I.T.O., Ward-3(1), Gwalior V. Puneet Richhariya, Gwalior

CO 49/AGR/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 6907 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 28-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NAVIN GARGH
• Keywords: Business income; Income from undisclosed sources; Opportunity of being heard; Period of limitation; Corroborative evidences; Condonation of delay
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 112/AGRA/2010 ASST. YEAR : 2006-07 INCOME-TAX OFFICER, VS. SHRI PUNEET RICHHARIYA, , WARD 3(1), GWALIOR. H.NO. 25, LINE NO. 50, NEW STAFF LINE, BIRLA NAGAR, GWALIOR. (PAN : AGSPR 2258 R) C.O. NO. 49/AGRA/2010 (IN ITA NO. 112/AGRA/2010) ASST. YEAR : 2006-07 SHRI PUNEET RICHHARIYA,, VS. INCOME-TAX OFFICER , H.NO. 25, LINE NO. 50, WARD 3(1), GWALIOR. NEW STAFF LINE, BIRLA NAGAR, GWALIOR. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI NAVIN GARGH, ADVOCATE. DATE OF HEARING : 28.03.2012 DATE OF PRONOUNCEMENT OF ORDER : 30.03.2012 ORDER PER BHAVNESH SAINI, J.M. : THE DEPARTMENTAL APPEAL AS WELL AS THE CROSS OBJEC TION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR D ATED 26.02.2010 FOR THE ASSESSMENT YEAR 2006-07. ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 2 2. THE REVENUE HAS PREFERRED THE APPEAL ON THE FOLL OWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION OFRS.30 ,55,000/- WITHOUT APPRECIATING THE FULL FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(APPEALS) ERRED IN TREATING THE BANK DEPOSITS OF RS.30,55,000/- AS TURNOVER OF THE ASSESSEES BUSINESS AND TO ADOPT IN COME @ 2% ON ESTIMATE BASIS BECAUSE THE ASSESSEE IS A BROKER ONL Y ANY HE DOES NOT EARN AND PROFIT ON PURCHASE AND SALE OF ANY IMMOVAB LE PROPERTY. THE ASSESSEE ONLY GETS COMMISSION AND HENCE THE SAID DE POSITS CAN NOT BE TERMED AS TURNOVER OF THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION OF RS.3 0,55,000/- HOLDING THE ADEQUATE OPPORTUNITY OF BEING HEARD WAS NOT AFF ORDED T THE ASSESSEE BECAUSE FROM THE RECORD IT IS EVERY CLEAR THAT NUMBER OF OPPORTUNITIES WERE AFFORDED TO HIM BUT HE FAILED TO AVAIL THE SAME. 4. AS PER THE LAW EVERY CASH DEPOSIT OF ANY TYPE S HOULD BE EXPLAINED. SINCE THE ASSESSEE FAILED TO EXPLAIN THE CASH DEPOSITS OF RS.30,55,000/- EITHER BEFORE THE A.O. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS OR BEFORE THE LD. CIT(APPEALS) DURING T HE COURSE OF APPELLATE PROCEEDINGS, THEREFORE, THE LD. CIT(APPEA LS) IS NOT JUSTIFIED TREATING THE SAID DEPOSITS AS TURNOVER OF THE ASSES SEES BUSINESS AND APPLYING THE PERCENTAGE OF COMMISSION @ 2% THEREON BECAUSE RATE OF COMMISSION BE CALCULATED ON THE TOTAL AMOUNT OF PRO PERTY DEALING AND NOT ONLY ON THE AMOUNT OF TOKEN MONEY RECEIVED BY T HE ASSESSEE. 2.1 THE ASSESSEE PREFERRED THE CROSS OBJECTION ON T HE FOLLOWING GROUNDS : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN MAKING AND UPHO LDING THE ADDITION OF RS.67,200/- ON ESTIMATE BASIS. ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 3 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, IN ANY VIEW OF THE MATTER THE AUTHORITIES BELOW HAVE E RRED IN INVOKING THE PROVISION OF SECTION 69A OF THE INCOME TAX ACT, 1961. 3. ACCORDING TO THE OFFICE, THE CROSS OBJECTION OF THE ASSESSEE IS TIME BARRED BY 26 DAYS. DESPITE NOTIFYING TO THE ASSESSEE THAT THE CROSS OBJECTION IS TIME BARRED, THE ASSESSEE DID NOT TAKE ANY STEP FOR MOVING APPLI CATION FOR CONDONATION OF DELAY IN FILING THE CROSS OBJECTION BEYOND THE PERIOD OF LIMITATION. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE WOULD NOT BE PRESSING TH E CROSS OBJECTION. IN THIS VIEW OF THE MATTER AND PARTICULARLY WHEN NO REASONS ARE GIVEN TO EXPLAIN THE DELAY IN FILING THE CROSS OBJECTION BEYOND THE PERIOD OF LIM ITATION AND THAT THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS THE CROSS OBJECTION, THE C.O. OF THE ASSESSEE IS DISMISSED AS TIME BARRED AND BEING NOT PRESSED. 4. NOW, WE DEAL WITH THE DEPARTMENTAL APPEAL. BRIEF LY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE DERIVES INCOME FROM BUSINESS OF P ROPERTY DEALING. NO REGULAR BOOKS OF ACCOUNT HAVE BEEN MAINTAINED. RETURN OF IN COME WAS FILED ON ESTIMATE BASIS. THE AO ISSUED STATUTORY NOTICES U/S. 143(2) AND 142(1) OF THE IT ACT ALONG WITH QUESTIONNAIRE ON 12.08.2008. DESPITE SERVICE, THE PROCEEDINGS WERE NOT ATTENDED BEFORE THE AO. THEREAFTER, THE AO ISSUED S EVERAL OTHER STATUTORY NOTICES STARTING FROM 26.08.2008 TO 30.09.2008, BUT EITHER THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS OR SOUGHT ADJOURNMENTS, MEANING THEREBY , THE ASSESSEE DID NOT CO- ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 4 OPERATE WITH THE ASSESSING OFFICER FOR FINALIZATION OF THE ASSESSMENT PROCEEDINGS. THE AO FOUND THAT INCOME HAS BEEN SHOWN ON ESTIMATE BASIS FOR WHICH NO EVIDENCE WAS FILED. IT WAS, THEREFORE, PROPOSED WHY THE BUSINESS INCOME BE NOT ESTIMATED. FURTHER, IT WAS FOUND THAT THE ASSESSEE MADE CASH DEPOSITS AMOUNTING TO RS.30,55,000/- IN HIS BANK ACCOUNT MAINTAINED WITH UCO BANK, OLD HIGH COURT BRANCH, GWALIOR ON DIFFERENT DATES STARTING FROM 26 .05.2005 TO 31.03.2006. THE DETAILS OF THE SAME ARE NOTED AT PAGE 3 OF THE ASSE SSMENT ORDER. THE ASSESSEE WAS DIRECTED TO EXPLAIN THE CASH DEPOSITS IN THE BANK A CCOUNT WITH SUPPORTING DOCUMENTS AND EVIDENCE AND SHOW CAUSE NOTICE WAS IS SUED THAT WHY THE SAME SHOULD NOT BE ADDED TO THE INCOME OF THE ASSESSEE A S UNEXPLAINED MONEY U/S. 69A OF THE I.T. ACT. DESPITE GIVING FINAL OPPORTUNITY, THE ASSESSEE DID NOT COMPLY WITH THE STATUTORY NOTICES. SINCE NO OBJECTION WAS FILED TO THE PROPOSED ESTIMATE OF BUSINESS INCOME, THEREFORE, THE BUSINESS INCOME WAS ESTIMATED AT RS.1,50,000/- MAKING ADDITION OF RS.67,200/- ON WHICH THE ASSESSE E HAS WITHDRAWN THE CROSS- OBJECTION. SINCE THE ASSESSEE FAILED TO EXPLAIN CAS H DEPOSITS IN THE BANK ACCOUNT DESPITE GIVING LAST OPPORTUNITY ON 03.10.2008 AND N O EXPLANATION WAS GIVEN, THE AO TREATED RS.30,55,000/- AS UNEXPLAINED MONEY U/S. 69A OF THE ACT AND MADE THE ADDITION ACCORDINGLY. ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 5 5. THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A ) AND IT WAS SUBMITTED THAT SECTION 69A IS NOT APPLICABLE IN THIS CASE. THE LD. CIT(A) AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE DELETED THE ADDITION. H IS FINDINGS IN PARA 3.2 TO 4.1 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 3.2 THE SUBMISSION OF THE APPELLANT HAVE BEEN CONS IDERED. IT HAS BEEN HELD BY VARIOUS COURTS THAT DEPOSITS APPEA RING IN BANK ACCOUNTS REPRESENT UNEXPLAINED MONEY AND IF THE ASS ESSEE FAILS TO SHOW THAT THE AMOUNT DOES NOT REPRESENT HIS INCOME, THEN THE DEPARTMENT IS JUSTIFIED IN TREATING THE SAME AS INC OME FROM UNDISCLOSED SOURCES U/S. 69A. THIS VIEW HAS BEEN TA KEN BY THE HONBLE SUPREME COURT IN THE CASE OF CIT SALEM VS. K. CHINN ATHAMBAN, 162 TAXMAN 459 (2007) AND BY JURISDICTIONAL M.P. HIGH C OURT IN THE CASE OF CIT VS. GIRDHARILAL, 174 ITR 541 (1988). FURTHER , THE WHOLE HISTORY OF THE INTRODUCTION OF SECTION 68 TO 69D AND JUDICI AL DECISIONS THEREON CLEARLY ESTABLISH THE PROPOSITION THAT THESE SECTIO NS ARE ONLY CLARIFICATORY AND, THAT EVEN OTHERWISE, AN ADDITION CAN BE MADE TOWARDS INCOME FROM UNDISCLOSED SOURCES IN RESPECT OF AMOUNTS NOT SATISFACTORILY EXPLAINED. THIS CONTENTION OF THE AP PELLANT IS, THEREFORE, REJECTED. 4. THE APPELLANT HAS FURTHER SUBMITTED THAT HE HAS RECEIVED THE AMOUNTS ON VARIOUS OCCASIONS FROM THE CONSTITUENTS IN HIS BUSINESS OF PROPERTY DEALING TO PASS ON TO THE PURCHASER/SELLER , AS THE CASE MAY BE, BUT HAS BEEN DEPOSITED IN HIS BANK ACCOUNT FOR SECURITY AND SAFETY PURPOSES. THE APPELLANT HAS ALSO TRIED TO PROVE THA T SOMETIMES THE DEALS DONT GET MATURED AND THE AMOUNT HAS TO BE RE FUNDED TO THE PERSON CONCERNED SUBSEQUENTLY. FURTHER, AS PER PREV AILING MARKET TREND, INCOME FROM PROPERTY DEALING RANGES BETWEEN 1 2%. THE APPELLANT HAS DECLARED THE NET INCOME OF RS.82,800/ - AND CONSIDERING 2% COMMISSION THEREON, THEN GROSS RECEIPTS COMES TO RS.41,40,000/- CONSIDERING NO EXPENDITURE IS INCURRED. THUS, THE D EPOSITS OF RS.30,55,000/- ARE COVERED IN THE GROSS RECEIPTS OF BUSINESS. IN THE ABSENCE OF BOOKS OF ACCOUNTS, THE ENTIRE RECEIPTS S HOULD BE CONSIDERED AS BUSINESS RECEIPTS/TURNOVER FOR THE PURPOSE OF DE TERMINATION OF INCOME. THE APPELLANT HAS PLACED RELIANCE ON THE TH EN CIT(APPEALS)S ORDERS DATED 8.4.2003 IN THE CASE OF SHRI O.P. GUPT A IN THIS REGARD. ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 6 4.1 APPELLANTS SUBMISSIONS ALONGWITH THE ASSESSME NT ORDER HAVE BEEN CONSIDERED CAREFULLY. ON PERUSAL OF RECOR DS, IT IS SEEN THAT THE A.O. HAS ASKED FOR THE DETAILS OF THE SAID BANK DEPOSITS FOR THE FIRST TIME IN A SHOW CAUSE DTD. 3.10.08, WHICH HAS BEEN S ERVED ON THE APPELLANT ON 10.10.2008 FIXING THE CASE FOR 15.10.0 8. ON FAILURE OF THE APPELLANT TO ATTEND THE HEARING ON 15.10.08, ORDER HAS BEEN PASSED ON 17.10.08. THUS, IN MY VIEW, THE APPELLANT HAS NOT B EEN GIVEN ADEQUATE OPPORTUNITY TO EXPLAIN THE DEPOSITS, AS THE ASSESSM ENT WAS GETTING BARRED BY LIMITATION ONLY ON 31 ST DECEMBER, 2008. FURTHER, CONSIDERING THE FACT THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF PROPERTY DEALING, WHEREBY COMMISSION RANGES BETWEEN 1 2%, THE SAID BANK DEPOSITS ARE TO BE TREATED AS TURNOVER OF THE BUSINESS ON WHICH INCOME @ 2% TO BE ESTIMATED ON A CONSERVATIVE BASIS. THUS, THE INCOME SO ESTIMATED WORKS OUT TO RS.61,100/-. S INCE THE BUSINESS INCOME OF THE APPELLANT HAS BEEN ESTIMATED AT RS.1, 50,000/- AS PER PARA NO. 2.3 ABOVE, AGAINST RETURNED INCOME OF RS.8 2,800/-, SEPARATE ADDITION FOR RS.30,55,000/- IS NOT FOUND JUSTIFIABL E ON THE BASIS OF FACTS ABOVE. THE SAME IS, HEREBY, DELETED. 6. THE LD. DR SUBMITTED THAT THE ASSESSEE DID NOT C OMPLY WITH ANY STATUTORY NOTICE AT THE ASSESSMENT STAGE AND NO EXPLANATION A ND EVIDENCE HAVE BEEN FILED TO EXPLAIN THE CASH DEPOSITS IN HIS BANK ACCOUNT. THER EFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION. THE LD. DR FURT HER SUBMITTED THAT THE LD. CIT(A) WITHOUT ANY BASIS CONSIDERED IT TO BE A GROSS RECEI PT FOR THE PURPOSE OF CHARGING ONLY COMMISSION INCOME. THE ASSESSEE HAS FAILED TO CO-RELATE THE DEPOSITS IN THE BANK ACCOUNT WITH THE WITHDRAWALS AND NO EVIDENCE O F ANY PROPERTY DEALING HAVE BEEN FILED TO SUPPORT THE CONTENTION. THE LD. DR, T HEREFORE, SUBMITTED THAT THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITION. ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 7 7. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND REFERRED TO THE WRIT TEN SUBMISSIONS FILED BEFORE HIM, IN WHICH IT WAS BRIEFLY EXPLAINED THAT THE ASS ESSEE HAD RECEIVED THE AMOUNTS ON VARIOUS OCCASIONS FROM THE CONSTITUENTS SO AS TO PASS ON TO THE PURCHASER AND THE SAME AMOUNT HAS BEEN DEPOSITED IN THE BANK ACCOUNT FOR THE SECURITY PURPOSE AND WHEN THE DEAL WAS NOT MATURED, THE AMOUNT WAS REFUN DED. IT IS ALSO EXPLAINED IN THE WRITTEN SUBMISSIONS THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS RECEIVED RS.6,00,000/- ON 09.06.2005 FROM SHRI Y. P RAKASH DUBEY FOR TRANSACTION BETWEEN SHRI Y. PRAKASH DUBEY AND SHRI JEEVAN LAL J AIN, WHICH WAS DEPOSITED IN THE BANK ACCOUNT. THE AMOUNT OF RS.6,00,000/- WAS REMITTED TO SHRI JEEVAN LAL JAIN THROUGH DEMAND DRAFT PURCHASED ON 09.06.2005 A FTER PAYING BANK COMMISSION. IT WAS, THEREFORE, EXPLAINED THAT THE ASSESSEE MADE SIMILAR DEPOSITS AND WITHDRAWN THE AMOUNTS FOR SAFE CUSTODY AND AFFIDAVITS OF SHRI ARVIND RATHORE, SHRI JAGANNATH PRASAD AND SHRI KOMAL SINGH WERE FILED BEFORE THE L D. CIT(A). HE HAS SUBMITTED THAT THE LD. CIT(A) RIGHTLY CONSIDERED THE COMMISSI ON INCOME ON THE TOTAL DEPOSITS AND RIGHTLY DELETED THE ADDITION. HE HAS RELIED UPO N THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. SMT. P.K. NOOR JAHAN, 237 ITR 570(SC) AND REFERRED TO THE OBSERVATION THEREIN THAT EVEN THOUG H THE EXPLANATION ABOUT THE NATURE AND SOURCE OF THE PURCHASE MONEY WAS NOT SAT ISFACTORILY EXPLAINED, BUT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT WAS NOT POSSIBLE FOR THE ASSESSEE TO EARN ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 8 THE AMOUNT INVESTED IN THE PROPERTIES AND THAT BY N O STRETCH OF IMAGINATION COULD THE ASSESSEE BE CREDITED WITH HAVING EARNED THIS IN COME IN THE COURSE OF ASSESSMENT YEAR OR WAS EVEN IN A POSITION TO EARN IT FOR A DEC ADE OR MORE. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD AND WE DO NOT FIND ANY GOOD REASON TO SUBSCRIBE THE VIEW T AKEN BY THE LD. CIT(A) FOR DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED CAS H DEPOSIT IN THE BANK ACCOUNT. THE AO STARTED THE ASSESSMENT PROCEEDINGS WAY BACK ON 12.08.2008 WHEN STATUTORY NOTICES U/S. 143(2) AND 142(1) WERE ISSUE D TO THE ASSESSEE FOR COMPLETING THE ASSESSMENT PROCEEDINGS. FROM 12.08.2008 TO 30.0 9.2008, 10 DATES WERE FIXED FOR COMPLETION OF ASSESSMENT PROCEEDINGS ON VARIOUS DATES, AS NOTED IN PARA 3 PAGE 2 OF THE ASSESSMENT ORDER, BUT THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS AND NO REPLIES WERE FILED OR ADJOURNMENTS SOUGHT. THE AO SPECIFICALLY CALLED FOR EXPLANATION OF THE ASSESSEE FOR CASH DEPOSITS IN TH E BANK ACCOUNT OF THE ASSESSEE AND SHOW CAUSE NOTICE WAS ALSO ISSUED TO THE ASSESS EE AS TO WHY SAME BE NOT TREATED AS UNEXPLAINED MONEY U/S. 69A OF THE IT ACT , BUT THE ASSESSEE DID NOT MAKE ANY COMPLIANCE. THEREFORE, THERE WAS NO ALTERNATE F OR THE AO TO COMPLETE THE ASSESSMENT AND TREATING THE SAME AS UNEXPLAINED MON EY U/S. 69A OF THE IT ACT. SECTION 69A OF THE IT ACT PROVIDES AS UNDER : 69A. WHERE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND T O BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLE AND ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 9 SUCH MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOU T THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY, BULLION, JEWELL ERY OR OTHER VALUABLE ARTICLE, OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE MONEY AND THE VALUE OF THE BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. 8.1 SINCE CASH WAS FOUND DEPOSITED IN THE BANK ACCO UNT OF THE ASSESSEE, THEREFORE, THE BURDEN WAS UPON THE ASSESSEE TO EXPL AIN THE SOURCE OF THE SAME. HOWEVER, THE ASSESSEE OFFERED NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF MONEY DEPOSITED IN THE BANK ACCOUNT TO THE SATISFACTION OF THE AO. EVEN BEFORE THE LD. CIT(A), IT WAS NOT IN DISPUTE T HAT THE ASSESSEE MADE CASH DEPOSITS OF RS.30,55,000/- IN HIS BANK ACCOUNT ON V ARIOUS DATES. THE ASSESSEE EXPLAINED BEFORE THE LD. CIT(A) THAT ON VARIOUS OCC ASIONS, THE ASSESSEE RECEIVED AMOUNTS FROM THE CONSTITUENTS JUST TO PASS ON TO TH E PURCHASER AND DEPOSITED THE SAME IN HIS BANK ACCOUNT FOR SECURITY AND SAFETY PU RPOSES. THIS EXPLANATION WAS NOT GIVEN BEFORE THE AO AND EVEN BEFORE THE LD. CIT (A), NO EVIDENCE OR MATERIAL WAS FURNISHED TO SUPPORT THE SAME CONTENTION. NO NA MES OF THE CONSTITUENTS AND THE DETAILS OF THE PROPERTIES, IN WHICH THE ASSESSEE AL LEGED TO HAVE BEEN DEALING, WERE FURNISHED. NO CORROBORATIVE EVIDENCES WERE FILED IN SUPPORT THEREOF. IN THE ABSENCE OF ANY PARTICULARS OF THE CONSTITUENTS AND DETAILS OF THE PROPERTIES, THE LD. CIT(A) SHOULD NOT HAVE ACCEPTED THE BALD CONTENTION OF THE ASSESSEE WITHOUT HAVING ANY EVIDENCE TO SUPPORT THE SAME CONTENTION. THE ASSESS EE ALSO EXPLAINED THAT WHEN THE ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 10 DEALS ARE NOT MATURED, THE AMOUNTS HAVE TO BE REFUN DED TO THE PARTIES AND IN THIS REGARD, IT WAS EXPLAINED IN THE WRITTEN SUBMISSIONS THAT RS.6,00,000/- WAS RECEIVED ON 09.06.2005 FROM SHRI Y. PRAKASH DUBEY FOR TRANSA CTION WITH SHRI JEEVAN LAL JAIN AND THE AMOUNT OF RS.6,00,000/- WAS GIVEN TO S HRI JEEVAN LAL JAIN THROUGH BANK DRAFT ON THE SAME DATE, I.E., 09.06.2005. THE CONTENTION OF THE ASSESSEE IS FACTUALLY INCORRECT. COPY OF BANK ACCOUNT IS FILED AT PAGE 13 OF THE PAPER BOOK WHICH SHOWS THAT RS.1,55,000/- AND RS.7,10,000/- IN CASH HAVE BEEN DEPOSITED IN HIS BANK ACCOUNT ON 26.05.2005 AND 27.05.2005 AND T HEREAFTER ON 09.06.2005, AMOUNT OF RS.6,00,992/- WAS WITHDRAWN BY THE ASSESS EE HIMSELF. MAY BE THE DRAFT WOULD HAVE BEEN PREPARED FOR THE SAME ON THE SAME D ATE, BUT AFTER PREPARATION OF THE ALLEGED BANK DRAFT ETC., RS.6,00,000/- HAVE BEE N DEPOSITED THE SAME DAY IN CASH IN THE BANK ACCOUNT OF THE ASSESSEE. SINCE THE ALLE GED BANK DRAFT IS PREPARED EARLIER OUT OF THE AMOUNTS DEPOSITED ON EARLIER DATES, I.E. ON 26 TH AND 27 TH MAY, 2005, THEREFORE, IT WOULD HAVE NO RELATION WITH ANY PROPE RTY DEALING TRANSACTION. FURTHER ON EXAMINATION OF THE BANK ACCOUNT (PB-13) WE FIND THAT THERE IS NO CO-RELATION BETWEEN THE BANK DEPOSITS AND WITHDRAWALS MADE BY T HE ASSESSEE. IF THE CONTENTION OF THE ASSESSEE IS TO BE TAKEN TO BE CORRECT THAT I N CASE OF THE DEAL NOT MATERIALIZED, THE AMOUNTS WERE TO BE REFUNDED TO THE PARTIES, WIT HDRAWALS OF THE EXACT AMOUNTS WHICH WERE DEPOSITED IN THE BANK ACCOUNT OF THE ASS ESSEE WOULD HAVE BEEN MADE, BUT THERE IS A HUGE VARIATION BETWEEN THE CASH DEPO SITS AND THE WITHDRAWALS. AS ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 11 SUCH, THIS FACT WOULD NOT SUPPORT THE CONTENTION OF THE ASSESSEE. EVEN ON CERTAIN DATES, THERE WERE CASH WITHDRAWALS TWICE IN A DAY O R WITH INTERVALS AND EVEN SOMETIMES, THERE IS NO WITHDRAWAL MADE, WHICH HAVE ANY CO-RELATION WITH THE BANK DEPOSITS. NO CONFIRMATION OR AFFIDAVIT OF SHRI Y. P RAKASH DUBEY OR JEEVAN LAL JAIN HAVE BEEN FURNISHED EVEN BEFORE THE LD. CIT(A). THR EE AFFIDAVITS OF SHRI ARVIND RATHORE, SHRI JAGANNATH PRASAD AND SHRI KOMAL SINGH , WHICH WERE PREPARED AFTER CONCLUSION OF THE ASSESSMENT PROCEEDINGS, WERE STAT ED TO BE FILED BEFORE THE LD. CIT(A) IN WHICH NO DETAILS OF ANY PROPERTY DEALING OR THE DETAILS OF AMOUNTS REFUNDED HAVE BEEN MENTIONED. THUS, IT IS A CASE WH ERE THE ASSESSEE DID NOT OFFER ANY PLAUSIBLE EXPLANATION BEFORE ANY OF THE AUTHORI TIES BELOW REGARDING CASH DEPOSITED IN THE BANK ACCOUNT AND WHATEVER EXPLANAT ION WAS RAISED BEFORE THE LD. CIT(A), WAS NOT SUBSTANTIATED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. THE AFFIDAVITS FILED FOR THE FIRST TIME BEFORE THE LD. CIT(A) CANNOT BE READ IN EVIDENCE PARTICULARLY WHEN NO OPPORTUNITY HAS BEEN GIVEN TO THE AO TO EXAMINE OR CROSS- EXAMINE THE DEPONENTS. THE LD. CIT(A) SHOULD NOT HA VE CONSIDERED THE AFFIDAVITS FILED FOR THE FIRST TIME BEFORE HIM IN VIOLATION OF RULE 46A OF THE IT RULES. THE LD. CIT(A) WAS, THEREFORE, NOT JUSTIFIED IN HOLDING THA T SHOW CAUSE NOTICE WAS GIVEN FOR THE FIRST TIME ON 03.10.2008 CALLING FOR EXPLAN ATION OF THE ASSESSEE. EVEN IF IT MAY BE TAKEN AS CORRECT, THE ASSESSEE HAS NOT RESPO NDED EVEN TO THIS NOTICE AND NO EXPLANATION OR EVIDENCE WAS FILED BEFORE THE AO. TH EREFORE, IT IS NOT A CASE OF ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 12 DENIAL OF OPPORTUNITY TO THE ASSESSEE. THE FINDINGS OF THE LD. CIT(A) ARE ALSO INCORRECT BECAUSE ADMITTEDLY, NO EVIDENCE WAS FURNI SHED EVEN BEFORE THE LD. CIT(A) TO SUBSTANTIATE THE CASH DEPOSITS IN THE BAN K ACCOUNT ON VARIOUS DATES. SINCE THE ASSESSEE WAS NOT HAVING ANY EVIDENCE IN H IS POWER AND POSSESSION EVEN AT THE APPELLATE STAGE NOR ANY SUCH EVIDENCE COULD BE PRODUCED BEFORE THE LD. CIT(A), HOW HE WOULD HAVE MADE A CLAIM OF DENIAL OF OPPORTUNITY AT THE STAGE OF ASSESSMENT PROCEEDINGS. THE ORDER OF THE LD. CIT(A) IS, THUS, BASED ON NO EVIDENCE AND, AS SUCH, IS PERVERSE IN NATURE. THE LD. CIT(A) MERELY CONSIDERED THE NATURE OF BUSINESS OF ASSESSEE TO BE PROPERTY DEALING AND HEL D THAT THE ASSESSEE WOULD HAVE EARNED COMMISSION OF 1 2%. THE LD. CIT(A) WITHOUT ANY JUSTIFICATION AND EVIDENCE MERELY PRESUMED CERTAIN FACTS, WHICH ARE N OT PART OF THE RECORD. THE LD. CIT(A) FAILED TO CONSIDER THE PROVISIONS OF SECTION 69A OF THE IT ACT FOR THE PURPOSE OF DELETING THE ADDITION. THE DECISION IN T HE CASE OF P.K. NOORJAHAN (SUPRA) IS NOT APPLICABLE TO THE FACTS AND CIRCUMST ANCES OF THIS CASE. WE MAY ALSO NOTE HERE THAT THE ASSESSEE HAS NOT FILED ANY EVIDE NCE OR MATERIAL TO EXPLAIN THE CASH DEPOSITS IN THE BANK ACCOUNT BEFORE US. HONBL E SUPREME COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE, 82 ITR 540 (SC) AND SUMA TI DAYAL, 214 ITR 801 (SC) HELD THAT COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES. IF THE S AID TEST IS APPLIED TO THIS CASE, IT IS CLEARLY ESTABLISHED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE CASH DEPOSITS IN THE ITA NO. 112/AGRA/2010 & C.O. NO. 49/AGRA/2010 13 BANK ACCOUNT AND THE EXPLANATION GIVEN BEFORE THE L D. CIT(A) WAS NOT SUBSTANTIATED BY ANY RELEVANT AND COGENT EVIDENCE. SINCE THE EXPLANATION OF THE ASSESSEE REGARDING REPAYMENT IS NOT ESTABLISHED, TH EREFORE, THE LD. CIT(A) WITHOUT HAVING ANY EVIDENCE ON RECORD SHOULD NOT HAVE DELET ED THE ADDITION. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ABO VE DISCUSSION, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS WRONGLY DELETED THE AD DITION OF RS.30,55,000/-. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE ORDER OF THE AO. THUS, THIS GROUND OF APPEAL OF THE REVENUE IS ALLOW ED. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED AND CROSS-OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY