The ACIT, Circle-8, Surat V. Shri Pranjivanbhai S.Dhoriyani, Surat

ITA 1512/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94782 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 24-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: J P SHAH
• Keywords: Unexplained cash credit; Salary income
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER ASSISTANT COMMISSIONER OF INCOME, CIRCLE - 8, SURAT (APPELLANT) VS SH. PRANJIVANBHAI S. DHORIYANI, 51, PARVATINAGAR SOCIETY, NR. SATHANA JAKATNAKA, KMAREJ, SURAT PAN: ABGPD897N (RESPONDENT) REVENUE BY : S H RI DINESH SINGH , SR. D . R. ASSESSEE BY: S H RI J.P. SHAH , A.R. DATE OF HEARING : 24 - 11 - 2 015 DATE OF PRONOUNCEMENT : 30 - 11 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS REVENUE S APPEAL FOR ASSESSMENT YEAR 2009 - 10 CHALLENGES ORDER OF THE CIT(A) - V, SURAT DATED 14 - 03 - 2012 PASSED IN CASE APPEAL NO. CAS - V/231/2011 - 2012 DELETING UNEXPLAINED CASH CREDIT ADDITION OF RS. 17,62,500/ - MADE IN A SSESSMENT ORDER DATED I T A NO . 1512 / A HD/20 12 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 2 26 - 12 - 2011, IN PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT 1961; IN SHORT THE ACT . 2. THE ASSESSEE - INDIVIDUAL DRAWS SALARY AS THE MANAGER OF M/S VENUS JEWELS, VENUS ESTATE, SUMAL DAIRY ROAD, SURAT. HIS SALARY SUMS IN FYS 2005 - 0 6 TO 2008 - 09 READ RS. 17,21,473/ - , RS. 32,27,083/ - , RS. 42,06,783/ - AND RS. 28,28,884/ - ; RESPECTIVELY. THE ASSESSING OFFICER NOT ICED HIS CASH DEPOSITS IN ICICI BANK TOTALING RS. 17,01,000/ - . THE ASSESSEE INTER ALIA PLEADED THE SAME TO HAVE BEEN MADE FROM MAINLY CASH WITHDRAWALS FROM BANK ACCOUNTS SINCE SALARIES HAD BEEN CREDITED IN THE VERY BANK ACCOUNT BY CHEQUE MODE. HE STATED TO HAVE WITHDRAWN/REDEPOSITED THE MONEY IN QUESTION AS PER HIS NEEDS. A DETAILED BREAK - UP OF RS. 19,93,500/ - WAS ALSO GIVEN FROM ASSESSMENT YEAR 2006 - 07, 2007 - 08 AND 2008 - 09 REVEALING NET CASH WITHDRAWALS OF RS. 3,72,000/ - , RS. 8,44,500/ - AND RS. 1,87,000/ - ; RESPECTIVELY. THE BALANCE FIGURE OF RS. 5,90,000/ - IN FY 2008 - 09 WAS ATTRIBUTED TO CASH RECEIVED IN LIEU OF SALE OF SCOR PIO VEHICLE. THE ASSESSEE EXPLAINED THAT THE CASH SUM OF RS. 17,01,000/ - AROSE OF THESE DEPOSITS. RELEVANT BANK STATEMENT WAS ALSO ATTACHED. THIS WAS FOLLOWED BY CASH INFLOW/OUTFLOW STATEMENT FROM 01 - 04 - 2008 TO 09 - 03 - 2009 SHOWING RESPECTIVE FIGURES OF R S. 19,49,500/ - AND RS. 17,01,000/ - ; RESPECTIVELY. THE RELEVANT OPENING BALANCE SHOWN WAS RS. 17,62,500/ - . THE ASSESSING OFFICER SOUGHT TO KNOW BASIS OF ARRIVING AT THIS OPENING BALANCE. AND ALSO OPINED THAT CASH WITHDRAWALS OF THE RELEVANT PREVIOUS YEAR AGGREGATED TO RS. I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 3 1,87,000/ - ONLY AND THE SAME WAS HARDLY SUFFICIENT TO MEET HOUSEHOLD EXPENSES. 3. THE ASSESSEE FILED ITS REPLY ON 23 - 12 - 2011. HE REITERATED SOURCE OF OPENING BALANCE TO EARLIER CASH WITHDRAWALS MADE FROM THE BANK IN LAST THREE YEARS. HE EXPLAINED REASON OF EARLIER WITHDRAWALS TO THE FACT THAT ICIC BANK WAS NOT IN SOUND FISCAL POSITION. AND THE SAME MADE HIM TO WITHDRAW CASH SUM EARLIER. THE ASSESSEE RE - EMPHASIZED THAT HIS ONLY INCOME WAS SALARY CREDITED IN BANK THROUGH CHEQUES ONLY. 4. WE PROCEED FURTHER TO FIND THAT ALL THESE ASSESSEE S EXPLANATION FAILED TO IMPRESS UPON THE ASSESSING OFFICER. HE INTER ALIA OBSERVED THAT GROSS DEPOSITS FROM 02 - 07 - 2008 TO 22 - 01 - 2009 TOTALED TO RS. 17,01,000/ - THROUGH VARIOUS TRANSACTIONS RANGING BET WEEN RS. 19000/ - TO RS. 4,50,000/ - FOLLOWED BY CASH WITHDRAWAL OF RS. 1,87,000/ - ONLY. AND THAT IT WAS A CASE OF SALARIED EMPLOYEE WHICH NEGATED EXISTENCE OF ANY CAUSE OR REASON TO CASH DEPOSIT LARGE SUM OF RS. 4,50,000/ - . THE ASSESSING OFFICER WAS OF TH E VIEW THAT ASSESSEE S PLEA OF HAVING WITHDRAWN CORRESPONDING SUMS IN PRECEDING ASSESSMENT DID NOT INSPIRE CONFIDENCE AS IT COULD NOT BE ACCEPTED THAT THE SAME RESULTED IN ONLY ACCUMULATION WITHOUT BEING SPENT. HE INFERRE D THAT NOBODY WITHDRAWS MONEY F R O M BANK FOR ACCUMULATING IT. HE TERMED IT AS AN IMPROBABLE EXPLANATION. HE ALLEGED ASSESSEE OF HAVING FAILED IN RECONCILING SPECIFIC CASH WITHDRAWAL ENTRIES WITH HIS CASH DEPOSITS. AND TREATED ENTIRE CASH I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 4 SUMS OF RS. 17,62,500/ - IN ICICI BANK AS UNEXPLAIN ED CASH CREDIT U/S. 68 RESULTING IN THE IMPUGNED ADDITION. 5. WE COME TO LOWER APPELLATE PROCEEDINGS NOW. THE CIT(A) ACCEPTS ASSESSEE S SUBMISSIONS AS UNDER: - 4.1. DURING THE COURSE OF ASSESSMENT PROCEEDING, IT WAS NOTICED THAT THE ASSESSEE HAD DEPOSIT ED CASH IN BANK ON FIVE OCCASIONS FROM 02.07.2008 TO 22.01.2009 RANGING FROM RS.19000/ - TO RS. 4,50,000/ - ; TOTALING RS.17,01,000/ - WHERE AS THE CASH WITHDRAWAL IN THE YEAR AMOUNTED TO ONLY RS. 1,87,000/ - . THE ASSESSEE IS A SALARIED EMPLOYEE AND RECEIVES S ALARY BY WAY OF CHEQUE PAYMENT. HENCE WHATEVER SALARY WAS DRAWN WAS CREDITED TO THE ASSESSEE'S BANK ACCOUNT. AS AND WHEN THE NEED ARISE, CASH IS WITHDRAWN FROM THE BANK ACCOUNT WHICH IS THE NORMAL PRACTICE FOLLOWED BY ANY: SALARIED EMPLOYEE. HENCE, THERE I S NO CAUSE OR REASON FOR MAKING SUCH LARGE AMOUNTS OF CASH DEPOSITS IN THE BANK ACCOUNT AMOUNTING OF AS MUCH AS RS.4,50,000/ - . THE ASSESSEE HAS TRIED TO EXPLAIN THE CASH DEPOSITS BY STATING THAT HE HAS ACCUMULATED CASH WITHDRAWALS FROM BANK YEAR TO YEAR. T HIS IS ALSO HARD TO BELIEVE SINCE, IF THAT IS SO, THEN IT IS A CASE OF ASSESSEE ONLY ACCUMULATED CASH WITHDRAWALS WITHOUT SPENDING FOR ANY SPECIFIC PURPOSES ON A YEAR TO YEAR BASIS WHICH IN ITSELF DO NOT JUSTIFY THE WITHDRAWALS MADE. IT GOES WITHOUT SAYING THAT NO PERSON MAKES WITHDRAWALS FROM HIS BANK ACCOUNT MERELY FOR THE SAKE OF ACCUMULATION PURPOSE AND RIOT FOR UTILIZATION PURPOSE AS IS FOUND TO BE BELIEVED. THIS IS NOT ONLY IMPROBABLE BUT ALSO NEXT TO IMPOSSIBLE. IN FACT IF THE CASE WITHDRAWN FOR A SP ECIFIC: PURPOSE IS NOT UTILIZED, THEN IT IS THE NORMAL PRACTICE TO DEPOSIT THE CASH BACK IN THE BANK ACCOUNT. THE ASSESSEE HAS FAILED TO RECONCILE THE SPECIFIC CASH WITHDRAWAL THE CASH DEPOSITS MADE APART FROM MERELY STATING IN GENERAL CASH DEPOSIT HAVE BE EN MADE OUT OF CASH WITHDRAWALS. THE ASSESSEE HAS ALSO NOT FURNISHED ANY EXPLANATION FOR THE CASH WITHDRAWALS MADE EARLIER WHICH IS NOW CLAIMED TO BE DEPOSITED BACK IN THE BANK ACCOUNT. SUBMISSION OF APPELLANT: 4.2. THE A.R. OF THE APPELLANT HAS SUBMI TTED BEFORE ME AS UNDER: SO LONG AS OPENING BALANCE OF RS.17,62,500/ - SHOWN IN THE CASH FLOW SUBMITTED DURING THE ASSESSMENT PROCEEDING IS I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 5 CONCERNED, THE SOURCE OF THE SAME IS CASH WITHDRAWALS FROM SAME BANK. THE APPELLANT HAS ALREADY SUBMITTED THE FOLLOWI NG EVIDENCES & EXPLANATION DURING ASSESSMENT PROCEEDING. A. SUMMARIZED CASH FLOW CHART OF LAST THREE YEARS. (F.Y.2006 - 07, F. Y.2607 - 08 & F.Y.2008 - 09) (SECOND SUBMISSION DT.14.11.2011.) B. COPY OF BANK STATEMENTS ISSUED BY BANK. (FIRST SUBMISSION DT. 09.11.2011.) C. DATE WISE CASH FLOW CHART OF LAST THREE YEARS.(F.Y.2006 - 07, F.Y.2007 - 08 & F. Y.2008 - 09) (THIRD SUBMISSION DT. 18.11.2011.) D. COPY OF RETURN OF INCOME ALONG WITH FORM 'NO. 16 FOR A.Y.2008 - 09 & A.Y.2009 - 10, (FIRST SUB MISS ION DT.09.11.2011). E. COPY OF RETURN OF INCOME ALONG WITH FORM NO. 16 FOR A.Y.2006 - 07 & A.Y.2007 - 08. (SEC OND SUBMISSION DT. 14.11.20111). F. COPY OF SALE AGREEMENT OF VEHICLE. (SECOND SUBMISSION DT.14.11.2011 .) FROM THE ABOVE ALL EVIDENCE S TOGETHER WHICH NOT ONLY SHOW BUT CLEARLY PROVES WITH EVIDENCES THAT THE SOURCE OF CASH DEPOSITS IN THE BANK IS CLEARLY FROM THE CASH WITHDRAWALS MADE FROM SAME BANK. THE AMOUNT OF CASH INFLOW AS PER DATE WISE CASH FLOW SUBMITTED HAS BEEN DEPOSITED IN SAM E BANK AS & WHEN REQUIRED. BESIDES, THERE IS NO PROVISION IN THE INCOME TAX ACT WHICH RESTRICTS THE APPELLANT FROM WITHDRAWING CASH FROM BANK & KEEPING CASH ON HAND. ALSO, THERE IS NO PROVISIONS IN THE INCOME TAX ACT, WHICH PUT COMPULSION ON THE APPELLANT TO KEEP MONEY ONLY IN BANK. IF THERE ARE SUCH PROVISIONS IN T \ HE INCOME TAX ACT, A GENTLE REQUEST WAS MADE TO THE ASSESSING OFFICER VIDE FOURTH SUBMISSION DT.23.12.2011, BUT THE LD. A.O. HAS NOT GIVEN ANY REPLY AND/OR COMMENT IN THE ASSESSMENT ORDER WHICH CRYSTAL CLEARLY PROVES THAT THERE ARE NO SUCH PROVISIONS IN THE INCOME TAX ACT,1961. ALSO, THE RESPECTFULLY, LD A.O. CANNOT LAY DOWN THE RULES THAT ! WHEN TO 'RAW CASH FROM BANK? HOW MUCH CASH TO WITHDRAW FROM BANK? WHETHER CASH BE KEPT ON HAND OR NOT? HOW MUCH CASH SHOULD BE KEPT ON HAND? & SO ON. ICICI BANK IS A PRIVATE BANK & IT WAS COMPULSORY FOR APPELLANT TO OPEN & OPERATE A/C IN THE SAID BANK BECAUSE ALL BANK ACCOUNTS RELATED TO APPELLANT'S EMPLOYER WAS IN ICICI & HENCE THE APPELLANT I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 6 HAS .OPENED A/C I N PRIVATE BANK OTHERWISE THE APPELLANT HAS LITTLE TRUST ON ICICI BANK & ONCE A TIME THERE WAS RUMOUR OF WEAKNESS OF ICICI BANK TOO & HENCE BEING A PRIVATE BANK & DUE TO RUMOUR, THE APPELLANT HAS DECIDED NOT TO KEEP BALANCE IN THE SAID BANK & HENCE HE HAS W ITHDRAWN CASH FROM BANK. IT IS VERY IMPORTANT TO BRING TO YOUR KIND NOTICE THAT THE APPELLANT INCOME IS ONLY FROM ONE SOURCE THAT IS SALARY INCOME & SAID INCOME IS ONLY THROUGH CHEQUES I.E. THR OUGH BANKING CHANNELS ONLY. OUT OF SALARY INCOME CREDITED IN BANK, THE APPELLANT HAS MADE CASH WITHDRAWALS FROM BANK & DEPOSITED THE SAME IN SAME BANK & HENCE SOURCES OF CASH DEPOSITS NOT ONLY PROVED BUT ALSO CRYSTAL CLEARLY, PROVED W ITH DOCUMENTARY EVIDENCES. THE APPELLANT HAS DEPOSITED CASH IN BANK FROM THE SURP LUS FUND GENERATED AS PER DATE WISE CASH FLOW SUBMITTED I.E. THE APPELLANT HAS DEPOSITED CASH IN BANK NOT ONLY FROM THE INCOME GENERATED DURING THE YEAR UNDER SCRUTINY BUT ALSO FROM ACCUMULATED CASH WITHDRAWALS FROM EARLIER YEARS AS PER CASH FLOW CHART SUB MITTED. THE COPY OF CASH FLOW CHART IS ENCLOSED HEREWITH. IT IS REALLY VERY INTERESTING THAT ON ONE HAND THE LD. A.O. HAS ACCEPTED THE FACT OF CASH WITHDRAWAL FROM BANK AND ON ANOTHER HAND, HAS NOT ACCEPTED THE CASH DEPOSITED IN THE SAME BANK. ON ONE HAN D, THE APPELLANT HAS SUBMITTED MORE THAN SUFFICIENT CLINCHING & OVERWHELMING EVIDENCES IN RESPECT OF DEPOSITS OF CASH IN BANK. BUT ON OTHER HAND, THE LD. A.O. HAS MADE ADDITION WITHOUT ANY DOCUMENTARY EVIDENCE & PURELY ON WILD GUESS WORK, ASSUMPTION, PRESU MPTION, SURMISES & CONJECTURES. FURTHER, THE A.R. OF THE APPELLANT HAS SUBMITTED & ARGUED THAT THE MERE SUSPICION WITHOUT DOCUMENTARY EVIDENCE IS NOT ENOUGH TO SUSTAIN ADDITION. HE FURTHER ARGUED THAT ASSUMPTION & PRESUMPTION HOWEVER POWERFUL ENOUGH CAN N EVER TAKE PLACE OF EVIDENCE. EVEN WHERE THE CIRCUMSTANCES ARE HIGHLY SUSPICIOUS, THIS BY ITSELF WOULD NOT LEAD TO THE CONCLUSION THAT THE AMOUNT BELONGED TO THE ASSESSEE. IN THE ABSENCE OF ANY OTHER EVIDENCE TO THE CONTRARY, DISBELIEVING THE EVIDENCE AS S UCH WOULD NOT BE PROP ER. FOR THE SAME, HE HAS RELIED ON FOLLOWING JUDGMENTS. THE ADDITION CANNOT BE MADE ON ACCOUNT OF SUSPICION, SURMISES AND C ONJECTURES. IT WAS HELD IN PANCHAL ASSOCIATES V. ITO (1 989) 43 TAXRNAN 295 (AHD - TRIB) (TAX - MAG) I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 7 E VEN WHERE THE CIRCUMSTANCES ARE HIGHLY SUSPICIOUS, THIS BY ITSELF WOULD NOT L EAD TO THE CONCLUSION THAT THE AMOUNT BELONGED TO THE ASSESSEE. IN THE ABSENCE OF ANY OTHER EVIDENCE TO THE CONTRARY, DISBELIEVING THE EVIDENCE AS SUCH WOULD NOT BE PROPER IN VISH NULAL KARWA V. ITO (1987) 32 TAXMAN 2.76 (JP - TRIB) (TAX - MAG). ALL THIS MAY POINT TO SUSPICION BUT S USPICION, HOWSOEVER STRONG, CANN OT TAKE THE PLACE OF EVIDENCE. IN ITO V. KAKA IRON STORES (1996) 54 TTJ (CHD - TRIB) 142, THE SUSPICION HOWEVER STRONG DO NOT TAKE THE PLACE OF EVIDENCE GOKALDAS HUMUKMCHAND REPORT ED AT (1994) 11 ITR 462 (BOM. HC) THE APPELLANT HAS ALSO ARGUED BY QUOTING BY NUMEROUS JUDGMENTS AS SHOWN IN HIS WRITTEN SUBMISSION THAT IN ABSENCE OF DOCUMENTARY EVIDE NCE, ADDITION IS UNWARRANTED. THE A.R. OF THE APPELLANT HAS ALTERNATIVELY WITHOUT PREJUDICE, ARGUED THAT THE CONDITION STIPULATED IN SEC.68 ARE NOT SATISFIED IN THE CASE OF APPELLANT AND HENCE ON HAT GROUND TOO, ADDITION IS UNWARRANTED. HE IS ARGUED THAT FIRST, & FOREMOST CONDITION TO BE FULFILLED BEFORE APPLYING IS BOOKS AS STIPULATED IN PROVISION OF SEC. 68. THE STARTING WORDINGS OF SEC.68 ARE AS UNDER: - 'WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED. HE RELIED ON THE FOLLOWING JUDGMENTS FOR TH E ABOVE ARGU MENT: CIT, POONA V. BHAICHAND H. GANDHI 141 ITR - 67 (BOM.) SMT. SHANTA DEVI V. CIT [1998] 171 ITR 532 (P & H) , ANAND RAM RAITANI V. CIT [1997] 223 ITR 544 (GAU.); 139 CTR (GAU.) 235, DECISION: 4.3. I HAVE GONE THROUGH CAREFULLY RIVAL SUBM ISSIONS, I AM OF THE VIEW THAT APPELLANT HAS MADE CASH WITHDRAWAL FROM SAME BANK DURI NG PAST PERIODS WHICH IS DULY SUPPORTED BY DATE WISE CASH FLOW SUBMITTED & THE SAME ACCUMUL ATED CASH HAS BEEN RE DEPOSITED IN THE SAME BANK AS AND WHEN & SAME FACT HAS BEE N DULY ACCEPTED BY I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 8 AO IN HIS ASSESSMENT ORDER THAT IT IS THE NORMAL PRACTICE TO DEPOSIT THE CASH BACK IN THE BANK ACCOUNT. HENCE, I AM INCLINED TO AGREE WITH THE SUBMISSION OF THE APPELLANT THAT THE SOURCE OF THE CASH DEPOSITED IN BANK IS FULLY EXPLAINED. HENCE, THE ADDITION OF RS. 17,62,500/ - IS HEREBY DELETED AS THE SOURCE OF CASH DEPOSITED STANDS FULLY EXPLAINED. ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. 6. THIS LEAVES THE REVENUE AGGRIEVED. 7. WE HAVE HEARD BOTH THE PARTIES. CASE FILE PER USED. THE CIT(A) HAS REVERSED THE ASSESSING OFFICER S ACTION MAKING THE IMPUGNED SECTION 68 UNEXPLAINED CASH CREDITS ADDITION OF RS. 17,62,500/ - . HE CONCLUDES THAT ASSESSEE S PAST CASH WITHDRAWALS/REDEPOSITS FROM ICICI BANK AS & WHEN REQUIRED STOOD DULY A CCEPTED IN THE COURSE OF SCRUTINY. THERE IS NO SUCH ACCEPTANCE OF WITHDRAWALS/DEPOSITS REVEALED FROM THE ASSESSMENT ORDER. WE REITERATE RELEVANT FACTS NARRATED HEREINABOVE. THE AMOUNT IN QUESTION IS RS. 17,62,500/ - . THE SAME TURNS OUT TO BE OPENING FIG URE OF ASSESSEE S ICICI BANK ACCOUNT AS ON 01/ 04/2008. WE ARE ACCORDINGLY CONCERNED WITH ASSESSEE S EXPLANATION OF CASH WITHDRAWALS MADE EARLIER UPTO THIS OPENING DAY OF THE RELEVANT ACCOUNTING PERIOD ONLY. THERE IS NO DISP UTE ABOUT ASSESSEE S STATUS DRA WING HANDSOME SALARIES BY CHEQUE BEING DEPOSITED IN THE VERY BANK ACCOUNT. HE DOES NOT HAVE ANY OTHER SOURCE OF INCOME. IT CAN BE SAFELY INFERRED IN THESE FACTS THAT ASSESSEE HAS BEEN MEETING HIS EXPENSES FROM THE IMPUGNED WITHDRAWALS IN PRECEDING ASSESS MENT I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 9 YEARS ONLY. HIS WITHDRAWAL FIGURES IN F.Y. 2006 - 07, AND 2007 - 08 DENOTE FIGURES OF RS. 3,72,00 0 / - AND RS. 8,44,500/ - ; RESPECTIVELY (SUPRA). PAGES 27 OF THE PAPER IS ASSESSEE S CASH FLOW STATEMENT OF FY 2006 - 07 FORM 01 - 04 - 2006 OF 31 - 03 - 2007. ITS OPEN ING BALANCE AS ON FORMER DATE IS 4,95,500/ - . THIS FINANCIAL YEAR INVOLVES TOTAL CASH WITHDRAWALS OF RS. 7,47,500/ - BY WAY OF 29 CORRESPONDING TRANSACTIONS . CLOSING BALANCE OF THIS FINANCIAL YEAR AS ON 31/03/2007 IS RS. 9,18,000/ - . THIS CLOSING BALANCE F ORMS OPENING BALANCE OF RS. F.Y. 2007 - 08 WHOSE GROSS WITHDRAWAL BALANCE OF RS. 10,35,500/ - IN 37 TRANSACTIONS LEAVING BEHIND CLOSING BALANCE OF RS. 17,62,500/ - . IT IS THIS FIGURE WHICH IS OPE NING BALANCE ON 01/04/2008 FORMING SUBJECT MAT T ER OF THE IMPUGNE D ADDITION. WE OBSERVE IN THESE FACTS THAT ASSESSE S EXPLANATIONS OF TRANSFER OF SCORPIO VEHICLE EXECUTED IN 2008 - 09 ARE NOT RELEVANT FOR ADJUDICATION OF THE INSTANT ISSUE. WE DEEM IT APPROPRIATE TO REPEAT THAT ASSESSEE S STAND THROUGH OUT NOWHERE STATES ANY OTHER SOURCE FOR MEETING HIS PERSONAL EXPENDITURE. HE HAS ALSO NOT BEEN ABLE TO SPECIFICALLY LINK HIS WITHDRAWAL TRANSACTIONS WITH THOSE INVOLVING DEPOSITS. HE HAS FILED A PAPER BOOK COMPRISING 61 PAGES. RELEVANT DOCUMENTS REFERRED IN THE COURSE OF HEARING AND THE ABOVE STATED CASH FLOW STATEMENT AT PAGES 26 & 27 FOR FY 2006 - 07 AND 2007 - 08 ALONG WITH CASE LAW OF (1981) 127 ITR 8 07 (KARNATAKA) S R VENKATA RATH AM VS. CIT DEALING WITH A CASE WHERE THE CONCERNED ASSESSEE HAD INVESTED IN A FIRM. THIS AM OUNT WAS STATED TO HAVE BEEN WITHDRAWN FROM BANK TWO YEARS BEFORE AND NOT UTILIZED HIS INTERVENING PERIOD. THEIR LORDSHIPS HOLD THAT REVENUE CANNOT ASSUME IMPROBABILITY IN SUCH A CASE THAT I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 10 THE AMOUNT COULD NOT HAVE REMAINED UNUTILIZED FOR REJECTING EXPLAN ATION TENDERED WITHOUT GIVING ADEQUATE OPPORTUNITY. WHEN WE APPLY THIS RATIO IN FACTS OF THE INSTANT CASE, THE ASSESSEE S NON LINKING SPECIFIC WITHDRAWALS AND DEPOSIT TRANSACTION IS VERY MUCH APPARENT F ROM THE CASE RECORD . WE OBSERVE IN THESE FACTS AND CIRCUMSTANCES THAT A PRESUMPTION CAN SAFELY BE DRAWN F R O M ASSESSEE S TAX BRACKET AND STATUS THAT HE SPENDS AT LEAST RS. 40,000/ - PER MONTH ON HI MSELF AND FAMILY IN VIEW OF THE FACT THAT THERE IS NO OTHER MEANS REVEALED IN THIS CASE FILE. THIS MONTHLY FIGU RE OF RS. 40,000/ - PM TAKES US TO ANNUAL FIGURE OF RS. 4,80,000/ - PER YEAR COMING TO RS. 9,60,000/ - IN THE TWO FINANCIAL YEARS 2006 - 07 AND 2007 - 08 RESULTING IN THE IMPUGNED CARRIED FORWARD SUM OF RS. 17 ,62,500/ - . THE REMAINING SUM IS RS. 8,02,500/ - I.E. R S. 17,62,500 RS. 9,60,000/ - IS TAKEN AS INCLUSIVE OF THE ABOVE STATED OPENING BALANCE AS ON 01 - 04 - 2006 OF RS. 4,95,500/ - AS WELL AS THE IMPUGNED SUM WITHDRAWN AND REDEPOSITED. WE ACCORDINGLY QUOTE ASSESSEE S FAILURE IN L E ADING POSITIVE EVIDENCE SUPPORTI NG HIS IMPUGNED DEPOSITS ON CORRESPONDING TO WITHDRAWALS IN QUESTION CARRYING VERY S MALL AMOUNTS AT REGULAR PERIODIC INT ERVALS AND CONCLUDE THAT INTEREST OF LARGER JUSTICE WOULD BE MET IN CA S E THE IMPUGNED ADDITION OF RS . 17,62,500/ - IS RESTRICTED TO R S. 9 ,60,000/ - ONLY ON PRESUMPTIVE AND ESTIMATION BASIS WITH A RIDER THAT THE SAME SHALL NOT BE TREATED AS P RE C EDENT IN PECULIAR FACTS AND CIRCUMSTANCE S OF THIS CA S E. THIS REVENUE S SOLE SUBSTANTIVE GROUND PARTLY SUCCEEDS. I.T.A NO. 1512 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. SH. PRANJIVANBHAI S. DHORIYANI 11 8. THIS REVENUE S APPEAL IS PARTLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 30 - 11 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 30 /11 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,