Vaishaliben R.Damnia, Surat vs Department Of Income Tax

This appeal has been filed by revenue against the order of Ld. CIT(A)-II, Surat dated 19th July, 2011 for A.Y. 2008-09 on following ground:-

"1. On the facts and circumstances of the case and in law, the Ld. CIT(a)-II, Surat has erred in deleting the I.T.A No. 2389/Ahd/2011 A.Y. 2008-09 Page No 2 ITO vs. Smt. Vaishaliben Rajeshbhai Damania addition of Rs. 16,77,284/- towards unexplained bank deposits even through, despite several opportunity of being heard, provided to the assessee, she failed to discharge the onus cast on her as per law for explaining the sources of cash and to prove the genuineness of the claim."

2. During the course of assessment proceedings, assessee has shown income from trading of gift article, greeting car etc and also from stiching. Assessing Officer noticed that assessee having a bank account No. SB-011644 with Prime Co-operative Bank Baroda Branch, Surat in her minor daughter's name, Miss Divya Rajesh Damania. He accordingly called for details of above bank account for period from 01-04- 2007 to 03-01-2008 u/s. 133(6) of the Act from the bank. On receipt of the statement of accounts for above period, the Assessing Officer found that from 17-04-2007 to 28-01-2008 there were 20 entries of cash deposits aggregating to Rs. 12,05,500/- in the said account. Similarly, from 16-04-2007 to 07-03-2008 there were 10 entries of cheque deposit aggregating to Rs. 4,71,789/- and withdrawals exceeding 10,000/- revealed that assesseee had made investments in shares and securities on different dates through cheques and also made payment to some parties from said account. Therefore, Assessing Officer asked the assessee to explain the source of above deposits and when no such details were given, he also show caused the assessee as to why amount of above deposits may not be added to her income. In response to the same, certain details were filed on behalf of the assessee and I.T.A No. 2389/Ahd/2011 A.Y. 2008-09 Page No 3 ITO vs. Smt. Vaishaliben Rajeshbhai Damania having considered the same, Assessing Officer held that deposits of Rs. 60,77,284/- made in her above account was unexplained and added the same to the income of the assessee.

2.1 The matter was carried before the First Appellate Authority wherein various additions were raised on behalf of asssessee as detailed in para 3 of the CIT(A) and having considered the same, CIT(A) directed the Assessing Officer to take the peak of deposit in bank account of minor daughter of assessee with The Prime Co-operative Bank during the year under consideration and after deducting the amount of rupees of opening balance in above account at the remaining amount to the assessee as her undisclosed income during the year. Same has been opposed on behalf of the assessee interalia submitting CIT(A) erred in deleting of Rs. 16,77,284/- towards unexplained bank deposit as assessee failed to discharge the onus cast on her as per law for explaining the source of cash and to prove the genuineness of the claim so requested to set aside the order of CIT(A) on the issue and restore that of the Assessing Officer. On the other hand, none appeared on behalf of assessee. So, the matter is being decided on the basis of arguments of Ld. DR and matter on record.

2.2 After going through rival submission and material on record, we find that CIT(A) following identical issue for A.Y. I.T.A No. 2389/Ahd/2011 A.Y. 2008-09 Page No 4 ITO vs. Smt. Vaishaliben Rajeshbhai Damania 2007-08 in case of assessee has decided the issue in favour of assessee and it was pointed out before us that said order of CIT(A) has been confirmed by ITAT in ITA No. 2077/Ahd/2010 for A.Y. 2007-08 vide order dated 12-07-2013 wherein Tribunal has set aside the issue to CIT(A) with following direction by observing as under:

"5. We have heard rival contentions and perused the material on record. The appellant had not explained the entries before the A.O. and he has not disclosed the purchase of share and dividend income earned on it before the A.O. during the course of assessment proceeding. The assessee's theory of peak credit is not acceptable when hardly there is a cash withdrawal made from that bank account. But the assessee invested in shares and securities from this account. Therefore, all the evidences are required to file by the appellant. After collecting the evidences, the CIT(A) should give the specific finding in the matter. Therefore, the matter is restored back to Id. CIT(A) for adjudication."

2.3 Nothing is contrary on behalf of the revenue, facts being similar so, following same reasoning matter is restored to CIT(A) with similar direction as done by Tribunal in A.Y. 2007-

08.

3. As a result, appeal of revenue is allowed for statistical purposes.

Order pronounced in open court on the date mentioned hereinabove at caption page i.e. 30/04/2015

Sd/- Sd/-

(ANIL CHATURVEDI) (SHAILENDRA KR. YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 30/04/2015 ak I.T.A No. 2389/Ahd/2011 A.Y. 2008-09 Page No 5

ITO vs. Smt. Vaishaliben Rajeshbhai Damania आदे श क ूितिल प अमे षत / Copy of Order Forwarded to:-

1. Assessee

2. Revenue

3. Concerned CIT

4. CIT (A)

5. DR, ITAT, Ahmedabad

6. Guard file.

By order/आदे श से,

उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद