Shri Sunilkumar N.Agrawal, Ahmedabad V. The Income tax Officer,Ward-6(1), Ahmedabad

ITA 1011/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6943 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 03-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 06-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR SR DR
• Assessee Lawyers: K H SHAH
• Keywords: Unexplained cash credit; Income from undisclosed sources; Assessment record
• Section: 143(3); 147; 131; 68

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.1011/AHD/2011 [ASSTT.YEAR : 2006-2007] SHRI SUNILKUMAR N. AGRAWAL C/O. KETAN H. SHAH, ADVOCATE 903, SAPPHIRE COMPLEX C.G. ROAD, NAVRANGPURA AHEMDABAD. PAN : ALUPS 8870 P /VS. ITO, WARD-6(1) AHMEDABAD. ITA NO.2172/AHD/2010 WITH CO NO.185/AHD/2010 [ASSTT.YEAR : 2006-2007] ITO, WARD-12(3) AHMEDABAD. /VS. SHRI RAJKUMAR NATHURAM AGRAWAL 10/A, DHARAMJYOT APPTT. NR. JAIHIND HIGH SCHOOL, MANINAGAR, AHMEDABAD. PAN : AAOPA 6445 K ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 ) / ASSESSEE BY : SHRI K.H. SHAH + 2 3 ) / REVENUE BY : SMT. SONIA KUMAR, SR.DR 5 2 &(* / DATE OF HEARING : 3 RD NOVEMBER, 2014 678 2 &(* / DATE OF PRONOUNCEMENT : 12/12/2014 ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -2- )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE APPEALS OF THE ASSESSEE AND THE REVENUE AND CO BY THE ASSESSEE FOR THE ASST T.YEAR 2006-2007 ARE DIRECTED AGAINST THE ORDERS OF THE CIT(A). THESE A RE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. ITA NO.1011/AHD/2011 (SHRI SUNILKUMAR N. AGRAWAL ASSESSEES APPEAL) 2. WE FIRST TAKE UP THE GROUND NO.3 OF THE APPEAL O F THE ASSESSEE, WHICH IS ON MERITS OF THE CASE, FOR ADJUDICATION. 3. EVEN OTHERWISE, THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS ALREADY DISCHARGED T HE ONUS REGARDING VARIOUS CASH CREDITS AMOUNTING TO RS.16,75,000/- AL ONG WITH VARIOUS EVIDENCES LIKE RETURN OF INCOME, PAN CARD, CONFIRMA TION ETC. OF ALL THE CONCERNED CREDITORS AS PER THE TABULARIZED CHAR T IN CIT(A) ORDER PAGE 9 PARA 5.1. IT IS SAID THAT THE LD. CIT(A) HA S NOT APPRECIATED THE COMPLETE FACTS AND VARIOUS PAPERS LIKE CONFIRMA TION ETC. IN HIS PROPER PERCEPTION AND THEREFORE, THE CIT(A) HAS ERR ED IN NOT DELETING THE ADDITION MADE BY THE AO WORTH RS.16,75 ,000/- 3. THE ASSESSEE HAS FILED A CHART SHOWING VARIOUS A MOUNTS RECEIVED BY THE ASSESSEE FROM HIS CLOSE RELATIVES ETC. INCLUDIN G FROM HIS MOTHER ON SALE OF GOLD ORNAMENTS. THE LEARNED COUNSEL FOR THE ASS ESSEE SUBMITTED THAT ALL EVIDENCES LIKE COPY OF THE RETURN OF INCOME, PAN CA RD, CONFIRMATION LETTER FROM ALL THE CREDITORS WAS FILED BEFORE THE AO AS W ELL AS BEFORE THE CIT(A), AND THEREFORE, THERE WAS NO JUSTIFICATION F OR ADDITION OF RS.16.75 LAKHS AS UNEXPLAINED CASH CREDIT IN THE HANDS OF TH E ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AMOUNT OF RS.7 LAKHS CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE WAS ON ACCOUNT OF SALE OF GOLD ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -3- ORNAMENTS OF ASSESSEES MOTHER, SMT. BHAVRIDEVI AGA RWAL, AND THE ASSESSEE HAS FILED CONFIRMATION FROM THE MOTHER OF ASSESSEE, SMT. BHAVRIDEVI AGARWAL AND HAS ALSO FILED ALL THE COPIE S OF SALE BILLS OF SAMARTH MARKETING, JEWELER AT AHMEDABAD IN EVIDENCE OF SALE OF GOLD ORNAMENTS OF SMT. BHAVRIDEVI AGARWAL. WITH REGARD TO OTHER DEPOSITS OF RS.4.00 LAKHS, THE SAME WAS EXPLAINED AS LOAN FROM BROTHER OF SHRI RAJKUMAR AGARWAL, FOR WHICH CONFIRMATION LETTER ALO NG WITH ADDRESS AND PAN CARD COPY WAS FILED BEFORE THE AO. THE AO HAS NOT ISSUED SUMMONS UNDER SECTION 131 TO SHRI RAJKUMAR AGARWAL AND HAS MADE ADDITION WITHOUT ANY BASIS. HE SUBMITTED THAT THE AMOUNT OF RS.3.00 LAKHS WAS DEPOSITED IN THE BANK ON RECEIPT OF LOANS FROM SMT. REKHA AGRAWAL OF RS.1.50 LAKHS, RAMACHANDRA AGARWAL OF RS.2.00 LAKHS , PAVAN SINGHAL OF RS.10,000/-, SHRI VIKY JINDAL OF RS.19,000/-, SHRI RAMESH PATEL OF RS.17,000/- AND SHRI HITESH SHAH OF RS.19,000/-, FO R WHICH THEIR CONFIRMATIONS AND COMPLETE ADDRESSES WERE FILED BEF ORE THE AO, AND THE AO HAS NOT ISSUED SUMMONS UNDER SECTION 131 TO THEM . MOREOVER, MAIN PARTIES, VIZ. REKHA AGARWAL, SHRI RAMACHANDRA AGARW AL AND PAVAN SINGHAL WERE EXISTING INCOME TAX ASSESSEES, AND HAV E FILED THEIR PANS BEFORE THE AO. HE SUBMITTED THAT SHRI RAJKUMAR AGA RWAL HAS ALREADY BEEN PAID OFF THE AMOUNT PER ACCOUNT PAYEE CHEQUES ON DIFFERENT DATES AS MENTIONED IN HIS COPY OF ACCOUNT FILED IN THE COMPI LATION. HE SUBMITTED THAT RS.2.50 LAKHS WAS DEPOSITED BY THE ASSESSEE AF TER RECEIPT OF THE SAME AMOUNT FROM SHRI VINOD AGARWAL AND HIS CONFIRMATION LETTER ALONG WITH COMPLETE DETAILS WAS FILED BEFORE THE AO AND THE CI T(A) AND THAT HIS PAN NO. WAS ALSO FILED AND NO FURTHER INQUIRY IN THE FO RM OF SUMMONS UNDER SECTION 131 WAS MADE BY THE AO. SHRI VINOD AGARWAL IS AN EXISTING INCOME TAX ASSESSEE. THE OTHER AMOUNT OF RS.25,000 /- DEPOSITED IN THE ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -4- BANK ACCOUNT, WAS CLAIMED TO BE PERSONAL SAVINGS OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS ESTABLISHED IDENTITY OF THE CREDITORS BEYOND DOUBT AND THE GENU INENESS OF THE TRANSACTION AS WELL AS THEIR CREDIT-WORTHINESS IS A LSO PROVED BY FILING THEIR CONFIRMATION LETTERS, PAN NOS. ETC., AND THE AO HAS NOT MADE ANY FURTHER INQUIRY IN THIS REGARD. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. SHE SUBMITTED THAT THE ONUS WAS ON THE ASSESSEE TO PROVE WITH DOCUMENTARY EVIDENCES SOURCE OF CREDIT ENTRIES IN THE BANK ACCOUNT OF THE ASSESSEE. SHE SUBMITTED THAT THE ASSESSEE HAS NOT DISCLOSED THE BANK ACCOUNT INITIALLY, AND IT WAS ONLY ON RECEIPT OF TH E INFORMATION THAT THE ASSESSEE HAS TRIED TO EXPLAIN CREDIT ENTRIES BY FIL ING CONFIRMATION FROM VARIOUS PERSONS IN ORDER TO AVOID PAYMENT OF DUE TA XES TO THE GOVERNMENT. SHE REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE CIT(A) IN SUPPORT OF THE CASE OF THE R EVENUE AND RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPIES OF VARIOUS DOCUME NTS IN THE FORM OF CONFIRMATION OF THE ACCOUNTS, IDENTITY PROOFS AND P AN EVIDENCES ETC. FILED BY THE ASSESSEE BEFORE THE AO, AND COPIES FILED IN THE COMPILATION BEFORE US. REGARDING DEPOSIT ON SALE OF GOLD ORNAMENTS OF THE MOTHER OF THE ASSESSEE, SMT. BHAVRIDEVI AGARWAL, THE ASSESSEE WAS ABLE TO FILE COPY OF THE SALE BILLS ISSUED BY SAMARTH MARKETING, JEWELER S, AHMEDABAD, AND THESE EVIDENCES COULD NOT BE CONTROVERTED BY THE RE VENUE. THE MOTHER OF THE ASSESSEE, SMT. BHAVRIDEVI AGARWAL IS AN AGED LA DY AND EXTENT OF GOLD ORNAMENTS CLAIMED TO HAVE BEEN SOLD BY HER COULD NO T BE SAID TO BE ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -5- EXCESSIVE. THE AO HAS NOT MADE ANY FURTHER INQUIRY IN THIS REGARD, AND THERE IS NO MATERIAL ON RECORD TO DOUBT THE GENUINE NESS OF THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE. ACCORDINGLY, THE CREDIT ENTRY OF RS.7 LAKHS ON SALE OF GOLD ORNAMENTS BELONGING TO THE MO THER OF ASSESSEE, SMT. BHAVRIDEVI AGARWAL HAS BEEN EXPLAINED, AND WE HOLD THAT NO ADDITION TO THIS EXTENT IS CALLED FOR. REGARDING CREDIT ENTRIES ON RECEIPT OF LOANS FROM S HRI RAJKUMAR AGARWAL, SMT. REKHA AGARWAL AND SHRI RAMACHANDRA AG ARWAL, THEY ARE ALL CLOSE RELATIVES OF THE ASSESSEE AND HAVE FILED CONFIRMATION ALONG WITH THEIR COPY OF RETURN AND ALSO THEIR PANS. BEFORE TH E AO AND THE CIT(A). ALL THESE THREE PERSONS ARE EXISTING INCOME TAX ASS ESSEE, AND THE AO HAS NOT MADE ANY ADVERSE COMMENTS REGARDING THEIR ASSES SMENT RECORDS AND NO SUMMONS UNDER SECTION 131 OF THE ACT WAS ISSUED TO THESE PERSONS. ACCORDINGLY, WE HOLD THAT NO CASE OF ADDITION ON AC COUNT OF RECEIPT OF LOANS FROM THESE THREE PERSONS COULD BE MADE OUT BY THE REVENUE, AND ACCORDINGLY, THE ADDITION TO THE EXTENT OF RS.5,74, 112/- IS DELETED. LIKEWISE, CREDIT ENTRY OF RS.10,000/- CLAIMED TO HA VE BEEN ON ACCOUNT OF AMOUNT RECEIVED FROM SHRI PAVAN SINGHAL ALSO STANDS EXPLAINED, AS CONFIRMATION FROM THE CREDITOR ALONG WITH HIS COMPLETE ADDRESS AND PAN CARD COPY WAS FILED BEFORE THE AO A ND THE CIT(A). NO SUMMONS UNDER SECTION 131 WAS ISSUED TO THE CREDITO R. HOWEVER, THE CREDIT ENTRIES OF RS.19,000/-, RS.17,000/- AND RS.1 9,000/- AS LOANS FROM SHRI VIKY JINDAL, RAMESH PATEL AND HITESH SHAH RESP ECTIVELY COULD NOT BE PROVED BEYOND DOUBT BY THE ASSESSEE BY MERELY FILIN G THE CONFIRMATION LETTERS FROM THEM. NONE OF THESE PERSONS ARE INCOM E TAX ASSESSEE, AND NO CORROBORATIVE EVIDENCE IN SUPPORT OF THE CASE OF TH E ASSESSEE WAS FILED BY ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -6- THE ASSESSEE. IN THESE FACTS, WE CONFIRM THE ADDIT ION MADE TO THE EXTENT OF RS.55,000/- WITH REGARD TO THESE THREE CREDITORS. WITH REGARD TO CREDIT ENTRY OF RS.2,50,000/- BEING DEPOSIT FROM SHRI VINOD AGARWAL, THE ASSESSEE HAS FILED CONFIRMATION LETTER ALONG HIS PAN AND THE AO HAS NOT MADE ANY FURTHER INQUIRY IN THIS REGARD. WE ARE OF THE VIEW THAT SINCE THE ASSESSEE HAS FILED CONFIRMATION OF THE CREDITOR ALONG HIS COMPLETE DETAILS AND HIS PAN NUMBER, THE CLAIM OF T HE ASSESSEE COULD HAVE BEEN VERIFIED FROM THE ASSESSMENT RECORD OF TH E CREDITOR, AND THEREFORE, NO CASE OF ADDITION OF RS.2.50 LAKHS OF SHRI VINOD AGARWAL COULD BE MADE OUT BY THE DEPARTMENT, AND THE ADDITI ON TO THAT EXTENT OF RS.2,50,000/- IS DELETED. WITH REGARD TO THE AMOUNT OF DEPOSIT OF RS.25,000/ - OUT OF PERSONAL SAVINGS, WE ARE OF THE VIEW THAT CONSIDERING THE RE TURNED INCOME OF THE ASSESSEE AND THE ASSESSEE BEING OLD INCOME TAX ASSE SSEE, THE AMOUNT OF RS.25,000/- AS PERSONAL SAVINGS COULD NOT BE SAID T O BE UNREASONABLE, AND ACCORDINGLY, NO ADDITION ON THIS AMOUNT BE MADE. THIS LEAVES US THE AMOUNT OF RS.60,888/-, SAY RS.6 1,000/- OUT OF THE TOTAL CREDIT AMOUNT OF RS.16.75 LAKHS FOR WHICH THE ASSESSEE COULD NOT MAKE ANY EXPLANATION. ACCORDINGLY, WE CONFIRM THE ADDITION OF RS.61,000/- FOR NO EXPLANATION OF THE ASSESSEE. IN NUTSHELL, THE ADDITION OF RS.55,000/- WITH REGA RD TO THE CREDIT ENTRIES OF SHRI VICKY JINDAL, RAMESH PATEL AND HITE SH SHAH, AND RS.61,000/- FOR NO EXPLANATION, MAKING A TOTAL ADDI TION OF RS.1,16,000/- IS SUSTAINED, OUT OF THE TOTAL ADDITION OF RS.16.75 LA KHS CONFIRMED BY THE CIT(A), AND THE GROUND NO.3 OF THE ASSESSEE IS PART LY ALLOWED. ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -7- 6. THE GROUNDS NO.1 & 2 AND THE ASSESSEE ARE AS UND ER: 1. THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE SO-CALLED NOTICE UNDER SEC. 143(2) HAS NEVER BEEN S ERVED TO THE ASSESSEE NOR TO HIS ANY AUTHORIZED REPRESENTATIVE A ND SINCE ADMITTED BY BOTH THE AUTHORITIES THAT THERE IS NO ACKNOWLEDG EMENT RECEIPT ON RECORD OF THE DEPARTMENT, AN AS SUCH, THE CONSEQUEN TIAL PROCEEDINGS UNDER SEC. 143(3) IS ITSELF BAD IN LAW, VOID AB-INI TIO AND ILLEGAL. 2. IN NOT APPRECIATING THE FACT THAT THE PROVISION OF SECTION 292BB IS NOT APPLICABLE TO THE ASSESSMENT YEAR IN D ISPUTE I.E. ASSTT.YEAR 2006-07 AS ARGUED BEFORE THE CIT(A) AS P ER HIS ORDER PARAG4 5 PARA 4.1.3, AND AS SUCH, THE CIT(A) OUGHT TO HAVE AGREED THAT SINCE THE PROVISION OF SECTION 292BB IS NOT AP PLICABLE AND SINCE THE NOTICE UNDER SECTION 143(2) HAS NOT BEEN SERVED , THE WHOLE ASSESSMENT FRAMED IS ITSELF BAD IN LAW, VOID AB-INI TIO AND ILLEGAL 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT ALTHOUGH NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE AO, BUT IT W AS NEVER SERVED ON THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE, AND THER EFORE, THE ASSESSMENT ITSELF IS BAD IN LAW. THE LEARNED DR SUBMITTED THA T ONCE THE NOTICE IS ISSUED IN TIME, ASSESSMENT PROCEEDINGS WERE VALID. WE HAVE CONSIDERED RIVAL SUBMISSION. IN VIEW OF OUR GIVING SUBSTANTIV E RELIEF TO THE ASSESSEE, WHILE DECIDING THE APPEAL OF THE ASSESSEE ON ITS ME RITS IN THE FOREGOING PARAS OF THIS ORDER, WE ARE NOT ADJUDICATING THE IS SUE RAISED BY THE ASSESSEE, AS IT IS MORE OF ACADEMIC VALUE ONLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ITA NO.2172/AHD/2010 (SHRI RAJKUMAR NATHURAM AGRAWA L REVENUES APPEAL) 9. THE GROUNDS OF THE APPEAL OF THE REVENUE ARE AS UNDER: ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -8- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE RE-ASSESSMENT PROCEEDINGS U/S.147 UNDERTAKEN BY THE AO IN THIS CASE ARE INVALID IN LAW, WITHOUT PROPERLY APPRECIATING T HE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE AO. 1.2 IN DOING SO, THE LD.CIT(A) HAS ERRED IN LAW AN D ON FACTS IN NOT APPRECIATING THAT THE RETURN WAS ORIGINALLY PROCESS ED U/S.143(1) OF THE ACT AND RECOURSE TO THE PROVISIONS OF SECTION 1 47 WAS CORRECTLY TAKEN BY THE AO ON THE BASIS OF INFORMATION RECEIVE D FROM THE ITO, WARD-6(1), AHMEDABAD REGARDING THE CASH DEPOSIT OF RS.16,75,000/- MADE IN THE SAVINGS BANK ACCOUNT NO.1580 WITH VANAY AK SAHAKARI BANK LTD., AHMEDABAD WHICH WAS HANDLED BY SHRI RAJK UMAR NATHURAM AGRAWAL, THE ASSESSE. 1.3 IN DOING SO, THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN JUDGING THE SUFFICIENCY OF THE REASONS RECORDED U/S .148 WHICH IS NOT PERMISSIBLE BY LAW. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN H OLDING THAT THE ADDITION OF RS.16,75,000/- COULD NOT HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF THE SAID UNEXPLAINED DEP OSIT AS THE CASH CREDIT HAS ALREADY BEEN ADDED IN THE NAME OF SHRI S UNILKUMAR AGRAWAL. 2.2 IN DOING SO, THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT IN THE ABSENCE OF ANY SATISFACTOR Y EXPLANATION REGARDING THE SOURCE OF THE SAID CASH DEPOSITS OF R S.16,75,000/- THE SAID AMOUNT WAS RIGHTLY ADDED IN THE HANDS OF THE A SSESSEE AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES. 10. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET SUBMITTED THAT THE ADDITION OF RS.16.75 LAKHS WAS MADE ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE, SHRI SUNILKUMAR AGRAWAL AND IN THE CA SE OF THE PRESENT ASSESSEE, SHRI RAJKUMAR AGRAWAL, IT WAS MERELY ON P ROTECTIVE BASIS, AND THEREFORE, THE CIT(A) WAS JUSTIFIED IN CANCELLING R EASSESSMENT UNDER SECTION 147 R.W.S. 143(3) BY OBSERVING THAT SINCE T HE CREDITS WERE FOUND IN ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -9- THE BANK ACCOUNT OF ANOTHER ASSESSEE, SHRI SUNILKUM AR AGRAWAL AND SAME HAS ALREADY BEEN ADDED IN THE NAME OF SHRI SUNILKUM AR AGRAWAL, IT COULD NOT BE ADDED IN THE HANDS OF THE APPELLANT, SHRI RA JKUMAR AGRAWAL. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO. 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND THAT THERE WAS NO MISTAKE IN THE ORDER OF THE CIT(A) IN HOLDING THAT SECTION 68 APPLIES TO THE CASE OF SHRI SUNILKUMAR AGRAWAL SINCE THE BANK ACCO UNT IN WHICH THE CREDIT ENTRIES WERE FOUND BELONGED TO HIM AND MOREO VER, THE AMOUNT OF CASH CREDIT HAS ALREADY BEEN ADDED IN THE NAME OF S HRI SUNILKUMAR AGRAWAL, AND THEREFORE, IT COULD NOT BE ADDED IN TH E HANDS OF THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS FILED COPY OF THE BAN K ACCOUNT WITH SHRI VINAYAK SAHAKARI BANK LTD., AHMEDABAD AT PAGE NO.6 & 7 OF ITS COMPILATION, WHEREIN VARIOUS CREDIT ENTRIES WERE FO UND ON DIFFERENT DATES AND THE SAID BANK ACCOUNT WAS IN THE NAME OF SHRI S UNILKUMAR AGRAWAL. WE FIND THAT MERELY ON THE BASIS OF SOME STATEMENT GIVEN BY SHRI SUNILKUMAR AGRAWAL, IT COULD NOT BE SAID THAT SHRI SUNILKUMAR AGRAWAL WAS ABSOLVED OF THE RESPONSIBILITY OF EXPLAINING TH E SOURCE OF CREDIT ENTRIES IN HIS BANK ACCOUNT. NO OTHER EVIDENCE COULD BE PR ODUCED BY THE DEPARTMENT BEFORE US TO SUGGEST THAT THE AMOUNT IN THE BANK ACCOUNT OF SHRI SUNILKUMAR AGRAWAL BELONGS TO THE ASSESSEE (SH RI RAJKUMAR NATHURAM AGRAWAL). WE HAVE ALREADY CONSIDERED THE VALIDITY OF THE ADDITION MADE OF VARIOUS CREDIT ENTRIES IN THE SAID BANK ACCOUNT OF SHRI SUNILKUMAR AGRAWAL, WHILE DISPOSING OF HIS APPEAL I N ITA NO.1011/AHD/2011 IN THE FOREGOING PARAS OF THIS ORD ER. IN THESE FACTS, WE CONFIRM THE ORDER OF THE CIT(A) IN CANCELLING THE O RDER OF REASSESSMENT MADE IN THIS CASE AND THE GROUNDS OF THE APPEAL OF THE REVENUE ARE DISMISSED. ITA NO.2172/AHD/2010 WITH CO AND ITA NO.1011/AHD/2011 -10- CO NO.185/AHD/2010 IN ITA NO.2172/AHD/2010 (SHRI RA JKUMAR N. AGRAWAL) 12. THE GROUNDS OF THE CO ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT AND/OR LAW THAT THERE IS A CONFLICT REGARDING REASONS RECO RDED AS PROVIDED BY THE AO BY LETTER DATED 13.11.2009 AS WELL AS DAT ED 30.1.2009. THE LD.CIT(A) HAS ERRED IN NOT AGREEING WITH THE CO NTENTION AS PER HIS APPEAL ORDER PAGE 2 PARA 3.1 AND IT IS PRAYED T HAT THE CONTRADICTORY REASONS RECORDED IS AMOUNT TO INVALID THE REASSESSMENT. 2. IN NOT APPRECIATING THE FACTS IN HIS ORDER PAGE 13 PARA 5.2 THAT THE ASSESSEE HAS DISCHARGED THE ONUS ON MERITS BY E XPLAINING CASH CREDIT APPEARED IN THE BOOKS OF SUNILKUMAR AGRAWAL I.E. ASSESSEES BROTHER AS REPRODUCED BY CIT(A) IN HIS ORDER PAGE 6 TO 10 PARA 3.3. IT IS PRAYED THAT EVEN ON MERITS, NO ADDITION UNDER SECTION 68 IS TO BE SUSTAINABLE. 13. THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PR ESSED THE GROUNDS OF THE CO, WHICH IS ACCORDINGLY DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE, SHRI SUNILKUMAR AGRAWAL IN ITA NO.1011/AHD/2011 IS PARTLY ALLOWED AND THE APPE AL OF THE REVENUE IN ITA NO.2172/AHD/2010 IN THE CASE OF SHRI RAJKUMAR N . AGRAWAL AND THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT