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Income Tax Appellate Tribunal, “ SMC ” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals)–2, Vadodara [CIT(A) in short] vide appeal no.CAB/(A)-2-424/2014-15 dated 09.04.2015 arising in the matter of assessment order passed under s.143(3) r.w.s. 147 of the Income Tax Act, 1961(here-in-after referred to as "the Act") dated 07.02.2014 relevant to Assessment Year (AY) 2009- 10.
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
The grounds of appeal raised by the assessee are as under:-
“The appellant craves liberty to place on record concise grounds of appeal as follows in line with Rule 8 of the Income-tax (Appellate Tribunal) Rules, 1963: 1. The Ld. CIT(A) has erred, both in law and on the facts of the case, in partly confirming addition of Rs.2,13,000/- out of total addition of Rs.4,84,249/- made in respect of deposits in bank accounts. 2. The Ld. CIT(A) has erred, both in law and on the facts of the case, in confirming the addition of Rs.18,336/- in respect of alleged salary income. 3. The Ld. CIT(A) has erred, both in law and on the facts of the case, in confirming the addition of Rs.14,374/- in respect of alleged interest income. 4. Both the lower authorities have passed the orders without properly appreciating the fact and that they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed. 5. The Ld. CIT(A) has erred in law and on facts of the case in confirming action of AO in levying interest u/s 234A/B/C of the Act. 6. The Ld. CIT(A) has erred in law and on facts of the case in confirming action of AO in initiating penalty proceedings u/s 271(1)(c)of the Act. Appellant craves leave to add, amend, alter, change, delete and edit the above ground of appeal before or at the time of the hearing of the appeal.”
The first issue raised by the assessee is that ld CIT(A) erred in confirming the addition of Rs.2,13,000/- out of total addition of
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 3 - Rs.4,84,249/- made by the AO on account of unexplained cash credit u/s 68 of the Act.
Briefly stated facts are that the assessee is an individual and deriving income under the head salary house property and other sources. The assessee among other bank accounts is maintaining an account with HDFC Bank bearing no.00331050010334. The AO during the proceedings required the assessee to explain certain deposits made in his bank account as detailed under: Sr. Date Particulars Cheque/Cash Amount No. 1. 16.07.2008 Known from Cheque 50,000 Dipak Yogendra Majumdar 2. 02.01.2009 Loan from Bharat Cheque 75,000 Kumar Arunlal Patel 3. 28.04.2008 Cash deposit Cash 73,000 & 17.03.2009 4. 7.11.2008 Loan from Cheque 15,000 unknown Party
4.1 The assessee failed to furnish the necessary details supporting the aforesaid cash credit entries. Therefore, the same was treated as unexplained cash credit and added to the total income of the assessee.
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 4 - 5. Aggrieved, assessee preferred an appeal to ld CIT(A). The assessee before the ld CIT(A) submitted as under: i. Loan from Dipak Yogendra Majumdar:
The assessee before the ld CIT(A) has filed the affidavit duly stamped and signed by Mr. Dipak Yogendra Majumdar along with the Bank statement as well as form no.16 of Mr. Dipak Yogendra Majumdar in support of the loan taken from him. However, the ld CIT(A) disregarded the contentions of the assessee and confirmed the order of AO by observing as under: i) “Rs.50,000/- fund transfer on 16.07.2008: The appellant has filed an affidavit from Mr. Deepak Yogendra Mehendra. In the affidavit the PAN of this person has also mentioned the account no. and cheque no. vide which the amount has been transferred to the appellant. Subsequent to the receipt of the remand report, the appellant has submitted a copy of his form no. 16 as downloaded from the website of TDS Centralized Processing Centre. An examination of this document shows that this is for AY 2013-14. Thus, the appellant has failed to produce the documents explaining the source of money transferred by this person to the appellant during the financial year 2008-09. He has also failed to establish the creditworthiness of this person for advancing for Rs.50,000/- that too as interest free loan. It has also nowhere been submitted as to whether such interest free amount was ultimately returned back to these person or not. Under such circumstances, it is held that the appellant has failed to establish creditworthiness of this person and hence, the addition made by the AO is upheld.”
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 5 - ii. Loan from Bharat Kumar Arunlal Patel: The assessee has filed the affidavit duly stamped and signed by Mr. Bharat Kumar Arunlal Patel along with the copy of the bank statement and Income Tax Return for the A.Y. 2012-13 in support of the loan taken from him. However, the ld CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under: “iv) Rs.75,000/- received from fund transfer from 02/01/2009: The appellant has explained that this amount has been received from Mr. Bharat Kumar Arunlal. An affidavit has been filed on behalf of this person along with copy of bank statement. The AO has commented that no identity proof such as PAN and copy of Income tax return etc to prove the creditworthiness have been submitted despite the fact that the same was requested at the time of assessment proceedings also. In response to this, the appellant has submitted copy of Income Tax return filed by this person for A.Y. 2012-13. Again, the appellant has not given any reason for receiving this amount as interest free loan from this person and has also not explained as to whether this has been refunded back by him or not. The creditworthiness of this person for the financial year 2008-09 for advancing such interest free loans has been not established. Hence, the addition made by the AO of this amount is upheld.”
iii. Cash deposits of Rs.73,000/-: The assessee before the ld CIT(A) submitted that the amount of cash was deposited out of the withdrawal from the Bank. The assessee in support of his claim filed a statement showing the amount withdrawn from the Bank and deposit in the Bank. However, the ld CIT(A) without adducing any reason confirmed the order of AO and sustained the addition of Rs.73,000/- only in the hands of the Assessee.
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
iv. Loan from unknown party Rs.15000/-: The assessee could not furnish the required details in support of his claim of loan for Rs.15000/- therefore the CIT(A) sustained the addition by the AO in the hands of the assessee.
Being aggrieved by the order of ld CIT(A) assessee is in appeal before us.
The ld AR before us submitted as under: • As regards sum of Rs. 50,000/- and Rs.75,000/- received from "Dipak Y. Majimidar " and "Bharatkumar A. Patel" respectively- � Identity of lenders stands proved from their affidavits and PAN. � Genuineness of transactions is proved from the fact that such funds have been received through cheque (bank statement furnished). � Creditworthiness of lenders stands proved from their Form 16/Income-tax return. � Thus, all three ingredients as prescribed u/s 68 are proved. S.68 cast an initial burden on assessee to prove identity, genuineness and creditworthiness of lenders which has been discharged by placing on record evidences as per Annexure "A". Having discharged the initial onus with satisfactory explanation, onus shifts on the revenue; � CIT(A)"s observation that Form 16 / I.T. return of the lenders are of different year is devoid of any merits since creditworthiness of lenders duly stands established from such documents. The mere fact that such document pertains to different period does not affect creditworthiness. � S.68 doesn't require an assessee to prove source of the source of deposits. Hence, no addition is called for u/s 68. Reliance is placed on:
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 7 - � DCIT vs. Rohini Builders 256 ITR 360 (Guj.) � Murlidhar Lahorimal vs. CIT 280 ITR 512 (Guj.) � CIT vs. Pragati Co. Op. Bank Ltd. 278 ITR 170 (Guj.) � CIT vs. Orissa Corporation Pvt. Ltd. 159 ITR 78 (SC) � Having furnished aforesaid details, the concerned credits, by no stretch of imagination, remain unexplained any further in the assessee's hands. • As regards cash deposits aggregating to Rs.73,090/-, CIT(A) has neither discussed the said issue nor given any finding on the same. • CIT(A) also failed to appreciate that assessee had sufficient cash balance for making such cash deposits as is evident from the cash summary. • Thus, even source of cash deposits of Rs.73,000/- duly stands established. • In the facts and circumstances of the case and in light of evidences placed on record, CIT(A) ought to have deleted the impugned addition in toto.”
On the other hand ld DR vehemently supported the order authorities below.
We have heard the rival contentions and perused the materials available on record. The facts of the case are not undisputed. Therefore we are inclined not to repeat the same for the sake of brevity and convenience.
8.1 As regards the loan received from Dipak Y. Majumdar and Bharatkumar Arunlal Patel amounting to Rs.50,000/- and 75,000/- respectively; we note that the assessee has discharged his duties by furnishing necessary details of the parties in the form of the affidavit,
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 8 - Bank Statement and Form 16/Income tax return. None of the authority below has pointed out any defect in the pieces of evidence filed by the assessee. Therefore, we are of the view that the assessee has discharged his onus by furnishing details as discussed above.
8.2 Regarding the deposit of cash of Rs.73,000/-; we note that there were sufficient withdrawals from the Bank. Therefore we can safely presume the money deposited by the assessee was out of the money withdrawn from the Bank. None of the authority has brought on record suggesting that the assessee has made any investment out of the money withdrawals from the Bank. There was no defect pointed out by the Authorities below in the reconciliation statement filed by the assessee which is placed on Page 22 to 28 of the Paper Book. As per the reconciliation Statement, there was the withdrawal of Rs.5,25,000/- during the year, and there was deposited in the year under consideration amounting to Rs.1,67,131/- only. On perusal of the Bank Book, we note that there was sufficient cash available with the assessee during the year.
8.3 Regarding the credit entry of Rs.15,000/-; the learned counsel has not advanced any argument before us.
In view of above, we hold that no addition can be made in the hands of the assessee on account of the loan received from Dipak Y. Majumdar, Bharatkumar A. Patel and cash deposit of Rs.73,000/- but we hereby
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 9 - confirm the addition of Rs. 15,000.00 in the absence of any documentary evidence. Therefore, we set aside the order of Learned CIT(A) and direct the AO to delete the addition of Rs.1,98,000/-. Hence, the ground of appeal of the assessee is partly allowed.
The next issue raised by the assessee is that Learned CIT(A) erred in confirming the addition of Rs.18,336/- between salary income vis-à- vis form 26 AS.
The AO during the assessment proceedings observed a difference of Rs.18,336/- between the income declared by the assessee in the Income Tax return vis-à-vis form 26 AS. On a question by the AO about such difference, the assessee failed to make any satisfactorily reply therefore the same was added to the total income of the assessee.
Aggrieved, assessee preferred an appeal to learned CIT(A). The assessee before the learned CIT(A) filed the copy of Form 16 justifying the amount of salary declared in the Income Tax return. However, the Learned CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under: “5. So far as ground no.3 is concerned, the appellant has explained that it has received income from salary at Rs.23,15,425/- only on the basis of salary certificate dated 30/04/2009 issued by the company. He has also submitted that the amount of TDS is Rs.55,36,895/- which is same In the salary certificate as well as form no. 26AS. As per form no. 26AS the total gross salary comes to Rs.23,33,761/- whereas as per the
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 10 - computation filed by the appellant It comes to Rs.23,15,425/- only. Thus there is a discrepancy of Rs. 18,336/- for which the appellant's AR has also agreed for addition vide order sheet dated 09/12/2013. The appellant has failed to explain the discrepancy between the gross salary shown in form 26 AS and in form No.16, The amount mentioned in Form 26AS is also based upon the return of TDS filed by the appellant's employer. Hence, this addition is upheld and this ground of appeal is dismissed.”
Being aggrieved by the order of Learned CIT(A) assessee is in appeal before us.
The Learned AR before us submitted as under: • “AO found that assessee has shown salary income at Rs.23,15,425/- whereas as per Form 26AS, assessee's salary income is Rs.23,33,761/-. Hence. AO made the impugned addition of Rs.18.336/- in respect of the differential amount i.e. Rs.23,33,761 - Rs.23,15,425/-. The same was confirmed by CIT(A). • AO and CIT(A) failed to appreciate that the assessee has received salary of Rs.23,15,425/- as is evident from assessee's Form 16 (Pgs.29-30 of P/B). • Salary Certificate (i.e. Form 16) is given by the employer wherein the amount paid to an employee towards salary is reflected. Salary reflected in such salary certificate has been duly offered as income by the assessee. • The mere fact that Form 26AS reflects a bit higher salary cannot be a ground for making an addition in the hands of the assessee. • Further, assessee does not have control over Form 26AS and hence, even if any error has crept in the same, then also assessee cannot rectify the same. • Under such circumstances, impugned addition deserves to be deleted.”
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 11 - 13. On the other hand, Learned DR vehemently supported the order of authorities below.
We have heard the rival contentions and perused the materials available on record. In the instant case, the basis taken by the AO for the addition that the income shown in Form No. 26 AS exceeds the income shown by the assessee in the income tax return. The view taken by the AO was subsequently confirmed by the Learned CIT(A).
14.1 From the preceding discussion, we note that the none of the authority below has brought anything on record suggesting that the assessee has declared less amount of salary income. There can be numerous reasons between the income shown in Form 26 AS vis-à-vis income shown in form 16 furnished by the employer. Therefore, in the absence of any documentary evidence showing higher salary income, we are not impressed with the finding of lower authorities. The authorities below were having the details of the employer from where the salary was received by the assessee. But none of them took any confirmation from the employer.
Therefore, we set aside the order of Learned CIT(A) and direct the AO to delete the addition made by him. Hence, the ground of appeal of the assessee is allowed.
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 12 - 15. The last issue raised by the assessee is that Learned CIT(A) erred in confirming the addition of Rs.14,374/- on account of interest income.
The AO during the assessment proceedings observed that the assessee had earned interest income of Rs.14,374/- which was not disclosed in the Income tax return. Therefore, the AO added the same to the total income of the assessee.
Aggrieved, assessee preferred an appeal to Learned CIT(A) who has confirmed the order of AO by observing as under: “So far as the ground no.4 relating to addition of Rs.14,374/- on account of interest income received by the appellant is concerned, nothing has been submitted in this regard. Hence, this ground of appeal is dismissed.”
Being aggrieved by the order of learned CIT(A) assessee is in appeal before us.
The Learned AR before us has not brought anything on record contrary to the finding of lower authorities.
On the other hand, Learned DR before us vehemently supported the order of authorities below.
ITA No.1770/Ahd/2015 Jyotindra Bachubhai Patel vs. DCIT A.Y. 2009-10
- 13 - 20. We have heard the rival contentions and perused the materials available on record. The learned AR before us has not advanced any argument on the addition made by the lower authorities on account of interest income of Rs.14,374/- therefore we find no reason to disturb the finding of Learned CIT(A). Hence, the ground of appeal of the assessee is dismissed.
In the result, appeal of the assessee is partly allowed. This Order pronounced in Open Court on 01/01/2019
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