TMI Blog2012 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee found from the premises of the third party - Held that:- AO has wrongly mixed up Shreeji Corporation and Shivshakti Consultancy which are distinct and separate entity and the assessee has no connection with them as she was neither a shareholder nor director of the above entities - AO has not examined the office bearers of the said two entities - in the absence of any evidence brought on record to show that the amount belongs to the assessee, no addition on this count could be made - in favour of assessee. Addition of Ras.3,31,215/- in the hands of the assessee as the scheme Kana Apartment - Held that:- From a perusal of the details of the amounts alleged to have been received from “kana” scheme launched by late husband of the assessee, “KKP”, all the payments totaling to Rs.3,31,215/- related to the period prior to 8.3.1999, the date of death of husband of the assessee, no action for the payments during the life time of the husband of the assessee could be made in the individual assessment of the assessee - in favour of assessee. Addition of Rs.4,76,000/- various amounts deposited in bank account - Held that:- Assessee has tried to explain the source by giving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. Revenue by : Shri S.K. Gupta, CIT-DR Assessee by : Shri P.M. Patel O R D E R PER G.C. GUPTA, VICE-PRESIDENT: This appeal by the Revenue and the CO by the assessee for the block period 1.4.1995 to 31.3.01 and 1.4.2001 to 13.12.2001 are directed against the order of the Commissioner of Income tax (Appeals)-I, Ahmedabad dated 21.12.2004. These are disposed of with this consolidated order. CO No.124/Ahd/2005 (Assessee s CO) 2. The Ground Nos.1 to 4 of the assessee s CO read as under: 1. The ld.CIT(A) is not justified in rejecting ground no.1 2 while he held that Rs.70,00,000/- were taxable in the hands of her deceased husband as legal heir of her husband especially he allowed the ground no.18. 2. The ld.CIT(A) is not justified in confirming Rs.5,98,568.00 in her individual status without bringing any evidence on record that said income was received by her. 3. The ld.CIT(A) has grossly erred in confirming addition of Rs.75,98,568/- in the hands of the assessee without appreciating facts and circumstances of the case and also provision of law. 4. The ld.CIT(A) has erred in confirming addition of Rs.75,98,568/- in the hands of the assessee, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpilation before us. We find that the preliminary objection raised by the assessee has to be decided in favour of the assessee in respect of the amount of monies received by KKP late husband of the assessee during his lift time. The date of death of KKP is 8.3.1999. The AO in para.2 of the assessment order has recorded that the receipt of monies by KKP , as per annexure A-30 seized by the department, on various dates which are prior to 8.3.1999, the date of death of husband of the assessee. Since the undisputed fact in this case is that the receipts of the monies were by KKP during his lifetime and there is no evidence or material brought on record to suggest that the assessee (the widow) has ever received these amounts of monies, as recorded in Annexure A-30, we hold that no addition on this count could have been made in the hands of the assessee. The assessee as well as her late husband are clearly separate legal entities, assessable to tax separately. If any action was called for, the department should have initiated the same in the hands of the late KKP through his legal heirs and not in the personal assessment case of the widow of the deceased, which is the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice bearer of two co-operative housing societies. In these facts of the case, we hold that in the absence of any evidence brought on record to show that the amount belongs to the assessee, no addition on this count could be made, which is accordingly deleted and the ground nos.5 and 6 of the assessee s CO are allowed. 8. The ground no.7 of the assessee s CO is as under: 7. The ld.CIT(A) has erred in confirming addition of Ras.3,31,215/- in the hands of the assessee as the scheme Kana Apartment was nether launched by the assessee nor she was a partner in the scheme nor office bearer in the scheme and assessee never received said amount nor she deem to be accrued or received said amount. 9. The learned counsel for the assessee submitted that the amount of Rs.3,31,215/- was never received by the assessee and she was never a partner or member in the scheme known as Kana Apartments which was never launched by the assessee and therefore, the addition made should not be sustained. The learned counsel for the assessee further submitted that the date of receipts as recorded by the AO in para-5 of the assessment order relates to the period prior to the death of the late husband o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee, KKP and therefore the addition was rightly made in the hands of the assessee. 13. We have considered rival submissions and perused the orders of the AO and the CIT(A). We find that the assessee could not establish that the addition was made on account of material not arising out of search action undertaken by the department. Regarding first entry of Rs.21,500/- dated 26.3.1996 of deposit in the bank account with the SBI, we find that the amount is less than the statutory exemption in the individual capacity of the assessee, and therefore, no addition on this count could be made. The next entry of Rs.1,00,000/- dated 26.7.2000 is stated to be out of withdrawal of Rs.1,00,000/- from the bank account of the assessee and this claim was made by the assessee before the AO also. The department has not controverted this submission of the assessee, and accordingly, we hold that the addition of Rs.1,00,000/- is not called for. Regarding the balance addition, the assessee has tried to explain the source thereof by giving a general explanation that it is out of agricultural income earned by the assessee. The assessee has not shown any evidence of having agricultural income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he persons along with the amount and the date of thereof were duly mentioned in the document A/7 seized from the residence of the assessee. He submitted that the entry pertains to the period after the death of the husband of the assessee. He relied on the orders of the AO and the CIT(A). 19. We have considered rival submission and perused the orders of the AO and the CIT(A) and also perused copy of so-called telephone diary which has been filed in the compilation of the assessee. We find that the identity of the said persons was not established in this case. Merely because some figures are mentioned in the seized diary without any head or tail thereof, the addition of the same, as income in the hands of the assessee could not be made. The AO has made the addition on the basis that onus was on the assessee to explain all the entries seized from the residence of the assessee and no independent verification was possible in view of non-disclosure of the particulars of the parties and in the absence of the same, the contention of the assessee is not acceptable. The pre-dominance of probability was in favour of the assessee as there is no corroborative evidence placed on record to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch were seized by the department is still lying with them and could not be encashed till date and since money was never transferred to the account of the assessee, no addition could be made in the hands of the assessee. Accordingly, we confirm the order of the CIT(A) on this issue and the ground no.2 of the Revenue s appeal is dismissed. 27. The ground no.3 of the Revenue s appeal reads as under: 3. The ld.CIT(A) has erred in law and on facts in directing that certain income identified as includible in the total undisclosed income for the block period would be included in the hands of the assessee only in her representative capacity as legal heir of her deceased husband and in further directing that the addition of Rs.70,00,000/- out of addition made of Rs.75,98,568/- on account of unaccounted receipts was includible in her (the assessee s) hands as legal heir of her deceased husband. 28. Both parties before us submitted that the issue raised in this appeal of the Revenue is covered with the ground nos.1 to 4 of the assessee s CO in this case. 29. We have considered the rival submissions. In view of our decision while disposing of the ground nos.1 to 4 of the CO of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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