VEENA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) Challenge in this petition filed under article 226/227 of the Constitution of India is for quashing the assessment order dated December 5, 2011, annexure P. 3 and order passed by the respondent-Commissioner of Income-tax-I, Jalandhar (CIT), dated March 28, 2013, annexure P. 6 in revision under section 264 of the Income-tax Act, 1961 (in short, "the Act"). A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner, an individual, was engaged in a small business of running a boutique and, thereafter, she was employed as a clerk with HDFC Bank, The Mall Road, Kapurthala branch. She filed her income-tax return for the assessment year 2009-10 on October 29, 2009, declaring the net taxable income of Rs. 1,32,000 which was processed as such under section 143(1) of the Act. On June 3, 2008, she opened a savings bank account in the said bank and the transactions started with effect from September 6, 2008, Shri Amit Kashyap was serving as manager in the said bank. He was under pressure to meet out the targets of sale of pure gold coins given to his branch. During the aforesaid period, a NRI customer of the said branch, Shri Tarlochan Singh, who was maintaining a NRE account with this bank, on his visit to India withdrew an amount of Rs. 25 lakhs in the month of September, 2008, for purchase of some property which, could not materialise. Tarlochan Singh could not redeposit the said amount in his NRE account as deposit of Indian rupees in the said account, was not permitted. He after being persuaded by the manager, Shri Amit Kashyap, agreed to invest for the purchase of pure gold coins from the bank. As the purchase of pure gold coins was not permitted in cash, the manager persuaded the petitioner to permit routing the said purchase transaction through her savings account and allow the cash belonging to Shri Tarlochan Singh to be deposited in her account and be routed for purchasing the pure gold coins for Shri Tarlochan Singh. The petitioner under the bona fide belief that there was nothing wrong in facilitating the said transaction, agreed to that arrangement and pursuant thereto an amount of Rs. 24,38,830 was deposited in her account on October 26, 2008, at the instance of Shri Amit Kashyap, manager which amount was, thereafter, utilised for purchase of the gold coins for and on behalf of Shri Tarlochan Singh. The petitioner was called upon by the Assessing Officer to explain the source of the amount in her account. The petitioner submitted the entire facts to the Assessing Officer. She also placed on record the affidavit of Shri Tarlochan Singh explaining the exact position. The Assessing Officer, after examining the record, treated the said amount as unexplained investment of the petitioner under section 69 of the Act and, vide his order dated December 5, 2011, annexure P. 3, assessed the income of the assessee at Rs. 25,71,000 and raised a consequential demand of Rs. 10,37,474 towards tax and interest in the hands of the petitioner. Aggrieved thereby, the petitioner filed an application under section 264 of the Act seeking revision of the order passed by the Assessing Officer. During the course of the revision proceedings, Shri Amit Kashyap, manager of the bank, in compliance with the summons issued under section 131 of the Act appeared before the respondent and furnished affidavit dated May 28, 2012, stating that in order to achieve the target of selling the gold coins from his branch, he persuaded the petitioner to permit to enroute the amount of Shri Tarlochan Singh through her account for purchase of the said coins as the purchase of coins was not permitted through the NRE account. The Commissioner of Income-tax, vide order dated March 28, 2013, annexure P. 6, dismissed the application for revision of the order passed by the Assessing Officer, making addition of Rs. 24,39,000. The petitioner submits that since no appeal lies against the said order, she is before this court through the present petition.

(2.) Learned counsel for the petitioner submitted that the affidavit dated August 2, 2011 (annexure P. 1), of Tarlochan Singh, son of Shri Gian Singh, from whom the amount had been received was filed before the Assessing authority and the affidavit of Shri Amit Kashyap, the bank manager with HDFC Bank, Kapurthala branch, dated May 28, 2012, annexure P. 2 was also filed. The source of cash deposit of Rs. 24,38,826 relating to purchase of gold coins by the petitioner on behalf of Tarlochan Singh was explained. The Assessing Officer, vide order dated December 5, 2011, annexure P. 3, and the Commissioner of Income-tax, while passing the order dated March 28, 2013, annexure P. 6, under section 264 of the Act, had completely ignored the same. Furthermore, the Commissioner of Income-tax had passed the order which is not a speaking one. Reliance was placed on the judgment of the apex court in CIT v. Smt. P.K. Noorjahan, 1999 237 ITR 570 (SC) to submit that the addition under section 69 of the Act is within the discretion of the Assessing officer as, according to the words used in the said section, it was incumbent upon the Assessing Officer to consider the facts and circumstances of the case before making an addition of Rs. 24,39,000.

(3.) After hearing learned counsel for the petitioner, we do not find any merit in the writ petition.