Shri Dharmendra Pandit, Bhopal V. The ITO 1(2), Bhopal

CO 12/IND/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7446 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 09-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R A VERMA
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.374/IND/2011 A.Y. 2007-08 ITO-1(2), BHOPAL :: APPELLANT VS DHARMENDRA PANDIT, BHOPAL PAN AMOPP 9249 J :: RESPONDENT AND, CROSS-OBJECTION NO.12/IND/2012 (ARISING OUT OF ITA NO.374/IND/2011) A.Y. 2007-08 DHARMENDRA PANDIT, BHOPAL PAN AMOPP 9249 J :: APPELLANT VS ITO-1(2), BHOPAL :: RESPONDENT 2 APPELLANT BY SHRI R.A. VERMA RESPONDENT BY NONE DATE OF HEARING 04.07.2012 DATE OF PRONOUNCEMENT 04.07.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 4 TH OCTOBER, 2011 ON THE GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRE D IN DELETING THE ADDITION OF RS.11,86,626/- MADE ON ACCOU NT OF UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT AS THE ASS ESSEE FAILED TO PROVE THE SOURCE OF SUCH DEPOSITS IN HIS B ANK ACCOUNT WHEREAS THE ASSESSEE IS IN CROSS OBJECTION WHI CH IS IN SUPPORT OF THE IMPUGNED ORDER. 2. DURING HEARING OF THIS APPEAL, LEARNED SENIOR DR, SH RI R.A. VERMA IS PRESENT WHEREAS NOBODY IS PRESENT FOR THE ASSESSEE IN SPITE OF SERVICE OF REGISTERED AD NOTICE ISSUED 3 ON 22.5.2012, THEREFORE, WE HAVE NO OPTION BUT TO PR OCEED EX-PARTE QUA THE ASSESSEE AND TO DISPOSE OF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE ASSESSMENT ORDER. ON PERUSAL OF RECOR D AND AFTER HEARING THE CONTENTION OF THE LEARNED SENIOR DR, WE FIND THAT THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE RETAIL BUSINESS HAVING TURNOVER OF RS.13,91,42 5/-. AS PER THE AIR INFORMATION, IT WAS FOUND BY THE LEARNE D ASSESSING OFFICER THAT THE ASSESSEE HAS DEPOSITED CASH FROM 1.4.2006 TO 31 ST MARCH, 2007 IN HIS BANK ACCOUNT MAINTAINED WITH STATE BANK OF INDIA, BHOPAL. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF SUCH CASH DEPOSITS WHICH WAS CLAIMED TO BE OUT OF SALE PROCEEDS OF RETAIL BUSINESS. BEING UNSATISFIED WITH THE EXPLANATION OF T HE ASSESSEE, THE IMPUGNED AMOUNTS WERE ADDED TO THE INCOM E OF THE ASSESSEE U/S 68 OF THE ACT. ON APPEAL, THE LE ARNED 4 CIT(A) WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSE E AND DELETED THE ADDITION. THE AGGRIEVED REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF FROM THE IMPUGNED ORDER :- 7.4 I HAVE CAREFULLY CONSIDERED THE SUBMISSION AND ARGUMENTS OF THE LD. AR OF THE APPELLANT AND ALSO OBSERVATION OF THE ASSESSING OFFICER AS REGARDS THIS ADDITION. THIS IS A CASE WHERE RETURN HAS BEEN FILED AND INCOME HAS BEEN SHOWN AS PER PROVISIONS OF SECTION 44AF. THE APPELLANT HAS SHOWN TOTAL TURNOVER/SALES FOR RS. 13,91,425/-. THE APPELLANT IS MAINTAINING ACCOUNT WITH STATE BANK OF INDIA, SHAKTI NAGAR IN WHICH DURING F.Y. 2006-07 CASH DEPOSIT OF RS.11,86,626/- HAS BEEN MADE. THE APPELLANT HAS SUBMITTED THAT THIS CASH HAS BEEN DEPOSITED OUT OF THE SALE PROCEEDS DURING THE PERIOD UNDER CONSIDERATION. HOWEVER, THE ASSESSING OFFICER HAS DOUBTED THE CONTENTION OF THE APPELLANT STATING THAT NO DOCUMENTARY EVIDENCES HAVE BEEN FILED. ON PERUSAL OF THIS BANK ACCOUNT, IT IS SEEN THAT THE CASH HAS BEEN DEPOSITED AT THE INTERVAL OF 3 TO 4 DAYS AND THE AMOUNT DEPOSITED ALSO VARIED BETWEEN RS. 4,000/- TO RS. 22,000/-. IT APPEARS THAT THE ASSESSING OFFICER HAS SIMPLY DISBELIEVED THE CONTENTION OF THE APPELLANT IN AS MUCH AS THE 5 APPELLANT HAS AFFECTED CASH SALES AND HE WAS HAVING AVAILABILITY OF CASH FOR DEPOSITING IN THE BANK ACCOUNT. I FOUND NOTHING WRONG IN SUCH TRANSACTIONS WHERE THE CASH SALES MADE BY THE APPELLANT ARE BEING DEPOSITED IN THE BANK ACCOUNT. THE ADDITION MADE BY THE ASSESSING OFFICER IS SIMPLY ON PRESUMPTION THAT THE DEPOSITS ARE NOT FROM SALE PROCEEDS. THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANY EVIDENCE ON RECORD WHICH MAY INDICATE THAT THE CASH DEPOSITED IN THE BANK ACCOUNT DID NOT PERTAIN TO THE CASH SALES. IN THIS BACKGROUND, THE CASH DEPOSIT IN THE BANK ACCOUNT CANNOT SAID TO BE OF UNEXPLAINED NATURE. THE ADDITION OF RS. 11,86,626/- MADE BY THE ASSESSING OFFICER IS DELETED. 3. KEEPING IN VIEW THE TOTALITY OF FACTS, ASSERTION MADE BY THE LEARNED SENIOR DR, ADMITTEDLY SINCE THE TURNOVE R OF THE ASSESSEE IS BELOW RS. 40 LACS, THEREFORE, AS PER THE PROVISIONS OF SECTION 44AF OF THE ACT, THE ASSESSEE IS NOT EXPECTED TO MAINTAIN BOOKS OF ACCOUNTS. THE ASSESSEE DISCLOSED INCOME OF RS.76,235/- IN HIS RETURN. THE IMPUGNED AMOUNTS WERE FOUND TO BE DEPOSITED OUT OF T HE SALE PROCEEDS OF RETAIL BUSINESS WHERE THE TOTAL TURNOVER/SALES ARE TO THE TUNE OF RS.13,91,425/-. WH AT 6 DOCUMENTARY EVIDENCE CAN BE PRODUCED BY THE ASSESSEE FROM THE RETAIL BUSINESS IS ALWAYS NOT POSSIBLE. NO O THER DOCUMENTARY EVIDENCE WAS BROUGHT ON RECORD BY THE LEARNED ASSESSING OFFICER EXCEPT SUSPECTING THE DEPO SITS MADE BY THE ASSESSEE. THEREFORE, WE FIND NO JUSTIFIC ATION TO INTERFERE WITH THE FINDINGS OF THE LEARNED CIT(A) AND CONFIRM THE SAME. IN VIEW OF THE ABOVE, WE FIND NO MERIT IN THE APPE AL OF THE REVENUE. 3. SO FAR AS THE CROSS OBJECTION OF THE ASSESSEE IS CONCERNED, SINCE WE HAVE AFFIRMED THE STAND OF THE LEA RNED CIT(A) BY DISMISSING THE APPEAL OF THE REVENUE, THE C ROSS OBJECTION HAS REMAINED FOR ACADEMIC INTEREST ONLY. EVE N OTHERWISE, THE CROSS OBJECTION IS IN SUPPORT OF THE IMPUGNED ORDER. THEREFORE, THE CROSS OBJECTION IS AL SO DISMISSED BEING INFRUCTUOUS. 7 FINALLY, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. SENIOR DR AT THE CONCLUSION OF THE H EARING ON 4 TH JULY, 2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH JULY,2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE 8