Income Tax Appellate Tribunal - Ahmedabad
Shri Himanshu Maganbhai Patel,, Surat vs The Income Tax Officer (Intl.Taxn.),, ... on 27 February, 2017
ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013
A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09
Page 1 of 7
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "C" BENCH, AHMEDABAD
BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND
SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER
ITA Nos.2912 & 2913/Ahd/2013
Assessment Years: 2008-09 & 2009-10
Hina Himanshu Patel, vs. Income Tax Officer (Intl. Taxation),
At & P.O. Bamaniya, Surat.
Tal. Bardoli,
Dist. Surat.
[PAN - BRNPP 3602 G]
ITA Nos.2914 & 2915/Ahd/2013
Assessment Years: 2007-08 & 2008-09
Himanshu Maganbhai Patel, vs. Income Tax Officer (Intl. Taxation),
At & P.O. Bamaniya, Surat.
Tal. Bardoli,
Dist. Surat.
[PAN - BLIPP 0522 Q]
(Appellants) (Respondents)
Appellants by : None (Written Submission)
Respondent by : Shri Dharamvir Yadav, Sr. D.R.
Date of hearing : 20.02.2017
Date of pronouncement : 27.02.2017
ORDER
PER S.S. GODARA, J.M.
These two different assessees have filed the instant four appeals i.e. former's appeal ITA Nos.2912 and 2913/Ahd/2013 for assessment years 2008-09 & 2009-10 followed by latter's appeal ITA Nos.2914 & 2915/Ahd/2013 for assessment years 2007-08 & 2008-09; against CIT(A)'s Gandhinagar's orders; all dated 02.09.2013 passed in case nos. CIT(A)GNR/191/Intl. Taxn./2011-12, CIT(A)GNR/190/Intl. Taxn./2011-12 & CIT(A)GNR/193/Intl. Taxn./2011-12, CIT(A)GNR/192/Intl.Taxn./2011-12; respectively, in ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013 A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09 Page 2 of 7 proceedings under section 143(3) read with section 147 of the Income Tax Act, 1961; in short 'the Act'.
2. Cases called twice. It emerges that learned counsel representing assessee has chosen to file written submissions. We take the same on record.
3. A perusal of the case files reveal that the instant four appals suffer from seven days delay in filing. These two assesses have duly filed their condonation petitions explaining unavoidable circumstances causing the impugned delay in filing of the instant appeals.
4. Learned Departmental Representative is very fair in not disputing the solemnised averment pleaded therein. We thus condone the seven days delay in filing of four appeals. The same are now taken up for adjudication on merits.
5. We come to former assessee's appeal ITA No.2912/Ahd/2013 raising sole substantive ground challenging addition of Rs.4,50,000/- in the nature of undisclosed income on account of investment made with ICICI Prudential Life Insurance Company Limited.
6. We come to the relevant facts. There does not appear to be any dispute that the assessee along with her husband Shri Hiamanshu Maganlal Patel (latter appellant) as well as her brother in law Shri Animesh M Patel are Non-Resident Indians. This family admittedly holds agricultural land measuring about 25 bighas. Revenue records pertaining thereto prove the same to be very fertile nature producing sugarcane crops forming part of record before us. It is further evident that the assessee and her family members run Motel business in Texas, U.S.A. The assessee invested cash amount of Rs.8,50,000/- as premium in ICICI Prudential Insurance cover. She had not been filing any return throughout. Assessing Officer thus issued reopening notice under section 148 of the Act ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013 A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09 Page 3 of 7 qua the above cash investment. The assessee filed a combined cash flow statement having opening balance of Rs.15,77,982/- as on 01.04.2006. She sought to explain the fact that the impugned investment of Rs.8,50,000/- was out of cash withdrawal therefrom. It is further evident to us that the assessee also claims to have received cash from her husband and brother-in-law (supra) out of their respective agricultural lands. The said donors confirmed her case to have given gifts. All this failed to convince the Assessing officer who inter alia was of the view that the above said cash statement did not disclose any cash received/income directly in assessee's name in India and there were no details of agricultural income declared from above said 25 bighas of land in assessee's name. We notice from reassessment order dated 27.12.2011 that the Assessing Officer thereafter sought to examine assessee's case on the three limbs of identity, genuineness and creditworthiness of assessee's expenses. He was of the view that identity and creditworthiness limbs out of three factors hereinabove stood satisfied. The Assessing Officer however challenged assessee's explanation on genuineness aspect by concluding that assessee's investments were not in the nature of normal transaction since it was against common sense why a person having NRI bank account in India would invest the above stated income in India. He however accepts assessee's case qua sum of Rs.4,00,000/- to be a part of assessee's past cash withdrawals and made addition qua remaining sum of Rs.4,50,000/- in question. CIT(A) affirmed the same.
7. We have perused assessee's written submission. The Revenue's stand heard at length. There can normally be any dispute that both the lower authorities dispute assessee's explanation to have derived agricultural income as well as received cash from other two family members (husband and brother-in-law) to form source of the impugned cash investment in premium made for ICICI Prudential Life Insurance policy. Both the lower authorities and more particularly the Assessing Officer doubts over assessee's ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013 A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09 Page 4 of 7 claim on genuineness aspect. It however emerges that he has nowhere granted effect of agricultural income to either assessee or her two family members despite the fact that they are owning 25 bighas of fertile land in Bardoli District, Surat, Gujarat. The case file further indicates that the local Co-operative sugar Federation has also purchased sugarcane harvested from the above said land since it has issued various receipts pertaining to the impugned assessment year as well as preceding and succeeding assessment years.
8. Learned Departmental Representative fails to dispute correctness thereof in the course of hearing the case. We reiterate that the said Sugar Federation (Shree Khedut Sahakari Khand Udyog Mandli Limited) has certified to have purchased sugarcane from assessee's husband in assessment years 2008-09 to 1010-11 of Rs.4,47,000/-, Rs.4,23,000/- and Rs.2,03,000/-. The same figure in assessment year 2006-07 is of Rs.88,425/- followed by NIL amount in assessment year 2007-08. Assessee's brother-in- law Shri Animesh M. Patel is also stated to have sold sugarcane to the very Co-operative Federation of Rs.3,16,000/-, Rs.3,37,000/-, Rs.3,65,000/-, Rs.8,24,000/- and Rs.4,85,000/- in assessment years 2006-07 to 2010-11. Coupled with this, the fact also remains that the assessee herself own agricultural land which is under cultivation. We take into account all these facts as well as assessee's explanation to have received cash sums from her above stated family members who had never been called by person by lower authorities to enquire that the impugned addition of Rs.4,50,000/- in question is not sustainable. The same is accordingly deleted.
9. ITA No.2912/Ahd/2013 is accepted.
ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013 A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09 Page 5 of 7
10. Former assessee's next appeal is ITA No.2913/Ahd/2013 assailing correctness of addition of premium paid to ICICI Prudential Life Insurance Company Limited amounting to Rs.8,50,000/- by cash.
11. We notice in this case relevant facts are not identical. The assessee claimed to have made the impugned payment of Rs.8,50,000/- on a single day i.e. 03.11.2008 in form of 18 demand drafts purchased in cash in as many different names. Details thereof are at page 3 of the reassessment order dated 22.12.2011. Seventeen of the said demand drafts involve a sum of Rs.49,000/- and 18th instance is of Rs.17,000/-. A perusal of both the lower authorities' orders reveal that the assessee could not produce even a single party out of the said 18 persons along with all the relevant details proving their source of demand draft amounts in question. The same factual position continues herein as well. The assessee's written submission as well as her stand throughout prima facie seeks to draw parity with the relevant facts in preceding assessment year. We are however of the view that since the assessee has failed to discharge even the identity of the said 18 demand draft parties, we adopt a different approach in the impugned assessment year to affirm addition in question of Rs.8,50,000/- under challenge.
12. ITA No.2913/Ahd/2013 is thus rejected.
13. We now advert to latter assessee Shri Himanshu Maganbhai Patel. His first appeal ITA No.2914/Ahd/2013 seeks to delete undisclosed income addition of Rs.2,00,000/- qua investment made with ICICI Prudential Life Insurance Company Limited as treated to be falling under section 69 of the Act by both the lower authorities.
14. It emerges that this assessee had paid premium of Rs.6,00,000/- on 12th and 14th December, 2006 with ICICI Prudential Life Insurance Company Limited. He sought to explain source of the said investment of his life time saving as well as agricultural income.
ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013 A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09 Page 6 of 7 The Assessing Officer accepted his case only to the extent of Rs.4,00,000/- in view of his bank statements as well as the Co-operative Sugar Federation certificate and also in view of assessee's declaration which proves to have brought a sum of Rs.4500 US$ coming to Rs.2,02,500/- with him on his visit to India. The Assessing Officer thus assumed that 50% of the said amount to have held to be available with the assessee so as to accept the claim in part. The CIT(A) upholds the same in course of lower appellate proceedings.
15. We have heard learned Departmental Representative at length. Relevant findings perused. We deem it appropriate to reiterate our observations in former assessee's first appeal i.e. this assessee holds agricultural lands in Bardoli producing sugarcane and other crops. We wish to repeat that the said sugarcane Federation has already issued necessary certificates to have purchased sugarcane grown in his land. This is not the Revenue's case that assessee's land revenue record only reveals the sugarcane crops and not other crops harvested therefrom. We further find no logic in Assessing Officer's presumption that assessee is deemed to have spent 50% cash available to accept his claim regarding source of cash for premium of Rs.4,00,000/-. We accordingly conclude that both the lower authorities have erred in making the impugned addition of Rs.2,00,000/- forming subject matter of sole substantive ground raised in assessee's appeal. The same stands deleted.
16. Assessee's appeal ITA No.2914/Ahd/2013 is accepted.
17. We now come to latter assessee's second appeal ITA No.2915/Ahd/2013 raising sole substantive ground challenging unexplained investment addition of Rs.2,00,000/- in the nature of cash premium paid to ICICI Prudential Life Insurance company Limited out of the total premium of Rs.4,00,000/- paid in the impugned assessment year. We notice ITA Nos.2912, 2913, 2914 & 2915/Ahd/2013 A.Ys. 2008-09, 2009-10, 2007-08 & 2008-09 Page 7 of 7 herein as well that the Assessing Officer's reason is identical to the one adopted in the preceding assessment year.
18. Learned Departmental Representative fails to dispute that we have already deleted identical addition hereinabove. We adopt the same reasoning to accept assessee's sole substantive ground in the instant appeal.
19. The instant appeal ITA No.2915/Ahd/2013 is accordingly accepted.
20. We refer our detailed discussions in preceding paragraphs to allow ITA Nos.2912, 2914 & 2915 filed at the instance of these two assessees. Former assessee's latter appeal ITA No.2913/Ahd/2013 is dismissed. Pronounced in the open court today on the 27th day of February, 2017.
Sd/- Sd/-
Pradip Kumar Kedia S.S. Godara
(Accountant Member) (Judicial Member)
Ahmedabad, the 27 th day of February, 2017
PBN/*
Copies to: (1) The appellant (2) The respondent
(3) Commissioner (4) CIT(A)
(5) Departmental Representative (6) Guard File
By order
Assistant Registrar
Income Tax Appellate Tribunal
Ahmedabad benches, Ahmedabad