SAPNA MODI, Alwar v. ITO, Alwar

ITA 263/JPR/2016 | 2011-2012
Pronouncement Date: 07-10-2016 | Result: Partly Allowed

Appeal Details

RSA Number 26323114 RSA 2016
Assessee PAN AKQPM5610E
Bench Jaipur
Appeal Number ITA 263/JPR/2016
Duration Of Justice 6 month(s) 15 day(s)
Appellant SAPNA MODI, Alwar
Respondent ITO, Alwar
Appeal Type Income Tax Appeal
Pronouncement Date 07-10-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 07-10-2016
Assessment Year 2011-2012
Appeal Filed On 22-03-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES (SMC) JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 263/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2011-12 SMT. SAPNA MODI 10-11 SABZI MANDI ALWAR CUKE VS. THE ITO WARD- 1 (3) ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AKQPM 5610 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI GHANSHYAM THAKURIA ADVOCATE & SHRI KISH AN MORE CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA ADDL. CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/08/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 07 /10/2016 VKNS'K@ ORDER PER BHAGCHAND AM THE ASSESSEE HAS FILED AN APPEAL AGAINST ORDER OF T HE LD. CIT(A)- ALWAR DATED 19-01-2016 FOR THE ASSESSMENT YEAR 20 11-12 RAISING RELEVANT GROUND AS UNDER:- 1. THE ADDITION CONFIRMED BY THE LD. CIT(A) U/S ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BANK OF RS. 3.00 LCS ARE UNJUSTIFIED AND ILLEGAL AS THE SAME WAS FIN ALIZED WITHOUT LOOKING INTO THE PAPERS SUBMITTED BY THE AP PELLANT WHICH IS AGAINST THE LAW AND UNJUDICIOUS. ITA NO. 263/JP/2016 SMT. SAPNA MODI VS. ITO WARD- 1 (3) ALWAR . 2 2. THE LD. CIT(A) HAS NOT PROVIDED ANY PROPER OPPORTUNITY TO THE APPELLANT BEFORE CONFIRMING ADDI TION OF RS. 5 000/- UNDER VARIOUS EXPENSES EVEN AFTER THE A PPELLANT HAS SUBMITTED ALL THE RELEVANT PAPERS WHICH IS UNJU DICIAL AND ILLEGAL. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE THE OBSER VATION OF THE LD. CIT(A) AS TO THE FACTS OF THE CASE IS AS UNDER:- 5.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO SUBMISSIONS MADE INCLUDING JUDICIAL CITATIONS AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN ADDITION OF RS. 3 LACS WAS MADE BY THE AO O N ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK A CCOUNT OF THE APPELLANT U/S 69A OF THE I.T. ACT. AO HAS WRONG LY MENTIONED THAT SECTION 68 OF THE I.T. ACT. THE ADDI TION WAS MADE ON THE GROUND THAT CASH DEPOSITS OF RS. 3 LACS WERE FOUND TO HAVE BEEN MADE BY THE APPELLANT IN THE ACC OUNT WITH ICICI BANK ON 10-01-2011. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON BEING ASKED THE SOURCES OF CASH AVAILABLE WITH THE APPELLANT IT WAS EXPLAINED THAT THIS AMOUNT WAS WITHDRAWN ON17-07-2010 TO PURCHASE THE PROPERTY FOR OFFICE PURPOSES. SINCE THE DEAL FOR TH E PURCHASE OF PROPERTY FAILED TO MATERIALIZE THE SAID AMOUNT WAS DEPOSITED BACK IN THE BANK ACCOUNT. NO SUPPORTING E VIDENCE COULD BE FILED BEFORE THE AO AT THE ASSESSMENT STAG E AND IN THE ABSENCE OF SAME THE AMOUNT DEPOSITED IN CASH W AS TREATED AS UNEXPLAINED DEPOSITS/ INCOME FOR THE PER IOD UNDER CONSIDERATION. 5.6 DURING THE COURSE OF APPELLATE PROCEEDINGS CERTAIN ADDITIONAL EVIDENCE IN THE FORM OF PHOTOCOP Y OF UNREGISTERED EKRARNAMA DATED 17-06-2010 WAS FILED ALONGWITH CANCELLATION EKRARNAMA DATED 8-01-2010 WA S ALSO FILED. THE ADDITIONAL EVIDENCE WAS FORWARDED TO THE AO FOR EXAMINATION AFTER CONDUCTING NECESSARY ENQUIRIES. A O IN HIS REMAND REPORT HAS CLEARLY STATED THAT APPELLANT HAS FAILED TO PRODUCE ANY SUPPORTING EVIDENCE TO SUBSTANTIATE THE CONTENTS ITA NO. 263/JP/2016 SMT. SAPNA MODI VS. ITO WARD- 1 (3) ALWAR . 3 OF THE EKRARNAMA AND OTHER BANK DETAILS. THEREFORE APPELLANT HAS FAILED TO DISCHARGE THE BURDEN AND AD DITION MADE EARLIER MAY BE CONFIRMED. 5.7 THE APPELLANT HAS REITERATED THE SUBMISSIONS FILED EARLIER AND HAS STATED THAT CASH DEPOSITED MA Y BE TREATED AS EXPLAINED. 5.8 HAVING CONSIDERED THE MATERIAL AVAILABLE ON RECORD I FIND THAT APPELLANT HAS NOT BEEN ABLE TO SUBSTANTIATE THE CONTENTIONS WITH REGARD TO THE WITHDRAWAL OF CA SH FROM THE BANK ACCOUNT IN THE MONTH OF JULY 2010 AND DEP OSITION OF SAME CASH IN JANUARY 2011. THE APPELLANT HAS FA ILED TO DISCHARGE THE ONUS WHICH PLACED UPON HIM UNDER THE PROVISIONS OF THE I.T. ACT. THEREFORE I HOLD THAT AO WAS JUSTIFIED IN TREATING THE SAID CASH DEPOSIT OF RS. 3 LACS AS UNEXPLAINED INCOME OF THE APPELLANT AND ACCORDINGLY CONFIRM THE SAME. 2.2 DURING THE COURSE OF HEARING THE LD. AR OF THE ASSESSEE PRAYED THAT THE ASSESSEE WAS NOT PROPERLY HEARD BY THE LD. CIT( A) AND THE PAPERS SUBMITTED BY THE ASSESSEE WERE NOT TAKEN INTO CONS IDERATION AND THUS HE CONFIRMED AN ADDITION OF RS. 3.00 LACS U/S 69A AS U NEXPLAINED CASH DEPOSIT. 2.3 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN VIEW OF THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE AND ALSO TAKING INTO CONSIDERATION OF THE ORDERS OF THE LOWER AUTHORITIES IT WILL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE IN ITA NO. 263/JP/2016 SMT. SAPNA MODI VS. ITO WARD- 1 (3) ALWAR . 4 QUESTION TO THE FILE OF THE AO TO DECIDE IT DE NOV O BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS ALSO DIRECTED TO SUBMIT ALL THE PAPERS CONCERNING TO THE CASH WITHDR AWAL OF RS. 3.00 LACS FROM THE BANK ACCOUNT. THE AO WILL VERIFY THE FACT REGARDING CASH WITHDRAWAL OF RS. 3.00 LACS BY THE ASSESSEE ON 17- 7-2010 FROM ICICI BANK. IF THE SAME IS FOUND IN ORDER THEN THE ADDITI ON CONFIRMED BY THE LD. CIT(A) DESERVES TO BE DELETED. THUS GROUND NO. 1 O F THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE THE OBSER VATION OF THE LD. CIT(A) AS TO THE FACTS OF THE CASE IS AS UNDER:- 6.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO SUBMISSIONS MADE INCLUDING JUDICIAL CITATIONS AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN ESTIMATE DISALLOWANCE OF RS. 10 582/- @ 10% OF THE TOTAL EXPENSES CLAIMED UNDER THE HEAD DEPRECIATIO N ON CAR & MOBILE EXPENSES TELEPHONE EXPENSES NOTICE SERVI CE CHARGES AND PETROL EXPENSES ETC. HAS BEEN MADE BY T HE AO. THE DISALLOWANCE HAS BEEN MADE ON THE GROUND THAT COMPLETE SUPPORTING VOUCHERS FOR THESE EXPENSES COU LD NOT BE PRODUCED SOME OF THE EXPENSES ARE SUPPORTED WIT H SELF MADE VOUCHERS NO LOG BOOK FOR VEHICLES HAS BEEN MAINTAINED AND ON ACCOUNT OF AN ELEMENT OF PERSONA L USAGE. THE APPELLANT HAS JUSTIFIED THE CLAIM OF EXPENSES O N THE GROUND THAT THESE EXPENSES WERE INCURRED FOR BUSINE SS PURPOSES AND ALSO THE DISALLOWANCE IS EXCESSIVE. 6.6 CONSIDERING THE SUBMISSIONS MADE ON THIS ISSUE I HOLD THAT IT WOULD BE FAIR TO RESTRICT THE ADDITI ON TO RS. 5.00 LACS UNDER THESE HEADS. ITA NO. 263/JP/2016 SMT. SAPNA MODI VS. ITO WARD- 1 (3) ALWAR . 5 3.2 DURING THE COURSE OF HEARING THE LD. AR OF THE ASSESSEE PRAYED THAT THE ASSESSEE WAS NOT PROVIDED PROPER OPPORTUNITY BY THE LD. CIT(A) BEFORE CONFIRMING THE ADDITION OF RS. 5 000/- UNDER VARIOUS EXPENSES FOR WHICH THE ASSESSEE HAD SUBMITTED THE RELEVANT PAPER S BEFORE THE LD. CIT(A). 3.3 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 3.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE ASSESSEE HAD CLAIMED FOLLOWING EXPENSES IN THE PROFIT AND LOSS ACCOUNT . (I) DIWALI EXPENSES RS. 15 000/- (II) PETROL EXPENSES RS. 18 000/- (III) TELEPHONE EXPENSES RS. 12 000/- (IV) NOTICE SERVICE CHARGES RS. 26 350/- (V) DEPRECIATION ON CAR & MOBILE RS. 34 473/- TOTAL RS. 1 05 823/- THE AO OBSERVED THAT THE ASSESSEE HAD NOT MAINTAINE D LOG BOOK AND PERSONAL USE OF VEHICLE BY THE ASSESSEE AND HER FAM ILY MEMBERS CANNOT BE DENIED. AS REGARDS DIWALI AND OTHER EXPENSES THE A O OBSERVED THAT THESE EXPENSES WERE NOT SUPPORTED BY AUTHENTICATED VOUCHE RS AND SOME OF THEM WERE SELF MADE VOUCHERS. THUS THE AO MADE DISALLOWA NCE OF 10% OF TOTAL EXPENSES OF RS. 1 05 823/- WHICH COMES TO RS. 10 582/-. IN FIRST APPEAL THE LD. CIT(A) HAS REDUCED THE SAME TO RS.5 000/- CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. LOOKING INTO THE ENTIR E CONSPECTUS OF THE ITA NO. 263/JP/2016 SMT. SAPNA MODI VS. ITO WARD- 1 (3) ALWAR . 6 CASE I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) ON THIS ISSUE WHICH IS CONFIRMED. THUS GROUND NO. 2 OF THE ASSESSEE IS DISMISSED. 4.0 IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07 /10/ 2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. SAPNA MODI ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD- 1 (3) ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 263/JP/2016) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ @ ASSISTANT. REGISTRAR