Rabin Chandra Mondal, Purba Medinipur V. ITO, Ward - 27(2), Haldia, Haldia

ITA 1311/KOL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5186 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 28-01-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 02-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY J
• Keywords: Unexplained cash credit; Gift
• Section: 143(3); 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1311 / KOL / 2017 ASSESSMENT YEAR :2011-12 RABIN CHANDRA MONDAL PASCHIMCHAK, BAJKUL, PURBA MEDINIPUR,WEST BENGAL PINI-721626 [ PAN NO. AMUP 5427 H ] V/S . INCOME TAX OFFICER WARD-27(2), BASUDEVPUR, KHANJANCHAK, HALDIA- 721602 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT SHRI DHRUBAJYOTI ROY, JCIT-DR /DATE OF HEARING 28-01-2020 /DATE OF PRONOUNCEMENT 19-02-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 , ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATA S ORDER DATED 28.03.2017 PASSED IN CASE NO.588/CIT(A)-7/KOL/WD.-2 7(3)/14-15, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT AS THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE RAISED IN THE INSTANT APPEAL SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ACTION ADDING 45,99,123/- ALSO ALLEGED UNEXPLAINED CASH CREDITS ON ACCOUNT OF THE PROPRIETORS CAPITAL ACCOUNT. THE CIT(A)S DETAILED DISCUSSION AFFIRMING THE ASSESSING OFFICERS ACTION TO THIS EFFECT READS AS UNDER:- ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 2 6. GROUND NOS. 1 & 2: IN THESE TWO GROUNDS OF APPEA L, THE APPELLANT HAS DISPUTED THE ADDITION OF RS.45,99,123/-, WHICH WAS THE BROUGHT FORWARD PROJECTED CASH-IN-HAND SHOWN BY THE APPELLANT AS ON 01-04-2010 AS PER HIS BALANCE SHEET AS AT 31-03-2011 FILED BY THE APPELLA NT FOR THE ASSESSMENT YEAR 2011-12 . 6.1. THE AO, IN THE IMPUGNED ORDER PASSED U/S 143(3 ) OF THE ACT ON 30-03- 2014 IN THE CASE OF THE APPELLANT, STATED THE FOLLO WING FOR MAKING THE ADDITION OF RS. 45,99,123/-, WHICH HAD BEEN SHOWN BY THE APP ELLANT AS THE OPENING CASH IN HAND AS ON 01-04-2010 IN HIS CAPITAL ACCOUN T IN HIS PERSONAL BALANCE SHEET PREPARED FOR THE YEAR ENDED 31-03-2012 AND FI LED BEFORE THE AO IN COURSE OF THE ASSESSMENT PROCEEDING. 'FROM THE RETURN AND VARIOUS SUBMISSIONS MADE BY TH E ASSESSEE AND INFORMATION GATHERED ON RECORD DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ISSUES RELATING TO CLAIMS AS FOLLOWS A RE DISPUTED AND CONFRONTED FOR REASONS DISCUSSED AGAINST EACH. THE CASE WAS HEARD. (PARA-2) INVESTMENT FOUND TO HAVE BEEN MADE IN THE BALANCE SHEET OF RS.29,98,500/ - WHICH WERE REQUIRED TO BE EXPLAINED . (PARA-3) THE ASSESSEE TRIED TO EXPLAIN BY PRESENTIN G A PERSONAL BALANCE SHEET WITH PROJECTED CASH IN HAND OF RS.45, 99,123/- TO BE THE SOURCE OF INVESTMENT MADE IN M/S R M ENTERPRISE OF RS. 29,98,500/- . HE PROJECTED A SEPARATE BALANCE SHEET TO SHOW THIS CASH IN HAND. FROM THE MANNER OF SUBMISSION REASON TO SUSPECT TRANSPIR ES REGARDING THE GENUINENESS AND CREDIBILITY OF SUCH CASH-IN-HAND TO BE THE SOURCE. A SIMPLE ANALYSIS PROVES IT BEYOND DOUBT TO BE A FABR ICATED SUBMISSION TO BRING SOME SORT OF LEGITIMACY WITH REGARD TO SUCH C LAIM AS DISCUSSED HEREUNDER: THE PAN OF THE ASSESSEE WAS GENERATED ON 27/03/ 2006; . THE ASSESSEE'S DATE OF BIRTH IS 16/01/1983; THE ASSESSEE'S LAST THREE YEARS' SUBMITTED RETURN OF INCOME REVEALED THE QUANTUM OF INCOME EARNED ( A.Y. 2006-07- NOT FI LED RETURN; A.Y. 2007-08- NOT FILED RETURN; RS.1,08,400/- AS PER R.O .I. OF A.Y. 2008-09; RS.1,98,260 AS PER R.O.I. OF A.Y. 2009-10; RS.2,93, 310/- AS PER R.O.I. OF A.Y 2010-11); ASSESSEE'S DRAWING SHOWS THE STANDARD OF LIVING ; ASSESSEE RESIDES IN A RENTED HOUSE; THE ASSESSEE HAS NOT FURNISHED HIS WEALTH TAX RET URN FOR PREVIOUS YEAR ENDING ON 31-03-2010 RELATING TO THE ASSESSMEN T YEAR 2011-12 TO JUSTIFY HIS CLAIM OF CASH IN HAND. IF THIS NON SUBM ISSION OF WEALTH TAX IS TAKEN TO BE BONA FIDE THEN THE PROJECTED GENERATION OF CASH OVER TWO YEARS CANNOT BE TAKEN TO BE BONA FIDE. FROM WEALTH TAX POINT OF VIEW THAT HE HAD NO CASH ON THAT DATE IS CONSTRUED TO BE PROPER POSITION. IT IS ONLY AN AFTERTHOUGHT. ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 3 DURING THE COURSE OF APPELLATE PROCEEDINGS THE AS SESSEE WAS ASKED TO PRODUCE HIS CASH BOOK AND BANK BOOK. FROM PERUSA L OF HIS BANK ACCOUNTS IT WAS OBSERVED THAT THERE WERE NUMEROUS C ASH DEPOSIT AND WITHDRAWAL OF SMALL SMALL AMOUNT IN EACH OF THE BAN K ACCOUNTS AND ALSO THERE WAS OVERDRAFT IN MOST OF THE BANK ACCOUN TS (ORDER SHEET NOTING DTD 7-03-17 APPEAL PROCEEDINGS). THIS DEFIES LOGIC AND SEEMS IMPROBABLE SINCE AN ASSESSEE HAVING SUCH HUGE CASH IN HAND WOULD NOT HAVE BANK OVER DRAFT AND WOULD NOT DEPOSIT SMAL L AMOUNT OF CASH. FROM THE ABOVE IT IS CRYSTAL CLEAR THE ASSESSEE STA RTED EARNING FOR THE LAST THERE YEARS SINCE THE DATE OF GENERATION OF PAN. TH E INCOME PATTERN AND DRAWINGS AS ABOVE CLEARLY SHOWS THAT TO GENERATE CA SH IN HAND OF RS. 45,99,123/- OUT OF HIS EARNED INCOME IS MATHEMATICA LLY IMPOSSIBLE. MOREOVER, IT IS QUITE UNLIKELY FOR A PERSON HAVING BEEN ENGAG ED IN BUSINESS TO KEEP SUCH HUGE AMOUNT REMAINED IDLE AS CASH IN HAND WITHOUT E VEN EARNING OF INTEREST FROM DEPOSIT IN BANKS WHICH IS SAFE AS WELL AS LIQU IDITY 'IS NOT COMPROMISED. KEEPING HUGE CASH OF RS.45,99,123/- AT A RENTED HOU SE DOES NOT YIELD ANY INCOME BEARING HUGE RISKS OF LOSING IT AT ANY POINT OF TIME WITHOUT ANY COMPULSION FOR IMMEDIATE UTILIZATION FOR SOME GAIN WHICH IS NOT FOUND IN HIS SUBMISSION. IT WAS KEPT FOR MORE THAN TWO YEARS AS REVEALED FROM HIS SUBMITTED BALANCE SHEET. FURTHERMORE, WHEREAS HIS B ALANCE SHEET SHOWS AN ASSET IN THE FORM OF LAND WAS CREATED OUT OF GIFT R ECEIVED, BUT THERE IS NO MENTION OF ANY KIND OF GIFT 'RECEIVED WITH REGARD T O CASH IN HAND. THEREFORE, THE CASH IN HAND IS CLAIMED TO BE MADE OUT OF HIS I NCOME WHICH IS FOUND TO BE MATHEMATICALLY IMPOSSIBLE VIS A VIS HIS INCOME FROM DISCLOSED SOURCES AS DISCUSSED IBID. THE FACTS AND CIRCUMSTANCES PROVE I T BEYOND DOUBT THAT THE PROJECTION OF CASH IN HAND IN ANY PRECEDING YEAR IS A DESPERATE EFFORT TO BRING SOME SORT' OF LEGITIMACY OF IT ACCUMULATION. IN THE PROCESS IT IS EVIDENT BEYOND ANY DOUBT THAT THIS CASH IN HAND IS INDEED MONEY AC CUMULATED OUT OF UNDISCLOSED AND UNEXPLAINED SOURCES NOT IN ANY EARL IER YEAR BUT IN THE INSTANT YEAR ITSELF. IN VIEW OF THE ABOVE HIS SUBMISSION WI TH REGARD TO THE SOURCE OF CASH IN NOT FOUND TO BE SATISFACTORY AND TENABLE IN THE EYES' OF LAW. RATHER IT IS EVIDENT FROM THE FACTS AND CIRCUMSTANCES NARRATED A BOVE BEYOND ANY DOUBT THAT THE MONEY WAS GENERATED IN CASH FROM UNEXPLAIN ED SOURCES DURING THE PREVIOUS YEAR UNDER CONSIDERATION I.E. PREVIOUS 201 0-11 RELEVANT TO THE ASSESSMENT YEAR 2011-12 PART OF WHICH HAS BEEN USED AS INTRODUCTION OF CAPITAL IN R .M. ENTERPRISE. HENCE, THE ENTIRE CASH OF RS. 45.98,123/- WHICH HAS BEEN PROJECTED AS SOURCE THE INVESTMENT IN M/S R. M. ENTERPRISE IS REMAINED UNEXPLAINED AND AS SUCH ADDED BACK.' 6.2. THE APPELLANT HAS STATED IN THE SUBMISSION THA T HE HAD CLOSING BALANCE OF CASH IN HAND OF RS.45,99,123/- AS ON 31-03-2010 IN THE PERSONAL CAPITAL ACCOUNT, A COPY OF WHICH WAS SUBMITTED BEFORE THE A O. IT IS ALSO SUBMITTED THAT THERE WAS NO PROVISION TO SUBMIT THE PERSONAL BALANCE SHEET WITH THE ITR- V AND THEREFORE HE COULD NOT SUBMIT THE PERSONAL BA LANCE. HOWEVER, IT IS STATED, THE PERSONAL BALANCE SHEET AS ON 31-03-2010 WAS SUBMITTED BEFORE THE AO AS AND WHEN THE SAME HAD BEEN ASKED FOR IN C OURSE OF THE ASSESSMENT PROCEEDINGS. THE APPELLANT SUBMITTED THA T IN REPLY TO THE SHOW CAUSE NOTICE ISSUED BY THE AO ON 28-02-2014, THE AP PELLANT EXPLAINED THAT THE SUM OF RS. 29,98,500/- IN CASH HAD BEEN TRANSFE RRED TO THE BUSINESS ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 4 ACCOUNT ( ACCOUNT OF M/S R.M. ENTERPRISE) IN THE F. Y. 2010-11 OUT OF THE SAID CASH IN HAND OF RS.45,99,123/- AS ON 01-04-2010 THE APPELLANT FURNISHED THE COPIES OF HIS PERSONAL BALANCE SHEETS AS AT 31-03-2 010 AND 31-03-2011 BEFORE THE AO IN COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS. COPIES OF THESE BALANCE SHEETS HAVE ALSO BEEN FURNISHED IN CO URSE OF THE HEARING OF THE INSTANT APPEAL. THE APPELLANT ALSO FURNISHED THE DA TE WISE TRANSFER OF CASH TOTALLING RS. 29,98,500/- ON SIX OCCASIONS DURING T HE PERIOD FROM 05-11-2010 TO 24-03-2011 TO THE ACCOUNT OF M/S R.M. ENTERPRISE AS INVESTMENT OF THE APPELLANT IN THIS BUSINESS. DURING THE COURSE OF THE PROCEEDINGS OF THE INSTANT APPEAL THE APPELLANT ALSO FURNISHED THE FOLLOWING TO EXPLAIN THE CASH IN HAND OF RS.45,99,123/- AS ON 01- 04-2010 REFLECTED IN HIS PER THE PERSONAL BALANCE A S ON 31-03-2010 :- 1 A COPY OF THE ACKNOWLEDGE FOR FILLING MANUAL RETURN IN FORM NO. 2D ( ITS - 2D - SARAL ) FOR THE ASSESSMENT YEAR 2006-07 ALONG WITH THE FOLLOWING:- (I) A COPY OF THE STATEMENT OF COMPUTATION OF TOTAL INCOME; (II) A COPY OF THE BUSINESS BALANCE SHEET OF THE AP PELLANT AS ON 31- 03- 2006 AND (III) A COPY OF THE PERSONAL BALANCE SHEET OF THE A PPELLANT AS ON 31-03- 2006 2 2. A COPY OF THE ACKNOWLEDGEMENT FOR FILLING MANUAL RETURN IN FORM NO. ITR-4 FOR THE ASSESSMENT YEAR 2007-08 ALONG WITH THE FOLLOWING:- (I) A COPY OF THE STATEMENT OF COMPUTATION OF TOTAL INCOME; (II) A COPY OF THE TRADING AND P&L ACCOUNT OF THE B USINESS OF THE APPELLANT FOR THE YEAR ENDED 31-03-2007; (III) A COPY OF THE BUSINESS BALANCE SHEET OF THE A PPELLANT AS ON 31-03-2007 AND (IV) A COPY OF THE PERSONAL BALANCE SHEET OF THE AP PELLANT AS ON 31-03- 2007.- 3 A COPY OF THE ACKNOWLEDGEMENT FOR FILLING MANUAL RE TURN IN FORM NO. ITR-4 FOR THE ASSESSMENT YEAR 2008-09 ALONG WITH THE FOLLOWING:- (I) A COPY OF THE STATEMENT OF COMPUTATION OF TOTAL INCOME; (II) A COPY OF THE TRADING AND P&L ACCOUNT OF THE B USINESS OF THE APPELLANT FOR THE YEAR ENDED 31-03-2008; (III) A COPY OF THE BUSINESS BALANCE SHEET OF THE A PPELLANT AS ON 31-03-2008 AND (IV) A COPY OF, THE PERSONAL BALANCE SHEET OF THE A PPELLANT AS ON 31-03-2008 4 A COPY OF THE ACKNOWLEDGEMENT FOR FILLING MANUAL RE TURN IN FORM NO. ITR-4 FOR THE ASSESSMENT YEAR 2009-10 ALONG WITH THE FOLLOWING:- I) COPIES OF THE TRADING AND P&L ACCOUNT OF THE BUS INESS ( RM. ENTERPRISE AND RM. EDUCARE) OF THE APPELLANT FOR THE YEAR ENDED 31-03-2009 (II) COPIES OF THE BALANCE SHEETS OF THE BUSINESS ( RM. ENTERPRISE AND RM. EDUCARE ) OF THE APPELLANT AS ON 31-03-2009 (III) A COPY OF THE PERSONAL BALANCE SHEET OF THE A PPELLANT AS ON 31-03-2009 5 5. A COPY OF THE ACKNOWLEDGEMENT FOR RULING THE RET URN ONLINE IN FORM NO. ITR-4 FOR THE ASSESSMENT YEAR 2010-11 ALONG WITH TH E FOLLOWING:- (I) COPIES OF THE AUDITED ACCOUNTS ( P& L ACCOUNTS AND BALANCE SHEETS) OF THE BUSINESS ( RM. ENTERPRISE AND RM. EDUCARE ) OF THE APPELLANT FOR T HE YEAR' ENDED 31-03-2010 AND A COPY OF THE PERSONAL BALANCE SHEET OF THE APPELLANT AS ON 31-03 -2010; ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 5 (II) STATEMENT OF TOTAL INCOME FOR THE ASSESSMENT Y EAR 2010-11. 6 6. A COPY OF THE ACKNOWLEDGEMENT FOR FILLING THE RE TURN ONLINE IN FORM NO. ITR-4 FOR THE ASSESSMENT YEAR 2011-12 ALONG WITH TH E FOLLOWING:- (I) COPIES OF THE AUDITED ACCOUNTS ( P& L ACCOUNTS AND BALANCE SHEETS) OF THE BUSINESS ( RM. ENTERPRISE AND RM. EDUCARE ) OF THE APPELLANT FOR I RE YEAR ENDED 31-03-2011 AND A COPY OF THE PERSONAL BALANCE SHEET OF THE APPELLANT AS ON 31-03 -2011; (II) STATEMENT OF TOTAL INCOME FOR THE ASSESSMENT Y EAR 2011-12 BUT THE APPELLANT DID NOT FURNISH COPIES OF THE RET URNS FILED FOR THE ASSESSMENT YEARS 2006-7 TO 2011-12 DURING THE HEARING OF THIS APPEAL. 6.3. THE IMPUGNED ORDER PASSED BY THE A.O. AND THE SUBMISSIONS AND DOCUMENTS FILED BY THE APPELLANT IN COURSE OF THE H EARING OF THE INSTANT APPEAL HAVING BEEN EXAMINED THE OBSERVATIONS ARE MADE:- ON EXAMINATION OF THE COPIES OF THE ACKNOWLEDGEME NTS FOR FILLING THE RETURNS OF INCOME LY THE APPELLANT FOR THE ASSESSMENT YEARS 20 06-07 TO 2010-11 AND THE COPIES OF ACCOUNTS FURNISHED BY THE APPELLANT FOLLO WING INFORMATION REGARDING INCOME, DRAWINGS AND FORMATION OF CAPITAL BY THE AP PELLANT DURING THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEAR 2006-07 TO 20 10-11 ARE AVAILABLE. STATEMENT OF INCOME & DRAWING SL NO. FINANCIAL YEAR (A.Y) INCOME DECLARED (RS) DRAWINGS (RS) NET INCOME (RS) GIFTS RECEIVED (RS) 1 2005-06 (A.Y 2006-07) 88530 62500 26030 2 2006-07 (A.Y 2007-08) 109860 68750 41110 250000 (FROM FATHER) 2007-08 (AY 2008-09) 124650 82600 40205 2008-09 (AY 2009-10) 250730 178467 72263 2009-10 (AY 2010-11) 304578 123625 180953 STATEMENT OF CAPITAL FORMATION SL NO. FINANCIAL YEAR (A.Y) OPENING CAPITAL (RS) CLOSING CAPITAL (RS) OPENING CASH- IN-HAND (RS) CLOSINGS CASH- IN-HAND (RS) 1 2005-06 (A.Y 2006-07) 5898413 5924443 NOT MENTIONED 5274763 (CASH AND BANK BALANCE) 2 2006-07 (A.Y 2007-08) 5924443 6215553 5274763 (CASH AND BANK BALANCE) 5274763 (CASH AND BANK BALANCE) 3 2007-08 (AY 2008-09) 6215553 6257603 5274763 (CASH AND BANK BALANCE) 5274763 (CASH AND BANK BALANCE) 4 2008-09 (AY 2009-10) 6257603 6329866 5274763 (CASH AND BANK BALANCE) 4640623 (CASH AND BANK BALANCE) 5 2009-10 (AY 2010-11) 6329866 6510519 5274763 (CASH AND BANK BALANCE) 4599123 (CASH BALANCE) (II) FROM THE ABOVE, FOLLOWING PICTURE EMERGES:- ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 6 THE AGGREGATE NET INCOME DECLARED BY THE APPELLAN T IN THE RETURNS FOR THE ASSESSMENT YEARS 2006-07 TO 2010-11 WAS RS. 360561/ - ONLY. THE APPELLANT HAD RECEIVED GIFT OF RS.2,50,000/- FROM HIS FATHER IN THE F.Y. 2006-07. THE AGGREGATE NET INCOME EARNED DURING THE FINANC IAL YEARS 2005-06 TO 2009-10 IS FAR SHORT OF THE PROJECTED CASH IN HAND AMOUNTING TO RS.45,99,123/- OF THE APPELLANT AS ON 01-04-2010. THE APPELLANT SHOWED PROJECTED OPENING CAPITAL OF RS. 58,98,413/- AS ON 01- 04-2005 IN HIS PERSONAL BALANCE SHEET PREPARED AS O N 31-03-2006 AND OPENING CAPITAL HAS BEEN CLAIMED TO HAVE HAVE CARRI ED FORWARD OVER THE YEARS. THE BIFURCATION OF THE CLOSING CASH AND BANK BALA NCE OF RS. 52,74,763/- AS ON 31-03-2006 HAS NOT BEEN MENTION BUT ONLY THE CON SOLIDATED FIGURE IS MENTION IN THE BALANCE SHEET PREPARED AS ON 31-03-2 006. THE SAME CLOSING CASH AND BANK BALANCE OF RS. 52, 74,763/- HAS BEEN SHOWN IN THE PERSONAL BALANCE SHEET OF THE APPELLAN T PREPARED AS ON 31-03- 2007 AND 31-03-2008. IN THE PERSONAL BALANCE SHEET OF THE APPELLANT PR EPARED AS ON 31-03-2010 ONLY THE CASH BALANCE OF RS. 45,99,123/- HAS BEEN S HOWN AND IN THIS BALANCE SHEET ANY BALANCE IN BANK HAS NOT BEEN SHOWN. THE APPELLANT DID NOT FURNISH THE EARLIER THREE Y EARS BANK STATEMENT ALTHOUGH THE APPELLANT WAS REQUESTED FOR FURNISHING THE SAME . THEREFORE, HIS BALANCE IN PERSONAL BANK ACCOUNT COULD NOT BE VERIFIED. ABSENCE OF ANY BALANCE IN PERSONAL BANK ACCOUNT A S FOUND FROM THE PERSONAL BALANCE SHEET OF THE APPELLANT PREPARED AS ON 31-03-2010 CLEARLY INDICATES AND ESTABLISHES THAT THE APPELLANT HAD SH OWN HIS PROJECTED CASH BALANCE ONLY IN HIS PERSONAL BALANCE SHEETS PREPARE D AT THE END OF THE FINANCIAL YEARS 2005-06 TO 2008-09 BECAUSE IT IS IM POSSIBLE THAT THERE WOULD NOT BE ANY BALANCE IN THE PERSONAL BANK ACCOUNT OF THE APPELLANT AS ON 31-03- 2010 IF THERE WERE BANK BALANCE IN HIS PERSONAL BAN K ACCOUNTS AT THE END OF THE EARLIER FINANCIAL YEARS S AS SHOWN IN THE PERSO NAL BALANCE SHEETS OF THE APPELLANT PREPARED AS ON 31-03-2006; 31-03-2007; 31 -03-2008 AND 31-03- 2009. (III) HAVING EXAMINED THE DOCUMENTS FURNISHED BY TH E APPELLANT IN COURSE OF THE APPEAL PROCEEDINGS FOLLOWING MATTERS ARE ALSO N OTED:- THE APPELLANT HAD NOT FURNISHED ANY WEALTH TAX RE TURN IN SPITE OF HOLDING HUGE AMOUNT OF CASH AND BANK BALANCE/ CASH BALANCE AT THE END OF THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEAR 200 6-07 TO 2011-12 AND SUCH HUGE AMOUNT OF CASH AND BANK/ CASH BALANCE WAS CHAR GEABLE TO WEALTH. ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 7 THE APPELLANT HAS NOT FURNISHED THE COPIES OF THE INCOME TAX RETURNS FILED FOR THE ASSESSMENT YEARS 2006-07 TO 2010-11, PARTIC ULARLY FOR THE ASSESSMENT YEARS 2007-08 TO 2010-11 FROM IT COULD BE ASCERTAIN ED WHETHER ANY CASH IN HAND AND OPENING CAPITAL HAD BEEN DECLARED BY THE A PPELLANT IN THOSE RETURNS OF INCOME. THE INCOME EARNED BY THE APPELLANT IN THE PAST YE ARS DOES NOT SUPPORT CREATION OF HUGE OPENING CAPITAL OF THE APPELLANT A S ON 01-04-2005 PROJECTED BY THE APPELLANT IN HIS ACCOUNTS PREPARED AND ANY S UPPORTING DOCUMENT ABOUT SUCH HUGE CAPITAL WAS NOT FURNISHED EITHER AT THE S TAGE OF ASSESSMENT FOR THE A.Y. 2011-12 OR DURING THE COURSE OF THE INSTANT AP PEAL PROCEEDINGS. THE APPELLANT FAILED TO JUSTIFY TO THE SATISFACTI ON OF THE AO THE BROUGHT FORWARD CASH BALANCE OF RS.45,99,123/- AS ON 01-04- 2010. THE ACCOUNTS FILED IN COURSE OF THE INSTANT APPEA L PROCEEDINGS ARE NOT APPARENTLY .RELIABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND THEREFORE THE CLAIM OF THE APPELLANT THAT THE CASH BALANCE OF RS.45,99,123/- HAD BEEN BROUGHT FORWARD ON 01-04-2010 FROM EARLIER YEARS IS NOT ALSO BELIEVABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE PERSONAL BALANCE SHEETS OF THE APPELLANT PREP ARED AS ON 31-032006; 31-03-2007; 31-03-2008; 31-03-2009 AND 31-03-2010 A PPEAR TO BE FABRICATED AND PREPARED ON PAPER TO SUPPORT THE CLAIM OF THE A PPELLANT BUT THESE ARE APPARENTLY FAR FROM REALITY AND NOT BELIEVABLE PART ICULARLY SO FAR AS RELATES TO BUILDING OF CAPITAL AND CASH IN HAND. THE RETURNS OF INCOME OF ANY OF THE EARLIER ASSES SMENT YEAR HAD NOT BEEN SELECTED FOR SCRUTINY AND THEREFORE THE OPENING CAP ITAL AND CASH BALANCE OF THE APPELLANT AS ON 01:..04-2010 REMAINED UNVERIFIE D AND THE APPELLANT COULD HAVE PREPARED HIS PERSONAL ACCOUNTS AS PER HIS SUIT ABILITY TO GIVE A CREDENCE TO THE OPENING CAPITAL AND CASH BALANCE AS ON 01-04 -2010. THERE WERE NUMEROUS CASH DEPOSIT AND WITHDRAWAL O F SMALL SMALL AMOUNT IN EACH OF THE BANK ACCOUNTS AND ALSO THERE WAS OVERDR AFT IN MOST OF THE BANK ACCOUNTS(ORDER SHEET NOTING DTD 7-03-17 APPEAL PROC EEDINGS). THIS DEFIES LOGIC AND SEEMS IMPROBABLE SINCE AN ASSESSEE HAVING SUCH HUGE CASH IN HAND WOULD NOT HAVE BANK OVER DRAFT AND WOULD NOT D EPOSIT SMALL AMOUNT OF CASH. 6.4. IN VIEW OF WHAT HAVE BEEN DISCUSSED ABOVE, THE ADDITION OF RS.45,99,123/- MADE BY THE AO IN THE IMPUGNED ORDER , WHICH HAS BEEN DISPUTED IN THE GR. NO.S 1& 2 OF THE PRESENT APPEAL IS HEREBY CONFIRMED. THEREFORE, THE GROUND NOS. 1 AND 2 OF THE APPEAL AR E DECIDED AGAINST THE APPELLANT . THIS LEAVES THE ASSESSEE AGGRIEVED. ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 8 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION. THE ASSESS EES CASE AS PER HIS STAND ADOPTED THROUGHOUT IS THAT THE IMPUGNED ADDIT ION HAS BEEN WRONGLY MADE IN HIS HAND DESPITE THE FACT THAT HE HAD SATIS FACTORILY EXPLAINED SOURCE THEREOF TO EARLIER ASSESSMENT YEAR(S) OPENING BALAN CE (SUPRA). THE REVENUES CASE ON THE OTHER HAND IS THAT THE ASSESSEE HAD DEC LARED VERY NOMINAL AMOUNT AS INCOME IN THE SAID EARLIER ASSESSMENT YEA RS AND THEREFORE, BOTH THE LOWER AUTHORITIES HAVE PROCEEDED TO MAKE THE IM PUGNED ADDITION FOLLOWED BY NECESSARY DIRECTIONS IN LOWER APPELLATE ORDER TO THE ASSESSING OFFICER TO RE- OPEN THE ASSESSEES ASSESSMENT FOR ASSESSMENT YEAR 2006-07. 4. WE HAVE HEARD FOREGOING RIVAL CONTENTIONS. THE A BOVE FACTUAL BACKDROP OF THE ISSUE IN PRECEDING PARAGRAPHS MAKES IT CLEAR THAT THE ASSESSEES SOLE EXPLANATION ATTRIBUTED SOURCE OF THE IMPUGNED SUM T O HIS OPENING CASH BALANCE RIGHT FROM ASSESSMENT YEARS 2006-07 ONWARDS . LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT THE SAID FIGUR ES HAVE ATTAINED FINALITY SINCE NO PROCEEDINGS ARE PENDING AGAINST THIS TAXPAYER UP TO COMMISSIONER OF INCOME TAX (APPEALS)S DIRECTIONS TO THE ASSESSING OFFICER UNDER CHALLENGE. WE THEREFORE ARE OF THE VIEW THAT ONCE THE ASSESSEE HAS SUBMITTED HIS EXPLANATION ON THE BASIS OF INCOME TAX RECORDS PERT AINING TO EARLIER ASSESSMENT YEARS THERE IS HARDLY ANY JUSTIFICATION TO ATTRIBUTE THE IMPUGNED ADDITIONS PER SE FOLLOWED BY DIRECTIONS TO THE ASSE SSING OFFICER TO RE-OPEN THE SAID EARLIER ASSESSMENTS. THE FACT ALSO REMAINS TH AT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN SOURCE OF THE SAID OPENING CAS H BALANCE SATISFACTORILY RIGHT FROM THE COURSE OF THE ASSESSMENT TILL DATE I N VIEW OF THE MEAGRE SOURCE OF INCOME IN EARLIER YEARS. LEARNED AUTHORIZED REPR ESENTATIVE SUBMITS AT THIS STAGE ONCE THE IMPUGNED OPENING BALANCE STOOD ACCEP TED AS CORRECT, ALL NECESSARY CONSEQUENCE FLOW THEREFROM AND THE ASSESS EE IS NOT DUTY BOUND TO DISCHARGE ITS ONUS QUA SUMS INVOLVED IN SAID EARLIER ASSESSMENT YEARS. WE FIND NO SUBSTANCE IN ASSESSEES INSTANT TECHNICAL A RGUMENT IN VIEW SEC. 153(6) CLAUSE (I) AND (II) R.W.S. EXPLANATION-2 THERETO T O CONCLUDE THAT THIS TRIBUNAL ITA NO.1311/KOL/2017 A.Y. 2011-12 RABIN CH. MONDAL VS. ITO WD-27(2), K OL. PAGE 9 CAN VERY WELL EXERCISE ITS SECOND APPELLATE JURISDI CTION AND DIRECT THE ASSESSING OFFICER TO EXAMINE THE INSTANT ISSUE ONCE AGAIN IN SAID EARLIER ASSESSMENT YEAR(S); HOWEVER, SINCE THE ASSESSEES C ORRESPONDING INCOME TAX RETURN(S) HAVE BEEN ACCEPTED, HE CAN BE VERY WELL P RESUMED TO HAVE BEEN HOLDING SOME CASH BALANCE. WE THUS ARE OF THE VIEW THAT LARGER INTEREST OF JUSTICE WOULD BE MET IN CASE A LUMP SUM ADDITION AM OUNT OF 12 LAKHS ONLY OUT OF 45,99,123/- IS CONFIRMED SUBJECT TO A RIDER THAT TH E SAME SHALL NOT BE TREATED AS A PRECEDENT IN ANY OTHER ASSESSMENT YEAR . THE ASSESSEE GETS RELIEF OF 33,99,123/-. NECESSARY COMPUTATION SHALL FOLLOW AS PER LAW. WE ORDER ACCORDINGLY. THE CIT(A)S LOWER APPELLATE FIN DINGS UNDER CHALLENGE ARE UPHELD ONLY TO THE EXTENT OF 12 LAKHS. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN FORE GOING TERMS. ORDER PRONOUNCED IN THE OPEN COURT 19/ 02/2020 SD/- SD/- ( &) (( &) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S )- 19 / 02 /20 20 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-RABIN CH. MONDAL, PASCHIMCHAK, BAJKUL, P URBA MEDINIPUR PIN-721626 2. /RESPONDENT-ITO WD-27(2), BASUDEVPUR, KHANJANCHAK, HALDIA-721602 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,