Smt. Jasmini Dharmendra Aghara,, Bhuj v. The Income Tax Officer, Ward-1,, Bhuj

ITA 654/RJT/2010 | 2005-2006
Pronouncement Date: 31-12-2010 | Result: Allowed

Appeal Details

RSA Number 65424914 RSA 2010
Assessee PAN AJYPA2344Q
Bench Rajkot
Appeal Number ITA 654/RJT/2010
Duration Of Justice 11 month(s) 1 day(s)
Appellant Smt. Jasmini Dharmendra Aghara,, Bhuj
Respondent The Income Tax Officer, Ward-1,, Bhuj
Appeal Type Income Tax Appeal
Pronouncement Date 31-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-12-2010
Assessment Year 2005-2006
Appeal Filed On 29-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) I.T.A. NO.654/RJT/2010 (ASSESSMENT YEAR 2005-06) SMT. JASMINI DHARMENDRA AGHARA VS THE ITO WD.1 3 ODHAVRAM APARTMENT BHUJ OPP HOTEL AKASHWANI BHUJ PAN : AJYPA2344Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KALPESH DOSHI REVENUE BY : SHRI SL MEENA O R D E R GARASIA : THIS APPEAL IS DIRECTED AGAINST THE ORDER OF CIT(A)-II RAJKOT DATED 30- 11-2009 FOR THE ASSESSMENT YEAR 2005-06. 2. AS MANY AS 11 GROUNDS ARE RAISED IN THE APPEAL BUT ALL OF THEM AGITATE A SINGLE ISSUE OF CONFIRMATION OF ADDITION OF RS.1 05 74 560 THE FACTS OF WHICH ARE NARRATED BELOW. 3. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE I NDIVIDUAL DEPOSITED SUBSTANTIAL AMOUNTS IN HER BANK ACCOUNT (SB A/C NO. 04210200000137) MAINTAINED WITH DEVELOPMENT CREDIT BANK BHUJ. AS THE ASSESSEE DID NOT FILE THE RETURN OF INCOME NOTICE U/S 148 WAS ISSUED ON 28-02 -2008 REQUIRING HER TO FILE THE RETURN OF INCOME. AS NO COMPLIANCE WAS MADE THE A SSESSING OFFICER ISSUED A SHOW CAUSE NOTICE DATED 05-11-2008 PROPOSING TO PAS S AN EXPARTE ASSESSMENT ORDER. SINCE THE ASSESSE AGAIN DID NOT COMPLY WITH THE SHOW CAUSE NOTICE THE ASSESSING OFFICER COMPLETED THE EXPARTE ASSESSMENT U/S 144 R.W.S. 147 OF THE ACT ON 20-11-2008. WHILE DOING SO THE ASSESSING OFFIC ER TREATED TOTAL OF SUCH DEPOSITS AMOUNTING TO RS.1 05 74 561 AS UNDISCLOSED INCOME OF THE ASSESSEE ITA NO.654/RJT/2010 2 U/S 68 OF THE ACT. THE MATTER CARRIED TO CIT(A) AN D THE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. THEREFORE THE ASSES SEE IS BEFORE THE TRIBUNAL. 4. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE ASS ESSEE IS AN INDIVIDUAL AND IS MAINTAINING JOINT SAVINGS BANK ACCOUNT WITH HER HUSBAND SHRI DHARMENDRA NANALAL AGHARA WITH DEVELOPMENT CREDIT B ANK BHUJ. DURING THE YEAR UNDER CONSIDERATION THERE WERE DEPOSITS OF RS. 1 05 74 561 IN THIS ACCOUNT. THE LD.AR SUBMITTED THAT ALL THE TRANSACTIONS IN TH IS BANK ACCOUNT ARE DULY ACCOUNTED FOR IN THE CASE OF SHRI DHARMENDRA NANALA L AGHARA HUSBAND OF THE ASSESSEE AND THE BANK BALANCE REFLECTED IN HIS BALA NCE-SHEET FOR THE YEAR UNDER CONSIDERATION. THE ASSESSMENT IN THE CASE OF SHRI DHARMENDRA NANALAL AGHARA WAS COMPLETED U/S 143(3) DURING THE COURSE OF WHICH THE ASSESSING OFFICER HAD CALLED FOR ALL THE DETAILS ALL OF WHICH HAD BEEN F URNISHED BY THE ASSESSEE. THE ASSESSEE HAD ALSO PRODUCED A CERTIFICATE FROM THE B ANK CERTIFYING THAT SHE WAS HAVING JOINT ACCOUNT WITH HER HUSBAND AND THE NAME OF THE ASSESSEE IS SHOWN SECOND NAME. THE LD.AR SUBMITTED THAT DURING THE Y EAR UNDER CONSIDERATION SHRI DHARMENDRA NANALAL AGHARA HAS SHOWN CLOSING BALANCE OF RS.22 368 IN THE ABOVE MENTIONED BANK ACCOUNT WHICH HAS BEEN DULY TA KEN INTO CONSIDERATION BY THE ASSESSING OFFICER WHILE COMPLETING THE SCRUTINY ASSESSMENT IN HIS CASE. THE COPY OF BANK ACCOUNT IS PLACED AT PAGES 10 TO 21 OF THE PAPER BOOK. THE LD.AR SUBMITTED THAT THE ASSESSEE EXPLAINED EACH AND EVER Y ENTRY BY MAKING DETAILED SUBMISSIONS. THE LD.CIT(A) BEFORE DECIDING THE ISS UE AGAINST THE ASSESSEE HAD IN FACT CALLED FOR A REMAND REPORT U/S 250(4) OF T HE I.T. ACT TO FIND OUT THE CORRECTNESS. IN THE REMAND REPORT THE ASSESSING O FFICER HAZ HELD THAT THE BANK ACCOUNT IS STANDING IN THE NAME OF HER HUSBAND SHR I DHARMENDRA NANALAL AGHARA JOINTLY WITH THE ASSESSEE HAVING SECOND NAME AND ASSESSEE HAS NOTHING TO DO WITH THE DEPOSITS MADE IN THE BANK ACCOUNT WH ICH WERE ALREADY SHOWN IN THE RETURN OF INCOME FILED BY SHRI DHARMENDRA NANAL AL AGHARA. THE LD.AR THEREFORE PRAYED THAT THE ADDITION MAY BE DELETED. ITA NO.654/RJT/2010 3 5. ON THE OTHER HAND THE LD.DR RELIED UPON THE ORD ER OF CIT(A). HE DREW OUR ATTENTION TO CIT(A)S ORDER PARAGRAPH (CG) ON PAGE 6 WHEREIN THE LD.CIT(A) STATED AS FOLLOWS: (CG) THE APPELLANTS HUSBAND FILED A LETTER BEFORE THE THEN A.O. WITH VARIOUS PARTICULARS. ONE OF THE ITEMS SUBMITT ED WAS COPY OF BANK STATEMENTS. DID THE A.O. AFTER HAVING RECEIVE D THE BANK STATEMENTS VERIFY THE SOURCE OF DE4POSITS OR NOT? I FOUND THAT NOT EVEN A SINGLE DEPOSIT WAS VERIFIED IN THE HUSBANDS HAND. NOT EVEN A SIMPLE LETTER WAS ISSUED BY THE AO TO THE APPELLA NTS HUSBAND ASKING HIM TO EXPLAIN THE SOURCE OF THESE DEPOSITS. DOES THE A.O. MEAN ONCE THE APPELLANT OR HER HUSBAND SUBMITTED CO PIES OF BANK STATEMENTS TO THE A.O. THE APPELLANT OR HER HUSBAN D PROVED THE SOURCE OF DEPOSITS? THE LD.DR SUBMITTED THAT THE LD.CIT(A) IN VIEW OF THE ABOVE LACUNAE ON THE PART OF THE ASSESSING OFFICER BRUSHED ASIDE THE REMAND R EPORT SUBMITTED BY THE ASSESSING OFFICER AND PASSED A DETAILED ORDER. HE THEREFORE PLEADED THAT THE ORDER OF THE CIT(A) MAY BE UPHELD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE RECORD. THE ASSESSEES CONTENTION IS THAT SHE IS A NON RESIDENT INDIAN AND SHE WAS MAINTAINING JOINT ACCOUNT WITH HER HUSBAND DHA RMENDRA NANALAL AGHARA IN DEVELOPMENT CREDIT BANK. DURING THE YEAR UNDER CON SIDERATION THERE WAS DEPOSITS OF RS.1 05 74 561 IN THIS JOINT ACCOUNT. WE FIND THAT ALL THE TRANSACTIONS MADE IN THE SAID BANK ACCOUNT WERE DULY ACCOUNTED F OR BY THE HUSBAND OF THE ASSESSEE IN HIS BOOKS OF ACCOUNT AND THE BANK BALAN CE IS REFLECTED IN HIS INDIVIDUAL BALANCE-SHEET. THE ASSESSEES HUSBAND W AS IN THE BUSINESS OF FOREX. HE HAS PURCHASED FOREIGN CURRENCY FROM THE BANK AND FOR PURCHASING THE SAME HE HAS MADE PAYMENT TO THE BANK AND VARIOUS TRANSAC TIONS HAVE BEEN CARRIED OUT BY THE ASSESSEE. ASSESSEES HUSBANDS BUSINESS WAS DEALING IN FOREX AND THEREFORE MONEY WAS HIS STOCK-IN-TRADE. THEREFORE HE HAD TO WITHDRAW FROM THE BANK FREQUENTLY. HE HAS NOT ONLY WITHDRAWN THE MON EY FROM BANK BUT HAS ALSO ACCOUNTED FOR THIS AMOUNT IN HIS ACCOUNT AND REGULA R RETURNS WERE ALSO FILED. HE HAS SHOWN THIS TRANSACTION IN THE COPY OF PROFIT & LOSS ACCOUNT AND BALANCE-SHEET ITA NO.654/RJT/2010 4 FOR ASSESSMENT YEAR 2005-06 AND EARLIER YEARS ALSO. THEREFORE ALL THESE DEPOSITS WERE ACCOUNTED FOR IN THE ACCOUNT OF ASSES SEES HUSBAND. THE CIT(A) HAS CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER WHO HAD VERIFIED THE DEPOSITS AND SUBMITTED THE FOLLOWING REPORT: NO.ITO/WD-1/BHUJ/REMAND REPORT/2009-10 DATE:03/09/ 2009 TO COMMISSIONER OF INCOME TAX (A)-II INCOME TAX OFFICE AMRUTA ESTATE 2 ND FLOOR NR.GIRNAR CINEMA M.G. ROAD RAJKOT. SIR [SUBMITTED THROUGH THE ADDL.CIT G.R GANDHIDHAM] SUB: APPELLATE PROCEEDINGS FOR A.Y. 2005-06 IN THE CASE OF SMT. AGARA JASMINI DHARMENDRA REGARDING REF: REMAND ORDER U/S 250(4) OF THE ACT DATED 07-07-09 APPEAL NO.CIT-(A) II/0184/08-09 ************************ KINDLY REFER TO THE ABOVE. 2. IN THIS CASE I HAVE TO SUBMIT THAT ON RECEIPT O F REMAND ORDER THE ASSESSEE WAS VIDE THIS OFFICE LETTER DATED 17-0 7-09 ASKED TO CLARIFY AND JUSTIFY ABOUT THE DEPOSITS OF RS.1 05 7 4 561/- MADE BY HER IN THE ACCOUNT WITH D.C.B ALONGWITH SUPPORTING DOCUMENTS / EVIDENCES AND PROVE THAT THE DEPOSITS WERE NOT MADE BE HER BUT BY HER HUSBAND ONLY. 3. IN RESPONSE TO WHICH THE A.R. OF THE ASSESSEE AP PEARED ON 03-08-09 AND FILED WRITTEN SUBMISSION WHICH HAS BEE N PLACED ON RECORD. ON VERIFICATION IT HAS BEEN FOUND THAT THE ASSESSEE IS NOT ASSESSED TO TAX. ALSO SHE DOESNT HAVE PAN AND SHE IS NOT FILING IT RETURNS AS HER INCOME IS NOT LIABLE TO TAX. PERUSA L OF BANK ACCOUNT NO.04210200000137 MAINTAINED WITH THE DEVELOPMENT C REDIT BANK BHUJ REVEALS THAT THE DEPOSITS HAVE BEEN MADE BY HER HUSBAND AND HER HUSBAND HAS SHOWN THE SAID ACCOUNT IN HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THE ACCOUNT HAS BEEN DULY REFLECTED IN HIS ACCOUNT S AS PER RETURN OF INCOME FILED FOR A.Y. 2004-05 2005-06 AN D 2006-07. ALSO SCRUTINY ASSESSMENT HAS BEEN MADE IN HER HUSBANDS CASE FOR THE ITA NO.654/RJT/2010 5 YEAR UNDER CONSIDERATION IN WHICH NO ADVERSE INFERE NCE HAS BEEN DRAWN. THE BANK ACCOUNT IS STANDING IN THE NAME OF HER HUSBAND SHRI DHARMENDRA NANALAL AGARA JOINTLY WITH THE ASS ESSEE HAVING HER SECOND NAME. THE ASSESSEE HAS NOTHING TO DO WI TH THE DEPOSITS MADE IN THE ACCOUNT WHICH HAS ALREADY BEEN SHOWN IN RETURN OF INCOME BY HER HUSBAND. SUBMITTED FOR YOUR HONOURS KIND PERUSAL. YOURS FAITHFULLY SD/- (R.L. PUJARA) INCOME TAX OFFICER WARD-1 BHUJ FROM THIS REMAND REPORT AND THE DETAILS SUBMITTED B Y THE ASSESSEE IT IS FOUND THAT BANK ACCOUNTS WERE DULY REFLECTED IN THE BOOKS OF ACCOUNT OF HER HUSBAND. THE ASSESSEE HAS SUBMITTED COPY OF THE BANK ACCOUNT IN THE BOOKS OF ASSESSEES HUSBAND. THE ASSESSMENT OF HUSBAND IS A LSO DONE U/S 143(3) WHICH WAS VERIFIED BY THE ASSESSING OFFICER. THE SAID BA NK ACCOUNT HAS BEEN SHOWN SINCE LAST THREE YEARS AND THE ASSESSMENT OF HUSBAN D WAS CARRIED OUT AND ALL THE DETAILS WERE CALLED FOR BY THE ASSESSING OFFICER AN D THE SAME WAS SUBMITTED TO THE ASSESSING OFFICER AND THE ASSESSING OFFICER WAS TOTALLY SATISFIED WITH THE DETAILS AFTER VERIFICATION. THEREFORE WE HOLD THA T THE DEPOSITS IN THE ACCOUNT WITH DEVELOPMENT CREDIT BANK WERE DULY REFLECTED IN THE BOOKS OF ASSESSEES HUSBAND. WE THEREFORE REVERSE THE FINDINGS OF LD .CIT(A) AND THE ADDITION IS HEREBY DELETED. 7. IN THIS CASE IT IS WORTHWHILE TO MENTION THAT TH E CIT(A) HAS CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER U/S 250(4) OF THE I.T. ACT AND AFTER GETTING THE REMAND REPORT THE CIT(A) HAS FAILED IN HIS DUTY TO VERIFY THE DETAILS WHICH WAS SUBMITTED BEFORE HIM. THE CIT(A) HAS CO- TERMINUS JURISDICTION WITH THAT OF THE ASSESSING OFFICER AND WHAT CAN BE DONE BY THE ASSESSING OFFICER CAN ALSO BE DONE BY THE CIT(A) AS HAS BEEN HELD BY THE HONBLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA LTD VS CIT 18 7 ITR 688 (SC). IN THESE ITA NO.654/RJT/2010 6 CIRCUMSTANCES THE CIT(A) HAS IN HIS ORDER AT PARAG RAPH (CH) OBSERVED THAT IN FACT ONE CANNOT FIND FAULT WITH THE APPELLANT OR H ER HUSBAND. ONLY THE A.O. SHOULD HAVE TAKEN CONCRETE STEPS TO FIND OUT THE SO URCE OF DEPOSITS AND IF SOME EXPLANATION WAS FURNISHED THE A.O. SHOULD HAVE CRO SS-VERIFIED THE GENUINENESS OF THE TRANSACTION. NOTHING SORT OF THIS WAS CARRI ED OUT. SO ACCORDING TO THE LD.CIT(A) THE REMAND REPORT WAS WEAK AND WITHOUT SU BSTANCE AND THEREFORE HE DID NOT DEPEND UPON THE SAME. IN OUR HUMBLE OPINION THE LD.CIT(A) SHOULD NOT HAVE FOUND FAULT WITH THE REMAND REPORT AND INSTEAD HE HIMSELF SHOULD HAVE MADE ENQUIRIES WHERE THE LD.CIT(A) HAS MISERABLY FA ILED. THEREFORE WE DO NOT ENDORSE THE REJECTION OF THE REMAND REPORT BY THE C IT(A). 8. IN VIEW OF THE FOREGOING DISCUSSION WE DELETE T HE ADDITION OF RS. 1 05 74 560/-. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-12-2010 SD/- SD/- (A.L. GEHLOT) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DT : 31 ST DECEMBER 2010 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-II RAJKOT 4. THE CIT-I RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT