Kailash Chandra Trivedi, Kanpur V. Dy. CIT, Kanpur

ITA 133/LKW/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70569 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-11-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.133/LKW/2013 A.Y.:09 - 10 SHRI KAILASH CHAND TRIVEDI 65/32, MOTI MAHAL , KANPUR. PAN:ACCPT8154G VS. DY. C.I.T., CENTRAL CIRCLE - I, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. DATE OF HEARING 12/11/2013 DATE OF PRONOUNCEMENT 2 9 /11/2013 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF CIT ( A) - I, KANPUR DATED 31/10/2012 FOR ASSESSMENT YEAR 2009 - 2010. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING ADDITION OF RS.3,70,000/ - OUT OF THE TOTAL ADDITION OF RS.4,16,000/ - ON ACCOUNT OF UNEXPLAINED/UNDISCLOSED CASH FOUND AT THE TIME OF SEARCH. 2. BECAUSE THE CIT ( A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS AND THE EXPLANATION, AS WELL AS 2 THE CASH FLOW STATEMENT FILED EXPLAINING THE SOURCE OF CASH AVAILABLE AT THE TIME OF SEARCH. 3. BECAUSE THE CIT ( A) HAS FAILED TO APPRECIATE THAT NO STATEMENT ON OATH OF THE APPELLANT WAS RECORDED AT THE TIME OF SEARCH OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THEREAFTER, THE ADDITION MADE BY THE AO OF RS.4,16,000/ - REDUCED BY C1T(A) TO RS.3,70,000/ - IS BASED PURELY NO DISBELIEVING THE EXPLANATION FURNISHED BY THE ASSESSEE, WHICH EXPLANATION HAS NOT BEEN FOUND TO BE FALSE OR UNTRUE. 4. BECAUSE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO SUBSTANTIALLY WITHOUT APPRECIATING THE FACT THAT THE ENTIRE CASH FOUND AT THE TIME OF SEARCH BEING DULY EXPLAINED AND THERE BEING NO MATERIAL TO DISBELIEVE THE SAME, THE ADDITION UPHELD BE DELETED. 5. BECAUSE THE CIT(A) HAS NOT JUSTIFIED IN PART ACCEPTING THE ISSUE UNDER REFERENCE AND PART REJECTING THE SAME. 6. BECAUSE THE ORDER OF THE CIT(A) IS UNJUST, BAD IN LAW AND VOID ABINITO. 2. BRIEF FACTS ARE THAT A SEARCH WAS CARRIED OUT ON 17/09/2008 AND CASH AMOUNTING TO RS.21.24 LAKHS WAS FOUND. THE ASSESSEE WAS NOT PRESENT AT THE TIME OF SEARCH. THE STATEMENT OF SUDESH TRIVEDI, SON OF THE ASSESSEE, WHO WAS PRESENT AT THE TIME OF SEARCH, WAS RECORDED. THE ASSES SING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE CASH FOUND, WHICH WAS EXPLAINED AS UNDER: 1. RS.12,00,000/ - SHRI MOHIT JAIN 2. RS. 4,00,000/ - SHRI SUDESH TRIVEDI 3. RS. 4,16,000/ - SHRI K.C. TRIVEDI & SHARDA TRIVEDI 4. RS. 60,000/ - SMT. RENU TRIVEDI W/O SHRI SUDESH TRIVEDI 5. RS. 48,000/ - KM.NIKIT TRIVEDI,S/O SUDESH TRIVEDI 3 2.1 THE EXPLANATION FOR CASH OF RS.4,16,000/ - BELONGING TO ASSESSEE HAS BEEN DISBELIEVED BY THE ASSESSING OFFICER WHO HELD THAT SINCE THERE WAS NO EVIDENCE EXCEPT FOR THE CASH FLOW STATEMENT WHICH IS ONLY A SELF - SERVING DOCUMENT , THE SOURCE OF CASH REMAINED UNEXPLAINED AND THE ADDITION WAS MADE BY THE ASSESSING OFFICER OF THIS AMOUNT. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LEARNED CIT(A). THE LEARNED CIT(A) ALLOWED A RELIEF OF RS.46,000/ - ON ACCOUNT OF SAVING FROM EARLIER YEARS FOR ENTIRE FAMILY AND HE CONFIRMED BALANCE ADDITION OF RS.3.70 LAKHS. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. IT WAS SUBMITTED BY LEARNED A.R. O F THE ASSESSEE THAT THE CASH FLOW STATEMENT FOR THE PERIOD 01/04/2007 TO 31/03/2008 AND 01/04/2008 TO 31/03/2009 ARE AVAILABLE ON PAGES 11 AND 12 OF THE PAPER BOOK AND AS PER THE SAME, IT CAN BE SEEN THAT NO PART OF THE ADDITION CONFIRMED BY LEARNED CIT(A) IS SUSTAINABLE. HE ALSO PLACED RELIANCE ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF DCIT VS. SATISH CHANDRA PANDEY IN I.T.A. NO.525/LKW/2010 DATED 30/03/2011. HE SUBMITTED COPY OF THE TRIBUNAL ORDER. 4. AS AGAINST THIS, LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). HE ALSO SUBMITTED THAT BEFORE THE DATE OF SEARCH, NO BALANCE SHEET OR CASH FLOW STATEMENT WAS SUBMITTED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME FILED BY THE ASSESSEE AND THEREFORE, ALL THESE CASH FLOW STATEM ENT STARTING FROM FINANCIAL YEAR 2003 - 04 TO FINANCIAL YEAR 2008 - 09 SUBMITTED DURING THE ASSESSMENT PROCEEDINGS OF THIS YEAR ARE SELF - SERVING DOCUMENTS AND THE SAME CANNOT BE CONSIDERED A BASIS TO DELETE THE ADDITION MADE BY THE ASSESSING OFFICER. REGARDING THE TRIBUNAL 4 DECISION ON WHICH RELIANCE HAS BEEN PLACED BY LEARNED A.R. OF THE ASSESSEE, IT WAS SUBMITTED THAT THE SAME IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON REC ORD AND GONE THROUGH THE JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE. FIRST WE DEAL WITH THE TRIBUNAL DECISION CITED BY LEARNED A.R. OF THE ASSESSEE. THE FINDING OF THE TRIBUNAL IS AVAILABLE IN PARA 5 OF THE TRIBUNAL ORDER. IN THIS PARA , IT IS NOTED BY THE TRIBUNAL THAT THE ASSESSING OFFICER HAS HIMSELF ADMITTED THAT THE SAID AMOUNT WAS SHOWN IN THE CASH FLOW STATEMENT AS OPENING BALANCE SO IT CANNOT BE SAID THAT THE ASSESSEE EARNED INCOME TO TH AT EXTENT DURING THE YEAR UNDER CONSIDERATION. IN THE PR ESENT CAS E ALSO, AS PER THE CASH FLOW STATEMENT SUBMITTED BY THE ASSESSEE FOR THE PRESENT YEAR AS AVAILABLE ON PAGE 12 OF THE PAPER BOOK , OPENING BALANCE OF CASH IN HAND WAS RS. 4.09 LACS AND THE CLOSING BALANCE IS RS. 4.39 LACS. THIS INCREASE OF RS. 0.30 LACS IS ON ACCOUNT OF CASH WITHDRAWN FROM BANK RS. 1.175 LACS AND EXPENSES AND DRAWINGS OF RS. 0.87 LACS. HENCE, IT CANNOT BE SAID THAT THERE IS ANY INCREASE IN CASH IN HAND IN THE PRESENT YEAR WHICH STANDS UNEXPLAINED. REGARDING THIS CONTENTION OF THE LEA RNED DR OF THE REVENUE THAT THE CASH FLOW STATEMENT WAS NOT FILED WITH INCOME TAX RETURN FILED BEFORE THE DATE OF SEARCH, WE FIND THAT THERE IS NO SUCH REQUIREMENT THAT THE ASSESSEE MUST FILE CASH FLOW STATEMENT, BALANCE SHEET OR COPY OF CAPITAL ACCOUNT WI TH THE RETURN OF INCOME. HENCE, ON THIS BASIS, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE. THE A.O. COULD HAVE ASKED THE ASSESSEE TO EXPLAIN THE OPENING CASH AS ON 01.04.2003 RS. 4.60 LACS AND IF HE COULD FIND THAT THE ASSESSEE IS NOT ABLE TO E XPLAIN THIS OPENING CASH ON 01.04.2003, ADDITION 5 COULD HAVE BEEN MADE IN A. Y. 2003 04 WHEN THE ASSESSEE IS SHOWING THE CASH FOR THE FIRST TIME BUT IS NOT ABLE TO EXPLAIN. THE A.O. CAN DO SO NOW ALSO IF THE LAW PERMITS BUT IN THE PRESENT YEAR, THE ADDITI ON MADE BY HIM CANNOT BE SUSTAINED IN THE FACTS OF THE PRESENT CASE. WE DELETE THE SAME. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YAD AV) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 9 /11/2013 . *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T. ASSTT. REGISTRAR