Appeal Details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 8403 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 2 month(s) 2 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
17-07-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2011-2012
Appeal Filed On
15-05-2017
Judgement Text
- , - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO.1202/AHD/2017 / ASSTT. YEAR: 2011-12 SHRI RAYJIBHAI RAMANBHAI SOLANKI AT & POST CHANSAD, TALUKA-PADRA VADODARA 391 440. PAN : EOPKS 3585 A VS. ITO, WARD-1(3)(2) AHMEDABAD. ( APPLICANT ) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS.APOORVA BHARADWAJ, SR.DR ! '#$ % &' / DATE OF HEARING : 12/07/2019 ()* % &' / DATE OF PRONOUNCEMENT: 17 /07/2019 ,- / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A) DATED 16.2.2017 PASSED FOR THE ASSTT.YEAR 2011-12. 2. IN RESPONSE TO THE NOTICE OF HEARING, SHRI CHHAJ ED, CA APPEARED BEFORE THE TRIBUNAL. HOWEVER, HEARING WAS ADJOURNED ON HIS REQUEST. THEREAFTER, SHRI CHHAJED PLEADED T HAT HE HAS NO INSTRUCTION FROM THE ASSESSEE. A FRESH NOTICE WAS ISSUED TO THE ASSESSEE, WHICH HAS BEEN DULY SERVED, BUT NONE HAS COME PRESENT ITA NO.1202/AHD/2017 2 ON BEHALF OF THE ASSESSEE. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE THROUGH THE RECORD. 3. GROUND NO.1 OF THE APPEAL IS GENERAL, WHICH DOES NOT REQUIRE RECORDING ANY ADJUDICATION. 4. IN THE SECOND GROUND OF APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN UPHOLDI NG RE-OPENING OF THE ASSESSMENT. 5. BRIEF FACTS OF THE CASE ARE THAT THE AO HAD RECEI VED AN INFORMATION THAT THE ASSESSEE HAS DEPOSITED A SUM O F RS.1,04,00,000/- IN HIS BANK ACCOUNT. ON THE BASIS OF INFORMATION, HE REOPENED THE ASSESSMENT. THE ASSES SEE DID NOT APPEAR BEFORE THE AO AND HENCE AN EX PARTE ASSESSMENT ORDER WAS PASSED. HE DETERMINED TAXABLE INCOME AT RS.1,0 4,00,000/- BY AN ASSESSMENT ORDER DATED 11.3.2015 UNDER SECTIO NS 144/147 OF THE INCOME TAX ACT. ON APPEAL, THE LD.CIT(A) HA S UPHELD THE REOPENING BY OBSERVING AS UNDER: 6.3 I HAVE CONSIDERED THE FACTS AND THE CIRCUMSTA NCES OF THE CASE, THE OBSERVATIONS OF THE ASSESSING OFFICER , THE SUBMISSIONS OF THE ASSESSEE, MATERIAL AVAILABLE ON THE RECORDS AND RELEVANT JUDICIAL PRONOUNCEMENTS ON THE SUBJECT. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD NOT FILE D HIS RETURN OF INCOME. IT IS ALSO NOT IN DISPUTE THAT THE ASSES SEE HAD DEPOSITED CASH OF RS. 1,04,00,000/- IN HIS ' SAVING S BANK ACCOUNT NO. 086910025010 WITH DENA BANK, SUBHANPURA, BARODA. SINCE THE ASSESSEE HAD NOT FILED THE REQUIRE D RETURN OF INCOME AND SINCE THE ASSESSING OFFICER HAD REASO N TO BELIEVE THAT INCOME WITHIN THE MEANING OF SECTION 1 47 HAD ESCAPED ASSESSMENT, THE AASSESSING OFFICER WAS PERF ECTLY JUSTIFIED IN REOPENING THE ASSESSMENT BY ISSUE OF N OTICE U/S 148 OF THE ACT. EXPLANATION 2(A) TO SECTION 147 REA DS AS UNDER- ITA NO.1202/AHD/2017 3 'EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, T HE FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY: (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISH ED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TO TAL INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE I S ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME-TAX;...' 6.4 HON'BLE BOMBAY HIGH COURT HAS, IN THE CASE OF IN GRAM MICRO (INDIA) EXPORTS (P.) LTD. VS DCIT [2017] 78 TAXMANN.COM 140 (BOMBAY), HELD THAT FOR EXPLANATION 2(A) TO SECTION 147 TO APPLY, THERE MUST BE (I) NON-FILI NG OF RETURN OF INCOME AND (II) SATISFACTION OF ASSESSING OFFICE R THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. IN THE PRESENT CASE, BOTH THE INGREDIENTS TO INVOKE EXPLAN ATION 2(A) ARE AVAILABLE. IN VIEW OF THE ABOVE DISCUSSION AND KEEPING IN VIEW THE DECISION OF HON'BLE BOMBAY HIGH COURT HAS, IN THE CASE OF INGRAM MICRO (INDIA) EXPORTS (P.) LTD. (SUP RA), THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE CA SE BY ISSUE OF NOTICE U/S 148, DATED 06.02.2014 IS UPHELD. THE ASSESSEE FAILS ON THIS GROUND OF APPEAL. 6. THE ASSESSEE HAS NOT FILED RETURN OF INCOME. H E DEPOSITED A SUM OF RS.1,04,00,000/- IN THE SAVING BANK ACCOUNT W ITH DENA BANK. NO DOUBT MONEY DEPOSITED IN THE BANK ACCOUNT CANNOT BE PER SE ESCAPED INCOME. IT CAN BE FROM THE EXPLAINED SOUR CE OF INCOME. BUT IN THE PRESENT CASE, THE ASSESSEE HAS N OT FILED RETURN OF INCOME, THEREFORE, THERE IS NO MECHANISM WITH TH E AO TO VERIFY WHETHER IT IS AN ESCAPED INCOME OR DEPOSITS FROM EX PLAINED SOURCE OF INCOME. IN THE ABOVE FACTS AND CIRCUMSTANCES, A ND AFTER GOING THROUGH THE FINDING OF THE LD.CIT(A) WE DO NOT FIND ANY ERROR IN REOPENING THE ASSESSMENT. THIS GROUND OF APPEAL IS REJECTED. ITA NO.1202/AHD/2017 4 7. IN GROUND NO.3, THE ASSESSEE HAS PLEADED THAT TH E LD.CIT(A) HAS ERRED IN UPHOLDING THE ORDER OF THE LD.AO PASSE D UNDER SECTION 144 OF THE ACT. 8. BEFORE US, THE ASSESSEE HAS NOT DEMONSTRATED AS T O HOW HE REMAINED ABSENT BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, THE LD.CIT(A) HAS RIGHTLY UPHOLD THE ASSESSMENT ORDER PASSED EX PARTE. 9. IN GROUND NO.4, THE ASSESSEE HAS PLEADED THAT TH E LD.CIT(A) HAS ERRED IN UPHOLDING THE ADDITION TO THE EXTENT O F RS.57,01,000/-. 10. AS OBSERVED EARLIER, THE ASSESSEE HAS MADE DEPO SIT OF RS,1,04,00,000/- IN HIS SAVING BANK ACCOUNT WITH DE NA BANK. HE DID NOT APPEAR BEFORE THE AO FOR EXPLAINING THE SOU RCE OF SUCH DEPOSITS. SOME EXPLANATION WAS GIVEN BEFORE THE L D.CIT(A) BY WAY OF WRITTEN SUBMISSIONS WHICH HAS BEEN CONSIDERE D BY THE LD.CIT(A). THE LD.CIT(A) THEREAFTER CONFIRMED THE ADDITION PARTLY BY RECORDING THE FOLLOWING FINDING: I HAVE CONSIDERED THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE OBSERVATIONS OF THE ASSESSING OFFICER, TH E SUBMISSIONS OF THE ASSESSEE, MATERIAL AVAILABLE ON THE RECORDS AND RELEVANT JUDICIAL PRONOUNCEMENTS ON THE SUBJECT. THE ASSESSEE HAD PRODUCED CERTAIN ADDITIONAL EVIDEN CE IN THE FORM OF AFFIDAVIT FROM SHRI JAYANTIBHAI HARMANBHAI PATEL, REGARDING CASH RECEIPT OF RS. 38,00,000/- BY THE AS SESSEE AND HIS BANK STATEMENT. THE ASSESSEE HAS NOT SUBMIT TED ANY APPLICATION TO ACCEPT THE ADDITIONAL EVIDENCE UNDER RULE 46A OF INCOME-TAX RULES. HE HAS ALSO NOT SPECIFIED THE CONDITIONS FULFILLED UNDER RULE 46A OF INCOME-TAX RULES, WHICH WERE FULFILLED BY HIM, TO ENABLE ME TO ACCEPT THE ADDITI ONAL EVIDENCE. RULE 46A PRESCRIBES CERTAIN CONDITIONS, W HICH SHOULD BE FULFILLED BEFORE ADMITTING ANY ADDITIONAL EVIDENCE ITA NO.1202/AHD/2017 5 BY THE APPELLATE AUTHORITIES, VIZ. WHERE THE ASSESS ING OFFICER HAD REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE B EEN ADMITTED, WHERE THE APPELLANT WAS PREVENTED BY SUFF ICIENT CAUSE TO PRODUCE ANY EVIDENCE BEFORE THE ASSESSING OFFICER, WHICH HE WAS CALLED UPON TO PRODUCE OR WAS RELEVANT TO ANY GROUND OF APPEAL OR THE ASSESSEE WAS NOT AFFORDED S UFFICIENT OPPORTUNITY TO ADDUCE EVIDENCE RELEVANT TO ANY GROU ND OF APPEAL. A CAREFUL PERUSAL OF THE CASE REVEALS THAT NONE OF THE ABOVE CONDITIONS ARE FULFILLED BY THE ASSESSEE. IT IS A MATTER OF RECORD THAT THE ASSESSING OFFICER NEVER REFUSED TO ADMIT EVIDENCE- IN FACT EVIDENCE WAS NEVER PRODUCED BEFOR E HIM. THE ASSESSING OFFICER HAS NOTED IN THE ASSESSMENT O RDER THAT THE ASSESSEE REFUSED TO APPEAR FOR THE HEARINGS, EV EN THOUGH HE HAD TIME AVAILABLE FROM 06.02.2014 (THE D ATE OF ISSUE OF NOTICE U/S 148 OF THE ACT) TO 11.03.2015 ( THE DATE OF ASSESSMENT ORDER U/S 144 OF THE ACT). THE ASSESSEE HAD SUFFICIENT TIME TO OBTAIN AND FURNISH THE SAID AFFI DAVIT OR OTHER MATERIAL BEFORE THE ASSESSING OFFICER DURING THIS PERIOD, WHICH WAS NOT DONE. IN VIEW OF THIS, THE AS SESSEE HAS NOT BEEN ABLE TO ESTABLISH THAT IT WAS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE ANY EVIDENCE BEFORE THE ASSESSING OFFICER, WHICH HE WAS CALLED UPON TO PRODUCE OR WAS RELEVANT TO ANY GROUND OF APPEAL. 7.4 HON'BLE GUJARAT HIGH COURT IN THE CASE OF FA IRDEAL FILAMENTS LTD. VS CIT [2008] 302 ITR 173 (GUJ.), HA S HELD THAT, ' SO FAR AS ADMITTING ADDITIONAL EVIDENCE UND ER RULE 29 OF THE INCOME-TAX APPELLATE TRIBUNAL RULES WAS CONC ERNED, THE TRIBUNAL HAD COME TO THE CONCLUSION THAT THE BE NEFIT UNDER THE SAID RULE WAS NOT AVAILABLE TO A PERSON W HO WAS NEGLIGENT, NON-COOPERATIVE AND RECALCITRANT: AND TH E TRIBUNAL WAS NOT REQUIRED TO GIVE ANOTHER CHANCE OR OPPORTUN ITY TO A PERSON TO COVER UP ITS OWN LAPSES. APPLYING THE TES TS MENTIONED ABOVE TO THE FACTS OF THE CASE, IT WAS TO BE HELD THAT THE TRIBUNAL HAD APPROACHED THE MATTER CORRECT LY....' 7.5 HON'BLE I TAT, CHANDIGARH, IN THE CASE OF RI SHI SAGAR VS C1T [2013] 36 TAXMANN.COM 508 (CHANDIGARH-TRIB.) HELD THAT WHERE ASSESSEE HAD FAILED TO PRODUCE DOCUMENTS DURING ASSESSMENT AND FAILED TO ESTABLISH REASONABLE CAUSE THEREFOR AND, FURTHER, DID NOT COMPLY WITH NOTICES OF ASSESS ING OFFICER, ADDITIONAL EVIDENCE COULD NOT BE ACCEPTED IN APPEAL. IN VIEW OF THE ABOVE DISCUSSION, THE ASSESSEE HAS F AILED TO SATISFY ME THAT HE FULFILLS ANY OF THE PRECONDITION S PRESCRIBED ITA NO.1202/AHD/2017 6 IN RULE 46A OF IT.RULES FOR ADMISSION OF ADDITIONAL EVIDENCE. THEREFORE, ADDITIONAL EVIDENCE IN THE FORM OF AFFID AVIT OF SHRI JAYANTIBHAI HARMANBHAI PATEL AND HIS BANK STATEMENT , IS REJECTED. 7.6 THE ASSESSEE HAS SUBMITTED THAT OUT OF THE T OTAL CASH DEPOSIT OF RS. 1,04,00,000/-, ADDITION OF RS. 2,00, 000/- ON ACCOUNT OF CASH DEPOSIT ON 02.12.2010 WAS NOT CORRE CTS, AS THE ENTRY WAS WRONGLY MADE AND THE SAME WAS REVERSE D ON THE SAME DAY. THIS STATEMENT IS FOUND TO BE FACTUAL LY CORRECT FROM THE VERIFICATION OF THE BANK STATEMENT OF THE RELEVANT ACCOUNT AND THE CORRESPONDING ADDITION OF RS. 2,00, 000/- IS DIRECTED TO BE DELETED. 7.7 THE ASSESSEE HAS ALSO CLAIMED THAT HE HAD AD VANCED A SUM OF RS. 46,00,000/- THROUGH BANKING CHANNELS TO ONE SHRI JAYANTILAL HARMANBHAI PATEL, VIDE HIS SUBMISSI ON DATED NIL, RECEIVED IN THIS OFFICE ON 08.02.2017. HE HAS ALSO SUBMITTED THAT THE SAME WAS RECEIVED BACK FROM THE SAID SHRI JAYANTILAL HARMANBHAI PATEL IN CASH ON VARIOUS DATES, WHICH WAS RE-DEPODITED IN ASSESSEE'S BANK ACCOUNT O N VARIOUS DATES. IN SUPPORT OF HIS SUBMISSIONS, THE A SSESSEE HAS SUBMITTED AN AFFIDAVIT DATED 06.02.2017 FROM SH RI JAYANTILAL HARMANBHAI PATEL, STATING THAT HE HAD RE CEIVED A SUM OF RS. 38,00,000/- FROM THE ASSESSEE THROUGH CH EQUE ON 27.10.2010 (THE ASSESSEE HAD CLAIMED THAT HE HAD ADVANCED A SUM OF RS. 46,00,000/- TO SHRI JAYANTILA L HARMANBHAI PATEL) AND HAD REPAID HIM IN CASH. AS DI SCUSSED IN PARA 7.3 TO 7.6 ABOVE, THE ADDITIONAL EVIDENCE I N THE FORM OF SHRI JAYANTILAL HARMANBHAI PATEL'S AFFIDAVIT DAT ED 06.02.2017 WAS REJECTED, BEING IN VIOLATION OF RULE 46A OF THE INCOME-TAX RULES. IT IS NOT DENIED THAT THE ASS ESSEE HAD ADVANCED A SUM OF RS. 38,00,000/- TO SHRI JAYANTILA L HARMANBHAI PATEL THROUGH BANKING CHANNELS, BUT IT I S NOT EXPLAINED WHY SHRI JAYANTILAL HARMANBHAI PATEL CHOS E TO RETURN BACK THE SUM TO THE ASSESSEE IN CASH IN VIOL ATION OF THE PROVISIONS OF SECTION 269T OF THE ACT, IF ASSES SEE'S VERSION IS BELIEVED, EVEN THOUGH, THE AMOUNT WAS AD VANCED USING BANKING CHANNELS AND BOTH THE PARTIES HAD AN ACTIVE BANK ACCOUNT DURING THE PERIOD, THROUGH WHICH DAILY TRANSACTIONS IN LAKHS OF RUPEES WERE BEING CARRIED OUT. FURTHER, THE ASSESSEE HAS FAILED TO FURNISH EVIDENC E TO EXPLAIN AS TO HOW VARIOUS CHEQUES ISSUED IN THE NAM E OF VARIOUS OTHER PERSONS LIKE JETHABHAI, ARUN, D.J.PAT EL ETC. ARE ITA NO.1202/AHD/2017 7 CLAIMED TO BE CASH WITHDRAWALS BY THE ASSESSEE. THE RE IS NO EVIDENCE ON RECORD TO ESTABLISH THAT THESE PERSONS WITHDREW SUMS IN CASH ON BEHALF OF THE ASSESSEE. THE ASSESSE E HAS FURTHER FAILED TO ESTABLISH CREDITWORTHINESS OF SHR I JAYANTILAL HARMANBHAI PATEL. EVEN THE GENUINENESS OF THE CLAIM ED CASH TRANSACTIONS WITH SHRI JAYANTILAL HARMANBHAI PATEL IS NOT ESTABLISHED BY THE ASSESSEE. IN THE CIRCUMSTANCES, THE GIFT DEEDS APPEAR TO BE AN AFTERTHOUGHT AND THEIR GENUIN ENESS IS DOUBTFUL AND THE SAME ARE UNTRUSTWORTHY. FROM THE SURROUNDING CIRCUMSTANCES OF THIS CASE, IT IS CLEAR THAT THE SAID FOUR GIFT DEEDS BY BOTH THE PARENTS OF THE ASS ESSEE ARE AN AFTER-THOUGHT AND NO CREDENCE COULD BE GIVEN TO THE SAME. IN CIT VS DURGA PRASAD MORE, 82 ITR 540 [SC], HON'BLE SUPREME COURT HAS HELD THAT WHERE A PARTY R ELIES ON SELF-SERVING RECITALS IN A DOCUMENT, IT IS FOR THAT PARTY TO ESTABLISH THE TRUTH OF THESE RECITALS. HON'BLE COUR T FURTHER HELD THAT THE TAX AUTHORITIES ARE ENTITLED TO LOOK IN TO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY O F SUCH RECITALS. CONSIDERING THE ABOVE DISCUSSION, ASSESSE E'S EXPLANATION REGARDING AVAILABILITY OF RS. 38,00,000 /- IN CASH AS REPAYMENT OF LOAN FROM SHRI JAYANTILAL HARMANBHA I PATEL IS REJECTED AND ADDITION ON THIS ACCOUNT IS UPHELD. 7.8 THE ASSESSEE HAS FURTHER SUBMITTED THAT THE BALANCE CASH DEPOSITS IN HIS BANK ACCOUNT WERE SOURCED FROM HIS WITHDRAWALS. HOWEVER, IT IS NOTED THAT THE CASH OF RS. 1,02,00,000/- WAS DEPOSITED IN ASSESSEE'S ACCOUNT O N 02.12.02010 AND BEFORE THAT, HE HAD CASH WITHDRAWAL S OF RS. 41,99,000/- ON 16.10.2010 AND RS. 3,00,000/-ON 19.10.2010. THEREFORE, TOTAL CASH WITHDRAWALS AVAIL ABLE WITH THE ASSESSEE WERE RS. 44,99,000/-, WHICH COULD HAVE BEEN USED TO REDEPOSIT CASH IN HIS BANK ACCOUNT. AVAILAB ILITY OF CASH ON ACCOUNT OF WITHDRAWALS BY THE ASSESSEE CANN OT BE DISPUTED, AS THE SAME ARE WITHDRAWN FROM THE BANK. HON'BLE ITAT, AHMEDABAD IN SORI NANDAKUMAR SODHAN VS. ITO I N ITA NO. 2075/AHD/2012, HELD THAT THE ENTRIES IN THE BAN K SHOULD NOT BE DOUBTED. THOSE ENTRIES IN THE BANKS WERE IN THE NATURE OF DEPOSITS AND WITHDRAWALS, WHICH WERE INCO RPORATED IN THE CASH FLOW STATEMENTS. THE TRIBUNAL HELD THAT IF THE REVENUE DEPARTMENT HAS NOT ESTABLISHED THAT THE CAS H AVAILABLE WITH THE ASSESSEE WAS NOT UTILIZED ELSEWH ERE, THEN ON THE BASIS OF PREPONDERANCE OF PROBABILITIES, IT CAN BE ASSUMED THAT THE VERY CASH AVAILABLE WITH THE ASSES SEE WAS RE-DEPOSITED IN THE BANK. HON'BLE ITAT, AHMEDABAD, IN THE ITA NO.1202/AHD/2017 8 CASE OF ITO VS MURLIDHAR ICE-CREAM & SWEET PARLOUR, ITA NO. 531/AHD/2012, HAS HELD THAT 'WHERE THERE ARE DEPOSI T AND WITHDRAWAL ENTRIES INTO THE BANK ACCOUNT, IT WOULD BE PRESUMED THAT THE AMOUNT WITHDRAWN WAS AVAILABLE WI TH THE ASSESSEE FOR DEPOSITING THE SAME. THEREFORE, IT CAN NOT BE CONCLUDED THAT THE ENTIRE DEPOSITS WERE FROM UNEXPL AINED SOURCE.' IN VIEW OF THIS, IT IS CLEAR THAT THE CASH WITHDRAWALS FROM THE BANK ACCOUNT CANNOT BE IGNORED, WHILE ASSE SSING UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. THE EVIDENCE OF WITHDRAWAL FROM THE BANK ACCOUNT HAS TO BE ACCEP TED AS GENUINE AND ONCE THE WITHDRAWAL IS ACCEPTED, IN VIE W OF THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS SHAILESH RASIKLAL MEHTA [2009] 176 TAXMAN 270 (GUJ), THERE WAS NO QUESTION TO TREAT DEPOSIT, TO THE EXTE NT OF WITHDRAWAL OF CASH, AS UNEXPLAINED. HON'BLE ITAT, AHMEDABAD HAS, IN THE CASE OF SHIVJI MANJI AMBA VS DCIT [1995] 51 TTJ 61 (AHD.), HELD THAT WHILE CONSIDERIN G UNEXPLAINED INVESTMENT, AVAILABILITY OF MONEY FROM BANK WITHDRAWALS CANNOT AND SHOULD NOT BE IGNORED. HON'B LE AHMEDABAD BENCH OF ITAT IN SORI NANDAKUMAR SODHAN V S. ITO IN ITA NO. 2075/AHD/2012, HAS HELD THAT THE ENT RIES IN THE BANK SHOULD NOT BE DOUBTED. THE COURT HELD THAT IF THE REVENUE DEPARTMENT HAS NOT ESTABLISHED THAT THE CAS H AVAILABLE WITH THE ASSESSEE WAS NOT UTILIZED ELSEWH ERE, THEN ON THE BASIS OF PREPONDERANCE OF PROBABILITIES, IT CAN BE ASSUMED THAT THE VERY CASH AVAILABLE WITH THE ASSES SEE WAS RE-DEPOSITED IN THE BANK. IN VIEW OF THIS, ASSESSEE 'S EXPLANATION REGARDING CASH DEPOSITS TO THE EXTENT O F AVAILABLE CASH ON ACCOUNT OF CASH WITHDRAWALS FROM BANK I.E. RS. 44,99,000/- IS ACCEPTED AND THE SAME IS TREATED AS EXPLAINED. 7.9 IN VIEW OF THE ABOVE DISCUSSION, CASH DEPOSI T TO THE EXTENT OF RS. 46,99,000/- (RS. 44,99,000/-, PARA 7. 8 PLUS RS. 2,00,0007-, PARA 7.6) IS TREATED AS EXPLAINED AND T HE BALANCE OF RS. 57,01,000/- IS TREATED AS UNEXPLAINE D. IT IS THE ASSESSEE WHO HAS SHOWN CREDITS BY WAY OF CASH D EPOSITS IN HIS BANK ACCOUNT AND THE ONUS IS ON HIM TO PROVE THE CREDITWORTHINESS OF THE CREDITORS AND ALSO ESTABLIS H THE GENUINENESS OF THE TRANSACTION. IN ROSAHN DI HUTTI VS CIT [1977] 107 ITR 938 (SC) AND KALE KHAN MOHAMMAD HANI F VS CIT [1963] 50 ITR 1 (SC), IT WAS HELD THAT THE ONUS OF PROVING THE SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN ITA NO.1202/AHD/2017 9 RECEIVED BY AN ASSESSEE IS ON HIM. WHERE THE NATURE AND SOURCE OF A RECEIPT, WHETHER IT BE OF MONEY OR OTHE R PROPERTY, CANNOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE IN COME OF THE ASSESSEE AND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THE INCOME IS FROM ANY PARTICULAR SOURCE. IN S UMATI DAYAL VS CIT [1995] 214 ITR 801 (SC), IT WAS HELD T HAT IF THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE NATUR E AND SOURCE OF THE CREDITS IN HIS BOOKS OF ACCOUNTS IS N OT SATISFACTORY, THE AMOUNT CAN BE TREATED AS INCOME O F THE ASSESSEE. IN C.KANT & CO. VS CIT [1980] 126 ITR 63 (CAL), IT WAS HELD THAT IN CASE OF CASH CREDIT ENTRY, IT IS N ECESSARY FOR THE ASSESSEE TO PROVE NOT ONLY THE IDENTITY OF THE CREDITOR BUT ALSO TO PROVE CAPACITY OF THE CREDITOR TO ADVAN CE THE MONEY AND GENUINENESS OF THE TRANSACTION. HON'BLE C ALCUTTA HIGH COURT, IN THE CASE OF S.K. BOTHRA & SONS, HUF VS ITO [2011] 203 TAXMAN 436 (KOL), IT WAS HELD THAT WHILE CONSIDERING WHETHER THE ALLEGED LOAN TAKEN BY THE A SSESSEE WAS GENUINE TRANSACTION, THE INITIAL ONUS IS ALWAYS ON THE ASSESSEE AND IF NO EXPLANATION IS GIVEN OR THE EXPL ANATION GIVEN BY THE ASSESSEE IS NOT SATISFACTORY, THE ASSE SSING OFFICER CAN DISBELIEVE THE ALLEGED TRANSACTION OF L OAN. 7.10 IN VIEW OF THE ABOVE DISCUSSION, IT IS CLEAR T HAT THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN OF PRIM ARY ONUS CAST ON HIM TO ESTABLISH CREDITWORTHINESS OF THE AL LEGED CREDITORS AND HAS ALSO FAILED TO PROVE THE GENUINEN ESS OF THE TRANSACTION IN RESPECT OF THE BALANCE CASH CREDITS OF RS. 57,01,000/- IN HIS BANK ACCOUNT. THEREFORE, THE CAS H DEPOSIT OF RS. 57,01,000/- IN HIS BANK ACCOUNT IS HELD TO B E UNEXPLAINED AND THE SAME IS UPHELD. THE BALANCE ADD ITION OF RS. 46,99,000/- IS TREATED AS EXPLAINED AND IS DIRE CTED TO BE DELETED. THE ASSESSEE PARTIALLY SUCCEEDS ON THIS GR OUND OF APPEAL. 11. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE THROUGH THE RECORD. THE ASSESSEE HAS NOT FILED ANY PAPER BOOK NOR SUBMITTED ANY DETAILS FOR DISPUTING THE ABOVE FINDING. THERE FORE, WE DO NOT HAVE ANY HESITATION IN CONCURRING WITH THE ORDER OF THE LD.CIT(A). THIS GROUND OF APPEAL IS REJECTED. ITA NO.1202/AHD/2017 10 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 17 TH JULY, 2019. SD/- SD/- (PRADIPKUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER
