Smt. Hirvaben U.Shah, Ahmedabad V. The Income Tax Officer,Ward-11(1), Ahmedabad

ITA 1474/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9708 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Source of fund; Additional evidence
• Section: 271(1)(c); 131

Judgement Text

, CK CKCK CKH* H*H* H* IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD L LL LK KK KOZJH OZJH OZJH OZJH OLHE OLHE OLHE OLHE VGEN] YS[KK LNL; , VGEN] YS[KK LNL; , VGEN] YS[KK LNL; , VGEN] YS[KK LNL; ,OA OAOA OA EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW;] U; JKW;] U; JKW;] U; JKW;] U;KF KFKF KF;D LNL; ;D LNL; ;D LNL; ;D LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 1474/AHD/2014 ( / ASSESSMENT YEAR : 2008-09) SMT. HIRVABEN U. SHAH, 7, ADISHWAR FLATS, VISHWAKUNJ CHAR RASTA, NARAYAN NAGAR ROAD, PALDI, AHMEDABAD 380 007 / VS. ITO, WARD-11(1), AHMEDABAD. ./ ./ PAN/GIR NO. : AOAPS 1431 D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MS. URVASHI SODHAN, A.R. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR.D.R. / DATE OF HEARING 27/09/2018 !'# / DATE OF PRONOUNCEMENT 03/12/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)XVI, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- XVI/ITO/WD.11(1)/126/12-13 DATED 07.03.2014 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOM E TAX ACT, 1961(HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 24.12.2010 RELEVANT TO ASSESSMENT YEAR (AY) 2008-09. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE A RE AS UNDER:- 1. LD.. CIT (A) ERRED IN LAW AND ON FACTS IN HOLD. ING THAT THE APPELLANT FAILED TO PROVE THAT DISPUTED BANK ACCOUN T WAS IN JOINT NAME OF THE APPELLANT AND HER SISTER GITABEN ALIAS/ RITABEN P SHAH SINCE AO CLEARLY BROUGHT ON RECORD THAT PERSON BY THE NAME OF RITABEN DID NOT EXIST. LD.. CIT (A) OUGHT N OT TO HAVE MADE FACTUALLY WRONG OBSERVATION SINCE NO SUCH CONC LUSION IS DRAWN BY AO IN ASSESSMENT ORDER. IT BE SO HELD NOW. 2. LD.. CIT (A) FURTHER ERRED IN LAW AND ON FACTS I N OBSERVING THAT THE APPELLANT CREATED A BOGY OF DEATH OF RITABEN KN OWING FULLY WELL THAT THE APPELLANT IS NOT IN THE POSITION TO P RODUCE RITABEN HER BEING DEAD. LD.. CIT (A) OUGHT TO HAVE REFRAINE D FROM MAKING SUCH BASELESS ALLEGATIONS. IT BE SO HELD NOW . 3. LD.. CIT (A) ERRED IN LAW AND ON FACTS IN CONF IRMING ADDITION MADE BY AO IGNORING CONFIRMATION OF THE DEPOSITORS SUBSTANTIATED WITH REVENUE RECORDS TO PROVE GENUINE NESS AND CAPACITY OF THE LENDERS. LD..CIT (A) OUGHT TO HAVE DELETED ADDITION OF AMOUNT BORROWED FOR PURCHASE OF PROPERT Y SINCE SOURCE OF FUNDS IS EXPLAINED BY APPELLANT WITH EVID ENCE. IT BE SO HELD NOW. 4. LD.. CIT (A) ERRED IN LAW AND ON FACTS IN TR EATING DOCUMENTS SUBMITTED IN SUPPORT OF THE CLAIM THAT APPELLANT DE POSITED CASH WITHDRAWN FOR PURCHASE OF A SHOP THAT DID NOT MATER IALIZE AS ADDITIONAL EVIDENCE SINCE ORIGINALLY NO SUCH CLAIM WAS BEFORE AO. LD.. CIT (A) FACTUALLY ERRED IN NOT APPRECIATIN G THAT APPELLANT DID CLAIM RE DEPOSIT OF WITHDRAWN MONEY B EFORE AO (PARA 5) SUBMITTING DOCUMENTS IN GUJARATI TO SUBSTA NTIATE CLAIM BEFORE LD.. CIT(A) THOUGH NOT DEALT WITH BY BOTH TH E AUTHORITIES. LD.. CIT (A) OUGHT TO HAVE ACCEPTED AND ADJUDICATED THE CLAIM OF THE APPELLANT. IT BE SO HELD NOW. 5. LD.. CIT (A) ERRED IN LAW AND ON FACTS IN D IRECTING AO TO VERIFY AND PROVIDE RELIEF OF RS. 33,000/- FROM ORIGINAL B ANK ACCOUNT WHEN ID. CIT (A) IN FIRST ROUND ALREADY CONFIRMED A CTUAL FIGURE OF CASH DEPOSIT AT RS. 15,59,800/- AND NOT RS. 15, 92,800/- AS ADDED BY AO. LD.. CIT (A) OUGHT TO HAVE DELETED THE ADDITION IN TOTO OR ALTERNATIVELY RESTRICTED ADDITION TO CORREC T AMOUNT. IT BE SO HELD NOW. 6. LEVY OF INTEREST U/S 234A/234B/234C OF THE ACT IS NOT JUSTIFIED. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 3 - 7. INITIATION OF PENALTY U/S 271(1)(C) OF THE ACT IS NOT JUSTIFIED. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. 3. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY SUSTA INING THE DISALLOWANCE OF RS. 15,59,800/- ON ACCOUNT OF DEPOS ITS OF CASH IN THE SAVING BANK ACCOUNT. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN TH E PRESENT CASE IS AN INDIVIDUAL AND DERIVING HER INCOME UNDER THE HEAD S ALARY AND FROM AGRICULTURE ACTIVITIES. 4.1 THE ASSESSEE IS MAINTAINING A BANK ACCOUNT WITH ING VYSYA BANK JOINTLY WITH HER SISTER. THE ASSESSEE IN THE YEAR U NDER CONSIDERATION HAS DEPOSITED A SUM OF RS. 15,92,800/- IN HER BANK ACCO UNT. ON A QUESTION BY THE AO ABOUT THE SOURCE OF CASH DEPOSIT IN THE BANK , THE ASSESSEE REPLIED THAT SHE IS MAINTAINING THE IMPUGNED BANK ACCOUNT A LONG WITH HER SISTER WHO IS EXPIRED. AS SUCH, THIS ACCOUNT WAS OPERATED BY HER. THE ASSESSEE IN SUPPORT OF HIS CLAIM ALSO FILED THE COPY OF DEAT H CERTIFICATE OF HER SISTER. 4.2 THE ASSESSEE ALSO SUBMITTED THAT SHE HAD TAKEN LOAN IN CASH FROM CERTAIN FARMERS WHICH WAS DEPOSITED IN THE BANK ACC OUNT. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 4 - 4.3 THE ASSESSEE ALSO SUBMITTED THAT ON CERTAIN OCC ASIONS THE MONEY WAS WITHDRAWN FROM THE BANK WHICH WAS SUBSEQUENTLY DEPOSITED AGAIN IN THE BANK. HOWEVER, THE AO DISREGARDED THE CONTENTION OF THE A SSESSEE BY OBSERVING THAT THE NAME OF THE SISTER OF THE ASSESSEE IN THE BANK STATEMENT IS RITABEN P. SHAH WHEREAS IN THE DEATH CERTIFICATE THE NAME I S APPEARING AS GITABEN SHAH. THEREFORE THE AO DISBELIEVED THE DEATH CERTIF ICATE FILED BY THE ASSESSEE. 4.4 THE AO ALSO OBSERVED THAT THE PARTIES FROM WHOM THE ASSESSEE HAS TAKEN THE LOAN HAD FILED THE DETAILS OF THE LAND HE LD BY THEM. HOWEVER, THERE WAS NO DOCUMENTARY EVIDENCE SUPPORTING THE CR EDITWORTHINESS OF THE PARTIES WHO HAVE GIVEN LOAN TO THE ASSESSEE. IN VIEW OF THE ABOVE, THE AO TREATED THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF RS. 15,92,800/- AS UNDISCLOSED INCOME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LD. C IT(A). THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THAT THE B ANK ACCOUNT WAS OPERATED BY HER SISTER RITABEN P. SHAH ALIAS GITABEN P. SHAH WHO HAS EXPIRED NOW. THEREFORE, IT WAS VERY DIFFICULT TO CO LLECT THE NECESSARY INFORMATION ABOUT THE SOURCE OF THE DEPOSIT OF CASH IN THE SAID BANK ACCOUNT. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 5 - 5.1 THE ASSESSEE ALSO SUBMITTED THAT SHE HAD DEPOSI TED CASH OF RS. 15,59,800/- BUT THE AO INADVERTENTLY HAS TAKEN THE DEPOSIT OF CASH OF RS. 15,92,800/-. 5.2 THE ASSESSEE FURTHER EXPLAINED THE SOURCE OF CA SH DEPOSITED IN THE BANK ACCOUNT IN THE MANNER AS DETAILED UNDER: THE TOTAL CASH DEPOSITION IN THE ABOVE NOTED SAVIN G BANK ACCOUNT AGGREGATING TO RS. 15,59,800/- CONTAINS FOLLOWING SOURCES. 1 RS. 64,100/- OUT OF CASH ON HAND AVAILABLE WITH YOUR APPELLANT I N THE FORM OF SAVING OF EARLIER YEAR. 2 RS. 476000/- OUT OF CASH WITHDRAWN FROM THE BANK INCLUDING RECEI PT ON SALE OF SHOP. 3 RS. 300000/- OUT OF BORROWINGS FROM SMALL BORROWERS. 4 RS. 500000/- OUT OF CASH WITHDRAWN FROM BANK IN OCTOBER, 2007 5 RS. 219700/- OUT OF BORROWING FROM SMALL BORROWERS. RS. 15,59,800 / - TOTAL A. NOW, TAKING UP THE INDIVIDUAL HEAD OF SOURCES AS MENTIONED HEREIN ABOVE, IN RESPECT OF VERY FIRST SOURCE OF RS . 64,100/-, IT MAY BE NOTED THAT, I AM A SALARIED PERSON EARNING SALARY OF RS. 7500/- PER MONTH AND I AM ALSO HOLD.ING HUGE AGRICU LTURAL LAND RECEIVED FROM HERITANCE FROM MY PARENTS IN VILLAG E JHEJHARA, NR. VIRAMGAM AND I RECEIVE AGRICULTURAL INCOME OF AROUND RS. 1.5 LACS TO RS. 2 LACS PER ANNUM AND THEREFORE, I H OLD. REGULAR CASH ON HAND OF AROUND RS. 1 LACS AND OUT OF THIS CASH, I HAVE DEPOSITED CASH OF RS. 64,100/- DURING THE PERIOD FR OM APRIL, 2007 TO JUNE, 2007 WHICH PLEASE NOTE, B. TAKING UP THE SECOND SOURCE OF RS. 4.76 LACS IT MAY BE NOTED THAT I HAVE SOLD. MY SHOP AT NOBLES COMMERCIAL CENTRE , ASHRAM ROAD, AHMEDABAD FOR RS. 6,25,000/- ON 14-07-2007 AND I HAVE ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 6 - RECEIVED PAYMENT THEREOF BY SINGLE CHEQUE AND THERE FROM, I HAVE WITHDRAWN CASH OF RS. 4.76 IN INSTALLMENTS LACS AND THE SAME IS REDEPOSITED BACK IN BANK IN INSTALLMENTS AS PER MY NECESSITY. A COPY OF THE SALE DEED IS ENCLOSED HEREWITH FOR YOUR READY REFERENCE, C. I HAD AN INTENTION TO PURCHASE ANOTHER SHOP A ND THEREFORE, I HAD BORROWED A SUM OF.RS. 3,00,000/- FROM SMALL DEPOS ITORS IN SEPT. 2007. THE SAME CASH WAS DEPOSITED IN BANK ON 26-09- 2007 AGAINST WHICH, A CHEQUE OF RS. 1.00 LAC WAS P AID TO THE SELLER PARTY ON 28 TH SEPTEMBER, 2007 AS AN ADVANCE TOWARDS PURCHASE OF SHOP. D. WHEREAS IN RESPECT OF CASH DEPOSITION OF RS. 5. 00 LACS, IT MAY BE NOTED THAT I HAD SUFFICIENT BANK BALANCE AS ON 30-0 9-2007 AMOUNTING TO MORE THAN RS. 6.00 LACS AND THERE FROM , A SUM OF RS. 5.00 LACS WAS WITHDRAWN IN CASH ON 01-10-2007 T O GET THE DEMAND DRAFT FOR PAYMENT TOWARDS PURCHASE OF SHOP B UT, UNFORTUNATELY, SINCE, YOUR APPELLANT BEING SICK, TH E TRANSACTION REMAINED INCOMPLETE AND THEREFORE AGAIN, THE SAID C ASH WAS REDEPOSITED IN BANK ON 25-10-2007. IT MAY FURTHER B E NOTED THAT THE SAID PAYMENT OF RS. 5.00 LACS WAS MADE ON 25-10 -2007 TOWARDS THE PURCHASE OF SHOP. E. FURTHER, A SUM OF RS. 219700/- WAS DEPOSITED IN BANK BETWEEN 1-12-07 TO 29-12-07 OUT OF BORROWINGS FROM SMALL BO RROWERS AND! HAD PAID A SUM OF RS. 2.00 LACS TOWARDS THE PU RCHASE OF SHOP WHICH PLEASE NOTE. CONFIRMATIONS IN RESPECT OF THE DEPOSITORS HAVE ALREADY BEEN FILED ALONGWITH THEIR IDENTITY, ABILITY AND CAPACITY TO GIVE LOANS WHICH ARE SUBMIT TED TO THE LEARNED ASSESSING OFFICER WHICH AGAIN ARE SUBMITTED HEREWITH FOR YOUR READY REFERENCE. ACCORDINGLY, YOUR APPELLANT HAD TRIED TO EXPLAIN EA CH AND EVERY ENTRY ALONGWITH PROPER SOURCES OF FUND AND THEIR RELATIVE EVIDENCES BUT, UNFORTUNATELY, THE LEARNED ASSESSING OFFICER HAS IG NORED ALL THE EVIDENCES IN A SUMMARY MANNER AND HAS ADDED A SUM O F RS. 1592800/- UNDER THE HEAD UNEXPLAINED CASH CREDIT U/S.68 OF TH E I.T. ACT 1961. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 7 - 5.3 THE ASSESSEE ALSO SUBMITTED THAT THE AO HAD OBT AINED A STATEMENT FROM TWO PARTIES WHO HAVE GIVEN LOAN TO THE ASSESSE E, BUT THESE STATEMENTS WERE NOT PROVIDED TO THE ASSESSEE FOR HE R REBUTTAL DESPITE REPEATED REQUEST. 5.4 THE ASSESSEE ALSO SUBMITTED THAT THESE FARMERS MAINLY CARRIED OUT AGRICULTURE ACTIVITY AND THEY DO NOT MAINTAIN ANY B ANK ACCOUNT AS AGRICULTURE INCOME IS NOT CHARGEABLE TO TAX. THEREF ORE, THEY HAVE NOT EVEN TAKEN THE PAN FROM THE INCOME TAX DEPARTMENT. 5.5 THE ASSESSEE FURTHER SUBMITTED THAT THE LOAN TA KEN FROM THE FARMERS SHOULD NOT BE DOUBTED AS THEY HOLD THE AGRICULTURE LAND AS EVIDENT IN THE FORM OF 7/12 EXTRACTS AND GRAM PANCHAYAT CERTIFICAT E. 5.6 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE DELETED THE ADDITION MADE BY THE AO IN PART BY OBSE RVING AS UNDER: 2. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE IN THE LIGHT OF SUBMISSIONS MADE BY THE APPELLANT, THE ARGUMENTS TA KEN BY THE ASSESSING OFFICER & MATERIAL AVAILABLE ON RECORDS. THE ARGUMENTS OF THE APPELLANT APPEARS TO BE FAR FROM C ONVINCING AND ACCEPTABLE WHEN TESTED ON TOUCHSTONE OF AVAILAB LE EVIDENCES. REJECTING THE HYPOTHESIS OF THE APPELLANT, THAT THE ACCOUNT WAS JOINTLY HELD BY THE APPELLANT WITH HER SISTER RITAB EN, WHO HAS SINCE EXPIRED THE AO HAS CLEARLY BROUGHT UPON RECOR DS THAT RITABEN DOES NOT EXISTS. THE AO HAS INDICATED THAT THE APPELLANT HAD PRODUCED DEATH CERTIFICATE OF GITABEN AND THAT THEREFORE THERE IS NO VERACITY IN THE APPELLANTS STATEMENT. THE APPELLANT ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 8 - ON ITS PART HAS NOT ABLE TO PROVE WITH ANY VERIFIAB LE EVIDENCE THAT RITABEN & RITABEN ARE SAME PERSONS. WITHOUT PREJUDI CE, THE ARGUMENT TAKEN BY THE APPELLANT IS THAT PART OF THE CASH DEPOSIT PERTAINS TO SMALL LOANS RECEIVED FROM A SMALL DEPOS ITORS AND SALE OF SOME SHOP. THE CONFIRMATION OF SMALL DEPOSITORS FILED BY THE APPELLANT HAS BEEN EXAMINED. IT TRANSPIRES FROM THA T ALL THE DEPOSITORS HAVE GIVEN SMALL LOANS TO RITABEN. THE A PPELLANT HAS THUS CREATED A BOGY OF DEATH OF RITABEN FULLY KNOWI NG THAT SHE CANNOT BE PRODUCE NOW ON THE STRENGTH OF HER BEING DEAD. THE APPELLANT HAS ARGUED THAT THE MONEY WAS TAKEN FROM SMALL DEPOSITORS SO AS TO PURCHASE SOME SHOPS AND PROPERT Y. IT IS PERTINENT TO NOTE THAT WHEREAS THE DEPOSITS FROM SM ALL LENDERS, IN CASH, WERE TAKEN BY THE SAID RITABEN, THE SHOPS WER E PURCHASED IN THE NAME OF HIRVABEN I.E. THE APPELLANT- NOW, TO JUSTIFY SOURCE OF CASH DEPOSITS THE SAME IS SAID TO BE TAKEN BY RI TABEN, DEPOSITED IN THE BANK ACCOUNT AND IS UTILIZED BY TH E APPELLANT TOT PURCHASE SOME PROPERTY, NOW IF RITABEN WAS RECIPIEN T OF THE CASH LOAN FOR THE REPORTED PURPOSE OF BUYING A PROP ERTY, THEN THE PROPERTY OUGHT TO HAVE BEEN BOUGHT BY RITABEN ATLEA ST JOINTLY, IF NOT EXCLUSIVELY. CONSEQUENTLY, IT IS HELD THAT THER E IS NO JUSTIFICATION FOR THE BORROWINGS OF RS. 5,19,700/- REPORTEDLY MADE FROM SOME SMALL DEPOSITORS. THIS WITHOUT PREJU DICE TO THE FACT THAT THE IMPUGNED CONFIRMATIONS OF SAID DEPOSITORS DO NOT CONCLUSIVELY ESTABLISHED THEIR CREDITWORTHINESS AS WELL AS THE GENUINENESS OF THE TRANSACTION, CREDITW ORTHINESS OF A PERSON TO ADVANCE LOAN OR DEPOSIT TO SOME OTHER PER SON, IS TO BE CONSTRUED AS HIS / HER CAPACITY TO MAKE SUCH LOAN O R DEPOSIT FROM SURPLUS RESOURCES. THERE IS NO EVIDENCE ON RECORDS , TO ESTABLISH A SOUND CREDITWORTHINESS OF THE DEPOSITOR CONCERNED . THIS WITHOUT PREJUDICE TO THE FACT THAT THE DATE OF LOAN AND THE DATE OF CASH DEPOSIT ARE NOT EVENLY MATCHING. SIMILARLY, ON ONE HAND THE APPELLANT SAYS THAT THE PROCEEDS IN THE BANK AC COUNT ARE RELATED TO RITABEN WHEREAS ON THE OTHER HAND, THE A PPELLANT SUBMITS THAT THEY ARE LINKED TO SALE OF A PROPERTY WHICH WAS HITHERTO OWNED BY APPELLANT. THIS WITHOUT PREJUD ICE TO THE THEORY PROPOUNDED BY THE APPELLANT THAT SHE SOLD. A PROPERTY, RECEIVED PROCEEDS BY CHEQUE, WITHDREW THE AMOUNTS I N INSTALLMENTS OVER A PERIOD OF TIME AND THEN AGAIN D EPOSITED THE ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 9 - SAID WITHDRAWALS INTO THE BANK ACCOUNTS. THIS AGAI N WITHOUT PREJUDICE TO THE FACT THAT NO CONTENTION OF LINKAGE BETWEEN CASH DEPOSITS WITH RECEIPTS OF ANY SALE OF SHOP WAS MADE BEFORE THE A O AND SINCE THE SAME IS MADE NOW FOR THE FIRST TIME CANNOT BE ACCEPTED. IT IS A TRITE LAW THAT AN APPELLANT IS N OT PERMITTED TO RAISE ANY CLAIM OR AN EVIDENCE WHICH WAS NOT AVAILA BLE FOR COMPUTATION BEFORE THE TRIAL COURT WHICH IN THIS CA SE IS THE A 0. THERE IS NOTHING ON RECORDS TO INDICATE THAT THE AP PELLANT HAS MADE ANY APPLICATION FOR ADMISSION OF ANY ADDITIONA L EVIDENCE UNDER RULE 46A. THUS, THE ARGUMENT OF THE APPELLANT IN RESPECT OF JUSTIFICATION OF CASH DEPOSITS OF RS. 4,76,000/- B EING LINKED TO ANY SALE OF SHOP BY ANY VIEW OF THE MATTER CANNOT B E ACCEPTED, IN VIEW OF THE DECISIONS MADE IN THE PRECEDING PARAGRA PHS, IT IS HELD THAT THE APPELLANT HAS NOT BEEN ABLE TO ESTABL ISH THE GENUINENESS OF CASH DEPOSIT OF RS. 15,92,800/- IN H ER BANK ACCOUNT AND THEREFORE THE ACTION OF THE AO IN MAKIN G ADDITION U/S.68 IS A LEGALLY CORRECT ACTION. IT IS PERTINENT TO POINT OUT AT THIS STAGE THAT THE APPELLANT HAS RS. 15,59,800/- A ND NOT RS. 15,92,800/- AND THAT TO THE EXTENT AN EXCESS DEDUCT ION OF RS. 33,000/- WAS MADE IN THIS CASE. THE A O IS ACCORDIN GLY DIRECTED TO VERIFY FROM THE ORIGINAL BANK ACCOUNT AVAILABLE WITH HIM AND IN CASE THE ACTUAL AMOUNT OF CASH DEPOSIT IS RS. 15 ,59.800/- THEN TO PROVIDE RELIEF TO THE APPELLANT OF RS. 33,000/-. TO THE EXTENT GROUND OF APPEAL NO.1 IS PARTLY ALLOWED. 4.0 THE SECOND GROUND OF APPEAL IS REGARDING INITI ATION OF PENALTY CANNOT BE A GROUND FOR GRIEVANCE AS THE SAM E IS PREMATURE, THE ASSESSEE WILL GET ENOUGH OPPORTUNITY BEFORE THE A.O. AT THE TIME OF PENALTY PROCEEDINGS. HENCE THIS GROUND OF APPEAL IS DISMISSED BEING AGGRIEVED BY THE ORDER OF LD. CIT(A) ASSESSEE IS IN APPEAL BEFORE US. 6. THE LD. AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1-71 AND REITERATED THE SUBMISSIONS AS MADE BEFORE THE L D. CIT(A). ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 10 - 6.1 THE LD. AR DREW OUR ATTENTION ON THE CONFIRMATI ONS FROM THE PARTIES FROM WHOM THE ASSESSEE HAS OBTAINED LOAN WH ICH ARE PLACED ON PAGES 27-69 OF THE PAPER BOOK. 6.2 THE LD. AR ALSO FILED THE COPY OF THE CASH BOOK JUSTIFYING THE AVAILABILITY OF CASH IN HER HANDS WHICH WAS DEPOSIT ED IN THE BANK ACCOUNT. THE COPY OF THE CASH BOOK AND A CHART SHOW ING DETAILS OF CASH DEPOSIT AND WITHDRAWALS IS PLACED ON PAGES 20-26 OF THE PAPER BOOK. 7. ON THE OTHER HAND, LD. DR VEHEMENTLY SUPPORTED T HE ORDER OF AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ISSUE RELATES TO THE CASH DEPOSITED BY THE ASSESSEE IN HER SAVING BANK ACCOUN T. AS PER THE AUTHORITIES BELOW, THE SOURCE OF CASH DEPOSIT WAS N OT EXPLAINED THEREFORE THE SAME WAS TREATED AS UNEXPLAINED INCOME OF THE A SSESSEE. 8.1 IT IS A FACT ON RECORD THAT THE ASSESSEE MAINTA INED THE BANK ACCOUNT ALONG WITH HER SISTER. THUS, THE ACCOUNT IS A JOINT BANK ACCOUNT. THE AO HAS TAKEN THE MATTER UNDER SCRUTINY ON THE BASIS OF AIR INFORMATION FOR THE DEPOSIT OF CASH IN THE SAID BANK ACCOUNT BUT TH E NOTICE U/S 143(2) WAS ISSUED ONLY TO THE ASSESSEE. THE FACT OF THE JOINT BANK ACCOUNT WAS NOT DOUBTED BY THE AUTHORITIES BELOW. IN OUR CONSIDERED VIEW, THE AO ERRED ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 11 - IN ISSUING THE NOTICE U/S 143(2) OF THE ACT ONLY TO THE ASSESSEE AND NOT TO THE SISTER OF THE ASSESSEE WHO IS THE JOINT ACCOUNT HOLDER IN THE BANK ACCOUNT. IT IS BECAUSE ONCE THE BANK ACCOUNT BELONG S TO TWO PERSONS THEN BOTH THE PARTIES OPERATING THE BANK ACCOUNT SHOULD HAVE BEEN ENQUIRED FOR THE SOURCE OF CASH DEPOSIT. 8.2 THE ASSESSEE BEFORE THE AUTHORITIES BELOW CLAIM ED THAT HER SISTER GITABEN HAS EXPIRED WHO WAS JOINT ACCOUNT HOLDER BU T THE CLAIM OF THE ASSESSEE WAS REJECTED MERELY ON THE GROUND THAT THE NAME OF THE SISTER OF THE ASSESSEE IN THE BANK STATEMENT AND DEATH CERTIF ICATE IS DIFFERENT. IN OUR CONSIDERED VIEW ONCE THE AO HAS DOUBTED ABOUT THE V ERACITY OF THE DOCUMENT FILED BY THE ASSESSEE, THEN THE ONUS LIES ON THE AO TO CARRY OUT NECESSARY INVESTIGATION TO FIND OUT THE TRUTH. THE ARGUMENT OF THE ASSESSEE WAS REJECTED MERELY ON THE GROUND THAT THE RE IS A MISMATCH IN THE NAME OF THE SISTER OF THE ASSESSEE IN THE BANK ACCOUNT AS WELL AS IN THE DEATH CERTIFICATE. HOWEVER, IN OUR CONSIDERED VIEW THIS CANNOT BE A CONCLUSIVE REASON TO REJECT THE CLAIM OF THE ASSESS EE. THE AO WAS EMPOWERED TO VERIFY THE FACTS BY ISSUING NOTICE U/S 131/133(6) OF THE ACT WHICH HE FAILED TO EXERCISE. 8.3 THERE IS ALSO NO DOUBT THAT THIS IS THE SECOND ROUND OF APPEAL BEFORE THE ITAT. ON EARLIER OCCASIONS, THE ITAT IN THIS CASE BEARING ITA NO.801/AHD/2012 HAS RESTORED THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE PROVISION OF LAW AND AFTER ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 12 - PROVIDING A REASONABLE OPPORTUNITY TO THE ASSESSEE VIDE ORDER DATED 08.06.2012. THE RELEVANT EXTRACT OF THE ORDER IS RE PRODUCED BELOW: 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT IN PARAGRAPH-1 OF HIS ORDER LD.. CIT(A) HAS ME NTIONED THAT WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE WHICH WERE P LACED ON RECORD BUT NO FURTHER OPPORTUNITY WAS GIVEN BY THE ASSESSEE TO FURTHER EXPLAIN HIS CASE BEFORE REJECTING ALL THE EVIDENCES FILED BY A SSESSEE ALONG WITH THE WRITTEN SUBMISSIONS CONTAINING 65 PAGES. TH E AMOUNTS TO VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND THERE FORE, WE FEEL THAT METTER BE SENT FOR FRESH ADJUDICATION BY LD..CI T(A) AFTER TAKING INTO THE CONSIDERATION THE WRITTEN SUBMISSIONS AND PROVI DING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD . ACCORDINGLY. 8.4 THE ITAT HAS RECORDED THE FINDING THAT THERE WA S A BREACH OF THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, THE MATTER WAS SENT BACK TO THE LD. CIT(A) FOR FRESH ADJUDICATION. IN THE ORIGINAL APPE LLATE PROCEEDINGS BEFORE THE LD. CIT(A) ASSESSEE HAS FILED THE DETAIL S FOR THE SALE OF SHOPS TO JUSTIFY THE SOURCE OF CASH DEPOSIT. HOWEVER, THE LD . CIT(A) DID NOT ADMIT THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO APPLICATION FILED BY THE ASSESSEE FOR THE ADMISSION OF ADDITIONAL EVI DENCE UNDER RULE 46A OF INCOME TAX RULE. IN OUR CONSIDERED VIEW, EVEN AS SUMING THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WERE NOT ACCOMPANIED WITH THE APPLICATION FOR THE ADMISSION OF THE SAME THEN ALSO THE LD. CIT(A) SHOULD HAVE DIRECTED THE ASSESSEE TO RECTIFY THE MISTAKE. IT IS BECAUSE THERE WAS A VERY CLEAR-CUT DIRECTION BY THE ITAT IN ITS ORDER T O CONSIDER THE EVIDENCE FILED BY THE ASSESSEE. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 13 - 8.5 THE LD. AR ALSO CLAIMED THAT THERE WAS CASH DEP OSIT IN THE BANK ACCOUNT OUT OF THE CASH WITHDRAWALS. THE LD. AR IN SUPPORT OF HIS CLAIM ALSO FILED A RECONCILIATION STATEMENT WHICH IS PLAC ED ON PAGE 20-22 OF PAPER BOOK. THE LD. DR HAS NOT BROUGHT ANY DEFECT I N THE RECONCILIATION FILED BY THE ASSESSEE. 8.6 WE ALSO NOTE THAT THERE WAS A CLEAR VIOLATION O F THE PRINCIPLE OF NATURAL JUSTICE AS THE AO HAS NOT PROVIDED THE COPY OF THE STATEMENT OBTAINED U/S 131 OF THE ACT FROM THE PARTIES WHO HA VE GIVEN LOANS TO THE ASSESSEE. IT IS THE SETTLED LAW THAT ANY DOCUMENT W HICH IS USED AGAINST THE ASSESSEE, A FAIR OPPORTUNITY FOR THE REBUTTAL SHOUL D HAVE BEEN PROVIDED. THE ASSESSEE HAS FURNISHED ALL THE CONFIRMATION FRO M THE PARTIES FROM WHOM THE LOAN WAS TAKEN BUT THE AO HAS NOT ISSUED N OTICE TO ALL OF THEM TO VERIFY THE VERACITY OF THE CONFIRMATION FILED BY THEM. IN THE LIGHT OF ABOVE DISCUSSION AND AFTER CONSIDER ING THE FACTS IN TOTALITY, WE HOLD THAT THE SUBMISSIONS FILED BY THE ASSESSEE TO JUSTIFY THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT WERE NOT REJECTE D BASED ON COGENT REASONS. THEREFORE, WE ARE INCLINED TO SET ASIDE TH E ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION MADE BY HI M. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.1474/AHD/2014 SHRI HIRVABEN U. SHAH VS ITO A.Y. 2008-09 - 14 - 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 03/12/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; YKS [KK LNL; U;KF;D LNL; YKS[KK LNL; U;KF;D LNL; YKS[KK LNL; U;KF;D LNL; YKS[KK LNL; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 03/12/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-XIV, AHMEDABAD. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD. 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 17/10/2018 (PAGE-7) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : .. 12/11/2018 3. OTHER MEMBER.. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 15/11/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT.. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 10. DATE OF DESPATCH OF THE ORDER