Shri Nilesh Rameshwarprasad Gupta, Bhavnagar v. The Income tax Officer, Wrd-1(3),, Bhavnagar

ITA 2182/AHD/2006 | 2000-2001
Pronouncement Date: 23-04-2010 | Result: Dismissed

Appeal Details

RSA Number 218220514 RSA 2006
Assessee PAN ABSPG8516L
Bench Ahmedabad
Appeal Number ITA 2182/AHD/2006
Duration Of Justice 3 year(s) 6 month(s) 11 day(s)
Appellant Shri Nilesh Rameshwarprasad Gupta, Bhavnagar
Respondent The Income tax Officer, Wrd-1(3),, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 23-04-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 23-04-2010
Date Of Final Hearing 19-04-2010
Next Hearing Date 19-04-2010
Assessment Year 2000-2001
Appeal Filed On 12-10-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND N. S. SAINI AM) ITA NO.2182/AHD/2006 A. Y: 2000-01 SHRI NILESH RAMESHWARPRASAD GUPTA RADHAKRISHNA 12/A ANJNESHWAR PARK TILAKNAGAR BHAVNAGAR PA NO. ABSPG 8516 L VS THE INCOME TAX OFFICER WARD 1(3) BHAVNAGAR (APPELLANT) (RESPONDENT) APPELLANT BY SHRI DHIREN SHAH AR RESPONDENT BY SHRI RAJA RAM SHAH DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE CIT(A)-XIX AHMEDABAD DATED 27 -07-2006 FOR THE ASSESSMENT YEAR 2000-01. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIAL ON RECORD. 3. ON GROUND NOS. 1 OF THE APPEAL THE ASSESSEE CHAL LENGED THE ADDITIONS OF RS.36 500/- AS UNDISCLOSED INCOME OF T HE ASSESSEE BEING AMOUNT LYING IN SAVINGS ACCOUNT NO.11945 OF BANK OF BARODA JAMNAGAR PERTAINING TO HIS MINOR SON. 4. BRIEFLY THE FACTS OF THE CASE ON THIS ISSUE ARE THAT THE ASSESSEE HAS MAINTAINED SAVINGS BANK ACCOUNT NO.11945 WITH BANK OF BARODA JAMNAGAR IN THE NAME OF HIS MINOR SON HITARTH. ON P ERUSAL OF THE BANK STATEMENT IT WAS FOUND THAT AN AMOUNT OF RS.36 500 /- WAS DEPOSITED IN CASH ON 30-04-1999. EXPLANATION OF THE ASSESSEE WAS SOUGHT REGARDING ITA NO.2182/AHD/2006 SHRI NILSESH RAMESHWARPRASAD GUPTA 2 SOURCE OF THE CASH DEPOSIT. IT WAS EXPLAINED THAT C ASH IN THE ABOVE SAID ACCOUNT WAS DEPOSITED FROM OUT OF ACCUMULATED GIFTS RECEIVED FROM FRIENDS AND RELATIVES ON THE FIRST BIRTH DAY OF HIS SON. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND MADE ADDI TION ACCORDINGLY. SAME SUBMISSIONS WERE MADE BEFORE THE LEARNED CIT(A ). THE LEARNED CIT(A) NOTED THAT THE ASSESSEE HAS OPENED THE ABOV E ACCOUNT IN THE NAME OF HIS MINOR SON AND DEPOSITED RS.36 500/- IN CASH ON 30-04-1999. IT WAS ALSO NOTED THAT SON OF THE ASSES SEE WAS BORN ON 12-07-1997 AND HIS BIRTH DAY WAS ON 12-07-1998. THE REFORE THE DEPOSIT IN THE BANK ACCOUNT IS NOT EXPLAINED AS PER EXPLANA TION OF THE ASSESSEE. THE LEARNED CIT(A) HAS ALSO NOTED THAT THAT NO SOUR CE OF CASH DEPOSIT THROUGH ANY DOCUMENTARY EVIDENCE IS FILED. THE LEAR NED CIT(A) RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF ROSHAN D. HATTI VS CIT 107 ITR 938 (SC) AND HELD THAT SINCE B URDEN IS NOT DISCHARGED BY THE ASSESSEE THEREFORE THE ASSESSEE FAILED TO PROVE THE SOURCES OF THE DEPOSIT AND ACCORDINGLY CONFIRMED TH E ADDITION. THE LEARNED CIT(A) ALSO REJECTED THE CONTENTION OF THE ASSESSEE THAT THE GIFT AMOUNTS WERE RECEIVED IN CASH WERE SMALL AMOUNTS FR OM DADA-DADI NANA-NANI MATERNAL UNCLE AND AUNT AND FROM OTHER R ELATIVES AND FRIENDS. THE ADDITION WAS ACCORDINGLY CONFIRMED. 5. THE LEARNED COUNSEL FOR THEE ASSESSEE REITERATED THE SAME SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT EXCEPT GIVING THE EXPLANATION OF THE GIFTS RECEIVED FROM SEVERAL RELATIVES THE ASSESSEE HAS NOT FILED ANY CONFIRMATION FROM AN Y OF THE RELATIVES. NO EVIDENCE IN SUPPORT OF THE EXPLANATION IS FILED. TH E LEARNED DR ON THE OTHER HAND RELIED UPON THE ORDERS OF THE AUTHORITI ES BELOW. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT THE ADDITION HAS BEEN RIGHTLY CONFIRMED BY THE LEAR NED CIT(A). THE ASSESSEE EXPLAINED THAT SMALL GIFTS WERE RECEIVED O N BIRTH DAY OF THE ITA NO.2182/AHD/2006 SHRI NILSESH RAMESHWARPRASAD GUPTA 3 MINOR SON OF THE ASSESSEE FROM SEVERAL RELATIVES AN D FRIENDS WHICH WAS DEPOSITED IN THE BANK ACCOUNT. THERE IS A DEPOSIT I N THE BANK ACCOUNT OF MINOR SON OF THE ASSESSEE IN A SUM OF RS.36 500/- O N 30-04-1999. THIS DATE HAS NO RELATION WITH THE BIRTH DAY CEREMONY OF THE MINOR SON OF THE ASSESSEE WHICH FALLS ON 12-07-1997 AND 12-07-1998. THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE BECAUSE IF BIRTH DAY IS CELEBRATED IN THE FAMILY THE ASSESSEE WOULD HAVE SPENT THE AMOUNT OF CELEBRATION ALSO FOR WHICH NO DETAILS ARE GIVEN. THE ASSESSEE THEREFORE WOULD HAVE SPENT THE EXPENDITURE FROM UNDISCLOSED SOURCES. ADMITTEDLY T HE ASSESSEE DID NOT FILE ANY CONFIRMATION FROM THE CLOSE RELATIVES AND FRIENDS IN SUPPORT OF THE CONTENTION OF THE GIFTS WHICH WOULD PROVE THAT NO GENUINE GIFTS HAVE BEEN RECEIVED FROM ANY OF THE RELATIVES OR FRIENDS. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL IN SUPPORT OF THE CONTENTION O F THE ASSESSEE IT IS HIGHLY UNBELIEVABLE THAT THE DEPOSIT OF THE CASH MA DE IN THE BANK ACCOUNT OF THE MINOR SON OF THE ASSESSEE WAS FROM T HE SOURCE OF THE GIFTS. THE ASSESSEE THUS FAILED TO PROVE THE SOURCE OF THE DEPOSIT IN THE BANK. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LE ARNED CIT(A).WE CONFIRM HIS FINDINGS AND DISMISS THIS GROUND OF APPEAL OF T HE ASSESSEE. 7. ON GROUND NO.2 OF THE APPEAL THE ASSESSEE CHALL ENGED THE ADDITION OF RS.1 15 000/- ON ACCOUNT OF INVESTMENT IN LAND O UT OF UNDISCLOSED SOURCES. THE AO DISCUSSED THIS ISSUE IN PARA 3 AND 4 OF THE ASSESSMENT ORDER. IT WAS MENTIONED BY THE AO THAT DURING THE C OURSE OF SEARCH CONDUCTED BY ANTI CORRUPTION BUREAU AT THE RESIDENC E OF THE ASSESSEE UNREGISTERED PURCHASE DEED IN THE NAMES OF SMT. ASH ABEN N. GUPTA AND SMT. NILABEN TRIVEDI WAS FOUND. A PIECE OF LAND SIT UATED AT SR. NO.392/3 JAMNAGAR RAJKOT HIGHWAY JAMNAGAR WAS PURCHASED JOI NTLY BUT THIS PURCHASE DEED WAS DECLARED TO HAVE BEAN CANCELLED S UBSEQUENTLY IN THE MONTH OF MARCH 2000. IN THE CASE OF SMT. ASHABEN N . GUPTA THE AO CONCLUDED THAT INVESTMENT IN THE SAID PIECE OF LAND WAS MADE AND FUNDS FROM UNACCOUNTED INCOME OF HER HUSBAND WHO WAS CEN TRAL GOVERNMENT ITA NO.2182/AHD/2006 SHRI NILSESH RAMESHWARPRASAD GUPTA 4 EMPLOYEE SEARCHED BY ANTI CORRUPTION BUREAU AT THE RELEVANT TIME. PROTECTIVE ASSESSMENT WAS MADE IN THE NAME OF WIFE OF THE ASSESSEE AND SUBSTANTIVE ASSESSMENT WAS MADE IN THE HANDS OF THE PRESENT ASSESSEE. THE ADDITION WAS CHALLENGED BEFORE THE LEARNED CIT( A) AND IT WAS EXPLAINED THAT ADDITION IS MADE CONSIDERING THE FIN DINGS GIVEN IN THE CASE OF SMT. ASHABEN N. GUPTA. IT WAS EXPLAINED THA T NEITHER THE ASSESSEE NOR HIS WIFE CONTENDED THAT SUBSTANTIVE AD DITION HAS BEEN MADE IN THE CASE OF THE ASSESSEE. IT WAS SUBMITTED THAT CONCLUSION DRAWN BY THE AO ON THE BASIS OF WRONG ASSUMPTION OF FACTS AN D FINDING THAT INVESTMENT WAS MADE OUT OF HER HUSBANDS INCOME FRO M UNDISCLOSED SOURCE GOT VITIATED. IT WAS SUBMITTED THAT AS PER S ECTION 69 OF THE IT ACT THE UNEXPLAINED INVESTMENT WOULD BE DEEMED TO BE IN COME OF THE ASSESSEE ONLY WHEN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT IF ANY MAINTAINED BY HIM FOR ANY SOURCE OF INCOME AND SHE OFFERED NO EXPLANATION ABO UT THE NATURE AND SOURCE OF THE INVESTMENT OR EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE AO SATISFACTORY. THE PROVISIONS ARE DISCRETIONARY BECAUSE THE WORD USED IS MAY AND NOT SHALL. SECTION 69 OF THE IT ACT WILL NOT APPLY IN THE CASE OF THE ASSESSEE BECAUSE HE HAS NO T MADE ANY INVESTMENT AS MADE BY THE WIFE OF THE ASSESSEE AND THE SOURCES HAVE BEEN EXPLAINED. THE LEARNED CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE NOTED THAT IT IS A FACT THAT UNREGISTERED PURCHASE DEED WAS FOUND IN THE NAME OF THE WIFE OF THE ASSESSEE SMT. ASHABEN N. GUPTA AND SMT. NILABEN TRIVEDI AND THE DOCUMENT WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE BY THE ANTI CORRUPTION BU REAU. THE ASSESSEE ADMITTED THAT THE PURCHASE DEED WAS IN THE NAMES OF THE ABOVE TWO LADIES BUT WAS CANCELLED AND THE AMOUNT PAID OF RS. 1 15 000/- WAS RECEIVED BACK. THE AO HAS OBSERVED THAT THE WIFE O F THE ASSESSEE HAD NO VIABLE SOURCE OF INCOME WHICH COULD PROVE INVESTMEN T IN THE PROPERTY. NO BOOKS OF ACCOUNT WERE FOUND DURING THE COURSE OF SE ARCH CONDUCTED BY ITA NO.2182/AHD/2006 SHRI NILSESH RAMESHWARPRASAD GUPTA 5 THE ANTI CORRUPTION BUREAU. NO PARTICULAR OF THE AC COUNTANT HAS BEEN GIVEN WHO HAS PREPARED THE BOOKS OF ACCOUNT. THE CA PITAL ACCOUNT PREPARED IN THE NAME OF THE WIFE OF THE ASSESSEE AR E AFTERTHOUGHT AND NOT RELIABLE. THE AO THEREFORE CONCLUDED THAT ON THE BASIS OF HUMAN PROBABILITY THAT SOURCE OF INVESTMENT IN THE SAID P IECE OF LAND WAS MADE FROM OUT OF UNACCOUNTED INCOME OF THE ASSESSEE. THE PROTECTIVE ASSESSMENT IN THE CASE OF THE WIFE OF THE ASSESSEE HAS BEEN DELETED BY THE LEARNED CIT(A) SEPARATELY. THE LEARNED CIT(A) C ONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE NOTED THAT THE ADDITI ON HAS BEEN RIGHTLY MADE ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSES SEE. THE LEARNED CIT(A) RELIED UPON THE DECISION OF THE HONBLE SUPR EME COURT IN THE CASE OF DURGA PRASAD MORE 82 ITR 540 (SC) IN WHICH IT W AS HELD THAT THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SU RROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE TRANSA CTIONS. THE LEARNED CIT(A) CONSIDERING THE SURROUNDING CIRCUMSTANCES AN D THE DETAILS GIVEN IN THE DOCUMENTS NOTED THAT THE PROPERTY IS PURCHA SED IN THE NAME OF THE WIFE OF THE ASSESSEE AND OTHER AND THE SAID DOC UMENT IS CANCELLED AND THE AMOUNT IS RECEIVED BACK. THE ASSESSEE FAILE D TO EXPLAIN THE SOURCE OF THE SAID INITIAL INVESTMENT MADE IN THE P ROPERTY. THEREFORE THE AO WAS JUSTIFIED IN MAKING THE ADDITION. THE ADDITI ON WAS ACCORDINGLY CONFIRMED AND THE APPEAL OF THE ASSESSEE WAS ACCORD INGLY DISMISSED. 8. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T THE WIFE OF THE ASSESSEE HAS INCOME FROM TUITION WHICH IS DECLARED IN THE RETURN OF INCOME FILED ON HERE BEHALF. IT WAS ALSO EXPLAINED THAT THE SOURCE OF THE INVESTMENT IS FROM THE INCOME OFFERED BY THE ASSESS EES WIFE. IT WAS SUBMITTED THAT SINCE THE SOURCE IS EXPLAINED TO BE INCOME OF THE WIFE OF THE ASSESSEE THEREFORE SUBSTANTIVE ASSESSMENT SHO ULD NOT BE MADE IN THE CASE OF THE ASSESSEE. THE LEARNED COUNSEL FOR T HE ASSESSEE IN THE ALTERNATIVE CONTENTION SUBMITTED THAT IF THE SOURCE IS NOT EXPLAINED THE ITA NO.2182/AHD/2006 SHRI NILSESH RAMESHWARPRASAD GUPTA 6 ADDITION MAY BE MADE IN THE CASE OF THE WIFE OF THE ASSESSEE. ON THE OTHER HAND THE LEARNED DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DOUBT THAT THE WIF E OF THE ASSESSEE HAS FILED RETURN OF INCOME SHOWING TUITION INCOME BUT THE TUITION INCOME IS OFFERED AT VERY MEAGER AMOUNT. OUT OF THE TUITION I NCOME SHE WOULD HAVE ALSO MADE WITHDRAWALS FOR HOUSEHOLD PURPOSE AN D IN HER CASE SEVERAL OTHER ADDITIONS WERE MADE SEPARATELY WHICH WERE ALSO CLAIMED TO BE DELETED BECAUSE THE INVESTMENT IN FDR ETC. HAVE BEEN MADE OUT OF HER TUITION INCOME. HER APPEAL FOR THE SAME ASSESSMENT YEAR IS HEARD SEPARATELY IN ITA NO.2600/AHD/2005 AND WOULD BE DIS POSED OF SEPARATELY. IT WOULD THEREFORE PROVE THAT HER MEA GER INCOME WAS NOT SUFFICIENT TO EXPLAIN THE SOURCE OF INVESTMENT IN T HE PIECE OF LAND AS IS INVOLVED IN THE PRESENT APPEAL. THE TUITION INCOME IS THEREFORE NOT AVAILABLE TO THE WIFE OF THE ASSESSEE FOR THE PURPO SE OF EXPLAINING INVESTMENT IN THE PIECE OF LAND ABOVE. IT WOULD TH EREFORE PROVE THAT EXPLANATION OF THE ASSESSEE IS INCORRECT AND IS NOT SUPPORTED BY ANY MATERIAL ON RECORD. THE SEIZED DOCUMENT WAS FOUND F ROM THE PREMISES OF THE ASSESSEE. THEREFORE BURDEN IS UPON THE ASSESSE E TO EXPLAIN THE SOURCE OF INVESTMENT IN THE PROPERTY. THE ASSESSEE HAS THUS FAILED TO EXPLAIN THE SOURCE OF INVESTMENT IN THE PROPERTY IN THE NAME OF HIS WIFE AND OTHER. THERE WAS ALSO SEARCH BY THE ANTI CORRUP TION BUREAU IN THE CASE OF THE ASSESSEE. THEREFORE THE SURROUNDING CI RCUMSTANCES WOULD PROVE THAT IT WAS THE ASSESSEE WHO HAS MADE INVESTM ENT IN THE PROPERTY IN THE NAME OF HIS WIFE FROM UNACCOUNTED SOURCE. TH US THE AUTHORITIES BELOW WERE JUSTIFIED IN MAKING THE SUBSTANTIVE ASSE SSMENT IN THE NAME OF THE ASSESSEE. SINCE PROTECTIVE ASSESSMENT IS ALR EADY DELETED IN THE NAME OF THE WIFE OF ASSESSEE BECAUSE SHE FAILED TO EXPLAIN THE SOURCES OF THE INVESTMENT THEREFORE THE CIRCUMSTANCES CLEARL Y POINTED OUT UNERRINGLY ITA NO.2182/AHD/2006 SHRI NILSESH RAMESHWARPRASAD GUPTA 7 TOWARDS THE ASSESSEE THAT THE ASSESSEE MADE INVESTM ENT IN THE PROPERTY IN THE NAME OF HIS WIFE FROM THE UNACCOUNTED AND UN EXPLAINED SOURCES. WE ACCORDINGLY CONFIRM THE FINDINGS OF THE AUTHORIT IES BELOW AND DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. 10. GROUNDS NO.3 AND 4 OF THE APPEAL ARE NOT PRESSE D BY THE LEARNED COUNSEL FOR THE ASSESSEE. THE SAME ARE ACCORDINGLY DISMISSED. 11. AS A RESULT THE APPEAL OF THE ASSESSEE IS DISM ISSED ORDER PRONOUNCED IN THE OPEN COURT ON 23-04-2010. SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 23- 04-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD