Sri.Vakayil Abdul Saleem, Palakkad v. The ITO, Palakkad

ITA 379/COCH/2014 | 2010-2011
Pronouncement Date: 14-11-2014 | Result: Dismissed

Appeal Details

RSA Number 37921914 RSA 2014
Assessee PAN AQKPA1251B
Bench Cochin
Appeal Number ITA 379/COCH/2014
Duration Of Justice 2 month(s) 26 day(s)
Appellant Sri.Vakayil Abdul Saleem, Palakkad
Respondent The ITO, Palakkad
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 14-11-2014
Date Of Final Hearing 10-11-2014
Next Hearing Date 10-11-2014
Assessment Year 2010-2011
Appeal Filed On 19-08-2014
Judgment Text
1 ITA NO. 379/COCH/2013 SP NO. 58/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T.A NO.379/COCH/2014 (ASSESSMENT YEAR 2010-11) & S.A. NO.58/COCH/2014 (ARISING OUT OF I.T.A NO.379/COCH/2014) (ASSESSMENT YEAR 2010-11) SHRI VAKAYIL ABDUL SALEEM VS THE ITO WD.2 SWAPNAKOODU PALAKKAD BEHIND SITARA AUDITORIUM PALLIPPURAM ROAD PATTAMBI PALAKKAD 679 303 PAN : AQKPA1251B (APPELLANT) (RESPONDENT) APPELLANT BY :SHRI TM. SREEDHARAN SR.COUNSEL RESPONDENT BY : SHRI K.K. JOHN SR DR DATE OF HEARING : 10-11-2014 DATE OF PRONOUNCEMENT : 14-11-2014 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)- V KOCHI DATED 23-05-2014 AND PERTAINS TO ASSESSMEN T YEAR 2010-11. 2. THE ONLY ISSUE RISES FOR CONSIDERATION IS ADDITI ON OF RS.33 66 000. 2 ITA NO. 379/COCH/2013 SP NO. 58/COCH/2014 3. SHRI T.M. SREEDHARAN THE LD.SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS HAVING BOTH NRO ACCO UNT AND NRE ACCOUNT. THERE ARE DEPOSITS AND WITHDRAWALS IN NRO ACCOUNT. ACCORDING TO THE LD.SENIOR COUNSEL THERE WAS A CASH DEPOSIT OF RS. 43 54 000 IN THE NRO ACCOUNT MAINTAINED WITH CANARA BANK. ACCORDING TO THE LD.SENIOR COUNSEL THE ASSESSEE EXPLAINED BEFORE THE ASSESSIN G OFFICER THAT THE SOURCES OF REMITTANCES ARE FROM REMITTANCES FROM NR E ACCOUNT IN THE SAME BANK WHILE HE WAS WORKING IN DUBAI. ACCORDING TO THE LD.SENIOR COUNSEL THE ASSESSEE WAS WORKING IN DUBAI FOR MORE THAN 17 YEARS TILL FEBRUARY 2009. THE ASSESSEE HAS ALSO FURNISHED NE CESSARY DETAILS FOR CASH DEPOSIT. THE LD.SENIOR COUNSEL FURTHER SUBMIT TED THAT THE ASSESSEE WAS NOT CARRYING OUT ANY BUSINESS ACTIVITY DURING T HE YEAR UNDER CONSIDERATION. THE ASSESSEE HAS DECLARED INCOME FR OM HOUSE PROPERTY AND INTEREST ON CAPITAL DEPOSIT. ACCORDING TO THE LD.SENIOR COUNSEL THE DEPOSIT MADE IN THE BANK TO THE EXTENT OF RS.33 66 000 IS ONLY FROM THE WITHDRAWAL MADE FROM THE BANK ACCOUNT THEREFORE T HE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ANY ADDITION. THE LD.REPRE SENTATIVE FURTHER SUBMITTED THAT THE ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUNT. THE CASH WAS DEPOSITED IN THE BANK ACCOUNT. THEREFORE ADDITION MADE U/S 68 IS NOT SUSTAINABLE. 3 ITA NO. 379/COCH/2013 SP NO. 58/COCH/2014 4. ON THE CONTRARY SHRI K.K. JOHN THE LD.DR SUBMI TTED THAT ADMITTEDLY THE ASSESSEE DEPOSITED CASH IN HIS BANK ACCOUNT. T HE EXPLANATION OF THE ASSESSEE IS THAT HE WITHDREW FUNDS FROM HIS BANK AC COUNT FOR ADVANCING THE SAME TO HIS FAMILY MEMBERS AND FRIENDS. AS SOO N AS THE FAMILY MEMBERS AND FRIENDS RETURNED THE MONEY THE SAME MO NEY WAS DEPOSITED. HOWEVER THE ASSESSEE COULD NOT EXPLAIN THE NAME OF THE FAMILY MEMBERS AND FRIENDS TO WHOM THE MONEY WAS GI VEN. SINCE THE ASSESSEE COULD NOT IDENTIFY TO WHOM THE MONEY WAS G IVEN AND WHEN THE MONEY WAS RECEIVED BACK ACCORDING TO THE LD.DR TH E ASSESSING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE. SINCE THE TRANSACTIONS WERE NOT IDENTIFIED AND THERE WAS A LONG GAP OF WITHDRAWAL O F MONEY FROM THE BANK ACCOUNT AND REDEPOSITS ACCORDING TO THE LD.DR THE CONTENTION OF THE ASSESSEE THAT THE MONEY WITHDRAWN FROM THE BANK WAS DEPOSITED CANNOT BE ACCEPTED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS A FACT THAT THERE WAS WITHDRAWAL FROM THE BANK ACCOUNT AND ALSO DEPOSITS. THE ASSESSEE CLAIMS THAT THE MONEY WITHDRAWN FROM THE BANK WAS GIVEN TO THE RELATIVES AND FRIENDS. AS SOON AS THEY REPAID THE MONEY THE SAM E WAS DEPOSITED. IT IS UNFORTUNATE THAT THE ASSESSEE COULD NOT GIVE THE ID ENTITY OF THE RELATIVES 4 ITA NO. 379/COCH/2013 SP NO. 58/COCH/2014 AND FRIENDS TO WHOM THE MONEY WAS ADVANCED. IT IS ALSO NOT KNOWN WHY LAKHS AND LAKHS OF RUPEES WERE GIVEN IN CASH AFTER WITHDRAWING FROM BANK. THERE IS ALSO MUCH GAP BETWEEN THE DATE OF WITHDRAW AL AND THE DATE OF REDEPOSIT. IN THE ABSENCE OF ANY EVIDENCE TO SHOW THAT TO WHOM THE MONEY WAS ADVANCED AND FROM WHOM THE MONEY WAS RECE IVED THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT( A) HAS RIGHTLY CONFIRMED THE ADDITION. WHEN A PERSON IS MAINTAINING NRO AND NRE ACCOUNT HE IS NOT EXPECTED TO KEEP THE CASH WITHDRAWN IN HIS RESI DENCE. MOREOVER IT IS ALSO NOT THE CASE OF THE ASSESSEE THAT THE FUNDS WI THDREW FROM THE BANK WAS KEPT IDLE. IT WAS ADMITTEDLY SAID TO BE ADVANC ED TO RELATIVES AND FRIENDS. IN THE ABSENCE OF ANY EXPLANATION TO IDEN TIFY THE RELATIVES AND THE FRIENDS THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CLAIM OF THE ASSESSEE THAT THE MONEY WAS REDEPOSITED AFTER COLLE CTING THE SAME FROM THE RELATIVES AND FRIENDS MAY NOT BE TRUE. THEREFO RE THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE SAME MONEY WOULD NOT HA VE BEEN DEPOSITED. 6. THE NEXT CONTENTION OF THE LD.SENIOR COUNSEL IS THAT THE ASSESSEE HAS NO OTHER INCOME THAN INTEREST INCOME AS HE IS NOT D OING ANY BUSINESS. IT IS FOR THE ASSESSEE TO EXPLAIN THE SOURCE OF THE FUNDS ADVNCED. IT IS NOT FOR THE DEPARTMENT TO RESEARCH AND FIND OUT THE SOURCE OF INCOME OF THE ASSESSEE. THE FACT THAT THE ASSESSEE DEPOSITED THE FUNDS IN THE BANK IS 5 ITA NO. 379/COCH/2013 SP NO. 58/COCH/2014 ADMITTED BY THE ASSESSEE. THEREFORE THE ASSESSEE HAS TO OFFER SATISFACTORY EXPLANATION. AS RIGHTLY CONTENDED BY THE LD.SENIOR COUNSEL FOR THE ASSESSEE ADDITION U/S 68 COULD BE MADE ONLY IN CASE THE AMOUNTS ARE FOUND CREDITED IN THE BOOKS OF ACCOUNT MAINTAINED B Y THE ASSESSEE IN THE REGULAR COURSE OF BUSINESS. IN THIS CASE IT IS NO BODYS CASE THAT THE ASSESSEE MAINTAINED ANY BOOKS OF ACCOUNT. THE MONE Y WAS INVESTED IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE. THEREFOR E THE ADDITION IS SUSTAINABLE U/S 69 OF THE ACT. MERELY BECAUSE THE LOWER AUTHORITIES REFERRED TO A WRONG SECTION IN THE ORDER I.E. SECT ION 68 INSTEAD OF SECTION 69 OF THE ACT THAT ALONE MAY NOT BE A REASON TO DEL ETE THE ADDITION MADE BY THE LOWER AUTHORITIES. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE INVESTMENT MADE IN THE BANK ACCOUNT COULD BE TAKEN AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. 7. IN VIEW OF THE ABOVE THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. S8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. SP BECOMES INFRUCTUOUS ACCORDINGLY THE SAME IS ALSO D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH NOVEMBER 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 14 TH NOVEMBER 2014 PK/- 6 ITA NO. 379/COCH/2013 SP NO. 58/COCH/2014 COPY TO: 1. SHRI VAKAYIL ABDUL SALEEM SWAPNAKOODU BEHIND SITARA AUDITORIUM PALLIPPURAM ROAD PATTAMBI PALAKKAD 679 303 2. THE ITO WD.2 PALAKKAD 3. THE COMMISSIONER OF INCOME-TAX THRISSUR 4. THE COMMISSIONER OF INCOME-TAX(A)-V KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH