IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 1021/HYD/2013 ASSESSMENT YEAR: 2010-11 LOKESH AGARWAL, HYDERABAD PAN ADXPA3928K INCOME TAX OFFICER, WARD 7(4), HYDERABAD. (APPELLANT) (RESPONDENT) ITA NO. 1101/HYD/2013 ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER, WARD 7(4), HYDERABAD. LOKESH AGARWAL, HYDERABAD PAN ADXPA3928K (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI K.A. SAIPRASAD REVENUE BY SHRI RAJAT MITRA DATE OF HEARING 19-11-2014 DATE OF PRONOUNCEMENT 10-12-2014 O R D E R PER SAKTIJIT DEY, J.M.: THESE ARE CROSS APPEALS DIRECTED AGAINST ORDER DAT ED 22/05/2013 OF CIT(A)-VI, HYDERABAD FOR THE ASSESSME NT YEAR 2010- 11. ITA NO. 1021/H/2013 2. THE ONLY ISSUE IN ASSESSEES APPEAL IS RELATING TO CONFIRMATION OF ADDITION TO THE EXTENT OF RS. 9,65,000 BY LD. CI T(A). 2 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL 3. BRIEFLY THE FACTS RELATING TO THE ISSUE IN DISPU TE ARE, ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER CONSID ERATION, ASSESSEE FILED HIS RETURN OF INCOME ON 11/11/2010 DECLARING TOTAL INCOME OF RS. 1,97,665. THE INCOME DECLARED COMPRISED OF COMMISSI ON RECEIVED ON PURCHASE AND SALE OF CARS AND INTEREST EARNED ON LO ANS AND ADVANCES AS WELL AS FROM SAVINGS BANK ACCOUNT HELD IN TAMILN ADU MERCANTILE BANK. DURING THE ASSESSMENT PROCEEDING, FROM THE I NFORMATION AVAILABLE ON RECORD, AO FOUND THAT ASSESSEE WAS HAV ING ONE MORE ACCOUNT BEING SAVINGS BANK A/C NO. 18301536725 IN I CICI BANK, BEGUMPET BRANCH WHICH HAS NOT BEEN DISCLOSED TO THE DEPARTMENT. ON OBTAINING AN ACCOUNT STATEMENT FROM THE CONCERNE D BANK, AO FOUND, ASSESSEE HAS NOT OFFERED THE INTEREST INCOME FROM THE SAID BANK ACCOUNT. WHEN THIS WAS BROUGHT TO THE NOTICE O F ASSESSEE, HE FILED RECONSTRUCTED BALANCE SHEET, PROFIT AND LOSS ACCOUNT, RECEIPTS AND PAYMENT ACCOUNT, CASH BOOK, LEDGER AND CONFIRMA TION LETTERS FROM CREDITORS/DEBTORS AFTER TAKING INTO CONSIDERATION T RANSACTIONS IN ICICI BANK ACCOUNT. ON EXAMINING THE ICICI BANK ACCOUNT OF ASSESSEE, AO FOUND TOTAL CREDITS DURING THE YEAR WAS RS. 34,5 4,028. AS ALLEGED BY AO, SINCE ASSESSEE COULD NOT EXPLAIN SOURCE OF S UCH DEPOSITS WITH SUPPORTING EVIDENCE, HE TREATED THE DEPOSITS AS UNE XPLAINED INVESTMENT U/S 69 AND ADDED IT TO THE INCOME OF THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR. 4. BEING AGGRIEVED OF SUCH ADDITION, ASSESSEE PREFE RRED APPEAL BEFORE LD. CIT(A). AFTER CONSIDERING THE SUBMISSION S OF ASSESSEE IN THE LIGHT OF EVIDENCES ON RECORD, LD. CIT(A) FOUND THE DEPOSITS OF RS. 34,56,281 IN THE ICICI BANK ACCOUNT COMPRISED OF CA SH DEPOSITS OF RS. 15,65,000 AND CHEQUE DEPOSITS OF RS. 18,88,050. FURTHER, LD. CIT(A) NOTICED THAT RECEIPTS OF RS. 18,88,050 THROU GH CHEQUE/RTGS WERE FROM SIX PERSONS, WHO ALSO CONFIRMED OF HAVING GIVEN THE AMOUNT IN QUESTION TO ASSESSEE. HE ALSO FOUND THAT THE PERSONS CONCERNED ARE NOT ONLY FAMILY MEMBERS OF ASSESSEE, BUT, THEY THEMSELVES ARE ALSO INCOME TAX ASSESSEES. THEREFORE , LD. CIT(A) 3 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL HAVING FOUND THAT THE SOURCE OF CHEQUE DEPOSITS OF RS. 18,88,050 STOOD EXPLAINED HELD THAT NO ADDITION CAN BE MADE O F THE SAID AMOUNT. AS FAR AS CASH DEPOSITS OF RS. 15,65,000 IS CONCERNED, ASSESSEE EXPLAINED THAT SAID DEPOSITS WERE MADE OUT OF OPENING CASH BALANCE OF RS. 4,67,737, LOAN OF RS. 5,00,000 RECEI VED IN CASH FROM MOTHER STM. LATABAI GUPTA AND THE BALANCE DEPOSITS WERE OUT OF WITHDRAWALS MADE EARLIER. LD. CIT(A) AFTER CONSIDER ING SUBMISSIONS OF ASSESSEE ACCEPTED LOAN RECEIVED FROM MOTHER AMOUNTI NG TO RS. 5,00,000 FOR THE REASON THAT NOT ONLY SMT. LATABAI GUPTA HAS CONFIRMED OF HAVING GIVEN THE LOAN BUT THE AO HIMSE LF HAS INITIATED PENALTY PROCEEDING U/S 271D OF THE ACT AGAINST ASSE SSEE FOR HAVING ACCEPTED THE LOAN IN CASH. AS FAR AS ASSESSEES CLA IM OF DEPOSITS MADE OUT OF OPENING CASH BALANCE OF RS. 4,67,737, L D. CIT(A) OBSERVED, ASSESSEE DID NOT INDICATE DETAILS OF TRAN SACTION WISE AND THE CIRCUMSTANCES UNDER WHICH CASH IN HAND WAS DEPO SITED INTO THE BANK ACCOUNT AND WITHDRAWAL WAS MADE. ON FURTHER EX AMINATION OF ICICI BANK ACCOUNT, LD. CIT(A) FOUND CASH DEPOSITS MADE WERE SUBSEQUENTLY USED FOR SPECIFIC PURPOSES AND THERE A RE ONLY TWO INSTANCES OF CASH WITHDRAWALS VIZ., RS. 1,00,000 ON 21/11/2009 AND RS. 1,85,000 ON 24/03/2010 DURING THE YEAR. LD. CIT (A) OBSERVED, CASH DEPOSIT OF RS. 1,00,000 ON 17/12/2009 CAN AT B EST BE EXPLAINED TO HAVE BEEN MADE OUT OF CASH WITHDRAWAL ON 21/11/2 009. ACCORDINGLY, LD. CIT(A) HELD THAT ASSESSEE COULD NO T PROPERLY EXPLAIN SOURCE OF BALANCE CASH DEPOSIT OF RS. 9,65,000. LD. CIT(A) OBSERVED, ASSESSEES CLAIM OF OPENING CASH BALANCE OF RS. 4,6 7,737 AVAILABLE FOR DEPOSIT IS NOT ACCEPTABLE AS IT WAS NOT SHOWN I N THE ORIGINAL BALANCE SHEET. HE OBSERVED, EVEN ASSUMING ASSESSEE S CLAIM TO BE CORRECT THE OPENING CASH BALANCE IS NOT SUFFICIENT TO COVER ENTIRE CASH DEPOSITS. LD. CIT(A) OBSERVED, CASH AMOUNTING TO RS . 6,75,000 WAS DEPOSITED BY 06/11/2009, PRIOR TO ANY CASH WITHDRAW AL. ON THE AFORESAID REASONING LD. CIT(A) SUSTAINED ADDITION T O THE EXTENT OF RS. 9,65,000. 4 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL 5. LD. AR SUBMITTED, CIT(A) ERRED IN HOLDING THAT O PENING CASH BALANCE WAS INTRODUCED ONLY IN THE REVISED BALANCE SHEET. IT WAS SUBMITTED, EVEN IN THE BALANCE SHEET AS AT 31/03/20 09 FILED ALONG WITH THE RETURN OF INCOME CLOSING CASH BALANCE OF RS. 4, 67,737 WAS SHOWN. SIMILARLY, CLOSING BALANCE IN THE CAPITAL ACCOUNT O F RS. 7,70,654 AS ON 31/03/2009 WAS SHOWN AS OPENING BALANCE IN THE CAPI TAL ACCOUNT AS APPEARING IN THE ORIGINAL BALANCE SHEET AS ON 31/03 /2010 FILED ALONG WITH RETURN OF INCOME. IN THE REVISED BALANCE SHEET ONLY CHANGE MADE WAS BY ADDING THE BALANCE IN ICICI BANK IN THE CAPI TAL ACCOUNT. IT WAS SUBMITTED, BEFORE THE AO ASSESSEE HAS SUBMITTED CAS H BOOK INCORPORATING ALL CASH TRANSACTIONS INCLUDING THE C ASH DEPOSITS IN ICICI BANK. AS PER THE SAID CASH BOOK ALSO ASSESSEE WAS HAVING SUFFICIENT CASH BALANCE TO MAKE THE DEPOSITS IN THE BANK ACCOUNT. LD. AR SUBMITTED, CIT(A) ALSO ERRED IN OBSERVING THAT A SSESSEE HAS MADE ONLY TWO CASH WITHDRAWALS OF RS. 1,00,000 AND RS. 1 ,85,000 ON 21/11/2009 AND 24/03/2010 RESPECTIVELY. WHEREAS, AS SESSEE HAS ALSO MADE CASH WITHDRAWALS OF RS. 1,00,000ON 07/07/2009, RS. 75,000 ON 02/09/2009 AND RS. 2,00,000 ON 22/09/2009. THEREFOR E, WHEN ASSESSEE WAS HAVING SUFFICIENT CASH AVAILABLE, THE DEPOSITS MADE INTO THE BANK ACCOUNT FROM SUCH CASH AVAILABLE CANNOT BE DISBELIEVED. HOWEVER, LD. AR SUBMITTED WHILE WORKING OUT THE CAS H BOOK, CASH WITHDRAWAL OF RS. 1,85,000 FROM ICICI BANK WAS WRON GLY TAKEN AS ON 26/01/2010 INSTEAD OF 24/03/2010. IT WAS SUBMITTED, ON CONSIDERING CASH WITHDRAWAL OF RS. 1,85,000 ON 24/03/2010 CASH BOOK SHOWS PEAK NEGATIVE CASH BALANCE OF RS. 1,45,863 ON 26/01 /2010 WHICH ALONE CAN BE CONSIDERED FOR ADDITION U/S 69 OF THE ACT. 6. LD. DR SUBMITTED, ADMITTEDLY ASSESSEE ORIGINALLY DID NOT DISCLOSE THE CREDITS IN THE ICICI BANK ACCOUNT. ONL Y AFTER AO OBTAINED INFORMATION RELATING TO THE UNDISCLOSED BANK ACCOUN T, ASSESSEE TRIED TO EXPLAIN THE SOURCE OF DEPOSITS BY FILING REVISED BALANCE SHEET ETC. HOWEVER, SUCH ATTEMPT ON THE PART OF ASSESSEE ONLY TO EXPLAIN THE SOURCE OF DEPOSITS WITH SUPPORTING EVIDENCE CANNOT BE ACCEPTED. 5 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL HENCE, CONTENTION OF ASSESSEE THAT ADDITION OF ONLY RS. 1,45,863 SHOULD BE SUSTAINED, SHOULD NOT BE ACCEPTED. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE ORDERS OF REVENUE AUTHORITIES AS WELL AS OTHER MATERIALS ON RECORD. IN THIS APPEAL, WE ARE CONCERNED WITH ADDITION OF R S. 9,65,000 SUSTAINED BY LD. CIT(A). THE SOURCE OF SUCH CASH DE POSITS HAVE BEEN EXPLAINED BY ASSESSEE TO HAVE ORIGINATED FROM OPENI NG CASH BALANCE OF RS. 4,67,737 AND CASH WITHDRAWALS MADE EARLIER. LD. CIT(A) HAS DISBELIEVED OPENING CASH BALANCE OF RS. 4,67,737 SO LELY FOR THE REASON THAT IT WAS INTRODUCED ONLY IN THE REVISED B ALANCE SHEET. HOWEVER, ON PERUSAL OF THE BALANCE SHEET AS ON 31/0 3/2009 AND THE ORIGINAL BALANCE SHEET AS ON 31/03/2010 FILED ALONG WITH RETURN OF INCOME, IT APPEARS, ASSESSEE HAS SHOWN OPENING CASH BALANCE OF RS. 4,67,737. TO SOME EXTENT, AO HAS ALSO ACCEPTED THIS FACT. THEREFORE, ASSESSEES CLAIM OF AVAILABILITY OF OPENING CASH BA LANCE CANNOT BE DISBELIEVED. THAT BEING THE CASE, IT IS NECESSARY T O EXAMINE WHETHER ASSESSEE COULD HAVE UTILIZED THE CASH IN HAND AVAIL ABLE FOR MAKING DEPOSITS INTO THE BANK ACCOUNT. ON PERUSAL OF THE B ANK STATEMENT, A COPY OF WHICH IS AT PAGE 21 OF PAPER BOOK, FOLLOWIN G CASH DEPOSITS WERE FOUND TO HAVE BEEN MADE BY ASSESSEE: 06/04/2009 BY CASH - RS. 1,00,000.00 22/05/2009 - BY CASH - RS. 1,65,000.00 11/06/2009 - BY CASH - RS. 3,00,000.00 AS CAN BE SEEN, ASSESSEE HAS MADE CASH DEPOSITS OF RS. 5,65,000 TILL 11/06/2009. THEREFORE, IT WOULD BE REASONABLE TO IN FER A PART OF SUCH CASH DEPOSITS COULD HAVE BEEN MET OUT OF THE OPENIN G CASH BALANCE AVAILABLE WITH ASSESSEE AS ON 01/04/2009. THEREFORE , DEPOSITS TO THE EXTENT OF RS. 4,67,737 CAN BE SAID TO BE FROM EXPLA INABLE SOURCE. SIMILARLY, CASH DEPOSITS MADE ON 06/10/2009, OF RS. 2,00,000 AND ON 06/11/2009 OF RS. 75,000 AND RS. 1,00,000 CAN REASO NABLY BE LINKED TO CASH WITHDRAWALS MADE ON 07/07/2009 OF RS. 1,00, 000, ON 02/09/2009 OF RS. 75,000 AND ON 22/09/2009 OF RS. 2 ,00,000. 6 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL AFORESAID CASH WITHDRAWALS HAVE BEEN COMPLETELY OVE RLOOKED BY LD. CIT(A). IN THE AFORESAID CIRCUMSTANCES, ASSESSEES CONTENTION THAT PEAK NEGATIVE CASH BALANCE OF RS. 1,45,863 AS ON 26 /01/2010 CAN ALONE BE CONSIDERED FOR ADDITION U/S 69 IS ACCEPTAB LE. ACCORDINGLY, WE CONFIRM THE ADDITION OF RS. 1,45,863 OUT OF ADDITIO N OF RS. 9,65,000 SUSTAINED BY LD. CIT(A) U/S 69 OF THE ACT. 8. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED. ITA NO. 1101/H/2013 9. THE DEPARTMENT HAS PREFERRED THIS APPEAL BEING A GGRIEVED OF THE DECISION OF LD. CIT(A) IN DELETING THE FOLLOWIN G ADDITIONS: 1. AMOUNTS RECEIVED THROUGH CHEQUE/RTGS RS. 18,88,0 50 2. CASH LOAN RECEIVED FROM M/S LATABAI GUPTA RS. 5 ,00,000 3. DEPOSITS FROM WITHDRAWAL MADE EARLIER RS. 1,00 ,000 10. AS DISCUSSED EARLIER IN ITA NO. 1021/H/13, DURI NG THE ASSESSMENT PROCEEDING AO FOUND THAT ASSESSEE HAS NO T ACCOUNTED FOR THE TRANSACTIONS APPEARING IN THE SAVINGS ACCOU NT WITH ICICI BANK. ON VERIFICATION OF THE ACCOUNT STATEMENT OBTAINED F ROM CONCERNED BANK, TOTAL DEPOSITS MADE DURING THE YEAR BY THE AS SESSEE WAS FOUND TO BE RS. 34,54,028. AO ALLEGING THAT ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF SUCH DEPOSITS TREATED THE ENTIRE DEPO SIT OF RS. 34,54,028 AS UNEXPLAINED INVESTMENT OF ASSESSEE U/S 69 OF THE ACT. 11. DURING THE APPEAL PROCEEDING, LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND EXAMINING EVIDENCES ON RECORD FOUND THAT AN AMOUNT OF RS. 18,88,050 WAS RECEIVED THROUG H CHEQUE/RTGS FROM FAMILY MEMBERS WHO ALSO CONFIRMED OF HAVING AD VANCED THE AMOUNT. LD. CIT(A), THEREFORE, DELETED THE ADDITION OF RS. 18,88,050 AS SOURCE OF SUCH DEPOSIT STOOD EXPLAINED. SIMILARL Y, ASSESSEES CLAIM THAT CASH DEPOSITS OF RS. 5 LAKHS WAS MADE OU T OF CASH LOAN OF THE SAME AMOUNT RECEIVED FROM MRS. LATABAI GUPTA WA S ACCEPTED BY LD. CIT(A) CONSIDERING THE FACT THAT AO HAS INITIAT ED PENALTY PROCEEDING U/S 271D AGAINST ASSESSEE FOR HAVING REC EIVED LOAN IN 7 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL CASH. CASH DEPOSITS TO THE EXTENT OF RS. 1 LAKH WAS ALSO ACCEPTED BY LD. CIT(A) ON THE BASIS THAT THERE WAS CASH WITHDRA WAL OF THE SAME AMOUNT JUST PRIOR TO THE DEPOSIT INTO BANK ACCOUNT. 12. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIALS ON RECORD. AS FAR AS THE AMOUNT OF RS . 18,88,050 IS CONCERNED, IT IS ESTABLISHED ON RECORD THAT THE SAI D AMOUNT WAS RECEIVED FROM SIX DIFFERENT PERSONS THROUGH CHEQUE/ RTGS, DETAILS OF WHICH ARE AS UNDER: 1. ANAND AGARWAL 06/04/2009 26/01/2010 RTGS CHEQUE 1,00,000 50,000 2. KAMAL KUMAR 23/05/2009 15/09/2009 RTGS RTGS 1,00,000 4,00,000 3. RAJENDRA KUMAR AGARWAL 23/05/2009 RTGS 2,00,000 4. NAGABHUSHANA M NAIDU 24/10/2009 CHEQUE 3,88,050 5. NARESH KUMAR BANSAL 13/11/2009 CHEQUE 6,00,000 6. LATABAI GUPTA 29/01/2010 RTGS 50,000 TOTAL 18,88,050 IT IS ALSO EVIDENT FROM RECORD, NOT ONLY THE AFORES AID PERSONS HAVE CONFIRMED OF HAVING ADVANCED THE MONEY TO ASSESSEE BUT ALL OF THEM ARE ALSO INCOME TAX ASSESSEES. IN THE AFORESAID FAC TS AND CIRCUMSTANCES WHEN THE SOURCE OF DEPOSITS TO THE TU NE OF RS. 18,88,050 STOOD EXPLAINED THERE IS NO JUSTIFICATION IN TREATING IT AS UNEXPLAINED INVESTMENT OF ASSESSEE. IN SO FAR AS DE POSITS OF RS. 5 LAKHS CLAIMED TO HAVE BEEN MADE OUT OF CASH LOAN OF RS. 5 LAKHS RECEIVED FROM SMT. LATABAI GUPTA IS CONCERNED, IT I S A FACT ON RECORD, AO NOT ONLY INITIATED BUT ALSO IMPOSED PENALTY U/S 271D OF THE ACT AGAINST ASSESSEE FOR HAVING RECEIVED LOAN IN CASH I N VIOLATION OF SECTION 269SS OF THE ACT. THIS ACTION ON THE PART O F AO IS SUGGESTIVE OF THE FACT THAT HE HAS ACCEPTED THE CASH LOAN TO B E GENUINE. THAT BEING THE CASE, LD. CIT(A) WAS JUSTIFIED IN DELETIN G THE ADDITION TO THE EXTENT OF RS. 5,00,000. SIMILARLY, IT IS EVIDENT FR OM THE BANK STATEMENT THAT ASSESSEE HAS MADE CASH WITHDRAWAL OF RS. 1,00, 000 ON 8 ITA NOS. 1021 & 1101/HYD/2013 LOKESH AGARWAL 21/11/2009, WHEREAS ASSESSEE MADE CASH DEPOSITS OF RS. 1,00,000 ON 17/12/2009. THEREFORE, IT IS REASONABLE ON THE P ART OF LD. CIT(A) TO CONCLUDE THAT, CASH WITHDRAWAL MADE EARLIER WAS UTI LIZED FOR MAKING THE DEPOSIT. IN THE AFORESAID FACTS AND CIRCUMSTANC ES WE DO NOT FIND ANY INFIRMITY IN ORDER OF LD. CIT(A) IN DELETING TH E ADDITIONS MADE AS INDICATED HEREINABOVE. ACCORDINGLY, THERE BEING NO MERIT IN THE GROUNDS RAISED BY THE DEPARTMENT, THEY ARE DISMISSE D. 13. IN THE RESULT, THIS APPEAL IS DISMISSED. 14. TO SUM UP ASSESSEES APPEAL IN ITA NO. 1021/HYD /2013 IS PARTLY ALLOWED AND DEPARTMENTS APPEAL IN ITA NO. 1 101/HYD/2013 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 10/12/2014. SD/- SD/- (B. RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JU DICIAL MEMBER HYDERABAD, DATED: 10 TH DECEMBER, 2014 KV COPY TO:- 1) LOKESH AGARWAL, C/O RAJENDER PERSHAD TEJPRAKASH , 22-6-85, MACHILIKAMAN, HYDERABAD. 2) ITO, WARD 7(4), HYDERABAD 3) CIT(A)-VI, HYDERABAD 4) CIT-VI, HYDERABAD 5)THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDER ABAD.