Sarika Fatehpuria, Kolkata vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri N. K. Saini, AM & Shri Mahavir Singh, JM]

I.T.A No. 216/Kol/2012 Assessment Year: 2006-07 Income-tax Officer, Wd-36(3), Kolkata. Vs. Smt. Sarika Fatehpuria (PAN:AADPF7000N) (अपीलाथ /Appellant) ( यथ /Respondent)

Date of hearing: 21.01.2015 Date of pronouncement: 29 .01.2015

For the Appellant: Shri Sanjay, ACIT For the Respondent: Shri Soumitra Choudhury, Advocate

आदेश /ORDER Per Shri Mahavir Singh, JM :

This appeal by revenue is arising out of order of CIT(A)-XX, Kolkata in Appeal No. 263/CIT(A)-XX/Wd-36(3)/08-09/Kol dated 23.11.2011. Assessment was framed by ITO, Ward-36(3), Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2005-07 vide his order dated 19.12.2007.

2. The only issue in this appeal of revenue is against the order of CIT(A) in deleting the addition of Rs.20.77 lakhs being cash deposit in her bank account with HDFC Bank and Bharat Overseas Bank. For this, revenue has raised following ground No.1:

"1. Ld. CIT(A)-XX, Kolkata has erred in deleting the addition of Rs.20,77,000/-. The addition was bonafide as assessee failed to explain the source of cash deposit of Rs.17,77,000/- in her bank account with HDFC Bank and of Rs.3,00,000/- in her bank account with Bharat Overseas Bank.

3. Briefly stated facts are that the AO during the course of assessment proceedings found that there are cash deposits of Rs.17.77 lakhs in HDFC Bank and Rs. 3 lakhs in Bharat Overseas Bank maintained by assessee respectively. As the assessee failed to explain the source of cash deposits in her bank accounts despite several opportunities, the AO added the cash deposits of Rs.20.77 lakhs as undisclosed income. Aggrieved, assessee preferred appeal before CIT(A), who deleted the addition vide para 5 as under:

"5. I have perused the assessment order. I have also considered the submissions made on behalf of the appellant and the material on record. The appellant had explained at the assessment stage that the source of cash deposits in her bank accounts was short-term financial accommodation money received from her father-in-law and cash withdrawals from her own bank accounts. The cash-flow statement was submitted at the assessment stage which forms part of the assessment order. The confirmation from the father-in-law was also filed. It was submitted that he was assessed to income tax and wealth tax with PAN AADPF5700F. I find from the confirmation of account that the appellant had received total cash money of 2 ITA No.216/K/2012 Smt. Sarika Fatehpuria. AY 2006-07

Rs.14,19,500/- from her father-in-law. The cash withdrawals made by the appellant from her bank accounts are reflected in the bank statements. The AO has not disputed the genuineness of the documents produced before him. Also, he has not found any faults with the cash-flow statement submitted before him. The AO has not even explained as to why the explanation submitted by the appellant was not acceptable. The decision of the AO in treating the cash deposits as unexplained is not based on proper findings. The explanation, and also the documents, submitted by the appellant were summarily rejected more on suspicion and presumption than on factual ground. An assessment has to be made on the basis of the material available on record. Suspicion and presumption should not lead the AO to a state of affairs where salient evidences are overlooked. In View of the above, the addition made by the AO is neither sustainable in law nor on facts. The addition of Rs.20,77,000/- is directed to be deleted. Ground no. 2 and 3 is allowed."

Aggrieved, revenue is in appeal before us.

4. We have heard rival submissions and gone through facts and circumstances of the case. We find from the arguments of the Ld. Counsel for the assessee as well as the order of CIT(A) that the assessee has received cash money of Rs.14,19,500/- from her father in law and further cash withdrawals made by assessee from her bank accounts are re-deposited. We have gone through the assessment order, from where we find no such explanation. Even Ld. Sr. DR pointed out that the claim made before the CIT(A) that the money was received from father in law was made for the first time and not made before the AO. Even CIT(A) has not asked for any remand report on the same. Ld. Counsel for the assessee filed copy of account of assessee in the books of Kedernath Jaipuria, assessee's father in law who have claimed to advanced a sum of Rs.14,19,500/- and statement of assessee in its cash book from where withdrawals and re-deposit are made. We find that these documents are fresh documents produced before CIT(A) for the first time and even now before us. The AO has no occasion to verify the said documents and the deposits. As requested by ld. Sr. DR that the issue be examined afresh in respect to cash deposits, we set aside this issue to the file of AO for fresh adjudication. Assessee is free to adduce any evidence before the AO during the course of assessment proceedings. Revenue's appeal is allowed for statistical purposes.

5. In the result, appeal of revenue is allowed for statistical purposes.

6. Order is pronounced in the open court on 29.01.2015.

Sd/- Sd/- (N. K. Saini) (Mahavir Singh) Accountant Member Judicial Member

Dated: 29th January, 2015 व र ठ निज स चव Jd.(Sr.P.S.) 3 ITA No.216/K/2012 Smt. Sarika Fatehpuria. AY 2006-07

आदेश क त ल प अ े षतः- Copy of the order forwarded to: 1. अपीलाथ /APPELLANT - ITO, Ward-36(3), Kolkata.

2 यथ /Respondent - Smt. Sarika Fatehpuria, Martin Burn House, 1, R. N. Mukherjee Road, Kolkata-700 001 3. आयकर क मशनर (अपील)/ The CIT(A), Kolkata 4. आयकर क मशनर/ CIT Kolkata

5. वभा गय तनीधी / DR, Kolkata Benches, Kolkata स या पत त/True Copy, आदेशानुसार/ By order,

सहायक पंजीकार/Asstt. Registrar.