Shri Vikram V.Patel, Ahmedabad V. The Income tax Officer,Ward-6(2), Ahmedabad

ITA 1380/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9122 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 25-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: A L THAKKAR
• Keywords: Income from undisclosed sources; Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 1380/AHD/2012 (ASSESSMENT YEAR: 2008-09) SHRI VIKRAM V. PATEL 1, PATEL VAS, MOTI KHADKI, THALTEJ, AHMEDABAD V/S THE INCOME TAX OFFICER WARD-6(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AKSPP0031E APPELLANT BY : SHRI A.L. THAKKAR, AR RESPONDENT BY : SHRI NARENDRA SINGH, SR. D.R . ( )/ ORDER DATE OF HEARING : 17 -03-201 6 DATE OF PRONOUNCEMENT : 30 -03-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF LD. CIT(A)-XI, AHMEDABAD DATED 23.04.2012 PERTAINING TO A.Y. 2008-09. 2. THE GRIEVANCE OF THE ASSESSEE READ AS UNDER:- ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 2 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 17,00,000/- MADE BY THE ASSESSING OFFICER FOR THE ALLEGED INCOME FROM UNDIS CLOSED SOURCES U/S. 68 OF THE INCOME TAX ACT, 1961 BEING AN AMOUNT OF CASH DEPOSI TED IN S.B. A/C. NO. 638 WITH BANK OF INDIA. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 80,550/- TREATING THE AGRICULTURAL INCOME AS IN COME FROM OTHER SOURCES. 3. THE RETURN FOR THE YEAR UNDER CONSIDERATION WAS FIL ED ON 08.04.2009 DECLARING TOTAL INCOME AT RS. 1,04,272/-. THE RETUR N WAS SELECTED FOR SCRUTINY ASSESSMENT THROUGH CASS AND STATUTORY NOTI CES WERE ISSUED AND SERVED UPON THE ASSESSEE. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF DEPOSIT OF RS. 1,80,000/- ON 29.05.2007, RS. 20,000/- ON 07 .11.2007 AND RS. 15,00,000/- ON 25.02.2008 BY CASH IN BANK OF INDIA THALTEJ BRANCH, AHMEDABAD. THE ASSESSEE WAS ALSO ASKED TO EXPLAIN T HE CREDITS IN HIS ACCOUNTS AMOUNTING TO RS. 30,000/- ON 28.04.2007, R S. 2,00,000/- ON 21.05.2007, RS. 16,014/- ON 08.11.2007 AND RS. 30,0 00/- ON 15.02.2008. 4. ON RECEIVING NO PLAUSIBLE REPLY, THE A.O TREATED TH E CREDIT ENTRIES IN HIS PASS BOOK AS INCOME FROM UNDISCLOSED SOURCES AN D MADE AN ADDITION OF RS. 34,76,014/-. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) A ND CHALLENGED THE ASSESSMENT ORDER BY FILING CERTAIN ADDITIONAL EVIDE NCES. THE LD. CIT(A) ADMITTED THE ADDITIONAL EVIDENCES AND FORWARDED THE SAME TO THE OFFICE OF THE A.O FOR VERIFICATION. THE A.O SUBMITT ED A REMAND REPORT VIDE LETTER DATED 17.02.2012 AND 29.03.2012 WHICH R EAD AS UNDER:- ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 3 NO. WD. 6(2)/VVP/2011-12 DATE:17/02/2012 TO THE COMMISSIONER OF INCOME-TAX(APPEALS)-XI AHMEDABAD (SUBMITTED THROUGH PROPER CHANNEL) SIR, SUB: REMAND REPORT IN CASES OF SHRI VIKRAM V. PATEL , PROP. OF SHREE RAVECHI MEDICAL PROVISIONS STORE A.Y. 2008-09-REG. KINDLY REFER TO THE ABOVE. AS PER DIRECTIONS OF YOUR GOODSELF, THE CASE HAS EX AMINED IN VIEW OF ADDITIONAL EVIDENCES. AS PER ASSESSMENT ORDER ADDITION OF RS. 34,76,014/- MADE ON THE BASIS OF CREDIT ENTRIES IN BANK ACCOUNT. THE ASSESSEE WAS EX AMINED ON OATH. THE ASSESSEE SUBMITTED THAT AMOUNT OF RS.15,00,000/- RECEIVED FROM HIS MOTHER B Y CHEQUE, RS.2,00,000/- FROM HIS WIFE AS RECEIVED BACK THE AM OUNT GIVEN TO HER IN F.Y. 2005-06 AND RS.30,0007- RECEIVED FROM M/S.KIRAN MOTORS, LEDGER ACCOUNTS OF MOTHER AND WIFE ARE SUBMITTED. HOWEVER, BANK STATEMENTS OF THESE FAMILY MEMBERS ARE NOT SUBMITTED. THE SAME HAS REQUIRED FROM THE ASSESSEE AND AFTER RECEI VING THE SAME, FINAL REPORT WILL BE SUBMITTED. APART FROM THE ABOVE, THERE WAS CASH DEPOSIT OF RS. 17,00,000/-IN HIS SUBMISSION THE ASSESSEE SUBMITTED CASH BOOK OPENING CASH BALANCE O F RS. 11,04,381/-. HOWEVER, NO PROOF HAS PRODUCED TO SHOW HOW THE ASSESSEE HAD ACC UMULATED THIS HUGE OPENING CASH BALANCE. THE COPY OF STATEMENT OF THE ASSESSEE RECO RDED ON 24-01-2012 IS ENCLOSED HEREWITH. INTERIM REPORT IS SUBMITTED FOR YOUR KIN D PERUSAL. SD/- (P.C. CHAUHAN) I TO, WD.6(2), AHMEDABAD NO. WD. 6(2)/VVP/2011-12 DATE: 29/03/2012 TO: THE COMMISSIONER OF INCOME-TAX (APPEALS)-XI ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 4 AHMEDABAD (SUBMITTED THROUGH PROPER CHANNEL) SIR, SUB: REMAND REPORT IN CASES OF SHRI VIKR AM V. PATEL, A.Y. 2008-09-REG. KINDLY REFER TO INTERIM REMAND REPORT DA TED 17.02.2012 IN WHICH THE FOLLOWING TWO ISSUES DOES NOT COVERED: 1. CREDIT ENTRIES OF RS. 2,00,000/- ON 21.05.2007 2. OPENING CASH BALANCE OF RS. 11,04,381/- 1. THE ASSESSEE GIVEN REPLY VIDE SUBMISSION DATED 06-03-2012 (RECEIVED ON 12-03- 2012). IN RESPECT OF CREDIT ENTRY OF RS. 2,00,000/-, THE ASSESSEE FILED EXPLANATION THAT HE HAD GIVEN PAYMENT ON BEHALF OF HIS WIFE SMT. RES HMA V. PATEL. HOWEVER, THE ASSESSEE STILL FAILED TO PRODUCE BANK ACCOUNT OF HI S WIFE SHOWING DEBIT ENTRY OF SAME AMOUNT ON SAID DATE. IN HIS SUBMISSION THE ASSESSEE PRODUCED ONLY LEDGER ACCOUNT OF HIS WIFE. 2. IN RESPECT OF OPENING CASH BALANCE THE ASSESSEE FIL ED SUMMARY OF CASH BOOK OF F.Y. 2006-07. IN THIS CASH BOOK THE ASSESSEE SHOWN CASH FROM VARI OUS SOURCES. HOWEVER, THE AVAILABILITY OF CASH WITHDRAWAL FROM BANK OF IN DIA RS.8,96,000/- IS NOT ACCEPTABLE AS IS NOT CLEAR THAT THE SAME CASH WAS NOT UTILIZED FOR LONG TIME AND WAS AVAILABLE WITH HIM. AS PER SUBMISSION OF THE ASSESSEE HIMSELF THE CASH WITHDRAWAL FOR TREATMENT OF HIS MOTHER. IT IS UNBELIEVABLE THAT NO AMOUNT SPEND BY THE-ASSESSEE FOR TREATMENT OF DECEASE LIKE CANCER AND SAME CASH WAS AVAILABLE WIT H THE ASSESSEE AS OPENING BALANCE. THE FACTUAL REPORT ON THE BASIS OF SUBMISSION MADE BY THE ASSESSEE IS SUBMITTED FOR YOUR KIND PERUSAL. SD/- (P.C. CHAUHAN) ITO,WD.6(2), AHMEDABAD 6. THE REMAND REPORT WAS GIVEN TO THE ASSESSEE FOR HIS COMMENTS. ASSESSEE FILED A DETAILED REPLY WHICH READS AS UNDER:- ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 5 I AM THANKFUL FOR RECEIVING THE COPY OF FINAL REMAN D REPORT IN MY CASE AND I WOULD LIKE TO RESPECTFULLY SUBMIT FURTHER CLARIFICATIONS WITH REG ARD TO THE POINTS RAISED IN THE FINAL REMAND REPORT AS BELOW: 1.CREDIT ENTRIES OF RS. 2,00,000/- ON 21.05.2007. WITH REFERENCE TO PONIT NO :1 OF THE FINAL REMAND R EPORT ON SUBMISSION OF COPY OF MY BANK PASSBOOK & LEDGER ACCOUNT FOR CREDIT ENTRY OF RS. 2,00,000 RECEIVED FROM MRS. RESHMA V PATEL ALONG WITH HER CONFIRMATION OF SMT. RESHMA PATEL: KINDLY REFER POINT NO 2 OF MY EARLIER SUBMISSION LE TTER DT. 06/03/2012 TO ITO WARD 6 (2), IN WHICH I HAVE ALREADY BEEN SUBMITTED THE COMPLETE DETAILS AND CLARIFICATIONS ALONG WITH THE CONFIRMATION OF SMT. RESHMA V PATEL ON THIS POI NT. HOWEVER, THE LD. ITO IS REITERATING THE SAME POINT IN HIS FINAL REMAND REPO RT, AND DECLINING THE REAL FACTS OF THE CASE, HENCE I AM SUBMITTING HERE WITH THE FOLLOWING EXPLANATIONS TO YOUR HONOR: IN THIS RESPECT I WOULD LIKE TO CLARIFY T HE FACT; THAT DURING THE FY: 2006-2007 MY WIFE MRS. RESHMA V PATEL HAD PURCHASED THE LAND PLO T AT THALTEJ AHMEDABAD. HENCE, FOR MAKING PAYMENT OF PURCHASE CONSIDERATION OF THIS LA ND PLOT, I HAD GIVEN A SUM OF RS. 4,07,400/- TO MY WIFE AS A LOAN. THE DETAILS OF PAY MENT MADE BY ME ON BEHALF OF MRS. RESHMA PATEL (WIFE) FROM MY SB BANK ACCOUNT NO:636 WITH TH E BOI, THALTEJ BRANCH; TO THE CO-OWNERS OF THIS LAND ARE AS BELOW: CH NO DATE AMOUNT PAID ON BEHALF OF MRS. RESHMA V PATEL 679197 08/06/2006 67900/- TO CO OWNER MR. HARDIK PATEL 679199 08/06/2006 67900/- TO CO OWNER MR. KASHMIRA PATEL 679198 08/06/2006 67900/- TO CO OWNER MR. MB PATEL 679196 08/06/2006 67900/- TO CO OWNER MR. DHAVAL B PATEL 679194 08/06/2006 67900/- TO CO OWNER MR. BB PATEL 679195 08/06/2006 67900/- TO CO OWNER MR. NB PATEL TOTAL 4,07,400/- WITH REFERENCE TO ABOVE PAYMENT, I WOULD LIKE TO CL ARIFY HERE THAT THE NECESSARY PROOFS LIKE COPY OF MY BANK PASS BOOK FOR THE FY: 2006-07 AND PURCHASE DEED OF LAND PLOT OF MY WIFE ALONG WITH HER CONFIRMATION FOR THE SAME & HER LEDGER ACCOUNT IN MY BOOKS OF ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 6 ACCOUNTS FOR THE FY 2006-07 HAVE ALREADY BEEN SUBMI TTED WITH THE LD ITO WD 6 {2} AHMEDABAD FOR HIS VERIFICATION. HOWEVER, THE LD AO HAS MENTIONED IN HIS FINAL REMAND REPORT THAT THE ASSESSEE HAS PRODUCED ONLY LEDGER A CCOUNT OF HIS WIFE. HENCE, ON SUBMISSION OF THE CONFIRMATION OF SMT RESHMA V PATE L ON THIS POINT; IT IS WELL ESTABLISHED NOW THAT THE CREDIT ENTRY OF RS. 2,00,000/- IN MY B ANK ACCOUNT IS NOT MY INCOME/CASH DEPOSITED IN MY SAVING BANK ACCOUNT BUT THE SAME IS RECEIVED FROM MY WIFE SMT RESHMA V PATEL AS A REFUND OF ABOVE REFERRED LOAN. HENCE, RS 2 LACS SHOULD NOT BE ADDED TO MY INCOME ON THIS GROUND. THE SAME SHOULD NOT BE TREAT ED AS UNEXPLAINED DEPOSITS WHEN THE ASSESSEE HAS ALREADY BEEN EXPLAINED THE SAME. THERE FORE, IT IS MY HUMBLE REQUEST TO DELETE THIS ADDITION IN MY CASE 1. OPENING CASH BALANCE OF RS.11,04,381/- WITH REFERENCE TO PONIT NO:2 OF THE FINAL REMAND RE PORT ON OPENING CASH BALANCE OF RS. 11,04,381/- .IT IS TO BE NOTED THAT THE BELOW G IVEN EXPLANATIONS HAVE ALREADY BEEN SUBMITTED WITH THE LD AO WD 6 (2) FOR ASSESSMENT OF MY INCOME ALONG WITH THE NECESSARY SUPPORTING LIKE DETAILED CASH BOOK FOR TH E FY :2006-07 & 2007-08. HOWEVER THE LD. AO IS CRAVE TO REJECT MY SUBMISSION ONLY ON HYPOTHETICAL GROUNDS AND STATED IN HIS FINAL REPORT THAT THE AVAILABILITY OF CASH WITH DRAWAL FROM BANK OF INDIA OF RS.8,96,000/- IS NOT ACCEPTABLE AS IT IS NOT CLEAR THAT THE SAME CASH WAS NOT UTILIZED FOR LONG TIME AND WAS AVAILABLE WITH THE ASSESSEE. HENC E, ONCE AGAIN I AM SUBMITTING HERE WITH THE MONTH WISE SUMMARY OF MY CASH BOOK WITH YO UR HONOR TO EXPLAIN THE FACTS OF THE CASE AS BELOW: EXPLANATIONS WITH PROOF FOR CARRY FORWARDING OF OPE NING BALANCE OF RS.11, 04,381/- IN MY CASH BOOK THE FOLLOWING TABLE IS SHOWS COMPLETE DAILY DETAILS OF CASH RECEIPTS AND PAYMENTS FOR THE FY 2006-2007 AND HOW THE CASH ON HAND HAS BEEN ACCU MULATED ON 31/03/2007 ANNUAL SUMMARY OF CASH BOOK FOR FY: 2006-2007 PARTICULARS INFLOWS OUTFLOWS BALANCE CASH ON HAND AS ON 01/04/2006 {A} 47886.00 BROKERAGE INCOME 1,30,550 - 1,30,550 ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 7 HOUSE RENT INCOME 42,000 42,000 CASH WITHDRAWN FROM BOI 8,96,000 -60,000 8,36, 000 INTEREST RECEIVED/PAID 16,000 -5,835 10,165 AGRICULTURAL INCOME (NET) 70,550 - 70,550 TELEPHONE EXPS -12,510 -12,510 PETROL & CONVEYANCE -18,520 -18,510 MISC. EXPS 1,740 -1,740 TOTAL ({B} 11,55,100 -98605 10,56,495 CASH ON HAND AS ON 31/03/2007 11,04,31 FROM THE ABOVE ANNUAL SUMMARY, THE ACCUMULATION OF CASH ON HAND DURING THE PREVIOUS CONSECUTIVE FINANCIAL YEAR MAY BE VERIFIED. IT IS A LSO TO BE NOTED IN THE ACCUMULATED CASH ON HAND THAT THE APPROXIMATELY 76% { I.E. 8, 36,000 ) OF TOTAL CASH ON HAND IS WITHDRAWN FROM MY BANK ACCOUNT WITH BANK OF INDIA, THALTEJ BR ANCH. HOWEVER, LD. AO IS DENIED THE SAME IN HIS REMAND OR DER AND EXPLAINING ' AS PER SUBMISSION OF THE ASSESSEE HIMSELF THAT THE CASH WI THDRAWN FOR TREATMENT OF HIS MOTHER, IT IS UNBELIEVABLE THAT NO AMOUNT SPEND BY THE ASSESSE E FOR TREATMENT OF DECEASE LIKE CANCER AND SAME CASH WAS AVAILABLE WITH THE ASSESSEE AS OP ENING BALANCE' WITH THE ABOVE POINT RAISED BY THE AO IN HIS REMAND REPORT, I WOULD LIKE TO FURTHER CLARIFY THAT THE SOURCE OF CASH RECEIVED BY ME IS ALREADY B EEN CONFIRMED BY THE LD AO IN HIS REPORT AFTER VERIFICATION OF THE SAME, HOWEVER HE I S NOT ACCEPTING THE SAME AND ARGUING THAT WHY NOT THIS CASH AMOUNT WAS UTILIZED FOR THE TREATMENT OF MY MOTHER?. IN THIS RESPECT I WOULD LIKE TO CLARIFY THAT IT WAS INITIAL STAGE OF TREATMENT OF MY MOTHER AND DURING THE FY: 2006-07, SHE WAS DETECTED DECEASE OF CANCER AND SINCE THEN SHE IS STILL UNDER TREATMENT OF CANCER. THE PURPOSE OF ACCUMULAT ION OF THIS MUCH AMOUNT OF CASH IS ONLY TO MEET TREATMENT EXPENSES OF MY MOTHER. HENCE , QUESTION OF UTILIZATION OF CASH DOES NOT ARISE, AS THE UTILIZATION OF THE SAME IS NOT AL LOWABLE EXPENSES UNDER THE INCOME TAX ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 8 ACT; BUT THE SOURCE OF CASH RECEIVED IS MUCH IMPORT ANT IN MY CASE. HENCE, WHEN THE ASSESSEE HAS PROVED THE SOURCE OF CASH RECEIVED THE N THE SAME IS NOT REMAINED AS UNEXPLAINED. SO, IT IS MY HUMBLE REQUEST TO CONSIDE R THESE EXPLANATIONS AND GIVE THE DIRECTION TO THE AO TO TREAT THIS CASH ON HAND AS E XPLAINED AND COMPLETE THE ASSESSMENT IN MY CASE ON THE BASIS OF DETAILS GIVEN BELOW. I AM SUBMITTING HERE WITH THE DETAILED MONTHLY SUMM ARY AND COPY OF PASS BOOK FOR THE FY: 2006-07 TO SHOW THAT HOW THIS CASH ON HAND OF R S-.11, 04,381/- IS ACCUMULATED DURING THE FY: 2006-07. THE MONTH WISE BREAK UP OF CASH FLOW IS AS BELOW: MONTH WISE SUMMARY OF CASH ACCOUNT :FOR FY : 2006-07 APRIL-06 PARTICULARS RECEIVED PAID NET INFLOW (OUTFLOW) BALANCE OB AS ON 01/04/06 (AS PER RETURN) 47,886 BROKERAGE INCOME 10200 - 10200 HOUSE RENT INCOME 3500 - 3500 CASH WITHDRAWN FROM BO I 70000 - 70000 TOTAL 83700 - 83700 131586 MAY-06 OB AS ON 01/05/06 (AS PER RETURN) 131586 BROKERAGE INCOME 11000 - 11000 HOUSE RENT INCOME 3500 - 3500 CASH WITHDRAWN FROM BO I 275000 - 275000 TOTAL 289500 - 289500 421086 JUNE-06 OB AS ON 01/06/06 (AS PER RETURN) 421086 HOUSE RENT 3500 - 3500 BROKERAGE INCOME 12800 - 12800 TOTAL 16300 - 16300 437386 JULY-06 OB AS ON 01/07/06 (AS PER RETURN) 437386 HOUSE RENT INCOME 3500 - 3500 BROKERAGE INCOME 9800 - 9800 CASH WITHDRAWN FROM BOI 50000 - 50000 TOTAL 63300 - 63300 500686 OB AS ON 01/08/06 (AS PER RETURN) 500686 ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 9 AUGUST- 06 HOUSE RENT INCOME 3500 - 3500 BROKERAGE INCOME 12300 - 12300 CASH WITHDRAWN FROM BOI 16000 - 16000 TOTAL 31800 - 31800 532486 OB AS ON 01/09/06 (AS PER RETURN) 532486 SEPT-06 HOUSE RENT INCOME 3500 - 3500 BROKERAGE INCOME 12500 - 12500 TOTAL 16000 - 16000 548486 OB AS ON 01/10/06 (AS PER RETURN) 548486 HOUSE RENT INCOME 3500 - 3500 OCT-06 BROKERAGE INCOME 7500 - 7500 CASH WITHDRAWN FROM BOI 100000 - 100000 TOTAL 111000 - 111000 659486 OB AS ON 01/11/06 (AS PER RETURN) 659486 HOUSE RENT INCOME 3500 - 3500 NOVEMB ER-06 BROKERAGE INCOME 12500 - 12500 CASH WITHDRAWN FROM BOI/DEPOSITED 120000 -24000 96000 TOTAL 136000 -24000 112000 771486 OB AS ON 01/12/06 (AS PER RETURN) 771486 DEC-06 HOUSE RENT INCOME 3500 - 3500 BROKERAGE INCOME 8550 - 12500 CASH WITHDRAWN FROM BOI/DEPOSITED 225000 - 225000 TOTAL 136000 - 237050 1008536 OB AS ON 01/01/07 (AS PER RETURN) 1008536 JAN-07 HOUSE RENT INCOME 3500 - 3500 BROKERAGE INCOME 9500 - 9500 TOTAL 13000 - 13000 1021536 ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 10 OB AS ON 01/02/07 (AS PER RETURN) 1008536 HOUSE RENT INCOME 3500 - 3500 FEB-07 BROKERAGE INCOME 10000 - 10000 CASH WITHDRAWN FROM BOI/DEPOSITED 30000 -36000 -6000 TOTAL 43500 36000 7500 1029036 OB AS ON 01/03/07 (AS PER RETURN) 1029036 HOUSE RENT INCOME 3500 - 3500 MARCH- 07 BROKERAGE INCOME 13900 - 13900 INTEREST RECEIVED/PAID 16000 -5835 10165 AGRICULTURAL INCOME (NET) 70550 - 70560 TELEPHONE EXPS 12510 -12510 PETROL & CONVEYANCE 18520 -18520 MISC. EXPS 1740 -1740 CASH WITHDRAWN FROM BOI/DEPOSITED 10000 - 10000 TOTAL 43500 36000 75345 1104381 THE REASON FOR ACCUMULATION OF HUGE CASH BALAN CE ON HAND IS THAT MY MOTHER IS SUFFERING FROM CANC ER SINCE 2006- 07, PROOF FOR THE SAME IS ALREADY BEEN SUBMITTED WITH YOU DUR ING THE COURSE OF HEARINGS HENCE, I WAS IN VERY MUCH NEEDS OF CASH TO MEET THE COST OF HER IMMEDIATE MEDICAL TREATMENT OF CANCER THEREFORE, IT IS NECESSARY FOR ME TO KEEP ENOUGH CASH ON HAND FOR TREATMENT OF MY MOTHER. HENCE, THIS ACCUMULATION OF CASH IS RESULTED. IN CLARIFICATION OF THIS POINT I AM SUBMITTING THE ABOVE EXPLANATIONS A LONG WITH NECESSARY SUPPORTING IN RESPONSE OF THE VERIFICATION POINTS RAISED BY THE L D AO IN HIS REMAND REPORT FOR THE ASSESSMENT YEAR: 2008-2009.HENCE, IT IS NOW WELL ES TABLISHED IN MY CASE THAT THERE IS NO ANY EXPLAINED INCOME/UN EXPLAINED CASH DEPOSITS WHI CH MAY BE ADDED AS INCOME TO MY RETURNED INCOME. I HOPE THAT THIS POINT WISE REPLY SERVE YOUR PURPOS E TO DETERMINE MY TAXABLE INCOME. HENCE, IT IS MY HUMBLE REQUEST TO DIRECT THE AO TO ISSUE FINAL ASSESSMENT ORDER AFTER CONSIDERING THIS POINT WISE CLARIFICATION IN RESPEC T OF POINTS RAISED BY AO IN HIS REMAND REPORT. SIR IF YOU REQUIRE FURTHER INFORMATION ON THE SAME WILL BE PROVIDED ON INTIMATION,' ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 11 7. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, TH E LD. CIT(A) WAS CONVINCED WITH THE DEPOSITS WHICH WERE MADE BY CHEQ UES AND DIRECTED THE A.O. TO DELETE THE ADDITION TO THE EXTENT OF RS . 17,76,014/-. WHILE DELETING THE ADDITION TO THIS EXTENT, THE LD. CIT(A ) WAS CONVINCED BY THE FACT THAT A SUM OF RS. 17,76,014/- HAS BEEN REC EIVED BY THE ASSESSEE EITHER BY CREDIT NOTE OR THROUGH BANKING T RANSACTIONS. THE LD. CIT(A) ACCEPTED THE CREDIT NOTE AS HAVING BEEN RECE IVED FROM M/S. KIRAN MOTORS. HOWEVER, IN SO FAR AS, THE CASH ENTRI ES ARE CONCERNED, THE LD. CIT(A) AGREED WITH THE A.O THAT AVAILABILIT Y OF CASH COULD NOT BE BELIEVED AS COMING OUT OF EARLIER YEARS TRANSACTION S. THE LD. CIT(A) OBSERVED THAT DURING THE APPELLATE PROCEEDINGS AS W ELL AS DURING THE REMAND REPORT PROCEEDINGS, ASSESSEE HAS FAILED TO F URNISH DIRECT EVIDENCES TO PROVE THAT CASH WAS WITHDRAWN FROM BAN K AND WAS AVAILABLE WITH THE ASSESSEE FOR ALMOST ONE YEAR. AD DITION OF RS. 17 LACS WAS CONFIRMED. 8. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. THE L D. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY SUBMITT ED THAT EACH AND EVERY DEPOSIT HAS BEEN EXPLAINED TO THE REVENUE AUT HORITIES. IT IS THE SAY OF THE LD. COUNSEL THAT THERE WERE HEAVY WITHDR AWALS IN EARLIER ASSESSMENT YEARS AND AN AMOUNT OF RS. 11 LACS WAS T HE OPENING BALANCE FOR THE YEAR UNDER CONSIDERATION. THE LD. C OUNSEL TOOK US TO THE VARIOUS PAGES OF CASH BOOK WHICH ARE PLACED IN THE FORM OF PAPER BOOK BEFORE US. THE LD. COUNSEL STATED THAT NO ADVE RSE INFERENCE HAS BEEN DRAWN IN SO FAR AS THE ENTRIES IN THE CASH BOO K ARE CONCERNED. THEREFORE, THE DEPOSITS IN THE BANK SHOULD BE ACCEP TED AS COMING OUT OF KNOWN SOURCES. ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 12 9. PER CONTRA, THE LD. D.R. STRONGLY SUPPORTED THE FINDINGS OF THE A.O. IT IS THE SAY OF THE LD. D.R. THAT NO PRUDENT PERSON WOULD KEEP CASH IN HIS HOME WHILE HE IS HOLDING BANK ACCOUNTS. THE LD. D.R. CONCLUDED BY SAYING THAT THE ASSESSEE HAS GROSSLY F AILED IN EXPLAINING THE SOURCE OF DEPOSITS MADE IN THE BANK. 10. HAVING HEARD THE RIVAL SUBMISSIONS, WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELO W. WITH THE ASSISTANCE OF THE LEARNED COUNSEL, WE HAVE ALSO GON E THROUGH THE RELEVANT DOCUMENTARY EVIDENCES REFERRED TO DURING T HE COURSE OF THE PROCEEDINGS. THE BONE OF CONTENTION BETWEEN THE ASS ESSEE AND THE REVENUE RELATES TO HOLDING OF CASH IN HAND BY THE A SSESSEE FOR MORE THAN ONE YEAR, WE FIND THAT THE AVAILABILITY OR THE SOURCES HAVE NOT BEEN DISPUTED BY THE REVENUE AUTHORITIES. THE ONLY GRIEVANCE IS THAT NO PRUDENT PERSON WOULD KEEP SUBSTANTIAL CASH AT HI S HOME; WE FIND THAT THE ASSESSEE IS A BROKER IN REAL ESTATE. IN OU R UNDERSTANDING OF THE FACTS, IN THIS LINE OF BUSINESS A PERSON HAS TO KEEP CASH READILY AVAILABLE TO BARGAIN THE PURCHASE OF PROPERTIES. TH IS CANNOT BE DENIED. FURTHER, THE CLAIM OF THE ASSESSEE THAT THE CASH WA S ALSO KEPT AT HOME FOR THE TREATMENT OF THE MOTHER OF THE ASSESSEE ALS O CANNOT BE BRUSHED ASIDE LIGHTLY. MOREOVER, AS MENTIONED ELSEW HERE, THE AVAILABILITY/SOURCE OF CASH HAS NOT BEEN QUESTIONED BY THE REVENUE AUTHORITIES, ONLY THE MODE OF KEEPING IT IS DOUBTED . WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL THAT THERE IS NO LAW WHICH PROHIBITS A PERSON TO KEEP CASH AT HOME. AFTER CONSIDERING THE FACTS IN TOTALITY, IN OUR CONSIDERED OPINION, THE ASSESSEE HAS SUCCESSFUL LY EXPLAINED THE SOURCES OF CASH DEPOSITED IN THE BANK; THEREFORE NO ADDITION IS CALLED ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 13 FOR. WE ACCORDINGLY SET ASIDE THE FINDINGS OF THE L D. CIT(A) AND DIRECT THE A.O TO DELETE THE ADDITION OF RS. 17 LACS. GROU ND NO. 1 IS ALLOWED. GROUND NO. 2 RELATES TO THE ADDITION OF RS. 80,550/ - BY TREATING THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES. 11. WHILE SCRUTINIZING THE RETURN OF INCOME, THE A.O FO UND THAT THE ASSESSEE HAS CLAIMED AGRICULTURAL INCOME OF RS. 80, 550/-. IN THE ABSENCE OF ANY DETAILS REGARDING AGRICULTURAL LAND HOLDING, SALE PROOF OF AGRICULTURAL PROCEEDS AND EXPENSES MADE FOR EARNING AGRICULTURAL INCOME; THE A.O TREATED THE AGRICULTURE INCOME AS I NCOME FROM OTHER SOURCES AND ADDED THE SAME U/S. 68 OF THE ACT. 12. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) A ND SUBMITTED COPIES OF FORM NO. 7/12. BEFORE THE LD. CIT(A), THE ASSESSEE ADMITTED THAT DOCUMENTS RELATING TO AGRICULTURAL LAND HOLDIN G COULD NOT BE SUBMITTED BEFORE THE A.O BUT THE SAME WERE SUBMITTE D BEFORE THE LD. CIT(A). ASSESSMENT ORDER FOR ASSESSMENT YEAR 2006-0 7 WAS ALSO SUPPLIED TO THE LD. CIT(A) WHEREIN AGRICULTURAL INC OME HAS BEEN ACCEPTED BY THE A.O. 13. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, TH E LD. CIT(A) WAS OF THE OPINION THAT THE ASSESSEE COULD NOT FURN ISH ANY EVIDENCE TO PROVE SALE PROCEEDS OF AGRICULTURE PRODUCE. THE LD. CIT(A) ACCORDINGLY CONFIRMED THE FINDINGS OF THE A.O. 14. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. THE L D. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. THE LD. D.R. STRONGLY SUPPORTED THE FI NDINGS OF THE REVENUE ITA NO. 1380 /AHD/2012 . A.Y. 2008-09 14 AUTHORITIES. WE HAVE CAREFULLY CONSIDERED THE ORDER S OF THE AUTHORITIES BELOW. THE UNDISPUTED FACT IS THAT THE ASSESSEE DID FURNISH THE PROOF OF AGRICULTURAL LAND HOLDING BY FILING COPIES OF 7/12 BEFORE THE FIRST APPELLATE AUTHORITY. IT CAN BE SAFELY CONCLUDED TH AT THE ASSESSEE WAS HOLDING AGRICULTURAL LAND. IT IS ALSO AN UNDISPUTED FACT THAT THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2006-07 WAS MA DE U/S. 143(3) OF THE ACT VIDE ORDER DATED 15.12.2008 IN WHICH THE A.O HAS ACCEPTED THE AGRICULTURAL INCOME OF THE ASSESSEE AMOUNTING T O RS. 63,050/-. THE ASSESSMENT ORDER IS PLACED AT PAGES 46 TO 50 OF THE PAPER BOOK. 15. CONSIDERING THE FACTS, IN OUR CONSIDERED OPINION, T HE CLAIM OF THE ASSESSEE CANNOT BE DENIED. WE ACCORDINGLY SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O TO TREAT THE INCO ME OF RS. 80,550/- AS AGRICULTURAL INCOME OF THE ASSESSEE. APPEAL FIL ED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 03 - 2016 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD