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TMI Blog2018 (2) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... e, father-in-law, mother-in-law and sons of the assessee were benamidars of the assessee. In the result, this ground of the assessee is allowed. Addition being interest on KVP, NSC and Savings Bank Account - Held that:- There was a joint account in the name of the assessee’s wife as the first holder along with the assessee as the second holder. The opening balance on 01/04/2003, was ₹ 49,298/- and the closing balance was ₹ 1,00,080/-. Smt. Kajal Ghosh, has accepted that this account belongs to her and it was considered in the assessment of Smt. Kajal Ghosh. Under these circumstances, the addition of ₹ 1,609/-, being interest in her Savings Bank Account, cannot be added in the hands of the assessee. Accordingly the same is deleted and this ground of the assessee is allowed. Addition of interest on KVP and NSC - Held that:- This addition is rightly made by the Assessing Officer and sustained by the ld. CIT(A) as interest has accrued to the assessee on these two investments, which admittedly belonged to the assessee. The claim of the assessee that it is following receipt basis and hence cannot be taxed during the current year, is not accepted for the reason tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that:- It was explained that the sources of deposit made by Sri Anirban Ghosh, was out of maturity of fixed deposits. Smt. Kajal Ghosh, as also accounted for this amount. Thus, this addition cannot be made in the name of the assessee for this assessment year, as the sources has been explained as out of maturity of fixed deposits from earlier years. Thus, this ground of the assessee is allowed. Unexplained cash transactions based on two cash memos - Held that:- Addition cannot be made in the name of the assessee as Smt. Kajal Ghosh, is a separate assessee and this expenditure incurred by her should be considered in her assessment - I.T.A. No. 579/Kol/2016, I.T.A. No. 580/Kol/2016, I.T.A. No. 581/Kol/2016, I.T.A. No. 582/Kol/2016 And I.T.A. No. 583/Kol/2016 - - - Dated:- 31-1-2018 - Sri J. Sudhakar Reddy, Hon ble Accountant Member For The Assessee : Shri S.M. Surana, Advocate, appeared For The Revenue : Shri Goutam Mandal, Addl. CIT, DR ORDER Per J. Sudhakar Reddy :- All these appeals are filed by the assessee directed against separate but identical orders of the ld. Commissioner of Income Tax (Appeals)-16, Kolkata, (hereinafter the ld. CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of the CBI charge sheet. Her investments were also rooted through the account of Smt. Kajal Ghosh as Smt. Naug, was not having a Bank Account. The interest income from the joint accounts were assessed in the hands of Smt. Kajal Ghosh. 3.1.3. In the case of investment by the major son of the assessee Shri Abhishek Ghosh, it was submitted that these were taxed in the hands of Smt. Kajal Ghosh. In the case of the minor son, it was claimed that Shri Anirban Ghosh, had a definite source of income. The Assessing Officer added all the investments in the assets as unexplained investments in the hands of the assessee in all the assessment orders before us. He held that the assessee has made benami investments in the name of Smt. Kajal Ghosh, Smt. Abha Naug, Shri P K Naug, Shri Abhishek Ghosh Shri Anirban Ghosh. 3.2. On appeal, the ld. CIT(A), confirmed the same, though the assessee has pleaded that the incomes relatable to all these investment were explained by Smt. Kajal Ghosh and assessed to tax in her income tax assessment. The investments held by other persons in their names were also treated as investments of the assessee. 3.3. Aggrieved, the assessee is in appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factual submission made by the ld. Counsel for the assessee. On a further query from the Bench, as to how the same asset and income therefrom can be taxed twice, i.e. once in the case of Dr. Kajal Ghosh and at the same time in the hands of the assessee also, the ld. D/R, submitted that the asset belongs to the assessee and has been taxed by the Assessing Officer in the hands of the assessee. The ld. D/R, could not controvert the submissions of the assessee that the C.B.I. has excluded certain assets assessed in the hands of the assessee from the list of assets as alleged to have been belonging to the assessee, as it was satisfied that these assets do not belong to the assessee. He relied on the order of the Assessing Officer as well as that of the ld. CIT(A). 5. Heard rival contentions. On a careful consideration of the facts and circumstances of the case, perusal of the papers on record and the orders of the authorities below, as well as the case-law cited, I hold as follows:- The Hon ble Allahabad High Court, in the case of Prakash Narain vs Commissioner Of Income-Tax (supra), held as follows:- 16. In Jaydayal Poddar v. Bibi Hazra, AIR 1974 SC 171, it was laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down that a finding on the point as to whether a purchase was made benami or not, would be a finding of fact and if it is based upon some evidence, then such a finding cannot be interfered with by the High Court in a reference, The finding of benami in this case was, however, based on the earlier admissions of the assessee himself. 5.1. Thus, applying the propositions of law laid down in this case-law to the facts of the case, we hold that the burden of proof of proving benami is on the person who makes the allegation. In this case, it is the Assessing Officer, who has made the allegation that the investments in question are made by the assessee in benami names. Except for stating so, he has not brought out any evidence in support of this claim. 5.1.1. The judgement in the case of D.S.P., Chennai vs. K. Inbasagaran (supra) , cited by the ld. Counsel for the assessee, I find that it has been held as follows:- The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. Hence, we do not find any merit in this appeal and the same is dismissed. 5.1.2. In the case of CIT vs. Smt. Sadhna Devi, Varanasi (supra), it has been held as follows:- It is well settled that the person who alleges that the particular property is benamidar of another person is to prove by cogent material and brought on record the material because the respondent is unable to explain the source of investment would not make the property as that belonged to another person, in the present case, namely, her husband. 5.2. Hence, in the case on hand, the burden of proof that the wife, sons, father-in-law and mother-in-law are the benamidar of the assessee, lies on the Assessing Officer. This burden is not discharged. In the assessment order the Assessing Officer has under the head benami of the assesse in various year made additions without giving reasons as to how he came to a conclusion that these persons are the benamidars of the assessee. He only rejected the claim of the persons, but did not bring any positive evidence on record. 5.3. Be it as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benamidars of the assessee . In the result, this ground of the assessee is allowed. 8. Ground No. 2, is regarding the addition of ₹ 23,999/-, being interest on KVP, NSC and Savings Bank Account. 8.1. Out of this an interest of ₹ 11,100/- is on the KVPs of ₹ 1,50,000/-, which I have held as not sustainable in the hands of the assessee in my finding for the Assessment Year 2003-04. Thus, this addition of ₹ 11,100/-, is hereby deleted. There was a joint account in the name of the assessee s wife as the first holder along with the assessee as the second holder. The opening balance on 01/04/2003, was ₹ 49,298/- and the closing balance was ₹ 1,00,080/-. Smt. Kajal Ghosh, has accepted that this account belongs to her and it was considered in the assessment of Smt. Kajal Ghosh. Under these circumstances, the addition of ₹ 1,609/-, being interest in her Savings Bank Account, cannot be added in the hands of the assessee. Accordingly the same is deleted and this ground of the assessee is allowed. 8.1.1. Regarding the other two amounts, being interest on KVP of ₹ 9,250/-, and NSC of ₹ 2040/-, admittedly the KVP and NSC are bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Keeping in view the overall facts of the case and the capacity of the assessee, I am of the considered opinion that no addition is called for under the facts and circumstances of the case. When a person receives salary in cash, his claim that the investments were made from such salary, cannot be brushed aside. Thus, this addition is deleted and Ground No. 3 of the assessee is allowed. 10. Ground No. 4 is against the addition of ₹ 64,000/-, on account that the assessee has shown low drawings. 10.1. I find that the assessee has declared household expenses of ₹ 98,000/-, for the entire year, which comes to a monthly average of ₹ 9,000/-. The assessee explained that he gets a rent free accommodation as well as a free car for transportation from his employer and that his wife has shown ₹ 12,000/- as drawings in her books of accounts. The ld. Assessing Officer estimated the monthly expenditure at ₹ 14,500/-. In my view, the quantum of expenditure disclosed by the assessee towards drawing for household expenses is reasonable. The addition made by the Assessing Officer is on ad-hoc basis. Hence, I deleted the same on the ground that this is devoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in the name of his son, Sri Abhishek Ghosh. 14.1. The bank account of Sri Abhishek Ghosh, was rooted through the statement of accounts of Smt. Kajal Ghosh, and his bank balance was taken as her bank balance in the balance sheet. Smt. Kajal Ghosh, owned up these deposits and has shown the source of the deposits in the assessment year as Smt. Kajal Ghosh s. The said bank account in the name of Sri Abhishek Ghosh, and interest income thereon was considered in her return of income. Sri Abhishek Ghosh, is a major son and has independent sources of income. Under these circumstances, as the deposits in the bank account and the interest income thereon are considered in the assessment of Smt. Kajal Ghosh, making an addition again in the case of the assessee would tantamount to double taxation of the same amount. Thus, this addition is hereby deleted and Ground No. 8 of the assessee is allowed. 15. Ground No. 9, relates to the addition of ₹ 72,105/-, as unexplained investments made in the name of the minor son, Sri Anirban Ghosh. 15.1. It was explained that the sources of deposit made by Sri Anirban Ghosh, was out of maturity of fixed deposits. Smt. Kajal Ghosh, as also acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue is similar to Ground No. 4 for the assessment year 2004-05. Consistent with the view taken therein, I delete this addition and allow the ground of the assessee. 21. Ground No. 5, relates to an addition of ₹ 25,000/-, as benami investment in the name of Smt. Kajal Ghosh. 21.1. The AO committed a mistake in his tabulation as the amount of ₹ 25,503/-was received by cheque; due to this mistake this addition has been made. Hence the same is deleted and Ground No. 5 of the assessee is allowed. 22. Ground No. 6, relates to an addition of ₹ 575,149/-for the deposits in the bank account No. 5178 of Smt. Abha Naug, the mother-in-law the assessee. This is similar to the addition dealt by me while disposing off Ground No. 6 for the Assessment Year 2004-05. Consistent with the view taken by me therein, I delete this addition and allow the Ground No. 6 of the assessee. 23. Ground No. 7, relates to the addition of ₹ 198,000/-, being investment made in the name of Sri P K Naug, the father-in-law of the assessee. This ground is similar to Ground No. 7, for the assessment year 2004-05. Consistent with the view taken therein and for the same reasons, this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation partly, he made an addition of ₹ 67,850/-. I am of the view that the assessee has sufficiently explained the sources of investments. Hence I delete this addition and allow this ground of the assessee. 31. Ground No. 4, relates to an addition on account of law drawings. Consistent with the view taken while disposing of Ground Number 4 for the earlier Assessment Years 2004-05 2005-06, I delete this addition and allow Ground No. 4 of the assessee. 32. Ground No. 5, relates to an addition of ₹ 10,899/-, on account of deposits in the bank account number 5178 of Smt. Abha Naug, mother-in-law the assessee. 32.1. Similar addition is deleted by me while disposing of Ground No. 6, for the Assessment Year 2005-06. Consistent with the view taken therein for the very same reasons, I delete this addition and allow Ground No. 5 of the assessee. 33. Ground No. 6, relates to an addition of ₹ 60,000/- being interest on MIS made in the earlier year by Sri P K Naug, the father-in-law the assessee. 33.1. As the investments themselves were held as not belonging to the assessee while disposing of the issue in the earlier assessment years, the interest accrued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P and SB of ₹ 18,900/- and ₹ 2242/-. The other addition is not disputed. If this interest has been brought to tax in the earlier assessment years on the ground that the assessee has to be taxed on accrual basis, then no further interest can be brought to tax in this year as it would tantamount to double taxation. Hence this issue is set aside to the file of the Assessing Officer for fresh adjudication in accordance with law. 40. Ground No. 3, relates to the addition of ₹ 208,000/-, for low drawings. 40.1. The facts of this ground are similar to that of Ground No. 4 for the Assessment Year 2004-05. Consistent with the view taken by me while disposing of the same, I delete this addition and allow Ground No. 3 of the assessee. 41. Ground No. 4, relates to the addition of ₹ 3,015,003 being the investment made by Smt. Kajal Ghosh, in the flat on the basis of a memo of consideration in the sale deed. 41.1. I find that this investment has been admitted by Smt. Kajal Ghosh, as belonging to her from the assessment order of Smt. Kajal Ghosh. The money for the payment was made through the bank account of State Bank of India, AE Market Branch, Kolkata, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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