Kamlesh Kantilal Bhandari, Ahmednagar V. Income-tax Officer,

ITA 1320/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1508 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 15-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Unexplained expenditure; Income from undisclosed sources; Opportunity of being heard; Source of fund; Deemed to accrue or arise in india

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.1320/PN/2016 / ASSESSMENT YEAR : 2012-13 KAMLESH KANTILAL BHANDARI, H.NO.1934, NALBANDH KHUNT, AHMEDNAGAR PAN NO.AEWPB7811A . /APPELLANT V/S ITO, WARD - 1 , AHMEDNAGAR . /RESPONDENT / APPELLANT BY : SHRI SUHAS P. BORA / RESPONDENT BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 22-02-2016 OF THE CIT(A)-2, PUNE RELATING TO THE ASSESSMENT YEAR 2012-13. 2. ALTHOUGH THE ASSESSEE HAS TAKEN A NUMBER OF GROUND S THEY ALL RELATE TO THE ORDER OF THE CIT(A) IN CONFIRMING ADDITION OF RS.24,25,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED C ASH DEPOSITS IN THE BANK ACCOUNT. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE DER IVES INCOME FROM RETAIL BHUSAR BUSINESS AND SHARE OF PROFIT AND INTERES T FROM M/S. SHRI SAI ANAND ENTERPRISES AND M/S. SAI ENTERPRISES. HE FILE D HIS RETURN OF INCOME ON 09-09-2013 DECLARING TOTAL INCOME OF RS.8,38,250/-. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE AO OBSERVED FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESS EE THAT HE / DATE OF HEARING :28.07.2016 / DATE OF PRONOUNCEMENT:29.07.2016 2 ITA NO.1320/PN/2016 HAS MADE CASH DEPOSITS OF RS.24,25,000/- IN THE BANK ACC OUNT MAINTAINED WITH THE AHMEDNAGAR MERCHANTS CO-OPERATIVE B ANK LTD., THE DETAILS OF WHICH ARE AS UNDER : 1 23 - 11 - 2011 RS.10,00,000/ - 2 06 - 01 - 2012 RS.4,25,000/ - 3 12 - 01 - 2012 RS.5,00,000/ - 4 17 - 01 - 2012 RS.5,00,000/ - TOTAL RS.24,25,000/ - HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH DEPOSITS. SINCE THERE WAS NON- COMPLIANCE FROM THE ASSES SEES SIDE DESPITE REPEATED REMINDERS THE AO COMPLETED THE ASSESS MENT U/S.144 OF THE I.T. ACT BY MAKING ADDITION OF RS.24,25,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE CIT(A) THE ASSESSEE SUBMITTED THAT THE COPY O F THE BANK STATEMENT WAS AVAILABLE BEFORE THE AO AND IN THE SAID BA NK STATEMENT THERE WERE HUGE CASH WITHDRAWALS. THEREFORE, BEFORE PASS ING ORDER U/S.144 THE AO SHOULD HAVE TAKEN INTO ACCOUNT ALL RELEVA NT MATERIALS WHICH HE HAS GATHERED AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND MADE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT. IT WAS SUBMITTED THAT ADEQUATE OPPORTUNITY WAS NOT GR ANTED TO THE ASSESSEE FOR MAKING HIS SUBMISSIONS. IT WAS FURTHER SUBMI TTED THAT THE ASSESSEE HAD WITHDRAWN CASH OF RS.23 LAKHS ON 03-1 1-2011, RS.2,70,000/- ON 22-11-2011 AND RS.8 LAKHS ON 3012-3011 FROM THE BANK. THUS THE TOTAL WITHDRAWALS OF CASH WAS RS.33,70,000/ -. THE ASSESSEE HAS DEPOSITED THE AMOUNT IN THE BANK ACCOUNT OUT OF THE ABOVE CASH WITHDRAWAL. THE ASSESSEE ALSO SUBMITTED A CA SH STATEMENT IN RESPECT OF THE ABOVE. SINCE THE BANK STATEMENT AND C ERTIFICATE FROM THE BANK REGARDING CASH WITHDRAWAL FROM BANK WERE NOT P RODUCED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEED INGS THE 3 ITA NO.1320/PN/2016 LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE AO. HOWEVER, THE AO SUBMITTED THAT THE TOTAL DEPOSITS IN THE BANK ARE OF RS .81,24,855/- WHEREAS THE SALE OF THE BUSINESS OF THE ASSESSEE AS S HOWN IN THE RETURN IS ONLY RS.42,86,810/-. THE CASH GENERATION TO TH E EXTENT REFLECTED IN THE BANK ACCOUNT APPEARS NOT PLAUSIBLE. HE HO WEVER STATED THAT THE TOTAL CASH WITHDRAWALS ON THE 3 OCCASIONS COME S TO RS.33,70,000/-. 5. THE LD.CIT(A) CONFRONTED THE REMAND REPORT OF THE AO TO THE ASSESSEE. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSE E TO SUCH REMAND REPORT THE LD.CIT(A) CONFIRMED THE ADDITION MADE BY THE AO AND DISMISSED THE APPEAL FILED BY THE ASSESSEE BY OBSERVING AS UNDER : 4.2 I HAVE GONE THROUGH THE FACTS OF THE CASE AND TH E GROUNDS OF APPEAL RAISED. THE SOLE ISSUE IN THE GROUNDS IS WITH REGARD TO A DDITION OF RS.24,25,000/-ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. THE APPELLANT IS A RETAILER IN BHUSSAR AND ALSO EARNS SHA RE OF PROFIT AND INTEREST IN PARTNERSHIP FIRM. DURING THE ASSESSMENT PROCE EDINGS, IT WAS NOTICED THAT THE ASSESSEE MADE CASH DEPOSITS IN HIS BANK A CCOUNT MAINTAINED WITH AHMEDNAGAR MARCHENT CO.OP BANK AS UN DER: S1. NO. DATE OF DEPOSIT AMOUNT (RS. ) 1 23.11.2011 10,00,000/- 2 06.01.2012 4,25,000/- 3 12.01.2012 5,00,000/- 4 17.01.2012 5,00,000/- TOTAL 24,25,000/- 4.2.1 IN THE COURSE OF ASSESSMENT PROCEEDINGS, NO EXPLANA TION WAS FILED EXPLAINING THE SOURCE OF CASH DEPOSITS NEITHER ANY CASH FLOW STATEMENTS WERE FURNISHED. THE ASSESSING OFFICER ACCORDINGLY, MADE THE ADDITION TREATING THE SAME AS DEEMED INCOME. 4.3 IN THE COURSE OF APPELLATE PROCEEDINGS, IT WAS ARG UED THAT THE SOURCE OF CASH DEPOSITS ARE RELATED TO CASH WITHDRAWAL MADE FROM THE SAME ACCOUNT. IT WAS ALSO STATED THAT TOTAL CASH WITHDRAWAL FROM THE BANK WAS RS.33,70,000/- AND OUT OF THE SAME ONLY CASH DEPOSITS W ERE MADE. IT WAS SPECIFICALLY POINTED OUT TO THE LD. COUNSEL AS TO WHAT CAN BE THE LOGIC OF WITHDRAWAL OF CASH AND THEN RE-DEPOSITING THE SAME IN THE BANK ACCOUNT AS NO PRUDENT PERSON WILL DO SUCH AN ACT. IT WAS STATED ON BEHALF OF THE APPELLANT THAT CASH WAS WITHDRAWN WITH THE INTENTION TO BUY SOME AGRICULTURAL LAND AND SINCE THE TRANSACTION DID NOT MATERIALIZE THEREFORE THE CASH WAS RE-DEPOSITED. 4 ITA NO.1320/PN/2016 4.3.1 THE SUBMISSION FILED ON BEHALF OF THE APPELLANT IS NOT ACCEPTABLE. THE LAW IS WELL SETTLED THAT THE ONUS OF PROVING THE SO URCE OF A SUM OR MONEY FOUND TO HAVE BEEN RECEIVED BY AN ASSESSEE IS ON H IM. WHERE THE NATURE AND SOURCE OF A RECEIPT, WHETHER IT BE OF MON EY OR OTHER PROPERTY, CANNOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE INCOME OF THE ASSESSEE AN D NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THE INCOME IS FROM A NY PARTICULAR SOURCE - ROSHAN DI HATTI VS. CIT (107 ITR 938) (SC). 4.3.2 IN THE CASE OF SREELEKHA BANNERJI AND OTHERS VS. CIT 49 ITR 112), HON'BLE SUPREME COURT HAS HELD THAT 'IF THERE IS ANY ENTRY IN THE BOOKS OF THE ASSESSEE WHICH SHOWS THE RECEIPT OF THE SUM, IT IS NEC ESSARY FOR THE ASSESSEE TO ESTABLISH WHAT THE SOURCE OF THAT MONEY IS AND TO PROVE THAT THE SAME DOES NOT BEAR THE NATURE OF INCOME. IF EXPLA NATION IS UNCONVINCING, THE REVENUE CAN INFER THIS AMOUNT AS IN COME OF THE ASSESSEE. THE DEPARTMENT THEN DOES NOT PROCEED ON NO EVI DENCE, BECAUSE OF THE FACT THAT THERE WAS RECEIPT OF MONEY WHICH IS IN ITSELF AN EVIDENCE AGAINST THE ASSESSEE. 4.3.3 HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. UMADEVI BHUWALKA (181 ITR 547) HAS HELD THAT INVESTMENT BY WAY DEPOSIT, IF NOT PROPERLY EXPLAINED BY THE ASSESSEE THEN IT CAN BE TREATED AS UND ISCLOSED INCOME OF THE ASSESSEE. 4.3.4 HON'BLE ITAT HYDERABAD BENCH, IN THE CASE OF M IR BASHEERUDDIN ALI KHAN VS. ITO WARD 6(3), (42 TAXMANN.COM 69) UNDER SI MILAR CIRCUMSTANCES HELD THAT CASH DEPOSIT IN THE BANK ACCOUN T CANNOT BE LINKED TO THE CASH WITHDRAWAL AS IT IS AGAINST HUMAN PROBABILI TY AND TOTALLY UNBELIEVABLE. HON'BLE BENCH WHILE DELIVERING THE JU DGMENT HAS HELD AS UNDER: WE HAVE HEARD THE SUBMISSIONS OF BOTH THE PARTIES AND P ERUSED THE MATERIAL ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. UNDISPUTEDLY AS REVEALED FROM THE BANK A CCOUNT, THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.6,50,000/- ON 8-9-200 4. IT IS THE CONTENTION OF THE ASSESSEE THAT THE AFORESAID DEPOSIT S WERE OUT OF THE CASH AVAILABLE WITH HIM FROM WITHDRAWALS MADE BY HIM EARLIER FROM THE SBI FROM FEBRUARY 2002 TO SEPTEMBE R, 2003. HOWEVER, SUCH EXPLANATION OF THE ASSESSEE IS AGAINST HUMA N PROBABILITY AND TOTALLY UNBELIEVABLE. WHEN THE ASSESSEE IS HAVING A BANK ACCOUNT, IT IS BEYOND HUMAN PROBABILITY AND TOT ALLY INCOMPREHENSIBLE THAT THE ASSESSEE WOULD KEEP QUITE A SUB STANTIAL AMOUNT OF RS.6,50,000/- IN CASH WITH HIM FOR A PERIOD OF OVER ONE YEAR WITHOUT DEPOSITING INTO THE BANK ACCOUNT. THE A SSESSEE HAS ALSO NOT SHOWN ANY VALID REASON AS TO WHY HE KEPT SO MUC H CASH WITH HIM FOR OVER A PERIOD OF ONE YEAR WHEN HE WAS H OLDING A BANK ACCOUNT. IN THE ABSENCE OF ANY COGENT REASON BACKED B Y SUFFICIENT EVIDENCE, THE EXPLANATION OF THE ASSESSEE IS ONLY A MAKE BELIEVE STORY AND HENCE CANNOT BE ACCEPTED. THE DECISIONS RELI ED UPON BY THE LEARNED AR WILL ALSO BE OF NO HELP TO THE ASSESSEE A S IN THE PRESENT CASE THE ASSESSEE HAS FAILED TO PROVE THE SOURCE OF DEPOSIT WITH VALID REASONS AND PROPER EVIDENCE. IN THIS VIEW O F THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CI T(A) IN SUSTAINING THE ADDITION OF RS.6,50,000/-. ACCORDINGLY, WE UPHOL D THE ORDER OF THE CIT (A) BY DISMISSING THE GROUND RAISED BY THE ASSESSEE . 5 ITA NO.1320/PN/2016 4.3.5 THE EXPLANATION BEING FILED IN THE PRESENT APP EAL IS ALSO NOT FOUND SUPPORTED BY ANY CORROBORATIVE EVIDENCE. THE APPELLA NT WAS ASKED TO FURNISH DETAILS OF PROPOSED TRANSACTION IN LAND ALONG W ITH COPY OF AGREEMENT ETC IF ANY. HOWEVER, THE APPELLANT EXPRESSE D HIS INABILITY TO FURNISH ANY SUCH DETAILS. NEITHER THE DETAILS OF LAND N OR THE NAME OF THE PROPOSED SELLER WAS FURNISHED. I THEREFORE FIND THE EXP LANATION OF THE APPELLANT AS TOTALLY UNSUBSTANTIATED AND HOLLOW. NO PR UDENT PERSON WILL WITHDRAW CASH AND THEN DEPOSIT THE SAME IN HIS ACCOUNT AS IS BEING CLAIMED ON BEHALF OF THE APPELLANT. I THEREFORE FIN D NO LINK BETWEEN THE CASH WITHDRAWAL AND CASH DEPOSITS. THE APPELLANT IS IN R ETAIL BUSINESS AND CONSIDERING THE TURNOVER OF THE APPELLANT, GENERATIO N OF SO MUCH OF CASH CANNOT BE JUSTIFIED BY HIS OWN SOURCES OF INCOME. IT AP PEARS THAT THE APPELLANT HAS DEPOSITED HIS UNDISCLOSED INCOME IN THE BA NK ACCOUNT AND WHEN DETECTED BY THE DEPARTMENT, TRIED TO EXPLAIN T HE SAME BY GIVING ARGUMENT THAT IT WAS RELATED TO SOME LAND TRANSACTIONS, A CLAIM WHICH HAS NEVER BEEN SUBSTANTIATED. I ACCORDINGLY HOLD THAT TH E APPELLANT HAS NOT BEEN ABLE TO DISCHARGE HIS ONUS WITH REGARD TO CASH DEP OSITS IN THE BANK ACCOUNT AS REQUIRED U/S.69 OF THE I.T. ACT. THE ARGU MENT GIVEN IS WITHOUT ANY BASIS AND THE SAME CANNOT BE ACCEPTED. I ACCORDIN GLY CONFIRM THE ACTION OF THE ASSESSING OFFICER IN TREATING THE AMOUNT OF CASH DEPOSIT OF RS.24,25,000/- AS UNACCOUNTED INCOME OF THE APPELLANT . 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SAM E SUBMISSIONS AS MADE BEFORE THE LD.CIT(A). HE SUBMITTED TH AT THE ASSESSEE HAD WITHDRAWN THE CASH OF RS.23,00,000/- ON 03 -11-2011 FOR PURCHASE OF AN AGRICULTURAL LAND. SINCE THE DEAL DID NOT MA TERIALIZE THE ASSESSEE DEPOSITED THE CASH ON DIFFERENT DATES IN TH E BANK ACCOUNT. REFERRING TO THE COPY OF THE BANK ACCOUNT MAIN TAINED WITH AHMEDNAGAR MERCHANTS COOPERATIVE BANK LTD. AND THE LED GER ACCOUNT OF THE BANK IN THE ASSESSEES BOOKS OF ACCOUNT HE SUBM ITTED THAT ALL THESE ENTRIES ARE MATCHING 8. AS REGARDS THE ALLEGATION OF THE CIT(A) THAT THE ASSES SEE COULD NOT NAME THE PERSON WITH WHOM HE WAS NEGOTIATING IS CON CERNED, HE SUBMITTED THAT SINCE THE DEAL DID NOT MATERIALIZE THE ASS ESSEE COULD NOT GIVE ANY PARTICULAR NAME. HE SUBMITTED THAT THE AM OUNT WITHDRAWN FROM THE BANK WAS KEPT WITH THE ASSESSEE AND H AS NOT BEEN 6 ITA NO.1320/PN/2016 UTILIZED FOR ANY OTHER PURPOSE AND WAS AVAILABLE WITH HIM FOR RE- DEPOSITING IN THE BANK ACCOUNT. AS REGARDS THE ALLEGATION OF THE CIT(A) THAT THERE WAS SUBSTANTIAL GAP BETWEEN THE AMOUNT WITH DRAWN FROM THE BANK AND RE-DEPOSIT OF THE SAME IN THE BANK HE SU BMITTED THAT THERE IS NO SUBSTANTIAL GAP AS ALLEGED BY THE LD.CIT(A). 9. REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TRIB UNAL IN THE CASE OF RAJENDERKAUR JASBIRSINGH SETHI VS. DCIT VIDE I TA NO.1232/PN/2013 ORDER DATED 27-03-2015 FOR A.YRS. 1998- 99 TO 2004-05 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISIO N, FOLLOWING THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE O F ACIT VS. BALDEV RAJ CHARLA HAS HELD THAT WHEN THERE IS NO MATERI AL WITH THE INCOME-TAX AUTHORITIES TO SHOW THAT THE AMOUNTS OF CASH DEPOSITS IN QUESTION ADMITTEDLY WITHDRAWN FROM THE BANK AND ASSESSE ES CONCERN WERE NOT UTILIZED FOR ANY OTHER PURPOSE NO ADDITION COULD BE MADE ONLY ON THE GROUND THAT THERE WAS TIME GAP BETWEEN THE WIT HDRAWAL AND THE CORRESPONDING DEPOSITS. REFERRING TO THE DECISION OF THE H ONBLE KARNATAKA HIGH COURT IN THE CASE OF S.R. VENKATARATNAM V S. CIT AND ANOTHER REPORTED IN 127 ITR 807 HE DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING OBSERVATIONS OF THE COURT : THAT ONCE THE PETITIONER DISCLOSED THE SOURCE OF RS.15,0 00/- AS HAVING COME FROM THE WITHDRAWAL MADE ON A GIVEN DATE FROM A GIVEN BANK, IT WAS NOT FOR THE ITO OR THE COMMISSIONER TO CONCERN THEMSELVES WITH WHAT THE PETITIONER DID WITH THAT MONEY, I.E. WHETHER HE HAD KEPT THE MONEY IN HIS HOUSE OR DEPOSITED THE SAME IN A BANK. THE ITO COULD HAVE EITHE R REJECTED THE EXPLANATION GIVEN BY THE PETITIONER AS UNBE LIEVABLE ON THE GROUND THAT ON INVESTIGATION IT WAS FOUND THAT TH E AMOUNT WAS NOT DEPOSITED IN THE BANK OR HE COULD HAVE CALLED 7 ITA NO.1320/PN/2016 UPON THE PETITIONER TO SUBSTANTIATE HIS CLAIM BY DOCUMENT ARY EVIDENCE. SINCE THE ITO DID NOT EXERCISE EITHER OF THESE CHOICES, IT WAS NOT OPEN TO HIM TO MERELY SURMISE THAT IT WOULD N OT BE PROBABLE FOR THE PETITIONER TO KEEP RS.15,000/- UNUTILIZED FO R A PERIOD OF TWO YEARS. THE ITO SHOULD HAVE GIVEN AN OPPO RTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS ASSERTIONS AS TO T HE SOURCE OF HIS CAPITAL OUTLAY. HE ACCORDINGLY SUBMITTED THAT SINCE THE ASSESSEE HAD M ADE HUGE WITHDRAWALS OF CASH FROM THE BANK AND HAS NOT UTILIZED FOR ANY OTHER PURPOSE, THEREFORE, THE SAME BEING AVAILABLE TO THE ASSESS EE FOR DEPOSIT IN THE BANK ACCOUNT, NO ADDITION IS CALLED FOR. 10. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT NO PRUDENT BUSINESS MAN WILL HOLD SUCH HUGE CASH WITH HIM WITHOUT INVES TING FOR SOME OTHER PURPOSE AND NOT KEEPING WITH BANK. THEREFO RE, WHAT THE ASSESSEE IS STATING IS ONLY A STORY WHICH CANNOT BE BE LIEVED. IT IS NOT KNOWN ABOUT THE UTILIZATION OF THE CASH WITHDRAWN FROM THE BANK S INCE THE SAME WAS WITHIN THE EXCLUSIVE KNOWLEDGE OF THE ASSESS EE. THEREFORE, THE ORDER OF THE CIT(A) BEING JUSTIFIED SHOULD BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 11. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PA PER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VA RIOUS DECISIONS CITED BEFORE ME. THERE IS NO DISPUTE TO THE FACT THAT T HE ASSESSEE HAS MADE CASH DEPOSIT OF RS.24,25,000/- IN THE BANK ACCOUNT M AINTAINED WITH THE AHMEDNAGAR MERCHANTS CO-OPERATIVE BANK LTD. ON DIFFERENT DATES, THE DETAILS OF WHICH ARE ALREADY GIVEN EARLIER. SINCE THERE WAS 8 ITA NO.1320/PN/2016 NO COMPLIANCE FROM THE ASSESSEES SIDE THE AO COMPLETED THE ASSESSMENT U/S.144 AND MADE ADDITION OF RS.24,25,000/- TO THE TOTAL INCOME OF THE ASSESSEE. I FIND THE LD.CIT(A) REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE UPHELD THE ADDITION MA DE BY THE AO. THE REASONING FOR SUCH ADDITION HAS ALREADY BEEN REP RODUCED IN THE PRECEDING PARAGRAPHS. 12. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSES SEE THAT THE AMOUNT OF RS.24,25,000/- WAS MADE OUT OF THE WITHDRAWAL OF CASH OF RS.23 LAKHS ON 03-11-2011, RS.2,70,000/- ON 22-11-2011 AN D RS.8 LAKHS ON 30-12-2011. ACCORDING TO HIM, THE FIRST WITHDRAWA L OF RS.23 LAKHS WAS FOR THE PURCHASE OF SOME AGRICULTURAL LAND. SINCE THE DEAL DID NOT MATERIALIZE THE ASSESSEE, AFTER MEETING HIS REQUIREM ENTS DEPOSITED AN AMOUNT OF RS.10 LAKHS ON 23-11-2011. SIMILARL Y, PART OF THE AMOUNT WHICH WAS KEPT WAS ALREADY DEPOSITED ON SUB SEQUENT DATES. THE HOLDING PERIOD OF CASH IS NOT SUBSTANTIAL. I FIND SOME FORCE IN THE ABOVE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESS EE. A COMPARISON OF THE WITHDRAWALS FROM THE BANK AND THE SUBS EQUENT DEPOSITS SHOWS THAT THE GAP IS ONLY FOR A FEW MONTHS AN D NOT SUBSTANTIAL. THE FIRST AMOUNT OF RS.10 LAKHS DEPOSITED ON 23-11-2011 AS CLAIMED TO BE OUT OF THE WITHDRAWAL OF RS.23 LAKHS ON 0 3-11-2011 SHOWS A GAP OF HARDLY 20 DAYS. SIMILARLY, THE WITHDRAWAL O F RS.8 LAKHS ON 30-12-2011 AND RS.2,70,000/- ON 22-11-2011 AND DEPO SIT OF RS.5 LAKHS ON 12-01-2012 ALSO SHOW THAT THERE IS NOT MUCH TIME GAP. 13. I FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF RAJINDERKAU R JASBIRSINGH SETHI (SUPRA) WHILE DECIDING AN IDENTICAL ISSUE, FOLLOW ING THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF BALDEV RAJ CHARLA AND OTHERS (SUPRA) HAS DELETED SUCH ADDITION B Y OBSERVING AS UNDER : 9 ITA NO.1320/PN/2016 21. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A ) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSI DERED THE VARIOUS DECISIONS CITED BEFORE ME. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT WHEN THE SEA RCH TOOK PLACE. IT IS ONLY AFTER THE SEARCH TOOK PLACE THAT THE ASSESSEE, BE FORE FILING OF THE RETURNS, PREPARED THE BOOKS ON THE BASIS OF THE BANK ST ATEMENTS AND THE AVAILABLE DATA. ACCORDING TO THE LD. COUNSEL FOR TH E ASSESSEE, SUFFICIENT CASH WAS AVAILABLE IN THE CASH BOOK ALTHOUGH THE SAME W AS PREPARED AFTER THE SEARCH AND THE DEPARTMENT HAS NOT FOUND ANY OTHER EVIDENCE DURING THE SEARCH THAT THE ASSESSEE HAS UTILISED THE CASH OTHERWI SE. IT IS ALSO THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT DURI NG THE FIRST REMAND REPORT, THE THEN JCIT HAD VERIFIED THE CASH BOOK AND HAS FOUND THAT SUFFICIENT CASH WAS AVAILABLE IN THE CASH BOOK BEFORE CASH DEPOSIT WAS MADE IN THE BANK ACCOUNT. MERELY BECAUSE THE SAME WA S NOT SIGNED BY THE JCIT AND ONLY AN SD/- COPY WAS SENT THE SAME CANNOT BE A GROUND TO MAKE ADDITION U/S.68 ON THE BASIS OF THE SUBSEQUENT REMAND RE PORT OF THE ASSESSING OFFICER. 22. I FIND SOME FORCE IN THE SUBMISSION OF THE LD. COUN SEL FOR THE ASSESSEE. ADMITTEDLY, NO BOOKS OF ACCOUNTS WERE MAINTAIN ED AT THE TIME OF SEARCH. HOWEVER, IT IS ALSO A FACT THAT THE BOOKS OF ACCOUNTS WERE PREPARED SUBSEQUENT TO THE SEARCH ON THE BASIS OF THE DEPOSITS AND WITHDRAWALS AS PER THE BANK STATEMENT AND OTHER AVAILABLE DATA. SU CH BOOKS WERE PRODUCED BEFORE THE ASSESSING OFFICER DURING ASSESSMENT PRO CEEDINGS. THE THEN JCIT IN HIS REMAND REPORT HAS GIVEN A CATEGO RICAL FINDING THAT SUFFICIENT CASH WAS AVAILABLE IN THE BOOKS BEFORE THE D EPOSITS WERE MADE. THE CONTENTS OF THE REMAND REPORT HAS ALREADY BEEN RE PRODUCED AT PARA NO.9 OF THE IMPUGNED ORDER. MERELY BECAUSE THE SAID REMAND REPORT WAS NOT SIGNED BY THE JCIT AND ONLY ONE SD/- COPY WAS FORW ARDED TO THE OFFICE OF THE CIT(A), THE SAME IN MY OPINION CANNOT BE A GR OUND TO TAKE A VIEW AGAINST THE ASSESSEE. THE ASSESSEE IS AT NO FAULT FOR NON- SUBMISSION OF THE SIGNED REMAND REPORT BY THE THEN JCIT. FURTHER, NOT HING HAS BEEN FOUND BY THE SEARCH PARTY AT THE TIME OF SEARCH THAT THE ASSE SSEE HAS UTILISED THE CASH TOWARDS PURCHASE OF ANY OTHER ASSET OR INCURRING OF ANY UNEXPLAINED EXPENDITURE. 22.1 THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. BALDEV RAJ CHARLA (SUPRA) HAS HELD THAT WHEN THERE IS NO MATERIA L WITH THE INCOME- TAX AUTHORITIES TO SHOW THAT THE AMOUNTS OF CASH DEPOSIT S IN QUESTION ADMITTEDLY WITHDRAWN FROM BANK AND ASSESSEES CONCERN WE RE UTILISED FOR ANY OTHER PURPOSE, NO ADDITION COULD BE MADE ONLY ON THE GROUND THAT THERE WAS TIME GAP BETWEEN THE WITHDRAWALS AND THE CO RRESPONDING CASH DEPOSITS. 22.2 ANOTHER ASPECT TO BE CONSIDERED IN THIS CASE IS THA T THE ASSESSMENT ORDER HAS BEEN PASSED U/S.143(3) AND THE BOOKS OF ACCOUN TS WERE NOT REJECTED BY THE ASSESSING OFFICER. THEREFORE, ONCE TH E BOOKS ARE NOT REJECTED AND SINCE NOTHING HAS BEEN FOUND DURING THE COURSE OF SEARCH THAT THE ASSESSEE HAS DIVERTED ITS CASH FOR SOME OTHER PURPOSE, T HEN, IN MY OPINION, THE AVAILABILITY OF CASH IN THE BOOKS CANNO T BE DOUBTED AS NOT AVAILABLE TO THE ASSESSEE MERELY BECAUSE THERE IS SOME TIM E GAP BETWEEN THE WITHDRAWAL AND THE DEPOSIT. SINCE THE ASSESSEE HAS E XPLAINED THE SOURCE OF DEPOSITS AS OUT OF EARLIER WITHDRAWALS EITHER ON THE SAME DAY OR ON PREVIOUS OCCASIONS AND SINCE THE CASH BOOK PRODUCED B Y THE ASSESSEE SHOWS THAT THERE IS SUFFICIENT CASH BALANCE ON THE DATE OF DEPOSIT OF CASH IN THE BANK ACCOUNT AND CONSIDERING THE FACT THAT THE T HEN JCIT IN HIS REMAND 10 ITA NO.1320/PN/2016 REPORT HAS ALSO ACCEPTED THAT CASH WAS AVAILABLE IN THE BOOKS FOR MAKING THE DEPOSIT IN THE BANK ACCOUNT, THEREFORE, I AM OF THE CONSIDERED OPINION THAT NO ADDITION IS CALLED FOR U/S.68 OF THE I.T. AC T. IN THIS VIEW OF THE MATTER, I SET- ASIDE THE ORDER OF THE CIT(A) AND DIRE CT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE BY HIM U/S.68 IN ALL THE SE YEARS. THE GROUNDS RAISED BY THE ASSESSEE IN ALL THESE YEARS ARE ACCORDINGLY ALLOWED. 14. I FIND THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF S.R. VENKATA RATNAM VS. CIT (SUPRA) HAS HELD AS UNDER : THERE IS SOME FORCE IN THE ARGUMENT OF THE LEARNED C OUNSEL FOR THE PETITIONER AND THE ARGUMENT ADVANCED BY THE REVENUE IS, THEREFORE, WITHOUT ANY FORCE. ONCE THE PETITIONER ASSESSEE DISCLOSE D THE SOURCE AS HAVING COME FROM THE WITHDRAWAL MADE ON A GIVEN DAT E FROM A GIVEN BANK, IT WAS NOT FOR RESPONDENTS NOS. 1 AND 2 TO CONCERN THEM SELVES WITH WHAT THE ASSESSEE DID WITH THAT MONEY, I.E., WHETHER HE HAD KEPT THE SAME IN HIS HOUSE OR UTILISED THE SERVICES OF A BANK BY DEPOSITING THE SAME. THE ITO HAD ONLY TWO CHOICES BEFORE HIM. ONE WAS TO REJECT TH E EXPLANATION AS NOT BELIEVABLE FOR THE REASON THAT ON HIS INVESTIGATION NO SUCH PIGMY DEPOSIT WAS EVER MADE IN THE BANK. IN THE ALTERNATIVE HE OUG HT TO HAVE CALLED UPON THE ASSESSEE PETITIONER TO SUBSTANTIATE HIS CLAIM BY DOCUM ENTARY EVIDENCE. HAVING EXERCISED NEITHER OF THE CHOICES, IT WAS NOT OP EN TO THE ITO TO MERELY SURMISE THAT IT WOULD NOT BE PROBABLE FOR THE ASSESSEE TO KEEP RS.15,000 UNUTILISED FOR A PERIOD OF TWO YEARS. THE IT O SHOULD HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS ASSERTIO N AS TO THE SOURCE OF HIS CAPITAL OUTLAY. 15. SINCE IN THE INSTANT CASE THERE IS NO MATERIAL BEFORE THE REVENUE AUTHORITIES THAT THE ASSESSEE HAS MADE INVESTMENT IN SO ME OTHER ASSETS OR MADE SOME EXPENDITURE WHICH HAS COME TO THE NOTICE OF THE DEPARTMENT, THEREFORE, IN ABSENCE OF ANY SUCH MATERIAL THE PLEA OF THE ASSESSEE THAT CASH DEPOSITED IN THE BANK ACCOUNT WAS OUT OF THE PREVIOUS CASH WITHDRAWAL FROM THE BANK CANNOT BE DISBELIEV ED SUMMARILY. SINCE THE DEPOSIT IN THE BANK ACCOUNT OF RS.24 ,25,000/- IS MUCH LESS THAN THE AMOUNT OF CASH WITHDRAWN ON PREVIO US OCCASIONS FROM THE BANK AMOUNTING TO RS.33,70,000/- AND S INCE THERE IS NO MATERIAL AT THE DISPOSAL OF THE REVENUE THAT THE AS SESSEE HAS SPENT THE MONEY OTHERWISE, THEREFORE, I AM OF THE CONSIDE RED OPINION THAT THE CASH WITHDRAWN EARLIER IS AVAILABLE WITH THE ASSES SEE FOR 11 ITA NO.1320/PN/2016 DEPOSIT IN THE BANK ACCOUNT. IN THIS VIEW OF THE MATTER, I SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION. 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-07-2016. SD/- (R.K. PANDA) ACCOUNTANT MEMBER PUNE; ! DATED : 29 TH JULY, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER, // TRUE COPY // // # $ //UE %& $ ) / SR. PRIVATE SECRETARY ) , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3 . THE CIT (A) - 2 , PUNE 4. THE CIT - 2 , PUNE 5. # $$) , ) , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 1 / GUARD FILE.