A.C.I.T Cir - 3,Asansol, Asansol V. Sri Bireswar Kar, Raiganj

ITA 1454/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4496 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 31-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-05-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Assessee Lawyers: U DASGUPTA
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Salary income; Source of fund; Assessment record; Onus to prove
• Section: 133(6); 131; 68

Judgement Text

ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1454/KOL/ 2013 ASSESSMENT YEAR: 2008-09 A.C.I.T, CIRCLE-3,ASANSOL PARMAR BUILDING 54 G.T ROAD (WEST) ASANSOL-713304 ............................... APPELLANT -VS.- SRI BIRESWAR KAR PROP: SUDHI BASTRALAYA, B.C ROAD, KUMAR BAZAR, RANIGANJ-713347 BURDWAN ................... .......... RESPONDENT PAN:AFCPK 2459Q C.O NO. 106/KOL/ 2013 [ ARISING OUT OF ITA NO. 1454/KOL/2013 A.Y 2008-09] SRI BIRESWAR KAR PROP: SUDHI BASTRALAYA, B.C ROAD, KUMAR BAZAR, RANIGANJ-713347 BURDWAN PAN: AFCPK 2459Q ............................... APPELLANT/CROSS OBJECTOR -VS.- A.C.I.T, CIRCLE-3,ASANSOL PARMAR BUILDING 54 G.T ROAD (WEST) ASANSOL-713304 .............................RESP ONDENT ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 2 APPEARANCES BY: SHRI RAJAT KUMAR KUREEL, JCIT, SR. D.R., FOR THE DEPARTMENT SHRI U. DASGUPTA, ADVOCATE., FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : 31-05- 2016 DATE OF PRONOUNCING THE ORDER : 29 -07-2016 O R D E R PER SHRI S.S. VISWANETHRA RAVI :- THIS APPEAL AND CROSS OBJECTION FILED BY THE REVEN UE AND ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSI ONER OF INCOME TAX (APPEALS)- DURGAPUR DATED 04.02.2013 FOR THE AS SESSMENT YEAR 2008-09. THE ASSESSEE HAS ALSO FILED A CROSS-OBJECT ION AGAINST THE VERY SAME ORDER OF THE CIT(A). 2. THERE IS A DELAY OF 05 DAYS IN FILING THE APPEAL BY REVENUE, FOR WHICH THE CONDONATION PETITION HAS BEEN FILED EXPLAINING THE REASON FOR DELAY IN FILING AS OWING TO ADMINISTRATIVE DELAY. AFTER PERUSING T HE SAME AND HEARING BOTH THE PARTIES, WE CONDONE THE DELAY IN FILING THE APP EAL BY THE REVENUE. 3. GROUND NO.1 RAISED BY THE REVENUE READS AS FOLLO WS:- THAT, THE LD. CIT(A), ASANSOL HAS ERRED IN LAW AND ON FACTS BY DELETING THE ADDITION OF RS.30,44,387/- MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVEST MENT IN LAND, RESIDENTIAL FLAT & SHOP, ETC.; 4. DURING THE RELEVANT YEAR UNDER CONSIDERATION THA T THE ASSESSEE HAD MADE AN INVESTMENT OF RS. 12,35,000/- FOR THE PURCHASE O F FLAT AT BURO SHIVTOLA, ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 3 KOLKATA AND RS.18,44,000/- FOR PURCHASE OF SHOP ROO M AT KOLKATA AND RS.3,75,000/- FOR THE PURCHASE OF LAND. IN THE COUR SE OF ASSESSMENT PROCEEDINGS, THE AO CALLED UPON THE ASSESSEE TO EXP LAIN THE SOURCE OF INVESTMENT MADE. 5. IN HIS EXPLANATION, THE ASSESSEE EXPLAINED THAT FOR THE PURCHASE OF SHOP ROOM AT ARMENIAN STREET, KOLKATA, HE HAS PAID RS.11 ,39,850/- FROM THE BANK ACCOUNT NO.... 2073 OF SUDHI BASTRALAYA OF AXIS BA NK, BURDWAN AND RS.7,00,000/- FROM THE BANK ACCOUNT NO.. ...2097 OF SUDHI TEXTILE (PROP. BUBAI KAR, WIFE OF THE ASSESSEE). REGARDING INVEST MENT MADE IN PURCHASE OF FLAT AT BURO SHIBTOLA MAIN ROAD, BEHALA, HE STATED THAT THE FLAT IS IN THE JOINT NAME OF BIRESWAR KAR AND HIS WIFE BUBAI KAR FOR WHI CH, RS.6,10,367/- WAS PAID FROM THE BANK A/C NO. 2073 OF AXIS BANK OF SUD HI BASTRALAYA ( PROPRIETOR IS BIRESWAR KAR HIMSELF) AND RS.1,00,000/- WAS PAID FROM THE A/C NO.2097 OF AXIS BANK OF SUDHI TEXTILE AND THE REMAINING AMOUNT OF RS.16,43,031/- WAS PAID FROM LOAN TAKEN JOINTLY BY BIRESWAR KAR AND HI S WIFE BUBAI KAR FROM ICICI BANK. REGARDING FLAT AT METRO HEIGHTS, DR. L AL MOHAN BHATTACHARJEE ROAD, KOLKATA, THE ASSESSEE SUBMITTED THAT IT WAS P URCHASED IN EARLIER YEARS AND FOR THIS REMAINING AMOUNT OF RS.1,15,020/- WAS PAID TO RAMESWARA DEVELOPERS PVT. LTD, KOLKATA ON 04.04.2007 FROM THE AXIS BANK ACCOUNT NO. 2073 OF SUDHI BASTRALAYA. REGARDING INVESTMENT IN LAND, HE EXPLAINED THAT LAND PURCHASED (1/2 SHARE) OF RS.3,75,000/- AT RAIN A HAS BEEN PURCHASED FROM WITHDRAWAL OF CASH FROM SUDHI BASTRALAYA. 6. ON VERIFICATION OF THE BALANCE SHEET OF M/S. SU DHI BASTRALAYA, THE AO FOUND THAT THE OPENING CAPITAL OF SUDHI BASTRALAYA AS ON 04.04.2007 WAS OF RS.3,28,353/-. THE ASSESSEE HAS INTRODUCED CAPITAL OF RS.3,00,000/- DURING THE RELEVANT YEAR. THUS THE TOTAL CAPITAL WITH SUDHI BA STRALAYA WAS OF ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 4 RS.6,28,353/- AND THE ASSESSEE HAS SHOWN WITHDRAWAL OF RS.30,28,626/- FROM THE CAPITAL OF SUDHI BASTRALAYA. THIS WITHDRAWAL CO NSISTS OF WITHDRAWAL OF RS.4,00,000/- FOR PERSONAL PURPOSE, RS.18,65,237/- FOR FLAT, RS.4,50,000/- OF LAND PURCHASE AND THE REMAINING AMOUNT OF OTHER INV ESTMENT SUCH AS LIC ETC. IF NET PROFIT OF THE CURRENT YEAR OF RS.6,89,764/- IS INCLUDED WITH THE CAPITAL, EVEN THEN THE ASSESSEE HAS WITHDRAWN EXCESS AMOUNT OF RS.17,10,507/- FROM HIS PROPRIETORSHIP BUSINESS SUDHI BASTRALAYA, WHICH HE HAS SHOWN AS CONTRA ENTRY IN HIS BOOKS OF ACCOUNT. ACCORDING TO THE AO , A PERSON CANNOT WITHDRAW CAPITAL OF RS.30,28,626/-, WHEN HE HAS THE CAPITAL OF RS. 6,28,353/- ONLY. THE AO FOUND THAT IN THE CIRCUMSTANCES WAS OF THE VIEW THAT THE ASSESSEE DOES NOT HAVE ANY CASH CREDIT ACCOUNT FOR RUNNING HIS BUSINE SS. A PERSON CANNOT RUN HIS BUSINESS THAT TOO WITH A TURNOVER OF RS.2,67,54,86 6/- WITHOUT HAVING ANY CAPITAL. THE ASSESSEE DID NOT HAVE ANY SUNDRY DEBTO RS IN HIS BOOKS. 7. ON VERIFICATION OF THE BANK ACCOUNT OF SUDHI BA STRALAYA, THE AO FOUND THAT ALL THE DEPOSITS WERE MADE IN CASH. ON ALMOST EVERY INSTANCE, JUST BEFORE PAYING MONEY FOR PURCHASE OF FLAT AND SHOP HUGE AMO UNT OF CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNT. TO VERIFY THE AVAIL ABILITY OF CASH WITH SUDHI BASTRALAYA, THE AO CALLED UPON THE ASSESSEE TO PROD UCE CASH BOOK FOR THE RELEVANT YEAR. IN RESPONSE TO THIS, THE ASSESSEE PR ODUCED CASH BOOK, WHICH WAS MANUALLY MAINTAINED IN A REGISTER. IN THIS REGISTER ENTRY OF CASH INFLOW-OUTFLOW AND TRANSACTION MADE IN BANK ARE MIXED TOGETHER. AC CORDING TO THE AO THE CASH BOOK AVAILABILITY OF CASH WAS NOT ASCERTAINAB LE. ACCORDING TO HIM, ON VARIOUS OCCASION, IT HAS BEEN FOUND THAT CASH HAS B EEN DEPOSITED IN CASH BOOK IN THE NAME OF THE ASSESSEE, SUCH AS ON 7 TH DECEMBER, 2007 AN AMOUNT OF RS.2,00,000/- AND ON 15 TH DECEMBER, 2007 AMOUNT OF RS.4,00,000/- HAS BEEN SHOWN AS RECEIPT FROM BIRESWAR KAR AND THIS HAS BEE N SUBSEQUENTLY SHOWN TO ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 5 HAVE BEEN RETURNED TO HIM. THE AO FOUND THAT THIS C LEARLY MEANS THAT THE ASSESSEE DID NOT MAINTAIN HIS CASH BOOK PROPERLY AN D HE USED TO MAKE A DUMMY ENTRY FOR INTRODUCTION OF HIS OUT OF BOOKS CA SH INTO HIS BOOKS OF ACCOUNT TO MITIGATE THE SHORTAGE OF CASH IN HIS BOO KS OF ACCOUNT. THE AO, THEREFORE, CONCLUDED THAT THE ASSESSEE DID NOT HAVE SUFFICIENT FUND TO WITHDRAW FROM PROPRIETORSHIP BUSINESS CONCERN SUDHI BASTRALA YA AND HE HAS USED HIS OWN UNDISCLOSED MONEY TO INVEST IN FLAT, SHOP ROOM AND LAND BY GIVING IT A COLOUR OF WITHDRAWAL FROM BANK ACCOUNT OF HIS OWN B USINESS CONCERN AND THE BUSINESS CONCERN OF HIS WIFE. THE ASSESSEE HAD SHO WN WITHDRAWAL FOR FLAT OF RS.18,65,237/- AND FOR LAND OF RS.4,50,000/- FROM T HE CAPITAL OF SUDHI BASTRALAYA. WHEREAS, HE HAS INVESTED TOTAL OF RS.26 ,69,387/- IN FLAT AND SHOP ROOM AND RS.3,75,000/- IN LAND. THUS THE SOURCE OF INVESTMENT OF RS.30,44,387/- ALL TOGETHER IN LAND, FLATS AND SHO P ROOM IS NOT EXPLAINED. HENCE, AN AMOUNT OF RS.30,44,387/- WAS ADDED AS DE EMED INCOME OF THE ASSESSEE IN THE GUISE OF UNEXPLAINED INVESTMENT BY THE AO. 8. BEFORE THE CIT-A THE ASSESSEE SUBMITTED THE ADD ITION OF RS.30,44,387/- TO THE TOAL INCOME BEING UNEXPLAINED INVESTMENT IS UNJUSTIFIED, ARBITRARY, BASELESS AND MADE OUT OF MISAPPROPRIATION OF FACTS FOR THE REASONS GIVEN BELOW:- A. FLAT AT BEHALA : THE INVESTMENT OF FLAT AT BEHA LA PURCHASED JOINTLY WITH HIS WIFE SMT. BUBAI KAR, PROPRIETOR OF M/S. SU DHI TEXTILES, A WHOLESALE CLOTH MERCHANT ASSESSED BY THE INCOME TAX OFFICER, WARD 3(1), ASANSOL UNDER PA NO. AFCPK8252M FOR RS.12,35,000/-. THE SOURCE OF FUND WAS RS.6,10,367/- PAID FROM THE BANK ACCOUNT OF THE BUS INESS M/S. SUDHI BASTRALAYA (A/C NO.2073 OF AXIS BANK, BURDWAN), RS. 1,00,000/- FROM THE BANK ACCOUNT OF M/S. SUDHI TEXTILES, THE BUSINESS O F SMT. BUBAI KAR (A/C ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 6 NO.2097 OF AXIS BANK, BURDWAN) AND BALANCE AMOUNT O F LOAN JOINTLY TAKEN FROM ICICI BANK, BURDWAN BY THE APPELLANT AND HIS W IFE. B. SHOP ROOM THE TOTAL INVESTMENT OF RS.18,44,000/- WAS PAID F ROM THE AXIS BANK OF M/S. SUDHI BASTRALAYA RS.11,39,850/- AND RS .7,00,000/- WAS PAID FROM THE AXIS BANK ACCOUNT OF M/S. SUDHI TEXTILES O F SMT. BUBAI KAR. C. LAND AT RAINA FOR RS.3,75,000/- WAS SHOWN IN THE PERSONAL CAPITAL ACCOUNT OF THE ASSESSEE OUT OF WITHDRAWALS FROM THE BUSINESS OF THE ASSESSEE. ALL THESE INVESTMENTS HAVE BEEN MADE FROM THE BANK ACCOUNTS OF THE ASSESSEE AND HIS WIFE AND ALSO FROM BANK LOAN AND FROM WITHD RAWALS FROM HIS BUSINESS WHICH HAVE BEEN PROPERLY REFLECTED IN THE BOOKS OF THE ASSESSEE. THE BOOKS MAINTAINED ARE CORRECT AND TRULY REFLECTED IN TRANS ACTION. EVERY RECEIPTS AND DISBURSEMENT MADE DURING THE YEAR ARE CORRECTLY ENT ERED AND ARE PROPERLY EXPLAINED. THE LEARNED ASSESSING OFFICER HAS FAILED TO APPRECIATE THE FACT THAT TOTAL CAPITAL IN A BUSINESS CANNOT BE ANY YARDSTICK OF THE INVESTMENT MADE ESPECIALLY WHEN THE PURCHASE ARE MADE WHOLLY ON CRE DIT. FURTHER MORE IN A RETAIL BUSINESS OF COTTON AND TEXTILE GOODS WHEN AL MOST THE ENTIRE SALES ARE MADE IN CASH AND WHERE THE ANNUAL TURNOVER IS MORE THAN 2 CRORES, THERE CAN BE NO SHORTAGE OF LIQUID MONEY. IN VIEW OF THIS, THE ENTIRE ADDITION OF RS.30,44,3 87/- BEING PROPERLY EXPLAINED, SHOULD BE DELETED. THE AXIS BANK ACCOUNT OF THE BUSINESS OF M/S. SUDHI BASTRALAYA, M/S. SUDHI TEXTILES, ICICI LOAN A CCOUNTS, FULL SET OF ACCOUNTS OF M/S. SUDHI BASTRALAYA ALONG WITH PERSONAL CAPITA L ACCOUNT, OF THE ASSESSEE AND BALANCE SHEET, I.T PAPERS, BANK STATEMENTS, CAPITAL ACCOUNTS OF THE ASSESSEES ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 7 WIFE, SMT. BUBAI KAR SHOWING THE TRANSACTIONS ARE B EING ENCLOSED. THE DETAILS OF PAYMENT TOWARDS THE COST OF THE PROPERTIES ARE ALSO BEING SUBMITTED. 9. THE LD. CIT-A ON CONSIDERATION OF THE ABOVE SUBM ISSIONS HELD AS FOLLOWS:- PAGE 5-7 OF THE LD.CIT(A)S ORDER. ... ... I DO NOT SEE WHY THIS SHOULD BE SO. THER E IS NO MENTION IN THE AOS ORDER THAT DATEWISE TRANSACTIONS HAVE NOT BEEN MAINTAINED IN THE CASH BOOK. IF THESE ARE MAINTAINED, THEN, WHETHER T HESE TRANSACTIONS ARE IN CASH OR THROUGH BANK I DO NOT SEE WHY CALCULATIN G THE AVAILABILITY OF CASH ON ANY GIVEN DAY SHOULD BE A PROBLEM. SECONDLY , THE AO HAS ALSO MENTIONED THAT ON OCCASIONS THE APPELLANT IS SEEN T O HAVE DEPOSITED CASH WHICH SUBSEQUENTLY HAS ALSO BEEN RETURNED TO H IM. THE AO HAS COME TO THE CONCLUSION HERE THAT CASH BOOK WAS NOT PROPERLY MAINTAINED. I CANNOT AGREE WITH THIS CONCLUSION OF THE AO. AS STATED ABOVE, THE AO DOES NOT MENTION ANY GAPS OCCURRING I N THE CASH BOOK. IF THE CASH BOOK HAS BEEN MAINTAINED ON DAY TO DAY BAS IS THEN CALCULATING THE AVAILABILITY OF CASH ON A PARTICULAR DAY SHOULD NOT BE A PROBLEM. THE AO HAS ALSO MENTIONED THAT ON OCCASIONS THE APPELL ANT HAS INTRODUCED HIS OWN CASH IN THE BUSINESS BUT PARADOXICALLY NO A DVERSE COMMENTS HAS BEEN MADE BY THE AO REGARDING THE SOURCES OF SUCH C ASH INTRODUCTION. PRESUMABLY THEREFORE HE IS SATISFIED REGARDING THE SOURCES OF SUCH CASH. THEREFORE, IN MY OPINION, THE AO HAS NOT FOUND ANYT HING INCRIMINATING IN THE APPELLANTS CASH BOOK WHICH WOULD ENTAIL ITS REJECTION. AS REGARDS THE SOURCES OF THE INVESTMENTS IT HAS TO BE REMEMB ERED THAT THE APPELLANT IS THE OWNER OF A RETAIL CLOTH SHOP. THI S BUSINESS IS CONDUCTED WHOLLY BY CASH. THE AO HAS HIMSELF NOTED IN THE ASS ESSMENT ORDER THAT THE APPELLANTS BUSINESS TURNOVER FOR THE YEAR WAS RS.2,67,54,866/- AND THAT HE HAD NO DEBTORS. THEREFORE, AVAILABILITY OF CASH WITH THE APPELLANT DOES NOT APPEAR TO BE IN DOUBT. IN COURSE OF APPELL ATE PROCEEDINGS, THE BANK ACCOUNTS MAINTAINED BY THE APPELLANT AND HIS W IFE FOR THEIR BUSINESS HAVE BEEN SUBMITTED. IT IS SEEN THAT THE D EPOSITS ARE ALMOST EXCLUSIVELY IN CASH. BUT IN MY OPINION, THIS IS ONL Y TO BE EXPECTED IN A BUSINESS WHERE THE SALES ARE INVARIABLY IN CASH, A FACT WHICH THE AO HIMSELF HAS ATTESTED TOO. MOREOVER, I FIND FROM AN EXAMINATION OF THE BANK ACCOUNT THAT THE CASH HAS BEEN DEPOSITED AT RE GULAR INTERVALS AND NOT ONLY BEFORE MAKING THE INVESTMENTS IN QUESTION. TO SUM UP, I DO NOT AGREE WITH THE AOS VIEW THAT THE APPELLANTS CASH AVAILABILITY AS ON A ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 8 PARTICULAR DAY WAS NOT ASCERTAINABLE FROM HIS CASH BOOK. I ALSO FIND THAT AVAILABILITY OF CASH WITH THE APPELLANT WAS NOT A P ROBLEM GIVEN THE NATURE OF HIS BUSINESS. IT IS SEEN FROM THE ASSESSM ENT ORDER THAT THE APPELLANT HAD SUBMITTED BEFORE THE AO DETAILS REGAR DING THE INVESTMENT MADE BY HIS WIFE. HOWEVER, NO EXAMINATION OF SUCH S UBMISSION BY THE AO IS AVAILABLE ON RECORD. THE TOTAL ADDITION IS SE EN TO HAVE BEEN MADE AS IF THE APPELLANT HAD INVESTED THE ENTIRE AMOUN T. THE APPELLANTS WIFE IS SEEN TO BE SEPARATELY ASSESSED TO TAX. UNDER THE CIRCUMSTANCES, I DO NOT SEE HOW HER INVESTMENTS CAN DRAW ADVERSE INFERE NCE IN THE HANDS OF THE APPELLANT. THUS, OUT OF THE TOTAL ADDITION MADE BY THE AO RS.8,00,000/- IS SEEN TO HAVE BEEN INVESTED BY THE APPELLANTS WIFE AND CANNOT SUFFER ADDITION IN THE HANDS OF THE APPELLAN T. THE AO IS ALSO SEEN TO HAVE NOTED THAT THE APPELLANT HAD TAKEN A LOAN FROM M/S. ICICI BANK, BUT IN HIS CONCLUSION HE APPEARS TO HAVE ADD ED THE LOAN AMOUNT ALSO AS UNEXPLAINED INVESTMENT. NO DISCUSSION IS AV AILABLE IN THE ASSESSMENT ORDER REGARDING THE INVESTMENT IN LAND W HICH IS SEEN TO BE OF RS.3,75,000/-. I DO NOT SEE HOW AN ADDITION TOWARDS UNEXPLAINED INVESTMENT CAN BE MADE WITHOUT ANY DISCUSSION. IT ALSO NEEDS TO BE MENTIONED THAT THE AMOUNT OF CAPITAL IN A PARTICULA R BUSINESS CAN ONLY BE A POINTER BUT CANNOT BE THE ONLY YARDSTICK FOR JUDGING WHETHER WITHDRAWALS IN EXCESS OF SUCH CAPITAL CAN BE MADE. UNDER THE CIRCUMSTANCES, I FIND THAT THE WITHDRAWALS MADE BY THE APPELLANT FROM HIS BUSINESS FOR MAKING THE INVESTMENT ARE WELL SU PPORTED BY HIS SOURCES WHICH ARE EXPLAINED. IN VIEW OF THAT, THE A DDITION MADE IS DIRECTED TO BE DELETED. 10. AGGRIEVED BY SUCH ORDER OF THE LD.CIT-A, THE RE VENUE RAISED GROUND NO.1 BEFORE US. WE HAVE HEARD THE RIVAL SUBMISSIONS . THE LD.DR RELIED ON THE ORDER OF THE AO AND LD. COUNSEL FOR THE ASSESSEE HA S RELIED ON THE ORDER OF THE LD.CIT-A. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE PAPER BOOK FILED BEFORE US BY THE ASSESSEE. IT IS SEEN FROM TH E MATERIAL AVAILABLE ON RECORD THAT IN THE ORDER OF ASSESSMENT, THE AO HAS NOT D ISPUTED THE DATEWISE TRANSACTIONS MAINTAINED IN THE CASH BOOK BY THE ASS ESSEE. THEREFORE THERE SHOULD NOT BE ANY DIFFICULTY IN CALCULATING THE AVA ILABILITY OF CASH ON ANY GIVEN ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 9 DAY. THERE WERE DEPOSITS AND WITHDRAWALS IN THIS C ASH BOOK. THE AO HAS COME TO THE CONCLUSION HERE THAT CASH BOOK WAS NOT PROPERLY MAINTAINED. THIS CONCLUSION OF THE AO WAS NOT BASED ON ANY DISCREPAN CY IN THE CASH BOOK BUT RATHER ON SURMISES. THE AO DOES NOT MENTION ANY GA PS OCCURRING IN THE CASH BOOK. THE AO HAS NOT ALSO DISPUTED THE SOURCE OF CA SH AS ONE FROM THE SALE PROCEEDS OF BUSINESS. THEREFORE REJECTION OF CASH BOOK BY THE AO WAS NOT PROPER. THE CIRCUMSTANCE THAT THE ASSESSEE IS THE OWNER OF A RETAIL CLOTH SHOP AND IN THAT LINE OF BUSINESS ALL TRANSACTIONS ARE WHOLLY IN CASH CANNOT ALSO BE DISPUTED. THE AO HAS HIMSELF NOTED IN THE ASSESSMEN T ORDER THAT THE ASSESSEES BUSINESS TURNOVER FOR THE YEAR WAS RS.2, 67,54,866/- AND THAT HE HAD NO DEBTORS. THEREFORE, AVAILABILITY OF CASH WITH TH E ASSESSEE DOES NOT APPEAR TO BE IN DOUBT. THE CORRELATION BETWEEN THE CASH BOO K AND THE DEPOSIT IN THE BANK ACCOUNT HAS ALSO BEEN ACCEPTED BY THE CIT(A). THE SOURCE OF FUNDS IN SO FAR AS IT RELATES TO THE ASSESSEES WIFE HAS ALSO B EEN GIVEN BUT THE SAME WAS NEITHER EXAMINED NOR REJECTED BY THE AO. THEREFORE THE CONCLUSION THAT THE ASSESSEE INVESTED THE ENTIRE FUNDS INCLUDING THE SH ARE OF THE ASSESSEES WIFE WAS RIGHTLY HELD BY THE CIT(A) TO BE INCORRECT. TH E FACT THAT THE ASSESSEE HAD TAKEN A LOAN FROM M/S. ICICI BANK, IS CLEAR FROM T HE EVIDENCE ON RECORD BUT IN HIS CONCLUSION THE AO DID NOT GIVE CREDIT TO THI S LOAN AS FUNDS EXPLAINED BY THE ASSESSEE. THE ABOVE FINDINGS OF THE CIT(A) HAV E NOT BEEN SHOWN BEFORE US TO BE INCORRECT BASED ON MATERIAL AVAILABLE ON R ECORD. IN THE GIVEN CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ADDITION MADE BY THE AO WAS RIGHTLY DELETED BY THE CIT(A). CONSEQUENTLY, GR.NO .1 RAISED BY THE REVENUE IS DISMISSED. 12. GROUND NO.2 RAISED BY THE REVENUE READS AS FOLL OWS: ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 10 THAT, THE LD. CIT(A), ASANSOL HAS ERRED IN LAW AND ON FACTS BY DELETING THE ADDITION OF RS. 4,51,516/- DISALLOWED BY THE ASSESSING OFFICER ON ACCOUNT OF GIFT RECEIVED BEING FAILED T O PROVE THE CREDITWORTHINESS OF THE DONORS FROM THE PARTY OF TH E ASSESSEE. 13. THE ASSESSEE HAD SHOWN TO HAVE TAKEN GIFT OF RS .2,15,000/- FROM HIS RELATIVES AND GIFT OF RS.2,36,516/- FROM HIS WIFE B UBAI KAR DURING THE RELEVANT YEAR. THE AO CALLED UPON THE ASSESSEE TO FURNISH TH E NAME AND OTHER DETAILS OF THE RELATIVES FROM WHO GIFT WAS RECEIVED. IN RESPON SE TO THIS, THE ASSESSEE SUBMITTED THAT GIFT OF RS.25,000/- WAS RECEIVED FRO M BHAKTI BINOD SINHA (BROTHER IN LAW OF THE ASSESSEE), RS.70,000/- FROM SUSHIL KAR (UNCLE), RS.25,000/- FROM SIMA DAS (SISTER), RS.25,000/- FRO M SWAPAN DAS (BROTHER IN LAW), RS.70,000/- FROM MAMATA KAR (MOTHER) AND RS.2 ,36,516/- FROM HIS WIFE BUBAI KAR. REGARDING THEIR SOURCE HE SUBMITTED THAT GIFT WERE GIVEN FROM ALL OF THEM FROM THEIR PERSONAL SAVINGS AND INHERITED MONE Y. ALL THE GIFT WERE GIVEN BY CHEQUE EXCEPT THE GIFT BY BUBAI KAR THROUGH BOOK ADJUSTMENT. 14. ACCORDING TO THE AO, THE ONUS TO PROVE THE IDEN TITY OF THE PERSON MAKING THE GIFT, THE CAPACITY OF THE DONOR TO DONAT E MONEY AND THE GENUINENESS OF THE TRANSACTION PRIMA FACIE LIE ON T HE ASSESSEE. BUT THE ASSESSEE DID NOT PRODUCE ANYTHING REGARDING ANY PERSON FROM WHICH THE ABOVE THREE THING CAN BE ESTABLISHED. HE HAS SIMPLY SUBMITTED T HE NAME AND AMOUNT AND MODE OF TRANSACTION. THE AO HELD THAT THE MERE FUR NISHING OF PARTICULARS OR THE MERE FACT OF PAYMENT BY AN ACCOUNT PAYEE CHEQUE , BY ITSELF, NOT ENOUGH TO SHIFT THE ONUS ON TO THE DEPARTMENT. REGARDING GIF T FROM BUBAI KAR, THE AO MADE AN OBSERVATION THAT THE ASSESSEE SUBMITTED A R ECONCILIATION STATEMENT IN WHICH HE HAS MENTIONED THE AMOUNT RECEIVED OF RS.7, 00,000/- FROM HER FOR PURCHASE OF SHOP ROOM AND SHARE OF INSTALMENT PAID BY HER OF RS.66,073/- ON HIS BEHALF FOR OLD FLAT AND DEDUCTED THE AMOUNT OF RS.2,55,974/- AS HALF SHARE OF ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 11 NEW FLAT AND RS.57,510/- PAID BY HIM TO HER ON BE HALF OF HALF SHARE IN THE ADVANCE MONEY OF THE NEW FLAT. THE REMAINING AMOUN T OF RS.2,36,516/- HAS BEEN SHOWN AS GIFT PAID TO HIM FROM HIS WIFE BUBAI KAR. ACCORDING TO THE AO FROM THE INVESTMENTS MADE BY THE ASSESSEE IN VAR IOUS PROPERTIES, IT IS QUITE CLEAR THAT HE HIMSELF IS A PERSON OF WORTH AND THE PERSONS FROM WHOM HE HAS CLAIMED TO HAVE RECEIVED GIFT IS NOT SO MUCH AFFLU ENT. THIS IS CLEAR FROM THE FACT THAT ONE OF THE PERSON SWAPAN DAS WHO IS THE B ROTHER IN LAW OF THE ASSESSEE AND HE HAS CLAIMED TO HAVE GIFTED HIM RS .25,000/- IS A SCHOOL TEACHER. THAT TOO WHEN THE ASSESSEE IS NOT IN ANY D ISTRESS. ONE MORE INTERESTING THING IS THAT ALMOST ALL THE GIFT HAS BEEN RECEIVED BY THE ASSESSEE IN THE FAG END OF THE FINANCIAL YEAR. SINCE, THE ASSES SEE FAILED TO PROVE ALL THE THREE BASIC CONDITIONS TO HAVE BEEN TAKEN AS GIFT BY THE ASSESSEE AMOUNTING TO RS.4,51,516/- WAS DISALLOWED AND ADDED TO THE INCOM E OF THE ASSESSEE. 15. BEFORE THE CIT-A THE ASSESSEE SUBMITTED AS UNDE R:- THE DISALLOWANCE OF GIFTS BY THE LEARNED INCOME TAX OFFICER IS WRONG UNJUST IN VIEW OF THE FOLLOWING REASONS:- (I) GIFT BY SRI BHAKTI BINOD SINHA SRI SINHA IS A RETIRED EMPLOYEE AND HAS AT PRESENT RUNNING A PCO BOOTH, MADE THE GIFT BY MAKING BANK DRAFT OUT OF WITHDRAWA L FROM SAVINGS ACCOUNT OF UNITED COMMERCIAL BANK, RANIGANJ WHERE HIS TRANSACTIONS ARE FULLY REFLECTED WHICH IS BEING SUBMITTED. (II) SRI SUSHIL KAR SRI SUSHIL KAR IS A BACHELOR OF ABOUT 78 YEARS AND IS STAYING AT RANIGANJ ALONGWITH THE MOTHER OF THE ASSESSEE AND OTHER MEMB ERS OF THE FAMILY. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 12 SRI SUSHIL KAR JOINTLY CARRIED ON A BIG SWEETMEAT S HOP FOR ABOUT 50 YEARS AT ASANSOL COURT JOINTLY WITH LATE GOPAL KAR, THE F ATHER OF THE ASSESSEE WHICH THEY SOLD ABOUT 2/3 YEARS BACK AND THE ACCUMU LATED SAVINGS AND THE SALE PROCEEDS OF THE SHOP WERE KEPT BY THEM. SR I SUSHIL KAR BECOMING OLD AND INVALID HAVE GRADUALLY MADE GIFTS OF HIS SAVINGS TO THE SONS OF HIS LATE BROTHER. (III) SMT. SEEMA DAS SISTER OF THE APPELLANT HAD GI VEN A SUM OFRS. 25,000/- AS GIFT TO HIS BROTHER. THE AMOUNT WAS GI VEN FROM HER PERSONAL BANK ACCOUNT OUT OF OWN SAVINGS FOR THE LAST 30/35 YEARS AS A MARRIED LADY. (IV)SRI SWAPAN DAS, THE BROTHER-IN-LAW OF THE APPEL LANT HAD MADE A GIFT OF RS. 25,000/-OUT OF HIS PERSONAL SAVINGS ACCOUNT OF POST OFFICE OUT OF SAVINGS FROM AGRICULTURAL INCOME. (V) SMT. MAMATA KAR, THE MOTHER OF THE APPELLANT HA D MADE A GIFT OF RS. 70,000/- TO THE APPELLANT DURING THE YEAR OUT OF TH E SAVINGS OF HER HUSBAND LATE GOPAL KAR THROUGH HER BANK ACCOUNT. SH E BEING A LADY WIDOW OF ABOUT 80 YEARS, PRACTICALLY BEDRIDDEN AND HAVE MADE GIFT TO HER ALL SAVINGS TO SONS. (VI) SMT. BUBAI KAR THE WIFE OF THE ASSESSEE HAD A RUNNING ACCOUNT WIT H THE ASSESSEE, THE STATEMENT OF WHICH WAS SUBMITTED AT THE TIME OF ASSESSMENT. SINCE, SMT. BUBAI KAR IS A BUSINESSMAN, THIS IS REFLECTED IN HER PERSONAL CAPITAL ACCOUNT WHICH IS BEING SUBMITTED. THE STATEMENT OF ACCOUNTS OF SMT. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 13 BUBAI KAR PROP M/S. SUDHI BASTRALAYA, AND DETAILS O F ASSESSMENT PAPERS ARE BEING SUBMITTED. ALL THESE GIFTS ARE GENUINE AND THE DONORS ARE IN THE CAPACITY TO MAKE SUCH GIFTS. HENCE, THE DISALLOWANCE IS ARBITR ARY AND UNCALLED FOR AND SHOULD BE FULLY ALLOWED. THE APPELLANT HAS SUBMITTED THE DECLARATION OF THE PERSONS, THEIR IDENTITIES HAVE BEEN PROVED AND THE BANK STATEMENT OF THE DONORS HAVE ALSO SHOWN TO PROVE THE GENUINENESS OF THE TRANSACT IONS. BASING UPON THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN CA SE OF CIT VS. P.K NOORJAHAN (1999) 237 ITR 570 AND RELYING UPON THE D ECISIONS OF THE SUPREME COURT IN THE CASE OF CIT VS. ORISSA CORPORA TION (P) LTD 159 ITR 78, CIT VS. DOULATRAM RAWATMAL-87 ITR 249 AND S EVERAL OTHER CASES, GUJRAT HIGH COURT HAS DECIDED IN THE CASE OF DEPUTY COMMISSIONER OF INCOME TAX VS. ROHINI BUILDERS THAT IN THE ABSENCE OF A UNSATISFACTORY EXPLANATION, THE UNEXPLAINED CASH CREDIT MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR AND THAT THE LEGISLATIVE MANDATE IS NOT IN TER MS OF THE WORDS SHALL BE CHARGED TO INCOME TAX AS THE INCOME OF THE PREV IOUS YEAR. THE APPELLANT HAS DISCHARGED HIS ONUS IN TERMS OF SECTION 68 BY PROVING THE IDENTITY OF THE DONORS, THEIR FULL ADDR ESS, THEIR P.A NOS. AND ASSESSMENT RECORDS WHERE THERE ARE SUCH ASSESSMENT MADE. THE GIFTS MADE THROUGH A/C PAYEE CHEQUES/DRAFTS FROM THE BANK ACCOUNTS OF THE ACCOUNTS OF THE DONORS. HENCE THE GIFTS SHOULD BE F ULLY ALLOWED. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 14 16. THE LD. CIT-A ON CONSIDERATION OF THE ABOVE SUB MISSIONS HELD AS FOLLOWS:- ... ...THE AO IS HIMSELF SEEN TO ADMIT THAT THE AP PELLANT HAS SUBMITTED THE NAME OF THE DONOR, THE AMOUNT OF GIFT AND THE MODE OF TRANSACTION WHICH, ADMITTEDLY, IS THROUGH CHEQUE. I N MY OPINION, THE AO HAS MISSED THE POINT THAT THE ONUS HAS SHIFTED O NTO HIM ONCE THESE BASIC DETAILS HAVE BEEN SUBMITTED BY THE APPE LLANT. HE IS NOT SEEN TO HAVE CONDUCTED ANY ENQUIRIES ON THESE ISSUE S. WITHOUT AN ENQUIRY, THE ACTION OF THE AO BASES ITSELF ON SURMI SES AND CANNOT BE HELD TO BE CORRECT. BESIDES, NO ADVERSE COMMENTS A RE SEEN TO HAVE BEEN MADE BY THE AO ON ANY OF THE DETAILS SUBMITTED . I ALSO FIND THESE AMOUNTS TO BE MEAGRE AND CANNOT BE SAID TO BE BEYOND THE MEANS OF THE DONORS GIVEN THEIR RELATIONSHIP WITH T HE APPELLANT. UNDER THE CIRCUMSTANCES, I CANNOT UPHOLD THE AOS A CTION IN THIS REGARD. HOWEVER, ADDITION IN RESPECT OF THE GIFT FR OM SWAPAN KR. DAS, IS CONFIRMED BECAUSE HIS RELATION WITH THE APP ELLANT DOES NOT COME WITHIN THE DEFINITION OF RELATIVE AS EXPLANATI ON TO PROVISO TO SECTION 56(1(IV) OF THE I.T ACT. THE AO WILL ALSO V ERIFY THE RELATION OF SHRI BHAKTI BINOD SINHA WITH THE APPELLANT. IF THE RELATION IS COVERED BY THE AFOREMENTIONED EXPLANATION TO PROVISO TO SEC TION 56(1)(IV) THE APPELLANT WILL GET CONSEQUENTIAL RELIEF. THE AD DITIONS MADE IN RESPECT OF OTHER GIFTS ARE DIRECTED TO BE DELETED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 17. AGGRIEVED BY SUCH ORDER OF THE LD. CIT-A, THE R EVENUE RAISED GROUND NO.2. IN THE CROSS OBJECTION THE ASSESSEE HAS CHALL ENGED THE ACTION OF THE LD.CIT-A IN SUSTAINING THE ADDITION MADE IN RESPECT OF GIFTS RECEIVED FROM SRI SWAPAN KUMAR DAS. 18. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD.DR RELIED ON THE ORDER OF THE AO AND THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE LD.CIT(A) IN SO FAR AS THE GROUND OF APPEAL NO.2 OF THE REVENUE IS CONCERNED AND RELIED ON THE SUBMISSIONS MADE BEFORE CIT(A) IN SO FAR AS IT RELATES TO GR.O.2 RAISED IN THE C.O. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 15 19. AS FAR AS GR.NO.2 RAISED BY THE REVENUE IS CON CERNED, IT IS SEEN FROM THE RECORD THAT THE AO HIMSELF HAS ADMITTED THAT THE A SSESSEE HAS SUBMITTED THE NAME OF THE DONOR, THE AMOUNT OF GIFT AND THE MODE OF TRANSACTION WHICH, ADMITTEDLY, IS THROUGH CHEQUE. THEREFORE THE CIT(A ) HAS RIGHTLY CONCLUDED THAT THE INITIAL ONUS ON THE PARTY OF THE ASSESSEE WAS DISCHARGED. THEREAFTER THE ONUS HAS SHIFTED ONTO HIM ONCE THESE BASIC DETA ILS HAVE BEEN SUBMITTED BY THE ASSESSEE. HE IS NOT SEEN TO HAVE CONDUCTED ANY ENQUIRIES ON THESE ISSUES. WITHOUT AN ENQUIRY, THE ACTION OF THE AO BASES ITSE LF ON SURMISES AND CANNOT BE HELD TO BE CORRECT. BESIDES, NO ADVERSE COMMENTS ARE SEEN TO HAVE BEEN MADE BY THE AO ON ANY OF THE DETAILS SUBMITTED. U NDER THE CIRCUMSTANCES, WE UPHOLD THE ORDER OF THE CIT(A) IN THIS REGARD AND D ISMISS GR.NO.2 OF THE REVENUE. 20. AS FAR AS GR.NO.2 RAISED BY THE ASSESSEE IN HI S C.O. IS CONCERNED, FIRST ASPECT WHICH WE NOTICE IS THAT SRI SWAPAN KUMAR DAS IS THE BROTHER-IN-LAW OF THE ASSESSEE AND HE HAS MADE A GIFT OF RS.25,000/-. THE APPLICABLE PROVISION UNDER WHICH THE SUM IN SECTION 56(2)(V) OF THE ACT . EXPLANATION BELOW, THE ABOVE SAID PROVISION DEFINES RELATIVE. BROTHER OR S ISTER WOULD BE A RELATIVE AS PER CLAUSE (II) AND AS PER CLAUSE (VII) A SPOUSE OF THE PERSON REFERRED TO CLAUSE (II) WOULD ALSO BE A RELATIVE. THEREFORE, THE BROTH ER-IN-LAW WOULD ALSO BE RELATIVE AND THE SUM IN QUESTION, THEREFORE, CANNOT BE TREATED AS INCOME. GROUND NO.2 RAISED IN THE CO ACCORDINGLY IS ALLOWED . 21. GROUND NO.3 THAT, THE LD. CIT(A), ASANSOL HAS ERRED IN LAW AN D ON FACTS BY DELETING THE ADDITIONS OF RS.2,82,618/- DISALLOWED BY THE ASSESSING OFFICER ON ACCOUNT OF LIABILITIES FOR FAILING TO SU BSTANTIATE THE SAME. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 16 22. FACTS OF THIS ISSUE ARE THAT THE ASSESSEE HAD S HOWN AMOUNT OF RS.2,82,618/- PAYABLE TO AMIT TRADERS. NOTICE U/S. 133(6) WAS ISSUED TO HIM BY THE AO. NOTICE SENT TO AMIT TRADERS WAS RETURNED UNSERVED WITH POSTAL REMARK INSUFFICIENT ADDRESS. THE ASSESSEE WAS ASK ED TO PRODUCE THE EVIDENCE OF TRANSACTION MADE WITH AMIT TRADERS AND EVIDENCE OF PAYMENT OF OUTSTANDING BALANCE IN SUBSEQUENT YEARS.IN RESPONS E TO THIS THE ASSESSEE PRODUCED PURCHASE BILLS OF THE ABOVE PARTY. THE AO FOUND THAT PURCHASE OF RS.2,82,618/- WAS MADE DURING THE RELEVANT YEAR. BU T THE ENTIRE PAYMENT HAS BEEN SHOWN AS OUTSTANDING AS ON 31.03.2008. AS AN E VIDENCE OF REPAYMENT OF OUTSTANDING BALANCE, THE ASSESSEE SUBMITTED THE LED GER COPY OF NEXT FINANCIAL YEAR. IN WHICH THE ENTIRE PAYMENT HAS BEEN SHOWN TO BE PAID IN CASH ON DIFFERENT DATES AT AN AMOUNT OF RS.20,000/- PER INS TANCE OR LESS SPREAD OVER THE ENTIRE F.Y 2008-09. THE GENUINENESS OF CASH PAYMENT CAN NOT BE RELIED UPON. AS THE NOTICE SENT TO THEM HAS NOT BEEN SERVED AND THE ASSESSEE FAILED TO PROVE THE PAYMENT MADE IN SUBSEQUENT YEAR WITH ANY DOCUME NTARY EVIDENCE. HENCE, THE AMOUNT OF RS.2,82,618/- SHOWN AS LIABILITY PAYA BLE IS TREATED AS BOGUS AND ADDED TO THE INCOME OF THE ASSESSEE. 23. BEFORE THE LD.CIT-A THE ASSESSEE SUBMITTED THA T THE ADDITION MADE BY THE LEARNED INCOME TAX OFFICER IS TOTALLY UNJUSTIFI ED AS BEING MADE PURELY ON SURMISES. THE PURCHASE BILLS ARE THERE TO PROVE THE PURCHASES AND THE PAYMENT SHOWN IN LEDGER ACCOUNT AND OF THE RELEVANT ENTRIES OF THE CASH BOOK IS A DOCUMENTARY EVIDENCE THAT THE PAYMENTS HAVE BEEN M ADE. BESIDES, THE SELLERS HAVING INSISTED ON CASH PAYMENT ON HIS VISIT TO BUR DWAN EVERY TIME HAS PUT HIS NOTE ON THE BACK OF THE PURCHASE BILL WHICH IS A VALID RECEIPT. MOREOVER, THE PAYMENTS HAVE BEEN MADE IN THE SUCCEEDING YEAR AND NOT IN THE YEAR UNDER APPEAL. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 17 24. THE LD. CIT-A AFTER CONSIDERING THE ABOVE DELET ED THE ADDITION BY OBSERVING AS UNDER:- IT APPEARS FROM THE ASSESSMENT ORDER THAT THE AO S DIRECTION WERE COMPLIED WITH. HOWEVER, THE AO HAS T AKEN AN ADVERSE VIEW BASED ON THE FACT THAT PAYMENTS FOR TH E SETTLEMENT OF THE ACCOUNT WERE MADE WHOLLY IN CASH. IN MY OPIN ION, BY ITSELF THIS CANNOT DRAW ANY ADVERSE NOTICE. FURTHER , THE AO IS ALSO SEEN TO HAVE MENTIONED THAT THE FULL ADDRESS O F THE CREDITOR WAS NOT AVAILABLE. BUT, IN THAT CASE, HE C OULD HAVE ASKED THE APPELLANT TO PROVIDE SUCH ADDRESS. THIS I S NOT SEEN TO HAVE BEEN DONE. MERELY ON THE BASIS THAT THE ACCOUN T HAD BEEN SETTLED IN CASH I DO NOT THINK IT IS JUSTIFIED TO HOLD THAT THE SAID TRANSACTION IS BOGUS. THE AO HAS MENTIONED THA T GENUINTY OF THE CASH PAYMENTS CANNOT BE RELIED UPON . GIVEN THE FACT THAT AVAILABILITY OF CASH IS NOT A PROBLEM FOR THE APPELLANT, I FIND THIS STATEMENT TO BE A SURMISE WH ICH CANNOT BE SAID TO BE BASED ON FACTS. UNDER THE CIRCUMSTANCES, THE ADDITION MADE IS DIRECTED TO BE DELETED. THIS GROUN D OF APPEAL IS ALLOWED. 25. AGGRIEVED BY SUCH ORDER OF THE LD.CIT-A THE REV ENUE GROUND NO.3 BEFORE THE TRIBUNAL. 26. WE HAVE HEARD THE RIVAL SUBMISSIONS. THERE WAS NO EVIDENCE FOR THE AO TO COME TO A CONCLUSION THAT LIABILITY IN QUESTION WAS NOT GENUINE. ON THE OTHER HAND, THE PAYMENT TO THE ABOVE SAID PARTY BY THE AS SESSEE IN THE SUBSEQUENT YEAR BY CASH AND THE AVAILABILITY OF CASH TO MAKE P AYMENT WERE SATISFACTORILY EXPLAINED BY THE ASSESSEE. IN THESE CIRCUMSTANCES, WE FIND NO REASON TO INTERFERE WITH THE FINDING OF THE LD.CIT-A. ACCORDI NGLY, GROUND NO.3 OF THE REVENUES APPEAL IS DISMISSED. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 18 CO. 106/KOL/2013 (BY THE ASSESSEE) 27. GROUND NO.1 RAISED BY THE ASSESSEE IN THE C.O. READS THUS: FOR THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING AN ADDITION OF RS.5,00,000/- TO THE TOTAL IN COME OF THE RESPONDENT BEING GENUINE LOANS ADVANCED BY THE LOAN CREDITORS AND THAT THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS) HAS ALSO ERRED IN CONFIRMING THE SAME. 28. BRIEF FACTS OF THIS CASE THAT THE RETURN OF INC OME FOR THE A.Y UNDER CONSIDERATION WAS FILED MANUALLY ON 31-03-2009 DECL ARING TOTAL INCOME OF RS. 6,88,737/-. HOWEVER, THE CASE WAS SELECTED FOR SCRU TINY BY ISSUANCE OF STATUTORY NOTICES. THE ASSESSEE HAS TAKEN LOAN FROM APARNA BANERJEE AND SWAPAN KR. DAS OF RS.3,00,000/- AND RS.2,00,000/- R ESPECTIVELY DURING THE RELEVANT YEAR. BEFORE THE AO THE ASSESSEE FILED THE COPY OF BANK STATEMENT OF SWAPAN KUMAR DAS, APARNA BANERJEE AND I.T RETURN OF TARAKESWAR KAR FOR THE A.Y 2008-09 AND SUBMITTED THAT SMT. APARNA BANE RJEE AND SWAPAN DAS ARE NOT ASSESSED TO INCOME TAX. TO VERIFY THE VERAC ITY OF THE TRANSACTION NOTICE U/S. 133(6) OF THE I.T ACT WAS ISSUED TO APARNA BA NERJEE, SWAPAN DAS BY THE AO. 29. AFTER CONSIDERING THE REPLY SENT BY THEM THE A O HELD THAT THEIR CREDITWORTHINESS IS NOT PROVED DUE TO THE FOLLOWING FACTS:- APARNA BANERJEE : I. SHE HAS DEPOSITED CASH OF RS.3,00,000/- ON 03.04 .2008 IN HER UCO BANK, RANIGANJ ACCOUNT AND ADVANCED THE SAME MO NEY OF RS.3,00,000/- TO SUDHI BASTRALAYA ON 15.04.2008. NO OTHER MAJOR TRANSACTION PRIOR TO THIS HAS BEEN MADE IN THIS ACC OUNT APART FROM THIS TRANSACTION. IF THIS TRANSACTION IS EXCLUDED THEN T HE PICK BALANCE IN THE ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 19 ACCOUNT WAS OF RS.26,996/-, WHICH IS DUE TO THE CRE DIT OF RS.26,248/- DEPOSITED AS CLOSURE PROCEEDS OF SOME ACCOUNT. II. SHE HERSELF HAS ADMITTED THAT SHE IS A HOUSE WI FE AND SHE HAS NO BUSINESS ACTIVITY. III. SHE DID NOT EXPLAIN THE SOURCE OF CASH DEPOSIT ED IN HER BANK ACCOUNT. SWAPAN KR. DAS : I. HE HAS DEPOSITED CASH OF RS.2,00,000/- ON 25.03 .3008 IN HIS AXIS BANK, BURDWAN ACCOUNT NO. 148010100141444 AND ADVANCED THE SAME MONEY OF RS. 2,00,000/- TO SUDHI BASTRALAYA BY FOUR CHEQUE OF RS. 50,000/- EACH ON 27.03.2008 AND 28.03.2008 RESPECTI VELY. NO OTHER MAJOR TRANSACTION HAS BEEN MADE IN THIS ACCOUNT APA RT FROM THIS. IF THIS TRANSACTION IS EXCLUDED THEN THE PICK BALANCE IN T HE ACCOUNT WAS OF RS.2610/-. II. HE DID NOT EXPLAIN THE SOURCE OF CASH DEPOSITE D IN THE ACCOUNT. HE HAS ALSO NOT SUBMITTED THE SOURCE OF HIS INCOME. III. HE HAS SENT THE COPY OF HIS I.T RETURN FILED I N ITR-1 FOR THE A.Y 2009-10 AND 2008-09 SUBMITTED AT WARD-1(3), BURDWAN DECLARING INCOME OF RS.1,49,046/- AND RS.1,31,077/- RESPECTIV ELY. IV. ON VERIFICATION FROM THE BANK DEPOSIT SLIP, IT HAS BEEN FOUND THAT THE CASH WAS DEPOSITED IN HIS ACCOUNT BY SOME TAPAN KUMAR MUKHERJEE. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 20 THE ASSESSEE SUBMITTED THAT SMT. APARNA BANERJEE HA S DEPOSITED THE CASH WHICH WAS RECEIVED BY HER FROM HER HUSBAND AND SWAP AN KUMAR DAS, WHO IS BROTHER IN LAW OF THE ASSESSEE IS A HEAD MASTER OF A SCHOOL IN THE DISTRICT OF BURDWAN. THE MONEY HE PUT IN THE BANK REPRESENTED A CCUMULATION OF HIS EARNINGS AS A TEACHER.THE AO HOWEVER, OBSERVED THAT IT IS WELL SETTLED IN THE CASES OF CIT VS. BIJU PATNAIK (SC) 160 ITR 674, ROS HAN DE HATTI VS. CIT (SC) 107 ITR 938 AND SHANKAR INDUSTRIES VS. CIT (CA L) 114 ITR 689 AND IN MANY OTHER CASES BY DIFFERENT COURTS OF LAW OF INDI A THAT IN ORDER THE DISCHARGE THE ONUS, THE ASSESSEE MUST PROVE THE FOLLOWINGS:- I) THE IDENTITY OF THE CREDITOR, II) THE CAPACITY OF THE CREDITOR TO ADVANCE MONEY, AND III) THE GENUINENESS OF THE TRANSACTION. THERE MERE FURNISHING OF PARTICULARS OR THE MERE FA CT OF PAYMENT BY AN ACCOUNT PAYEE CHEQUE, OR THE MERE SUBMISSION OF CONFIRMATOR Y LETTER BY THE CREDITOR IS, BY ITSELF, NOT ENOUGH TO SHIFT ONUS ON THE DEPARTME NT. THE PERSON WHO ADVANCED THE LOAN HAS HERSELF NOT EXPLAINED THE SOU RCE OF HER INCOME AND THE ASSESSEE ALSO COULD NOT ESTABLISH HER CREDITWORTHIN ESS TO ADVANCE MONEY, WHICH IS THE BASIC REQUIREMENT TO PROVE THE TRANSAC TION GENUINE. THUS, THE ENTIRE TRANSACTION IS COLOURED TO GIVE IT A GARB O F A LOAN TO ENABLE THE ASSESSEE TO INTRODUCE HIS OWN UNDISCLOSED INCOME IN ITS BOOK S OF ACCOUNT BY THIS CAMOUFLAGED TRANSACTION. THE TRANSACTION IS DEVOID OF MERIT AND LACKS SOUNDNESS OF THE CREDITWORTHINESS OF THE LENDER. HE NCE, IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, THE ABOVE MENTIONED AMOUNT OF RS.5,00,00/- WAS ADDED TO THE INCOME OF THE ASSESSEE AS CASH CRE DIT U/S. 68 OF THE I.T ACT, 1961. ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 21 30. BEFORE CIT(A), THE ASSESSEE SUBMITTED THAT THE APPELLANT DURING THE YEAR UNDER APPEAL APPEAL RECEIVED A LOAN OF RS.3,00,000 AND RS.2,00000 FROM SMT. APARNA BANERJEE AND SRI SWAPAN KUMAR DAS RESPECTIVE LY. BOTH THESE LOAN CREDITORS HAS CONFIRMED THE TRANSACTIONS AND ALSO S UBMITTED THEIR SOURCE OF SUCH LOAN. BOTH ARE HAVING PERMANENT ACCOUNT NUMBER AND THE TRANSACTIONS HAVE BEEN MADE THROUGH BANKS, THE COPIES OF WHICH W AS SUBMITTED AT THE TIME OF ASSESSMENT . SMT. BANERJEE HAD RECEIVED THE MON EY FROM HER HUSBAND WHO IS A BANK EMPLOYEE AND SRI SWAPAN KUMAR DAS BEING A SSISTANT HEADMASTER OF A SCHOOL, HAD GIVEN THE MONEY OUT OF SAVINGS FROM H IS OWN INCOME FROM SALARY AND AGRICULTURAL INCOME. THE THREE HIGH COURT DECIS ION REFERRED IN SUPPORT OF THESE ADDITIONS HAVE DECIDED THAT A CASE OF SUCH C REDIT/DEPOSIT THREE CARDINAL POINTS TO BE TAKEN INTO ACCOUNT VIZ. (I) THE' IDENT ITY OF THE PARTIES (II) GENUINITY OF TRANSACTION (III) CREDITWORTHINESS. HERE, IN BOT H THE CREDITS, THE IDENTITY OF THE PARTIES, THE GENUINITY OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTIES HAVE BEEN AMPLY PROVED BY SUBMITTING RELEVANT BANK STATEMENTS AND PROOF OF INCOME. THE LEARNED INCOME TAX OFFICER HAS WITHOUT SUMMONING THE PARTIES U/S. 131 OR WITHOUT MAKING ANY FURTHER ENQUIRY ABO UT THE GENUINITY OF THE TRANSACTIONS HAVE SUMMARILY REJECTED THE CONTENTIO N OF THE APPELLANT, AND MADE ADDITION TO THE ME WHICH IS ABSOLUTELY UNFAIR AND UNJUSTIFIED. SMT. APARNA BANERJEC'S HUSBAND IS A BANK EMPLOYEE AND TH AT THE AMOUNT WAS GIVEN FROM THE BANK ACCOUNT JOINTLY HELD BY BOTH THE HUSB AND AND THE WIFE. THE AMOUNT WAS DEPOSITED WITH THE APPELLANT FROM THEIR SAVINGS FOR DAUGHTER'S MARRIAGE. SINCE THEIR DAUGHTER'S MARRIAGE HAS NOT Y ET BEEN FIXED, THE AMOUNT IS STILL LYING WITH THE APPELLANT. THIS FACT HAS BEEN STATED ON OATH IN THE AFFIDAVIT OF SMT BANERJEE. SRI SWAPAN KUMAR DAS BEING AN ASS ISTANT HEADMASTER OF A SCHOOL, DRAWS A CONSIDERABLE AMOUNT OF SALARY AND T HE AMOUNT OF LOAN WAS ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 22 GIVEN OUT OF HIS PERSONAL SAVINGS. SINCE HE ALSO OW NS CULTIVATED LAND IN BURDWAN AREA WHERE 2/3 CROPS ARE GROWN, HAS ALSO CO NSIDERABLE AGRICULTURAL INCOME. HENCE, THE CLAIM OF THE APPELLANT SHOULD BE UPHELD AND THE ADDITION OF RS. 5,00,000/- IN THE INCOME SHOULD BE DELETED. THE CONFIRMATION CERTIFICATES, THE RELEVANT BANK STATEMENTS, INCOME STATEMENT OF T HE PARTIES AND AFFIDAVIT MADE BY BOTH OF THEM SUBSTANTIATING THE TRANSACTION S ARE BEING SUBMITTED. (REF. DEPUTY COMMISSIONER OF INCOME TAX VS. ROHINI BUILDERS- 256 LT.R.- 360(2003); CIT VS. P.K NOORJAHAN 237 ITR 570(1999) (SC) CIT VS. ORISSA CORPORATION (P) LTD 159 ITR 78, CIT VS. DOULATRAM R AWATMAL 87 ITR 249 AND RECENT DECISIONS OF GUJRAT HIGH COURT IN THE CA SE OF CIT VS. UJALA DYEING AND PRINTING MILLS (P) LTD 328 ITR 437(GUJ), CIT VS . MICRO MELT (P) LTD 327 ITR 70(GUJ.) 31. THE LD.CIT-A HOWEVER, DID NOT ACCEPT THE PLEA OF THE ASSESSEE FOR FOLLOWING REASONS:- BEFORE ME, THE APPELLANTS CASE IS THAT THE IDEN TITY OF THE LOAN CREDITOR HAS BEEN ESTABLISHED AND THE TRANSACTIONS HAVE BEEN MADE THROUGH BANK. THEREFORE, THE GENUINITY OF THE TRANS ACTIONS ARE NOT IN QUESTION. I DO NOT AGREE WITH THE APPELLANTS VIEW. NO EVIDENCE REGARDING THE CREDITWORTHINESS OF THE ALLEGED LOAN CREDITORS HAVE BEEN FURNISHED. I FIND THE APPELLANTS CONTENTION REGARD ING THE GENUINITY OF THE BANK TRANSACTIONS TO BE SPECIOUS. CASH HAS BEEN DEPOSITED ONLY A FEW DAYS BEFORE ISSUE OF CHEQUE TO THE APPELLANT. UNDER THE CIRCUMSTANCES, THE CREDITWORTHINESS OF THE ALLEGED LOAN CREDITORS CANNOT BE SAID TO HAVE BEEN EVIDENCED. THE AOS ACT ION IN RESPECT OF THIS ADDITION IS CONFIRMED AND THIS GROUND OF APPE AL IS DISMISSED. 32. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS F AR AS THE LOAN OF RS. 3 LAKHS RECEIVED FROM APARNA BANERJEE IS CONCERNED, THE LOA N IN QUESTION WAS GIVEN ON 15-4-2008 AND THEREFORE, NO ADDITION COULD HAVE BEE N MADE IN AY 2008-09, ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 23 BECAUSE THE CREDIT IN QUESTION CANNOT BE SAID TO BE A CREDIT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR THE AY 2008-09. THE ADD ITION, THEREFORE, IS DIRECTED TO BE DELETED. AS FAR AS, THE LOAN RECEIVED FROM SW APAN DAS IS CONCERNED IT IS SEEN FROM THE BANK ACCOUNT OF SRI SWAPAN KUMAR DAS THAT THERE WAS CASH DEPOSIT OF RS. 2 LAKHS ON 25-03-2008. IMMEDIATELY, THEREAFTER ON 27-28 MARCH 2008 FOUR CHEQUES OF RS. 50,000/- EACH WS ISSUED TO THE ASSESSEE BY SWAPAN KUMAR DAS. PRIOR TO DEPOSIT OF CASH, MR. SWAPAN KR. DAS HAD A BALANCE OF RS.2,50,000/- IN HIS BANK ACCOUNT. IN THESE CIRCUMS TANCES, WE ARE OF THE VIEW THAT THE ASSESSEE FAILED TO SATISFACTORILY EXPLAIN THE LOAN TAKEN FROM SWAPAN KUMAR DAS. WE, THEREFORE, CONFIRM THIS ADDITION. 33. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED WHILE THE C.O OF THE ASSESSEE IS PARTLY ALLOWED ORDER PRONOUNCED IN OPEN COURT ON 29 /07 /2016 SD/- P.M JAGTAP ACCOUNTANT MEMBER SD/- S.S. VISWANETHRA RAVI J JUDICIAL MEMBER DATE 29 /07/2016 ITA NO. 1454/K/13 CO NO.106/KOL/2013 SRI BIRESWAR KAR 24 COPY OF THE ORDER FORWARDED TO 1.. THE APPELLANT/DEPARTMENT: ACIT,CIR-3, ASANSOL PARMAR BUILDING 54 G.T ROAD (W), ASANSOL 713304. 2 THE RESPONDENT/ASSESSEE: SRI BIRESWAR KAR PROP: SUDHI BASTRALAYA B.C ROAD, KUMAR BAZAR, RANIGANJ 713347. BURDWAN. (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA ** PRADIP SPS