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2016 (7) TMI 255 - ITAT COCHIN

2016 (7) TMI 255 - ITAT COCHIN - [2016] 48 ITR (Trib) 801 - Unexplained investments - Assessee was asked to explain the cash deposit of ₹ 91,50,000 - assessee explained that out of ₹ 91,50,000, source of ₹ 71,00,000 is Proceeds from sale of property by her husband - AO examined it and found sale deed is only for ₹ 21,20,000 - assessee explained balance sum of ₹ 49,80,000 received in cash - purchaser of the property denied any such payment - AO made addition as unexp .....

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. No material has been brought on record by any of the authorities below. The assessee had no other source of income from which cash could have been deposited by her in her bank account. Therefore, making the assumption that such a large sum has been deposited from the unexplained sources cannot be accepted whereas the assessee has submitted proper and reasoned explanation. In the circumstances and facts of the case, the Ld. CIT(A) is not justified in confirming the substantial part of deposit a .....

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of Income-tax (Appeals), Kottayam, dated March 6, 2015, for the assessment year 2010-11. 2. The assessee has raised the following grounds of appeal : 1. The officers below were not justified in confirming the addition of ₹ 67,38,500 credited in the bank account as not properly explained. 2. The officers below should have appreciated the fact that the appellant's legal heir and husband C. P. Gopakumar has confirmed the source for credit appearing in the bank as arising out of sale proc .....

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below to have rejected such explanation which are within the parameters of section 68. 5. The officers below should have also appreciated the fact that the deceased appellant was not having any source of income nor any material with the Department to hold that the amount of ₹ 67,38,500 remain unexplained. 6. For the above reasons and other reasons as may be adduced at the time of hearing, your appellant prays that the amount of ₹ 67,38,500 may be deleted. 3. The brief facts of the c .....

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ccount No. 03111000004761 with HDFC Bank, Changanacherry. Sl. No. Date Deposit Amount (Rs.) 1. 22-06-2009 Cash 18,00,000 2. 19-12-2009 Cash 25,00,000 3. 21-12-2009 Cash 46,00,000 4. 24-12-2009 Cash 2,50,000 Total 91,50,000 5. The assessee was asked to explain the source for these deposits and to produce evidence, if any, regarding the said deposits in the HDFC Bank, Changanacherry, vide this office letter dated March 8, 2013. 6. The assessee filed a reply on March 12, 2013, and explained that th .....

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ssessee's explanation dated March 12, 2013, in addi tion to the said sum of ₹ 21,20,000 a sum of ₹ 49,80,000 was received as additional amount on sale of the said property. Thus, the actual value of the property on sale comes to ₹ 71,00,000 as per the assessee's own explanation and the source of cash credits are explained as under : Sl. No. Amount (Rs.) Date of credit Remarks 1. 18,00,000 22-6-2009 Advance received in respect of sale of property in the name of her husba .....

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aid the additional amount of ₹ 49,80,000 for the transaction of property. He has totally denied the payment. 10. In an attempt to explain the source of the deposits, the assessee submitted that the money has come from the sale proceeds of the property in the name of her husband, Sri C. P. Gopakumar, but he has not confirmed it so far. 11. While presenting the source as sale proceeds amounting to ₹ 71,00,000, the assessee simultaneously offered the capital gain on the same for assessm .....

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on 69 of the Income-tax Act. This is notwithstanding any action that may be taken in the case of Sri C. P. Gopakumar." 4. The learned Commissioner of Income-tax (Appeals) confirmed the action of the Assessing Officer but he gave a credit of ₹ 21,20,000 being the amount mentioned in the sale deed and the rental income of ₹ 2,91,500 totalling to ₹ 24,11,500 and sustained the addition of ₹ 67,38,500. 5. It was argued by the learned counsel for the assessee that out of & .....

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reinabove. 6. It was argued that the assessee's husband was a non-resident Indian for over 30 years and was not having non-resident ordinary account in any bank in India but he was having only non-resident external account in India. As per the Reserve Bank of India/Foreign Exchange Management Rules, it is not possible to give credit for Indian rupees in such an account. Accordingly, the assessee's husband received the sale proceeds for convenient purposes and deposited the same in his wi .....

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ion at ₹ 71,00,000 for the purpose of capital gain tax, which is a matter of fact and is not in dispute and taxes have been paid, on the capital gains declared on the sale consideration of ₹ 71,00,000. 7. As regards the denial by the purchaser, the assessee was never given any opportunity to cross-examine the purchaser. In such circumstances, the learned counsel for the assessee prayed that whatever sale consideration has been received by the assessee's husband, has been declared .....

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nt from the grounds of appeal taken before the learned Commissioner of Income-tax (Appeals) available at pages 1, 2 and 3 of his order which for the sake of convenience are being reproduced hereinbelow. "1. Order of the assessing authority (AO) treating the bank credits as income from unexplained investments under section 69 and taxed accordingly is against facts and bad in law. 2. Amount credited in the bank account (HDFC Bank A/c No. 03111000004761) never belonged to the appellant at the .....

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over 30 years and he never had a non-resident ordinary (NRI) account in any banks in India. He is maintaining only NRE (non-resident external account) in India. As per the Reserve Bank of India/Foreign Exchange Management Rules it is not possible to give credit for Indian rupee in non-resident external account. Since the sale proceeds were received in Indian rupees for convenient sake he has deposited in his wife's (appellant) bank account and he had no other intention. 4. Since C. P. Gopak .....

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icer that (clause 10 of the order) C. P. Gopakumar has never confirmed the source of deposit is not true. C. P. Gopakumar along with the authorised representative had met the Assessing Officer on March 22, 2013, and discussed the case and stated that the credit of ₹ 71,00,000 appearing in the bank account was from proceeds of sale of property made by him on December 21, 2009, vide document 2431/1/09, Changnacherry Sub Registry. He further stated that his wife appellant was undergoing treat .....

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account is only ₹ 71,00,000, i.e., proceeds from the sale of property. Balance ₹ 20,50,000 is redeposit out of withdrawals from the earlier credits and rental income received during the year. But the Assessing Officer rejected the claim of the appellant and taken the entire ₹ 91,50,000 as unexplained investment. It is very clear from the bank statement that the appellant has withdrawn ₹ 19,20,000 by cash from bank during the period. Cash withdrawals from bank from the dat .....

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7; 91,50,000 is reconciled as under : (Rs.) Proceeds from sale of property 71,00,000 Cash withdrawals from bank redeposited 19,20,000 Income from rental income 13,00,000 Gross income returned is ₹ 2,91,500 Total 91,50,000 7) The appellant has not been afforded an opportunity to cross- examine the purchaser. The Assessing Officer has merely accepted his version. This is unjustifiable. 8) More points will be raised at the time of hearing. 9) The appellant, therefore, prays that the Commissio .....

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