Shri Manilal M.Kothari, Ahmedabad v. The Dy.CIT.,Circle-7,, Ahmedabad

ITA 2258/AHD/2009 | 1999-2000
Pronouncement Date: 25-02-2011 | Result: Dismissed

Appeal Details

RSA Number 225820514 RSA 2009
Assessee PAN ACMPK0159J
Bench Ahmedabad
Appeal Number ITA 2258/AHD/2009
Duration Of Justice 1 year(s) 7 month(s) 2 day(s)
Appellant Shri Manilal M.Kothari, Ahmedabad
Respondent The Dy.CIT.,Circle-7,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-02-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 25-02-2011
Date Of Final Hearing 22-02-2011
Next Hearing Date 22-02-2011
Assessment Year 1999-2000
Appeal Filed On 23-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND A. N. PAHUJA AM) ITA NO.2258 AND 2259/AHD/2009 A. Y.: 1999-2000 AND 2000-01 LATE SMT. SUSHILABEN M. KOTHARI L/R SHRI MANILAL M. KOTHARI C/O. KETAN H. SHAH ADVOCATE 903 SAPHIRE COMPLEX NR. CARGO MOTORS C. G. ROAD AHMEDABAD VS THE D. C. I. T. CIRCLE-7 AHMEDABAD PA NO. ACMPK 0159J (APPELLANT) (RESPONDENT) ITA NO.2260 AND 2261/AHD/2009 A.Y.: 1999-2000 AND 2000-01 SHRI MANILAL AMULAKHRAI KOTHARI (HUF) C/O. KETAN H. SHAH ADVOCATE 903 SAPHIRE COMPLEX NR. CARGO MOTORS C. G. ROAD AHMEDABAD VS THE INCOME TAX OFFICER WARD -7(1) AHMEDABAD PA NO. AADHK 0091E (APPELLANT) (RESPONDENT) APPELLANT BY SHRI KETAN H. SHAH AR RESPONDENT BY SHRI R. K. DHANISTA SR. DR O R D E R PER BENCH: THIS ORDER SHALL DISPOSE OF ALL THE ABOVE APPEALS. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 2 MATERIALS AVAILABLE ON RECORD. ALL THE APPEALS ARE BEING DISPOSED OF AS UNDER: ITA NO.2258/AHD/2009: A. Y.1999-2000 3. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XI AHMEDABAD DATED 01 ST MAY 2009 FOR ASSESSMENT YEAR 1999-2000 CHALLENGING THE ADDITION OF RS.42 91 8/-. 4. THE AO ON PERUSAL OF THE STATEMENT OF INCOME NOT ED THAT THE ASSESSEE HAS SHOWN INTEREST INCOME OF RS.1 86 773/- AND FDR INTEREST OF RS.28 664/-. NO DETAILS IN THIS REGARD OR ANY BREAK-UP WAS FILED. AGAINST THE INCOME THE ASSESSEE CLAIMED ITP FEES AND ACCOUNTING SALARY OF RS.1 500/- AND INTEREST PAID A T RS.41 418/-. THE ASSESSEE NEITHER FURNISHED ANY DETAILS NOT ESTABLIS HED ANY NEXUS AS TO HOW THE ABOVE EXPENSES WERE INCURRED TO EARN THE INCOME FROM OTHER SOURCES. IN VIEW OF SECTION 57 OF THE IT ACT ASSESSEES CLAIM OF EXPENSES FOR EARNING INCOME FROM OTHER SOURCES WAS DISALLOWED AND ADDITION OF RS.42 918/- WAS ACCORDINGLY MADE. THE L EARNED CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE NOTED T HAT THE ASSESSEE HAS NOT PRODUCED ANY RELEVANT DETAILS OR EVIDENCES AND ACCORDINGLY APPEAL OF THE ASSESSEE WAS DISMISSED. 5. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSI ONS OF THE PARTIES WE DO NOT FIND IT TO BE A FIT CASE FOR INT ERFERENCE. THE ASSESSEE HAS SHOWN INCOME FROM OTHER SOURCES ON ACC OUNT OF INTEREST AND CLAIMED DEDUCTION OF INTEREST PAID AND ACCOUNTING SALARY AND THUS THE ASSESSEE HAS CLAIMED EXPENDITURE AGAIN ST THE INCOME SHOWN FROM OTHER SOURCES. THE ASSESSEE HAS HOWEVER FAILED TO ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 3 PROVE THAT THE EXPENDITURE WAS MADE OUT OR EXPENDED WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF EARNING SUCH INCOME FROM OTHER SOURCES. IN THE ABSENCE OF ANY EVIDENCE OF MATERIAL ON RECORD EVEN BEFORE US WE DO NOT FIND IT TO BE A FIT CASE FOR I NTERFERENCE. WE THEREFORE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. ITA NO.2259/AHD/2009:A.Y. 2000-01 7. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XI AHMEDABAD DATED 01 ST MAY 2009 FOR ASSESSMENT YEAR 2000-01 CHALLENGING THE ADDITION OF RS.2 95 00 0/- ON ACCOUNT OF UNDISCLOSED INVESTMENT IN FDRS. 8. THE AO NOTED THAT THE ASSESSEE IS AN INDIVI DUAL WHO HAD EXPIRED ON 10-04-2000. THE ASSESSEE WAS REQUESTED T O FURNISH EXPLANATION FOR 3 FDRS FOUND DURING THE COURSE OF S EARCH U/S 132 OF THE IT ACT IN THE CASE OF SHRI SANJAY M. KOTHARI WH ICH ARE AS UNDER: SR. NO. FDR DATE NAME OF BANKS FDR NO AMOUNT (RS.) 1 7/01/2000 PUNJAB NATIONAL BANK 378024 95 000 2 9/05/2004 CANARA BANK 280230 1 45 252 3 2/09/2004 CENTRAL BANK OF INDIA 452048 1 32 132 THE ASSESSEE EXPLAINED THAT THE ABOVE FDRS WERE MAD E BY WITHDRAWING THE AMOUNT FROM VASUPUJYA BUILDERS WHIC H WAS DEPOSITED IN SAVINGS BANK ACCOUNT OF THE ASSESSEE I N BANK OF INDIA ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 4 AND FROM THAT ACCOUNT THE CHEQUES WERE ISSUED FOR M AKING THE FDRS. IT WAS SEEN THAT FDR OF RS.95 000/- WAS MADE FROM THE WITHDRAWAL DEPOSITED IN S B ACCOUNT. AS REGAR DS FDR OF RS.1 45 252/- THE ORIGINAL FDR AMOUNT WAS RS.1 00 000/- WHICH WAS MADE ON 07-01-2000 AND AFTER RENEWAL OF THE INTERES T IN THAT NEW FDR OF THIS AMOUNT WAS ISSUED. AS REGARDS FDR OF RS .1 32 132/- THE ORIGINAL FDR AMOUNT WAS OF RS.1 00 000/- WHICH WAS MADE ON 03-02-2000 AND AFTER RENEWAL WITH INTEREST NEW FDR OF THIS AMOUNT WAS MADE. IT WAS SUBMITTED THAT INITIAL INVESTMENT IN THE ABOVE 3 FDRS COMES TO RS.2 95 000/- WHICH WAS MADE IN THE F INANCIAL YEAR 1999-2000. THE AO HOWEVER DID NOT ACCEPT THE CONTE NTION OF THE ASSESSEE BECAUSE THE ASSESSEE WAS SILENT ABOUT MEET ING OF THE DAY TO DAY EXPENDITURE AND OTHER INVESTMENTS IN MOVABLE AND IMMOVABLE ASSETS DURING THIS PERIOD. THE AO NOTED THAT SOURCE S OF THE FDRS THUS CANNOT BE SAID TO BE EXPLAINED AND THE ADDITIO N WAS ACCORDINGLY MADE. SAME SUBMISSIONS WERE REITERATED BEFORE THE L EARNED CIT(A) AND IT WAS SUBMITTED THAT COPY OF THE BANK STATEMEN T WAS FILED TO EXPLAIN THE SOURCES OF THE INVESTMENT IN THE FDRS. THE LEARNED CIT(A) HOWEVER DID NOT ACCEPT THE SAME BECAUSE NO SATISFACTORY EXPLANATION/EVIDENCES AS WELL AS PROOF WITH REGARD TO INVESTMENTS MADE IN THE FDR HAS BEEN FILED. ADDITION WAS ACCORD INGLY CONFIRMED AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. 9. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE A RE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSION MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO PB-21 WHICH IS COPY OF ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 5 THE BANK ACCOUNT OF THE ASSESSEE WITH BANK OF INDIA . THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT FROM THE ABOVE BANK ACCOUNT THAT ON 14-10-1999 THE ASSESSEE HAS RECEIVED AMOUNT S FROM AVIRAJ BUILDERS IN A SUM OF RS.63 375/- AND RS.34 125/-. S IMILARLY FURTHER AMOUNTS WERE RECEIVED FROM THE SAME AVIRAJ BUILDERS ON 20-11-1999 IN A SUM OF RS.52 000/- AND FURTHER AMOUNTS WERE RE CEIVED FROM VASUPUJYA BUILDERS ON 17-11-1999 AND 30-11-1999 IN A SUM OF RS.60 000/- AND RS.1 00 000/-. THUS THE ASSESSEE H AS RECEIVED RS.3 09 400/- FROM THE TWO PARTIES AND THE OPENING BALANCE AS ON 01- 01-2000 WAS RS.10 35 206/-. THE ASSESSEE THEREAFTER MADE INVESTMENTS IN THE FDRS ON 07-01-2000 IN A SUM OF R S.1 00 000/- AND RS.95 000/-. SIMILARLY INVESTMENTS IN FDRS WAS MADE ON 08-02- 2000 IN A SUM OF RS.1 00 000/-. SAME ENTRIES WERE F OUND IN THE BANK ACCOUNT AND COPY OF WHICH IS FILED AT PB-16. THE LE ARNED DR ON THE OTHER HAND MENTIONED THAT NO DETAILS OF EARLIER DE POSITS IS MENTIONED IN THE BANK ACCOUNT AND SINCE THE AO AND THE LEARNE D CIT(A) HAS GIVEN FINDING THAT NO SATISFACTORY EXPLANATION IS G IVEN BY THE ASSESSEE THEREFORE IN OUR VIEW THE MATTER REQUIRE S RECONSIDERATION AT THE LEVEL OF THE AO. THE AO HAS GIVEN REASONS TH AT THE ASSESSEE COULD NOT EXPLAIN DAY TODAY EXPENDITURE AND INVESTM ENT IN MOVABLE AND IMMOVABLE PROPERTIES AND MADE THE ADDITION ON A CCOUNT OF UNEXPLAINED INVESTMENTS IN FDRS. THESE REASONS ARE THEREFORE NOT RELEVANT TO THE MATTER IN ISSUE BECAUSE THE ASSESSE E COULD BE CALLED UPON TO EXPLAIN INVESTMENT IN FDRS ONLY. FOR DIFFER ENT HEADS THE AO SHALL HAVE TO MAKE SEPARATE INQUIRY. COPIES OF THE BANK ACCOUNT FILED IN THE PAPER BOOK PRIMA FACIE SUPPORT THE CONTENTIO N OF THE ASSESSEE. ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 6 WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORI TIES BELOW AND RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIREC TION TO VERIFY THE DETAILS OF INVESTMENTS IN FDRS FROM THE BANK ACCOUN T OF THE ASSESSEE AND THEREFORE THE AO SHALL PASSED A REASO NED ORDER AFTER GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ITA NO.2260/AHD/2009: A. Y. 1999 - 2000 11. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XI AHMEDABAD DATED 13-05-2009 FOR A SSESSMENT YEAR 1999- 2000 CHALLENGING THE ADDITION OF RS.61 5 00/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY. 12. THE AO NOTED THAT THE ASSESSEE HAS MADE INVESTM ENT FOR PURCHASE OF PROPERTY AT NARAYAN CHAMBERS FOR RS.61 500/-. THE SAID PROPERTY WAS PURCHASED VIDE DEED DATED 12-08-1998 ( PB-16) FOR A TOTAL SUM OF RS.61 500/-. THE SOURCE OF THE SAME WA S EXPLAINED TO BE OUT OF BANK ACCOUNT BUT THE AO NOTED THAT ENTRIES A RE HOWEVER NOT REFLECTED IN THE BANK ACCOUNT. THERE IS ONLY ONE EN TRY OF RS.48 096/- BEING PAYMENT MADE TO NATIONAL EXPORTS WHICH COULD BE MADE OUT OF THE BALANCE IN THE BANK ACCOUNT. ADDITION WAS ACCOR DINGLY MADE. THE LEARNED CIT(A) CONFIRMED THE ADDITION BECAUSE SOURC ES OF INCOME FOR INVESTMENT IS NOT EXPLAINED AND THE CLAIM IS NOT SU PPORTED BY ANY DOCUMENTARY EVIDENCES. ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 7 13. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE TITLE DEED OF THE PROPERTY IN QUESTION DATED 12-08-1998 (PB-17) THROUGH WHICH THE PROPERTY IN QUESTION WAS PURCHASED FOR A SUM OF RS.61 500/- VID E TWO CHEQUES BEARING NO.297557 AND 297717 DRAWN ON DENA BANK. TH E SELLER IS NATIONAL EXPORTS. PB-25 IS COPY OF THE BANK ACCOUNT WITH DENA BANK WHICH SHOWS THAT TWO PAYMENTS HAVE BEEN MADE TO NAT IONAL EXPORTS I.E. ON 12-6-1998 IN A SUM OF RS.48 000/- PLUS BANK CHARGES OF RS.96/- AND FURTHER PAYMENT WAS MADE ON 31-07-1998 IN A SUM OF RS.13 500/- PLUS BANK CHARGES OF RS.28/-. THUS TOT AL PAYMENT MADE TO NATIONAL EXPORTS WAS RS.61 500/- AND WITH BANK C HARGES IT IS RS.61 624/-. THE REPLY OF THE ASSESSEE IS FILED AT PAGE 10 TO SHOW THAT THESE DOCUMENTS WERE FILED BEFORE THE AO. IT THEREFORE APPEARS EITHER THE AO HAS NOT LOOKED INTO THESE DOCUMENTS P ROPERLY OR HAS FAILED TO APPRECIATE THE DOCUMENTS FILED BY THE ASS ESSEE. SINCE THE SOURCE OF THE SAME IS ENTRIES FROM THE BANK ACCOUNT THEREFORE THE AO SHOULD HAVE VERIFIED THE SAME AND PASSED A REASO NED ORDER. WE THEREFORE SET ASIDE THE ORDERS OF THE AUTHORIT IES BELOW AND RESTORE THIS ISSUE TO THE FILED OF THE AO WITH DIRE CTION TO VERIFY THE PAYMENTS FROM THE BANK ACCOUNT OF THE ASSESSEE WHIC H IS REFLECTED AS INVESTMENT IN PROPERTY. THE AO SHALL PASS A REAS ONED ORDER AFTER GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 14. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 8 ITA NO.2261/AHD/2009:A.Y. 2000-01 15. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OR THE LEARNED CIT(A)-XI AHMEDABAD DATED 13-05-2009 FOR A SSESSMENT YEAR 2000-01 CHALLENGING THE ADDITION OF RS.65 000/ - MADE ON ACCOUNT OF UNACCOUNTED INVESTMENTS IN FDRS. 16. THE AO NOTED THAT NO DETAILS AND BREAK-UP HAVE BEEN FILED TO EXPLAIN THE INVESTMENTS IN FDRS AND ACCORDINGLY ADD ITION OF RS.65 000/- WAS MADE. IT WAS SUBMITTED BEFORE THE L EARNED CIT(A) THAT THE ASSESSEE HAD SAVINGS WITH VASUPUJYA BUILDE RS AND AJAYSHREE BUILDERS AND THE SAME WERE DEPOSITED IN DENA BANK FROM WHERE CHEQUES WERE ISSUED FOR THE PURPOSE OF MAKING THE FDRS. THE SUBMISSIONS OF THE ASSESSEE WERE REJECTED AND THE A PPEAL OF THE ASSESSEE WAS DISMISSED. 17. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE A RE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. IT IS STATED THAT FDRS OF PUNJAB NATIONAL BANK WAS OBTAINED ON 0 7-01-2000 IN A SUM OF RS.65 000/-. COPY OF THE ACCOUNT OF DENA BAN K IS FILED AT PAGE 13 OF THE PAPER BOOK TO SHOW THAT INVESTMENT W AS MADE OUT OF THE BANK ACCOUNT THROUGH WHICH THE AMOUNT OF RS.65 000/- WAS CLEARED THROUGH BANKING CHANNEL. THE SOURCE OF THE SAME ARE WITHDRAWAL OF DEPOSITS FROM VASUPUJYA BUILDERS (PB- 15 AND PB-18) WHICH ARE THE CONFIRMATION AND BANK ACCOUNT OF THE AFORESAID PARTY THROUGH WHICH RS.1 50 000/- WAS ADVANCED TO THE ASS ESSEE. THE EVIDENCES ON RECORD HAVE NOT BEEN PROPERLY APPRECIA TED AND ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 9 CONSIDERED BY THE AUTHORITIES BELOW. IT IS MERELY S TATED THAT NO DETAILS ON THIS HAVE BEEN FURNISHED. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS IS SUE TO THE FILE OF THE AO WITH DIRECTION TO RE-DECIDE THE APPEAL OF THE AS SESSEE ON THIS GROUND BY VERIFYING THE FACTS FROM THE BANK ACCOUNT OF THE ASSESSEE BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. THE AO SHALL PASS A REASONED ORDER AND SH ALL DISCUSS THE EVIDENCE AND MATERIAL ON RECORD IN THE ORDER. 18. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 19. NO OTHER POINT IS ARGUED OR PRESSED. 20. IN THE RESULT THE APPEAL OF THE ASSESSEE IN IT A NO.2258/AHD/2009 IS DISMISSED. HOWEVER THE OTHER T HREE APPEALS OF THE ASSESSEE IN ITA NOS. 2259 2260 AND 2261/AHD/20 09 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 25 -02-2011 SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 25- 02-2011 LAKSHMIKANT/- ITA NO. 2258 2259 2261 AND 2262/AHD/2009 LATE SMT. SUSHILABEN M. KOTHARI VS DCIT CIR-1 AHM EDABAD AND MANILAL AMULAKHRAI KOTHRAI VS ITO W-7(1) 10 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