M/s B.P. Ware Housing Pvt. Ltd., Morena V. A.C.I.T., Range-II, Gwalior

ITA 145/AGR/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 56894 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-02-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 10-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 145/AGRA/2010 ASST. YEAR : 2004-05 M/S. B.P. WAREHOUSING PVT. LTD., VS. A.C.I.T., RAN GE-II, A.B. ROAD, MORENA (M.P.) GWALIOR. (PAN : AAECM 0546 J) (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI RAJENDRA SHARMA, ADVOCATE FOR REVENUE : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 21.02.2012 DATE OF PRONOUNCEMENT : 24.02.2012 ORDER PER BHAVNESH SAINI, J.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), GWALIOR DATED 23.02.2010 FOR THE ASSESSMENT YEAR 20 04-05, CHALLENGING THE ADDITION OF RS.2,19,757/- (RS.83,757/- + RS.1,36,00 0/-). 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS RUNNING WAREHOUSE IN THE NAME AND STYLE OF M/S. B.P. WAREHO USING PVT. LTD. THE ITA NO. 145/AGRA/2010 2 RETURN OF INCOME HAS BEEN FILED ON THE TOTAL LOSS O F RS.21,64,590/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED CERTAIN CASH DEPOSITS IN THE BANK ACCOUNTS IN SBI AND CHAMB AL KSHETRIYA BANK ON VARIOUS DATES AMOUNTING TO RS.4,18,000/- IN SBI ACC OUNT NO. 050374 AND RS.2,00,000/- IN OTHER BANK ACCOUNT. ON RECONCILIAT ION OF THE CASH BOOK WITH THE BANK LEDGER AND BANK ACCOUNTS, THE ASSESSING OF FICER FOUND NO CORRESPONDING ENTRY IN THE CASH BOOK FOR THE CASH D EPOSITS. INSTEAD, THE AMOUNTS HAVE BEEN CREDITED IN THE CASH BOOK AFTER A GAP OF 3 TO 4 MONTHS. THE DETAILS OF THE SAME HAVE BEEN NOTED AT PAGE NO. 2 OF THE APPELLATE ORDER. THE ASSESSEE EXPLAINED THAT DUE TO MISTAKE OF THE A CCOUNTANT, PROPER ENTRIES COULD NOT BE RECORDED, THOUGH THE ASSESSEE HAD SUFF ICIENT CASH BALANCE ON THE DATES OF CASH DEPOSITS IN THE BANK ACCOUNTS. THE EX PLANATION OF THE ASSESSEE WAS, HOWEVER, NOT ACCEPTED. THE ADDITIONS WERE CHAL LENGED BEFORE THE LD. CIT(A). THE LD. CIT(A) ACCEPTED THE EXPLANATION OF THE ASSESSEE PARTLY AS REGARDS THE AVAILABILITY OF ADEQUATE CASH BALANCE I N THE BOOKS OF ACCOUNT ON THE DATES OF DEPOSITS EXCEPT FOR THE ADDITION NOW C HALLENGED BEFORE THE TRIBUNAL. THE APPEAL OF THE ASSESSEE WAS PARTLY ALL OWED. 4. AS REGARDS THE ADDITION OF RS.1,36,000/-, THE LD . CIT(A) NOTED THAT THE DEPOSIT OF RS.1,36,000/- IS STATED TO BE MADE ON 24 .03.2004, THOUGH THE ITA NO. 145/AGRA/2010 3 CORRECT DATE IS 24.08.2003 AS EXPLAINED BY THE ASSE SSEE. THE LD. CIT(A) NOTED THAT ALL THE FACTS WERE CONFRONTED TO THE ASS ESSEE AND NO SATISFACTORY EXPLANATION WAS GIVEN FOR DEPOSIT OF RS.1,36,000/-. THE ADDITION WAS, ACCORDINGLY, CONFIRMED. THE LD. COUNSEL FOR THE ASS ESSEE REFERRED TO PB-5 TO SHOW THAT THE LD. CIT(A) MISDIRECTED HIMSELF IN NOT CONSIDERING THE AVAILABILITY OF CASH BALANCE IN THE CASH BOOK OF TH E ASSESSEE ON 24.08.2003 IN A SUM OF RS.1,33,045/-. HE, THEREFORE, SUBMITTED TH AT THE MATTER MAY BE REMANDED TO THE FILE OF LD. CIT(A) FOR RE-CONSIDERA TION. 5. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORD ER OF THE LD. CIT(A). ON CONSIDERATION OF SUBMISSIONS OF BOTH THE PARTIES AND THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSI DERATION AT THE LEVEL OF THE LD. CIT(A). THE ASSESSEE IN ITS EXPLANATION (PB-5) EXPLAINED THAT THERE IS A CASH BALANCE AVAILABLE TO THE ASSESSEE ON 24.08.200 3 IN A SUM OF RS.1,33,045/-, I.E., ON THE DATE OF DEPOSIT OF RS.1 ,36,000/- ON 24.08.2003. THIS FACT IS NOT CONSIDERED BY THE LD. CIT(A). WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND RESTORE T HIS POINT TO THE FILE OF LD. CIT(A) FOR RECONSIDERATION. THE LD. CIT(A) SHALL GI VE REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE BEFORE PASSING THE APPELLATE ORDER. ITA NO. 145/AGRA/2010 4 6. AS REGARDS THE ADDITION OF RS.83,757/- MAINTAINE D BY THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) NOTED THAT THE SAME ISS UE PERTAINED TO THE DEPOSIT OF RS.2,00,000/- IN CHAMBAL KSHETRIYA BANK ON 13.10 .2003, THOUGH THE ENTRY IN THE BOOKS OF ACCOUNT IS MADE ON 17.12.2003 . THE ASSESSEE SUBMITTED THE SOURCE OF THE SAME TO BE ADVANCE IN LIEU OF REN T FOR RS.83,757/- RECEIVED FROM ONE SHRI MURARI LAL SUBHASH CHAND. THE LD. CIT (A), HOWEVER, NOTED THAT THE ASSESSEE FAILED TO GIVE COMPLETE ADDRESS A ND DETAILS OF SHRI MURARI LAL SUBHASH CHAND AND NO ENTRY OF ADVANCE RECEIVED FROM HIM HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSING OFF ICER, THEREFORE, TREATED THE SAME AS UNEXPLAINED CASH CREDIT. THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE IN THE ABSENCE OF ANY DO CUMENTARY EVIDENCE. EVEN NO CONFIRMATION LETTER FROM SHRI MURARI LAL SU BHASH CHAND HAD BEEN FILED. THE LD. CIT(A), THEREFORE, CONFIRMED THE ADD ITION. 7. THE LD. COUNSEL FOR THE ASSESSEE SIMILARLY SUBMI TTED THAT THE MATTER MAY BE REMANDED TO THE FILE OF THE LD. CIT(A) FOR R ECONSIDERATION. HOWEVER, WE DO NOT AGREE WITH THE SUBMISSION OF THE LD. COUN SEL FOR THE ASSESSEE BECAUSE THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE BEFORE US EVEN TO MAKE OUT A CASE FOR REMANDING THE MATTER TO THE FILE OF LD. CIT(A). NO EVIDENCE IS ITA NO. 145/AGRA/2010 5 PRODUCED BEFORE US TO EXPLAIN THE DEPOSIT OF CASH I N THE BANK ACCOUNT. IN THE ABSENCE OF ANY EVIDENCE ON RECORD, WE ARE NOT INCLI NED TO INTERFERE IN THE FINDING OF THE LD. CIT(A). THE ADDITION OF RS.83,75 7/- IS, ACCORDINGLY, CONFIRMED. THUS, PART OF THIS GROUND IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED AS INDICATED ABOVE. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 TH FEBRUARY, 2012 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY