Smt. Rama devi Chandak, v. The ACIT, 1(1),

PAGE 1 OF 5 I.T.(SS).A.NO. 105/IND/2006 SMT. RAMADEVI CHANDAK UDAIPURA DISTT. RAISEN IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER PAN NO. : AECPC 9057-R I.T.(SS)A.NO.105/IND/2006 BLOCK PERIOD : 1.4.1996 TO 13.12.2002 SMT. RAMA DEVI CHANDAK ACIT C/O YAMUNA JEWELLERS VS WARD 1(10 UDAIPURA DIST. RAISEN BHOPAL. APPELLANT RESPONDENT APPELLANT BY : SHRI H.P.VERMA ADV AND SHRI ASHISH GOYAL C.A. RESPONDENT BY : SHRI K.K.SINGH CIT DR DATE OF HEARING : 13/01/2010 O R D E R PER V.K. GUPTA A.M. THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF ORD ER OF THE LD. CIT(A) DATED 25.09.2006 FOR THE BLOCK PERIOD 1.4.19 96 TO 13.12.2002. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. THE ASSESSEE HAS TAKEN ADDITIONAL GROUND CHALLENGIN G THE VALIDITY OF THE ASSESSMENT MADE U/S 158BC OF THE AC T FOR THE REASON THAT PAGE 2 OF 5 I.T.(SS).A.NO. 105/IND/2006 SMT. RAMADEVI CHANDAK UDAIPURA DISTT. RAISEN NO SEARCH WARRANT WAS EXECUTED AGAINST THE ASSESSEE . THIS GROUND WAS NOT PRESSED HENCE DISMISSED AS NOT PRESSED. 4. THE OTHER ISSUE INVOLVED IS REGARDING CONFIRMATION OF ADDITION OF RS. 2 23 349/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ASSESSEES FAILURE TO EXPLAIN THE DEPOSITS MADE IN THE BANK AC COUNT PARTICULARLY WHEN NO EVIDENCE WAS FOUND IN THE COURSE OF SEARCH. 5. THE FACTS IN BRIEF ARE THAT THE ASSESSEE WAS HAV ING THE JOINT ACCOUNT WITH ONE SMT. RADHA DEVI WITH CENTRAL BANK OF INDIA UDAIPURA WHEREIN CERTAIN DEPOSITS AMOUNTING TO RS. 4 46 698/ - HAD BEEN MADE. THE A.O. IN THE BACKGROUND OF THIS FACT ADDED 50 % OF S UCH DEPOSITS IN THE HANDS OF THE ASSESSEE AS THE ASSESSEE FAILED TO EXP LAIN THE SOURCE OF SUCH DEPOSITS. AGGRIEVED BY THIS THE ASSESSEE CARRIED T HE MATTER INTO APPEAL BEFORE THE LD. CIT(A) WHO ALSO CONFIRMED THE ACTIO N OF THE A.O. FOR THE REASON THAT THE ASSESSEE COULD NOT ESTABLISH THE FA CT THAT SUCH DEPOSITS WERE MADE OUT OF AGRICULTURAL RECEIPTS HENCE SUCH TRANSACTIONS REMAINED UNEXPLAINED. STILL AGGRIEVED THE ASSESSEE IS IN AP PEAL BEFORE US. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE CASE OF SMT. RADHA DEVI CHANDAK THE JOINT ACCOUNT HOLDE R OF THIS ACCOUNT THUS IDENTICAL MATTER AROSE BEFORE THE TRIBUNAL AN D VIDE I.T.A.NO. 104/IND/2006 AND THE TRIBUNAL VIDE ITS ORDER DATED 20 TH JUNE 2008 AFTER CONSIDERING THE FACT THAT THE ASSESSEE HAD FILED RE TURNS FOR ASSESSMENT YEAR PAGE 3 OF 5 I.T.(SS).A.NO. 105/IND/2006 SMT. RAMADEVI CHANDAK UDAIPURA DISTT. RAISEN 2001-02 AND 2002-03 BEFORE THE SEARCH. HENCE 50% O F THE DEPOSITS WERE TO BE TREATED AS EXPLAINED AND CONSEQUENTLY THE T RIBUNAL REDUCED THE ADDITION TO RS. 1 11 674/- BEING 50% OF RS. 2 23 3 49/-. HE FURTHER CONTENDED THAT IN THE SAID ORDER THE TRIBUNALS AT TENTION WAS NOT DRAWN ON TWO ENTRIES OF RS. 1 LAKH AND RS. 2 000/- BEING DEPOSITED ON 30.01.1996 AND 6.2.1996 WHICH WERE BEYOND THE BLOC K PERIOD. HENCE THE SAME COULD NOT HAVE BEEN CONSIDERED FOR MAKING THE IMPUGNED ADDITION. HE FURTHER CONTENDED THAT IN THIS REGARD HE WAS CONTEMPLATING TO FILE A MISC. APPLICATION AGAINST THE SAID ORDER. HE FURTHER CONT4ENDED THAT THE ASSESSEE HAD ALSO FILED RETURN FOR ASSESSM ENT YEARS 2001-02 AND 2002-03 ( COPY PLACED AT PAGE 47 & 50 OF THE PAPER BOOK ) DECLARING TOTAL INCOME FOR BOTH THE YEARS AT RS. 2 14 675/- IN AGGR EGATE AND WHEN 50 % THEREOF WAS TO BE CONSIDERED AS UTILIZED FOR MAKING SUCH DEPOSITS AS PER THE RATIO OF THE SAID ORDER OF THE TRIBUNAL AND 50% OF THE TWO ENTRIES FALLING BEYOND THE BLOCK PERIOD WERE ALSO CONSIDERE D THEN AN ADDITION OF RS. 65 012/- COULD ONLY BE MADE IN THE HANDS OF THE ASSESSEE AT THE MOST. HE FURTHER CONTENDED THAT HOWEVER NO ADDITION SHO ULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE AS NO EVIDENCE WAS FOU ND DURING THE COURSE OF SEARCH. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND CONTENDED THAT THE ASSESSEE FAILED TO PROVE THE LIN K BETWEEN THE INCOME PAGE 4 OF 5 I.T.(SS).A.NO. 105/IND/2006 SMT. RAMADEVI CHANDAK UDAIPURA DISTT. RAISEN EARNED BY IT BY HER AND SUCH DEPOSITS AS THE INCOME SO EARNED COULD HAVE BEEN EXPANDED AS WELL. HE FURTHER PLACED STRONG REL IANCE ON THE ORDER OF THE LD. CIT(A). 8. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 9. IT IS NOTED THAT THE TRIBUNAL IN THE CASE OF JOINT HOLDER HAS CONFIRMED THE ADDITION TO THE EXTENT OF 50% OF SUCH DEPOSITS. HENCE IN THE IDENTICAL FACTS WE ARE BOUND TO FOLLOW THE DEC ISION OF THE COORDINATE BENCH. HOWEVER TWO ENTRIES AS EVIDENT FROM THE SA ID ORDER OF THE TRIBUNAL APPARENTLY FALL BEYOND THE BLOCK PERIOD AN D IT IS ALSO APPARENT THAT THIS FACT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL. HENCE TO THIS EXTENT IN OUR OPINION THE CLAIMS OF THE ASSESSEE CAN BE ACCEPTED. WE ALSO FIND THAT THIS ASSESSEE ALSO FILED RETURN FOR TWO Y EARS PRIOR TO THE DATE OF SEARCH. THUS TAKING INTO CONSIDERATION THESE FACT S AND RATIO OF THE DECISION OF THE COORDINATE BENCH WE HOLD THAT THE ADDITION OF RS. 65 000/- SHOULD ONLY BE MADE IN THE HANDS OF THE AS SESSEE ON THIS ACCOUNT. ACCORDINGLY WE ACCEPT THIS GROUND OF THE ASSESSEE IN PART. 10. THE OTHER GROUND RELATING TO CHARGING OF INTEREST U /S 158BFA IS OF CONSEQUENTIAL NATURE AS THE ASSESSEE HAS NOT PRO VED THE FACT THAT SUCH ADDITION WAS NOT MADE DUE TO ANY FAILURE ON THE PAR T OF THE ASSESSEE. ACCORDINGLY THIS GROUND OF THE ASSESSEE IS ALSO DI SMISSED. PAGE 5 OF 5 I.T.(SS).A.NO. 105/IND/2006 SMT. RAMADEVI CHANDAK UDAIPURA DISTT. RAISEN 11. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20 TH JANUARY 2010. CPU* 15151