ITO 19(2)(2), MUMBAI vs. LATE MRS KAMLABEN V. PAREKH, MUMBAI

आदेश / O R D E R PER R.C.SHARMA (A.M):

Late Mrs. Kamalaben V Parekh 5. By the impugned order, CIT(A) deleted the addition after observing as under:- “7. The main issue in the present appeal is against the addition made of Rs.47,53,033/-, towards the cash deposited in the savings bank account of the appellant, treating the same as unaccounted income of the assessee. Ground Nos. 3 to 8, are dealing with this issue and all the grounds are raised against the same issue, hence the grounds are disposed at one place. In the grounds, it is stated that AO ignored the evidences in the form of assessment order of M/s Gem Corporation wherein the assessing officer of the said firm brought on record the fact that the cash deposited in bank account of the appellant has been owned by the firm as representing its income. The request of the assessee to call for assessment records of Gem Corporation to verify the actual position was ignored and AO failed in his duty to make proper enquiries before making the addition. Appellant's request to summon the partner of Gem Corporation to verify the factual position was ignored and the AO failed in his duty to act judiciously and failed to make enquiries before making the addition. Assessment has been completed in violation of principles of natural Justice. ITO erred in bringing to tax the sum of Rs.47,53,033/- representing as the unaccounted income of the assessee, which has been already brought to tax in the hands of Gem Corporation, the addition of the same income in paying in the hands of the appellant amounting to taxing the same income twice in violation of the fundamental principles of taxation. In view of the above reasons it is prayed that the assessment be held to be bad in law and the said addition be directed to be deleted. 7.1 While making the addition, AO relied on the information received from the office of the GIB, with regard to the cash deposited in the savings bank account of Rs.43,51,500/- and the bank statement called for from the bank which shows cash deposits of Rs.47,51,500/- during the F.Y. 2008-09 and interest payment of Rs.1,537/-. Though the appellant's legal heir contends that the same is a benami account and cash deposited in question was made by Bharat Shah owner of M/s Gem Corporation, the AO not accepted the contentions stating that the appellant has not explained the source of the information, banks do not open & accept huge deposits without proper check on the identity of the person, banks are bound by statutory and regulatory bodies like RBI and no complaint was filed by the legal heir with the law enforcing agencies like police economic offences cell or courts for relief. Hence, the money introduced into the account is treated as the unaccounted income which has escaped assessment and added to the total income of the deceased appellant.

Late Mrs. Kamalaben V Parekh 7.2 AR in the written submissions stated that when the AO was disinclined to carry out necessary enquiries, they made their own inquiries and learnt from such independent enquiries that one of his relatives opened the bank account in the appellant's name and never informed that the account is opened without her knowledge. It is stated that when the ownership of the account is denied the AO is duty bound to make enquiries to establish the correct ownership of the bank account and the deposits in the account. The appellant also learnt that the cash deposits have been effected were routed to M/s Gems Corporation and the same were brought to the attention of the AO vide letter dated 21-01-2015. The appellant also obtained a copy of assessment order of M/s Gem Corporation and quoting relevant paragraphs, it is submitted that the deposits in the account actually belong to M/s Gem Corporation and the AO of that firm accepted the contentions and taxed the income in the hands of the firm. Though the same were brought to the notice of the AO during the assessment proceedings, the same were not accepted and the addition was made by the AO. It is stated that the findings of the AO are unreasonable and not tenable in law for the reason that the AO shown disinclination to enquire and not bothered to call for the records and statement of Gem Corporation, not made any enquiries with the bank with regard to the KYC compliant. The funds were owned up as representing sales of Gem Corporation and have been subjected to tax in its assessment order and the same income cannot be taxed twice. On perusal of the assessment order, it can be seen that Gem Corporation opened not one account but seven such accounts and identical cash deposits in cash were effected in the accounts. All these findings were clearly brought in the assessment order by the AO of Gem Corporation and the enquiries which are supposed to be done by the AO, were not made and overlooked the material. There is no business connection between the appellant and M/s Gem Corporation as alleged by the AO and it is submitted that gross injustice has been done in bringing to tax the said cash deposits of a third party giving flimsy reasons. The addition is made overlooking the submissions made and without making any inquiries and without application of mind and AO has no valid reasons to make the said additions. In view of the above facts and judicial decisions it is prayed that the addition to the returned income be directed to be deleted. 7.3 I have carefully considered the rival contentions on the issue and the material evidences produced in the form of assessment order passed in the case of M/s Gem Corporation, where the said cash deposit was assessed by the AO of that firm. In the present case, as per the CIB information the appellant deposited an amount of Rs.43,51,500/-, whereas the statement of the account called for from the bank, it is confirmed that cash deposited in the appellant's Late Mrs. Kamalaben V Parekh account during the year under consideration is Rs. 47,51,500/- and interest payment is Rs.1,537/- thus the total amount of credit in the account is Rs. 47,53,037/-. The appellant is deceased on 13-01- 2009, i.e. during the previous year, at the age of 84 years and the return of income was filed by her legal heir. When confronted with the information of cash deposits, the legal heir stated that as per his knowledge no account was opened with the said Janakalyani Sahakari Bank by the appellant and the same is a benami account opened by a third person. The legal heir also submitted to the AO, that the said deposit was made by Sri Bharat Shah owner of M/s Gem Corporation, who has owned up the same and the deposits were brought to tax in the hands of Gem Corporation. During the assessment proceedings, vide letter dated 21-01-2015 addressed to the AO, the legal heir also furnished a copy of the assessment order passed in the case M/s Gem Corporation for the A.Y. 2009-10 (a copy of which is enclosed to the paper book). Explaining the contents in the said order, it is stated that cash deposited in seven such accounts, including the cash deposited in the account of the appellant, were owned up by the said Gem Corporation which were taken as the turnover and accounted for and shown in the sales ledger account and the same was confirmed by the partner in a statement recorded on oath and the assessment was completed considering the cash deposits in the hands of M/s Gem Corporation. The legal heir denied that his late mother ever opened a bank account at the age of 84 years and is inconceivable to have earned such huge amount just prior to death and requested the AO to summon the partners of M/s Gem Corporation, for examination. 7.4 From the material available on record, AO has not examined the details furnished by the AR, either by calling the persons in-charge of M/s Gem Corporation or calling the information available with the assessment records, from the concerned AO. He has also not checked up the KYC from the bank whether the account is really opened by the deceased appellant and came to the conclusion on the basis of the statement of account received from the bank account. Without conducting any enquiries, to verify the authenticity of the evidences furnished by the legal heir, AO simply concluded that the source of the information is not explained and therefore the contentions of the AR/legal heir were not accepted. AO also stated that no bank would open an account & accept such huge deposits without proper check on the identity of the person, as they are bound by various statutory regulatory bodies. In the present case the account is held with a Co-operative Bank and in the present day scenario it is seen that several co-operative banks are colluding with big customers and flouting the banking norms stipulated by the regulatory authorities. The other contention of the AO is that no complaint is filed by the legal heir with various authorities and no Late Mrs. Kamalaben V Parekh proof to establish that there is no business relationship with the purported benami holder. In view of the same the amount is considered as the unaccounted income in the hands of the deceased appellant. This reason given by the AO is nothing to do with the cash deposit issue and the same cannot prove that the said cash deposits belongs to the appellant. 7.5 On careful perusal of the assessment order of M/s Gem Corporation, it is found that the issue of cash deposits in different accounts was clearly discussed in page No. 4 to 7 of the order. Assessing Officer of M/s Gem Corporation, elaborately discussed the issue of cash deposits made in seven bank accounts wherein the name of the appellant- late Kamalaben Parekh- is also available. AO also mentioned the inquiry report received from the 'designated AO' entrusted with the work of investigating the cash deposits in the savings bank accounts of certain persons confirmed the cash deposited in those accounts to the extent of Rs. 4.46 crores and later cheques were issued to one M/s Sameer & Co by those parties and subsequently from Sameer & Co. account, the amount was transferred to M/s Gem Corporation. It is also found that all the accounts were introduced by one person by name Vikash Shah. A sworn statement was recorded on 15-12-2011 from the Managing Partner of M/s Gem Corporation, Shri Bharat Shah, who has owned up the amount of Rs. 4.46 crores and stated that cash deposited in those accounts are made out of the cash received from the actual sales. In view of the same the AO concluded that there has been suppression in prior in trading of almonds business and accordingly offered 4% GP on such sales which was not accepted by the AO and AO considered @16.05% GP on the entire sales. It is clearly stated in the order that this 16.05% GP also covers the cash sales and since the GP is estimated and cash sales have been closely interlinked, no further addition on cash deposits made by Gem Corporation is separately made. 7.6 From this it is very clear that the cash deposited in different bank accounts including the appellant account is owned up by M/s Gem Corporation and is accordingly considered in its assessment by estimating GP @16.05% on the sales including the cash sales. Appellant from the beginning denied having account opened with the bank and depositing any cash in that account. If one considers the facts and circumstances of the case, it is not possible to open a bank account by a person having 84 years of age and crediting such huge cash to the extent of Rs. 47 lakhs in the account. The appellant is no more and is not in a position to explain the case and the legal heir furnished the requisite details as far as possible to prove that the bank account and the cash deposits were not belongs to her. The amount is / already owned up by M/s Gem Corporation and also Late Mrs. Kamalaben V Parekh assessed in its hands and the AO could not conclusively prove the case that the amount deposited in the bank account belongs to the deceased appellant, either by counter checking with the bank or with the AO who has assessed the cash deposits in the hands of Gem Corporation. In view of the above, I am not in a position to agree with the reasoning and the findings of the AO for making the addition in the hands of the deceased appellant, and as seen from the assessment order most of the reasons given by the AO are on the basis of presumptions and assumptions, the addition made is accordingly, 'Deleted'. Appellant succeeds on Ground Nos. 3 to 8 of the appeal which are treated as 'Allowed'.