The ITO, Ward-12(4),, Ahmedabad v. Shri Laxman Khushiram Jamtani, Ahmedabad

ITA 522/AHD/2009 | 2005-2006
Pronouncement Date: 25-02-2011 | Result: Dismissed

Appeal Details

RSA Number 52220514 RSA 2009
Assessee PAN ACPPJ5775Q
Bench Ahmedabad
Appeal Number ITA 522/AHD/2009
Duration Of Justice 2 year(s) 7 day(s)
Appellant The ITO, Ward-12(4),, Ahmedabad
Respondent Shri Laxman Khushiram Jamtani, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-02-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 25-02-2011
Date Of Final Hearing 23-02-2011
Next Hearing Date 23-02-2011
Assessment Year 2005-2006
Appeal Filed On 17-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND A. N. PAHUJA AM) ITA NO.522/AHD/2009 A. Y.: 2005-06 THE INCOME TAX OFFICER WARD 12 (4) ROOM NO.108 1 ST FLOOR NARAYAN CHAMBER NR. NEHRU BRIDGE ASHRAM ROAD AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JAMTANI 52/407 GUJARAT HOUSING BOARD KHOKHARA AHMEDABAD PA NO. ACPPJ 5775 Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI R. K. DHANISTA SR. DR RESPONDENT BY SHRI S. N. DIVETIA AR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XX AHMEDABAD DATED 20 TH NOVEMBER 2008 FOR ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.26 72 289/- MADE BY THE AO AS THE UNDISCLOSED INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED DEPOSITS APPEARING IN THE BANK ACCOUNT OF THE ASSESSEE WITHOUT PROPERLY APPRECIATING THE FACTS O F THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE AO. ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 2 1.2. IN DOING SO THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE BEFORE THE AO THAT THE TRANSACTIONS MADE THROUGH THE BANK ACCOUNT DID NOT PERTAIN TO HIM. 1.3 IN DOING SO THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT FURTHER INQUIRIES COULD HAVE BEEN MADE TO VERIFY TH E DETAILS OF THE BANK ACCOUNTS ON WHICH THE CHEQUES DEPOSITED IN ASSESSEES BANK WERE DRAWN HANDWRITING ON THE PAY-IN-SLIPS HANDWRITING ON THE ACCOUNT OPENING FORM ETC. AND WITHOUT SUCH INQUIRIES THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON FACTS IN TAKING THE VIEW THAT THE SAID BANK ACCOUNT DID NOT BELONG TO THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF TH E A. O. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE AO F OUND THAT THE ASSESSEE HAD DEPOSITED CASH OF RS.17 21 400/- AND B Y CHEQUE RS.9 50 889/- TOTALING TO RS.26 72 289/- FROM 1-4-2 004 TO 13-9-2004 (THE DATE ON WHICH THE ACCOUNTS HAS BEEN SHOWN AS C LOSED) IN THE SAVINGS BANK ACCOUNT NO.1810 WITH GUJARAT MERCANTIL E CO-OPERATIVE BANK LTD. GODHASAR BRANCH AHMEDABAD. THEREFORE T HE AO RECORDED THE STATEMENT OF THE ASSESSEE U/S 131 OF T HE IT ACT ON OATH IN WHICH THE ASSESSEE FLATLY REFUSED TO BE THE HOL DER OF THIS ACCOUNT. THE ASSESSEE EXPLAINED BEFORE THE AO THAT SOMEBODY MIGHT HAVE OPENED THE ACCOUNT IN HIS NAME AND HE IS TOTALLY UN AWARE OF THIS ACCOUNT AND THE DEPOSITS IN THE SAID ACCOUNT. THE A O WROTE A LETTER TO THE SAID BANK AND THE BANK INTIMATED THAT THIS A CCOUNT HAS BEEN CLOSED SINCE 13-09-2004 BUT THE BANK COULD NOT GIVE THE NAME AND ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 3 ADDRESS OF THE INTRODUCER WITH WHOSE HELP THIS ACCO UNT WAS OPENED. ON THE BASIS OF THE BANK STATEMENT ISSUED THE AO I NTIMATED THE ASSESSEE THAT AS PER THE NAME ADDRESS AND PAN THA T THE SAID ACCOUNT IS OF THE ASSESSEE AND NOBODY ELSE ALTHOUG H THE ASSESSEE REITERATED THAT THE SAID ACCOUNT IS NOT HIS OWN ACC OUNT BUT SOMEBODY MIGHT HAVE MADE MISCHIEF AND MIGHT HAVE OPENED THE ACCOUNT IN HIS NAME. THE AO ADDED THE AMOUNT OF RS.26 72 289/- APP EARING AS DEPOSITS MADE IN THIS ACCOUNT TO THE TOTAL INCOME O F THE ASSESSEE. 3. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE ASSESSEE WHO IS AT PRESENT A RICKSHAW DRIVER WAS SELLING CIG ARETTE BIDDIES PAN-MASALA ETC. ON RETAIL BASIS IN THE YEAR UNDER C ONSIDERATION IN THE NAME AND STYLE OF LAXMAN TRADE CENTRE AND WAS ALSO HAVING PAN SINCE LAST MANY YEARS AND WAS FILING INCOME-TAX RET URNS REGULARLY. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT TH E ASSESSEE WAS SURPRISED AND SHOCKED WHEN HE RECEIVED THE NOTICE F ROM THE IT DEPARTMENT REGARDING INCOME TAX OF RS.12 30 056/-. THE AO INFORMED THE ASSESSEE THAT HE HAD DEPOSITED IN CASH AND BY CHEQUE AN AMOUNT OF RS.26 72 289/- WHICH WAS NOTHING BUT H IS INCOME FROM UNDISCLOSED SOURCES AND ASKED HIM TO MAKE THE PAYME NT OF INCOME TAX. THE ASSESSEE EXPLAINED BEFORE THE AO THAT HE HAD NEVER SUCH BANK ACCOUNT NOR AT PRESENT HE HAS SUCH BANK ACCOUN T AS ALLEGED BY THE AO. IN THIS RESPECT THE ASSESSEE HAS ALSO FIL ED AN AFFIDAVIT. THE ASSESSEE HAS ALLEGED THAT HIS ACCOUNTANT MR. DINES H MISHRA WHO WAS HANDLING ALL HIS INCOME-TAX MATTERS MIGHT HAVE OPENED THIS ACCOUNT FOR HIS ILLEGAL TRANSACTIONS TO BE MADE IN THE NAME OF THE ASSESSEE WITHOUT HIS KNOWLEDGE. THEREFORE THE ASS ESSEE HAS ALSO ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 4 REGISTERED A POLICE COMPLAINT AGAINST HIS ACCOUNTAN T COPY OF WHICH WAS ALSO FILED DURING THE COURSE OF APPELLATE PROCE EDINGS. IT WAS FURTHER SUBMITTED THAT A PERSON WHO IS DOING BUSINE SS WILL OPEN A CURRENT ACCOUNT AND NOT A SAVINGS ACCOUNT. MOREOVER THE PHOTOGRAPH SHOWN BY THE BANK WAS ALSO NOT OF THE ASSESSEE. EVE N THE SIGNATURE APPEARING ON THE BANK ACCOUNT OPENING FORM WAS ALSO NOT OF THE ASSESSEE. ALL THESE FACTS WERE CONVEYED TO THE AO B UT THE AO HAS NOT CONSIDERED ANYTHING BECAUSE THE ACCOUNT WAS IN THE NAME OF THE ASSESSEE AND ADDED THE AMOUNT TO THE INCOME OF THE ASSESSEE. UNDER THE CIRCUMSTANCES THE ASSESSEE APPEALED THAT THE ADDITION MAY BE DELETED. 4. THE LEARNED CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE AND THE MATERIAL ON RECORD DELETED THE ADD ITION. HIS FINDINGS IN PARA 3.3 ARE REPRODUCED AS UNDER: 3.3 I HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE APPELLANT AND HAVE ALSO GON E THROUGH THE ASSESSMENT ORDER. IT IS SEEN THAT THE APPELLANT IS HAVING BELOW TAXABLE INCOME IN EVERY Y EAR EXCEPT IN THE YEAR UNDER CONSIDERATION AND IS FILIN G HIS RETURNS OF INCOME REGULARLY. AS REGARDS THE ADDITIO N MADE BY THE AO FOR DEPOSITS APPEARING IN THE BANK ACCOUN T AS STATED ABOVE THE APPELLANT HAD FLATLY REFUSED TO H AVE OPENED ANY SUCH ACCOUNT IN HIS NAME OR HAS DEPOSITE D ANY SUCH AMOUNT. IN THIS REGARD THE APPELLANT HAS FILED AN AFFIDAVIT BEFORE ME AND HE WAS ALSO READY TO FILE T HE AFFIDAVIT BEFORE THE AO IF AT ALL THE AO HAD ASKED FOR. THE ENGLISH VERSION OF THE CRIMINAL COMPLAINT FILED AGA INST THE ACCOUNTANT OF THE APPELLANT IS ALSO FILED BEFORE ME . IT IS ALSO SEEN THAT THE SIGNATURE MADE IN THE RETURN OF INCOME IS ALSO NOT OF THE APPELLANT. WHEN THE AO CONDUCTED ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 5 INQUIRY WITH THE BANK EVEN THE BANK COULD NOT GIVE THE NAME OF THE PERSON WHO HAD OPENED THIS ACCOUNT. EVE N THE PHOTOGRAPH ON THE FORM WAS ALSO OF SOME ONE ELS E. THE SIGNATURE ON THE FORM WAS ALSO NOT TALLYING. TH E SAID ACCOUNT WAS CLOSED ON 13-08-04 AND THEREAFTER NO TRANSACTION IS MADE IN THIS ACCOUNT. ALL THESE FACT S SUGGEST THAT APPELLANT IS A VICTIM OF FRAUD AND NOT HING IN SPECIFIC TERMS HAS BEEN ESTABLISHED BY THE AO AGAIN ST THE APPELLANT. WHEN THE APPELLANT FROM THE BEGINNI NG DENIED TO HAVE OPENED THIS ACCOUNT AND DEPOSITED AN Y MONEY IN THE SAID ACCOUNT BY WAY OF CASH OR CHEQUE THEN THE AO OUGHT TO HAVE DRAWN A LOGICAL INFERENCE IN VIEW OF GIVEN SET OF FACTS INSTEAD OF MAKING ADDITI ON IN THE HANDS OF THE APPELLANT. THE AO HAS NOT BEEN ABLE TO BRING ON RECORD ANY CORROBORATING MATERIAL AS AGAINST THE STATEMENT RECORDED BY HIM DURING THE ASSESSMENT PROCEEDINGS. EVEN THE AO HAS CONFIRMED THAT THE BAN K COULD NOT CONFIRM WHO IS THE PERSON WHO OPENED THIS ACCOUNT AND ALSO CONFIRMED THAT THE ACCOUNT IS CLOS ED SINCE 13-09-04. IT IS ALSO PERTINENT TO NOTE THAT A NY BUSINESSMAN WILL OPEN THE CURRENT ACCOUNT AND NOT T HE SAVINGS ACCOUNT. THE ADDITION MADE ON PRESUMPTION I N SUCH A MANNER CANNOT BE SUSTAINED. CONSIDERING ALL THESE FACTS OF THE CASE I AM OF THE VIEW THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.26 72 28 9/- AS APPELLANTS UNDISCLOSED INCOME. THE ADDITION SO MAD E IS HEREBY DELETED. 5. THE LEARNED DR RELIED UPON THE ORDER OF THE AO AND SUBMITTED THAT THE ASSESSEE FILED AFFIDAVIT FOR THE FIRST TIME BEFORE THE LEARNED CIT(A) AND NO AFFIDAVIT WAS FILED BEFORE TH E AO. EVEN THE COPY OF THE COMPLAINT AGAINST THE ACCOUNTANT WAS FI LED FOR THE FIRST TIME BEFORE THE LEARNED CIT(A). THEREFORE THE MATT ER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 6 6. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE A SSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORIT IES BELOW AND FILED COPY OF THE BANK ACCOUNT OPENING FORM AND CER TIFIED THAT THE PHOTOGRAPH APPEARING IN THE SAME IS NOT OF THE ASSE SSEE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. THE AO ON GOING THROUGH THE AI R DATA IN ITD FOUND THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.17 21 400/- AND RS.9 50 889/- BY CHEQUE IN SAVINGS BANK ACCOUNT IN GUJARAT MERCANTILE COOPERATIVE BANK LTD. THE ASSESSEE WAS C ONFRONTED WITH THE SAME AND HIS STATEMENT WAS RECORDED U/S 131 OF THE IT ACT IN WHICH THE ASSESSEE HAS DENIED THE SAID DEPOSITS AS WELL AS OPENING OF THE BANK ACCOUNT. THE ASSESSEE FURTHER SUBMITTED THAT SOMEBODY MIGHT HAVE OPENED THIS BANK ACCOUNT IN THE NAME OF THE ASSESSEE. THE AO MADE ENQUIRIES FROM THE BANK CONCERNED AND T HE BANK REPLIED AND SENT A COPY OF THE ACCOUNT OPENING FORM AND COPY OF THE BANK ACCOUNT INTIMATING THEREIN THAT THE SAID ACCOU NT IS CLOSED ON 13- 09-2004. THE BANK WAS UNABLE TO GIVE NAME AND ADDRE SS OF THE PERSON WHO HAD OPENED THIS BANK ACCOUNT. IT WOULD THEREFORE SHOW THAT THE ASSESSEE NEVER OWNED UP ANY BANK ACCOUNT O PENED WITH GUJARAT MERCANTILE COOPERATIVE BANK LTD. AHMEDABAD . THE AO WANTED TO TAX ENTRIES IN THE BANK ACCOUNT THEREFOR E THE ONUS WAS UPON THE AO TO PROVE THAT THE ENTRIES CONTAINED IN THE BANK ACCOUNT BELONGED TO THE ASSESSEE AND THAT THE ASSESSEE IS G ENUINE HOLDER OF THE BANK ACCOUNT IN QUESTION. THE LEARNED CIT(A) ON EXAMINING THE EVIDENCE AND MATERIAL ON RECORD FOUND THAT THE SIGN ATURES MADE IN THE RETURN OF INCOME IS NOT OF THE ASSESSEE AND WHE N THE AO ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 7 CONDUCTED INQUIRY WITH THE BANK EVEN THE BANK COUL D NOT GIVE THE NAME OF THE PERSON WHO HAD OPENED THIS ACCOUNT. THE LEARNED CIT(A) FURTHER FOUND THAT EVEN THE PHOTOGRAPH IN TH E BANK OPENING ACCOUNT FORM WAS ALSO OF SOMEONE ELSE. THE LEARNED CIT(A) ALSO FOUND THAT THE SIGNATURES IN THE FORM ALSO DID NOT TALLY WITH THE SIGNATURES OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO FILED COPY OF THE ACCOUNT OPENING FORM WHICH D ID NOT CONTAIN PHOTOGRAPH OF THE ASSESSEE WHICH IS ALSO CERTIFIED BY HIM. THE MOMENT THERE IS EVIDENCE ON RECORD THAT THE PHOTOGR APH OF THE ASSESSEE IS NOT PASTED ON THE ACCOUNT OPENING FORM AND HIS SIGNATURE IS ALSO NOT TALLYING WITH THE PERSON WHO HAS OPENED THE BANK ACCOUNT IN QUESTION THE STATEMENT OF THE ASSE SSEE GIVEN ON OATH GETS FULLY SUPPORTED THAT IN FACT THE ASSESSEE HAD NOT OPENED THE ALLEGED BANK ACCOUNT IN QUESTION. SINCE THE AO WAS NOT ABLE TO BRING EVIDENCE ON RECORD THAT THE ASSESSEE HAD OPENED THE GENUINE BANK ACCOUNT UNDER HIS SIGNATURE AND UNDER HIS PHOTOGRAP H THE ASSESSEE CANNOT BE ASKED TO EXPLAIN THE ENTRIES CONTAINED IN THE SAID BANK ACCOUNT. FURTHER THE AO DID NOT MAKE ANY INQUIRIES TO VERIFY THE DETAILS OF BANK ACCOUNT ON WHICH CHEQUES WERE DEPOS ITED AND WHO HAVE WITHDRAWN AMOUNT FROM BANK. NO HANDWRITING ON PAY IN SLIP GOT VERIFIED. THE AO DID NOT MAKE PROPER INQUIRIES BEFO RE MAKING ADDITION AGAINST THE ASSESSEE. THE AO DESPITE HAVING NO COGE NT EVIDENCE AGAINST THE ASSESSEE NOTED IN THE ASSESSMENT ORDER THAT HOWEVER TO SAFEGUARD THE INTEREST OF REVENUE HE ADDED THE AMO UNT. IT WOULD PROVE THAT THE AO WAS NOT JUSTIFIED IN MAKING THE A DDITION. ONUS ON THE AO NOT DISCHARGED. THE LEARNED CIT(A) ON CONSID ERATION OF THE MATERIAL ON RECORD RIGHTLY HELD THAT THE ASSESSEE I S A VICTIM OF FRAUD ITA NO. 522/AHD/2009 ITO W-12(4) AHMEDABAD VS SHRI LAXMAN KHUSHIRAM JA MTANI 8 AND NOTHING IN SPECIFIC TERMS HAS BEEN ESTABLISHED BY THE AO AGAINST THE ASSESSEE. MERE FILING OF AFFIDAVIT OR COPY OF T HE COMPLAINT FILED AGAINST THE ACCOUNTANT BEFORE THE LEARNED CIT(A) IS OF NO CONSEQUENCE AT THIS STAGE BECAUSE THE AO HAS FAILED TO MAKE OUT A CASE AGAINST THE ASSESSEE. WE THEREFORE DO NOT FI ND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT(A). WE ACCORDINGLY DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. THE SAME IS ACCORDING LY DISMISSED. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED ON 25-02-2011 SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 25-02-2011 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