFIRMED. THIS VIEW OF MINE FINDS SUPPORT FROM THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SMT. KALPANA GHOSH VS. ITO IN ITA N O. 1027/K/2007 DATED 15.2.2008 WHEREIN ON SIMILAR FACTS FOLLOWING WAS HELD : 6. HEARD THE SUBMISSIONS OF BOTH THE SIDES CONSID ERED THE CASE LAWS CITED IN THE WRITTEN SUBMISSION AND PERUSED THE MATERIAL AVAILAB LE ON RECORD. WE FIND THAT THE ONUS IS ON THE PART OF THE ASSESSEE TO PROVE THE IDENTIT Y CREDITWORTHINESS AND GENUINENESS OF THE PARTIES FROM WHOM HE HAD RECEIVED GIFTS. IN THI S CASE THE ASSESSEE WAS UNABLE TO PROVE THE CREDITWORTHINESS OF THE DONORS BEFORE THE LOWER AUTHORITIES. WE FIND FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER DID NOT DISPUTE THE FACT THAT BOTH THE DONORS ARE EXISTING PERSONS AND GIFT AMOUNT WAS GIVEN BY B ANK CHEQUES. THE ASSESSING OFFICER ALSO FOUND THAT THE DONORS WERE NOT CLOSE RELATIVES OF THE ASSESSEE. THE ONLY QUESTION REMAINS THAT WHETHER THE DONORS ARE CAPABLE TO GIFT SUCH A HUGE AMOUNT. WE FIND FROM ALL THE FACTS AND EVIDENCE THAT THE DONORS SMT. RAMA DAS AND SRI SOMNATH MAJUMDER HAD INCOME OF RS.93 478/- AND RS.54 100/- RESPECTIVELY AND HAVE WITHDRAWN MEAGER AMOUNTS OF RS.23 000/- AND RS.25 000/- FOR H OUSEHOLD EXPENSES DURING THE YEAR UNDER APPEAL AND HAVE CLAIMED TO HAVE GIFTED A SUM OF RS.2 50 000/- EACH TO THE ASSESSEE WHO FALLS IN HIGHER INCOME BRACKET THAN TH EM WITHOUT KEEPING ANY PROVISION FOR THEIR FUTURE AS HAS RIGHTLY BEEN OBSERVED BY TH E ASSESSING OFFICER BY ANALYZING THEIR BALANCE SHEETS. THEY HAVE ALSO FAILED TO PRODUCE A NY EVIDENCE REGARDING AMOUNTS DEPOSITED BY THEM IN CASH IN THEIR BANK ACCOUNTS TO THE EFFECT THAT THESE WERE THEIR BUSINESS RECEIPTS DESPITE OPPORTUNITY BEING GIVEN B Y THE ASSESSING OFFICER FOR THIS PURPOSE. THESE PECULIAR FACTS OF THIS CASE DO NOT APPEAL TO COMMON SENSE AND ARE AGAINST ALL HUMAN PROBABILITIES. IN VIEW OF ALL TH IS THE CREDITWORTHINESS OF THE DONORS AND THE GENUINENESS OF THE TRANSACTIONS HAVE RIGHTL Y BEEN DISBELIEVED BY THE LOWER AUTHORITIES AND THE ADDITIONS SO MADE BY THE ASSESS ING OFFICER AND SUSTAINED BY THE LD. CIT(A) ARE HEREBY CONFIRMED. THUS THE GROUND NO. 1 IS PARTLY ALLOWED FOR STATIS TICAL PURPOSES AND GROUND NO. 2 IS DISMISSED. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.1.2011 SD/- . . (D. K. TYAGI) JUDI CIAL MEMBER ( - - - -) )) ) DATED : 28TH JANUARY 2011 %./ '#01 '2% JD.(SR.P.S.) 5 3 +''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SMT. NIRMALA TODI BALAJI APARTMENT 3 RD FLOOR 98 GIRISH GHOSH ROAD LILUAH HOWRAH 711 204 2 +)* / RESPONDENT : ITO WARD-47(1) KOLKATA. 3 . ' # / THE CIT KOLKATA 4 . ' # ( )/ THE CIT(A) KOLKATA 5 . %=' +'# / DR KOLKATA BENCHES KOLKATA 4 +'/ TRUE COPY #>/ BY ORDER ? 1 /DEPUTY REGISTRAR .