Shiavi Sakharam Mate, Nashik V. Income-tax Officer,

ITA 1552/PUN/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6736 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 26-11-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 30-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SABANA PARVEEN
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Additional evidence
• Section: 133(6); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE , , . , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM . / ITA NO.1552/PUN/2015 / ASSESSMENT YEAR : 2011-12 SHRI SHIVAJI SAKHARAM MATE, AT POST ADGAON, TALUKA NASHIK, DIST.- NASHIK, PIN-422 003 PAN : AMCPM1069R ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 1(4), NASHIK. / RESPONDENT ASSESSEE BY : SHRI SANKET JOSHI REVENUE BY : MS. SABANA PARVEEN / DATE OF HEARING : 26.11.2018 / DATE OF PRONOUNCEMENT : 21.01.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-1, NASHIK DATED 15.09.2015 FOR THE ASSESSMENT YEAR 2011-12. 2. THE ASSESSEE RAISED CONCISE GROUNDS OF APPEAL AND THE SAME READ AS UNDER: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION U/S.69 OF RS.65,84,423/- OUT OF THE TOTAL ADDITION OF RS.69,84,423/- MADE BY THE 2 ITA NO.1552/PUN/2015 A.Y.2011-12 LEARNED A.O. BY HOLDING THAT THE ENTIRE AMOUNTS CREDITED TO A BANK ACCOUNT HELD IN THE NAME OF THE ASSESSEE WAS TO BE TREATED AS UNEXPLAINED INVESTMENT U/S.69 IN THE HANDS OF THE ASSESSEE WITHOUT APPRECIATING THAT THE SAID ADDITION WAS NOT JUSTIFIED ON FACTS AND IN LAW. 2. THE LEARNED CIT(A) ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE IN SUPPORT OF THE SOURCE OF DEPOSITS MADE IN THE BANK ACCOUNT WITHOUT APPRECIATING THAT THE SAID ADDITIONAL EVIDENCES WERE NECESSARY FOR DECIDING THE ISSUE UNDER CONSIDERATION AND THE SAME OUGHT TO HAVE BEEN ADMITTED ON FACTS OF THE CASE. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASH DEPOSITS TOTALING TO RS.24,42000/- WERE MADE BY THE ASSESSEE OUT OF CASH WITHDRAWALS MADE FROM THE SAME BANK ACCOUNT ON EARLIER OCCASIONS DURING THE YEAR AND IN THE ABSENCE OF ANY CONTRARY EVIDENCE BROUGHT ON RECORD BY THE DEPT. TO PROVE THAT THE CASH WITHDRAWN ON EARLIER OCCASIONS WAS NOT UTILIZED FOR ANY OTHER PURPOSES, THERE WAS NO REASON TO REJECT THE CLAIM OF THE ASSESSEE. 4. THE. LEARNED CIT(A) FURTHER ERRED IN NOT APPRECIATING THAT THE DEPOSITS TO THE TUNE OF RS.18,41,000/- WERE MADE OUT OF AGRICULTURAL INCOME OF THE HUF OF ASSESSEE'S FAMILY OWNING ANCESTRAL AGRICULTURAL LAND OF 10 ACRES 11 R WHICH WAS MAINLY UNDER THE CULTIVATION OF GRAPES AND HENCE, THE SOURCE OF THE SAID DEPOSITS COULD WAS DULY EXPLAINED BY THE ASSESSEE. 5. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE CHEQUES AMOUNTING TO RS.22,34,000/- DEPOSITED IN THE BANK ACCOUNT REPRESENTED LOANS REPAID BY THREE PERSONS WHICH WERE ADVANCED BY THE ASSESSEE TO THESE PEOPLE MAJORLY THROUGH BANKING CHANNEL ON EARLIER OCCASIONS AND HENCE, THE SAID DEPOSITS COULD NOT HAVE BEEN TREATED AS UNEXPLAINED DEPOSITS. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BRIEFLY STATED RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING SEEDS, PESTICIDES & FERTILIZERS. THE ASSESSEE REPORTED GP RATIO @ 5.58% AND NP RATIO @ 2.3% AND FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.1,56,650/-. THE ASSESSEE REPORTED IN THE RETURN HAVING TWO BANK ACCOUNTS, ONE IS WITH THE N.D.C.C BANK AND THE OTHER IS GODAVARI URBAN CO-OP. BANK. AS PER THE AIR INFORMATION RECEIVED BY THE ASSESSING OFFICER RELATING TO CASH DEPOSITS IN YET ANOTHER ACCOUNT WITH STATE BANK OF INDIA, PANCHAVATI BRANCH, NASHIK BEARING THE SB A/C NO.10934421026, THE ASSESSEE FAILED TO ACCOUNT FOR THE SAME. DURING SCRUTINY ASSESSMENT PROCEEDINGS, BASED ON THE SAID AIR INFORMATION, THE ASSESSING OFFICER INVOKED THE PROVISION OF SECTION 133(6) OF THE INCOME TAX ACT, 1961 3 ITA NO.1552/PUN/2015 A.Y.2011-12 (HEREINAFTER REFERRED TO AS THE ACT) ON THE SAID BANK ACCOUNT AND OBTAINED THE BANK ACCOUNT STATEMENT. THE SAID ACCOUNT REFLECTS VARIOUS CASH AND CHEQUE TRANSACTIONS INCLUDING THE CASH WITHDRAWALS AS WELL AS DEPOSITS OF CASH. THERE WAS GROSS WITHDRAWAL OF CASH AMOUNTING TO RS.24,50,000/- DURING THE PERIOD OF JUNE TO SEPTEMBER, 2010. FURTHER, THERE WAS GROSS DEPOSITS OF CASH TOTALING RS.24,42,000/- DURING THE EARLIER PERIOD OF 7 TH JANUARY, 2011 TO 29 TH MARCH, 2011. OTHERWISE, THE TOTAL OF THE DEPOSITS INCLUDING BY WAY OF CHEQUES WORKS OUT TO RS.69,84,423/-. ON THE SOURCES OF THESE DEPOSITS OF CASH AND CHEQUE, THE ASSESSEE FURNISHED THE FOLLOWING EXPLANATION REGARDING SOURCE OF INCOME. THE ASSESSING OFFICER ANALYZED THE CASH DEPOSITS AND CASH WITHDRAWALS INVOLVING ALL THE THREE ACCOUNTS OF THE ASSESSEE AND FOUND NO SUSTAINABLE CO-RELATION BETWEEN THE CASH DEPOSITS ON ONE SIDE AND CASH WITHDRAWALS ON THE OTHER AMONG ALL THE TRANSACTIONS IN THE SAID BANK ACCOUNTS. ASSESSING OFFICER FOCUSED ON THE SAID SB A/C WITH THE STATE BANK OF INDIA AND ISSUED A SHOW-CAUSE NOTICE DATED 21.02.2014 QUASHING THE SOURCE OF THE DEPOSITS IN CASH. IN REPLY, STATING THAT THE SAID SAVING BANK ACCOUNT WITH STATE BANK OF INDIA IS EXCLUSIVELY MEANT FOR AGRICULTURAL PARTICULARS AGGREGATE AMOUNT (RS.) SOURCE CASH DEPOSITS 17,56,000 AGRICULTURAL INCOME CASH DEPOSITS 24,27,000 OUT OF CASH WITHDRAWALS FROM THE SAME SAVING ACCOUNT PRIOR TO DEPOSITS SAVING BANK INTEREST 67,423 --- CHEQUES DEPOSITED 23,34,000 LOANS RECEIVED, LOAN REPAYMENT RECEIVED CHEQUE ISSUED REVERSED BEING DISHONORED. 4,00,000 --- TOTAL 69,84,423 --- 4 ITA NO.1552/PUN/2015 A.Y.2011-12 ACTIVITIES OF THE HUF, THE ASSESSEE SUBMITTED THAT SAID ACCOUNT WAS NOT DISCLOSED IN THE PERSONAL FINANCIAL STATEMENT OF THE ASSESSEE AS IT DOES NOT BELONG TO HIM PERSONALLY. IN SUPPORT OF THE SAID EXPLANATION LINKED TO THE HUF, ASSESSEE FURNISHED COPIES OF 7/12 EXTRACTS OF THE SAID LANDS SHOWING THE GROWING OF GRAPES THEREIN TO DEMONSTRATE THE GENUINENESS OF HIS CLAIM. THE ASSESSING OFFICER DID NOT CONSIDER THE SAME AS AN ACCEPTABLE EXPLANATION. ASSESSEE COULD NOT EXPLAIN WHY THE ASSESSEE CONDUCTED HIMSELF AS A KARTA WHEN HIS FATHER WAS THE OWNER OF LANDS AND IS STILL IN ACTION. FURTHER, THE ASSESSEE COULD NOT DEMONSTRATE THE REASONS FOR ACTING AS THE SIGNING AUTHORITY OF THE BANK ACCOUNT AS WELL THE REASONS FOR PROPOSING TO BUY THE LANDS OUT OF FUNDS OF THIS ACCOUNT IN HIS NAME. FURTHER, THE ASSESSEE GAVE LAND ADVANCES OUT OF THIS ACCOUNT ONLY. THE ASSESSING OFFICER CONCLUDED THAT THE SAID SAVING BANK ACCOUNT WITH STATE BANK OF INDIA, STANDING IN THE NAME OF ASSESSEE, DOES NOT BELONG TO HUF. THEREAFTER, ASSESSING OFFICER WORKED OUT TOTAL RECEIPTS TO THE TUNE OF RS.69,84,423/- AND THE SAME IS ADDED AS UNDISCLOSED INCOME OF THE ASSESSEE U/S.69C OF THE ACT. THE ASSESSING OFFICER COMPUTED ASSESSMENT INCOME OF ASSESSEE AT RS.71,41,070/-. 4. AGGRIEVED WITH THE ASSESSMENT ORDER, ASSESSEE FILED APPEAL BEFORE THE CIT(A). 5. DURING FIRST APPELLATE PROCEEDINGS, ON THE ISSUE OF ADDITION OF RS.69,84,423/- LINKED TO THE DEPOSITS IN THE SAVING BANK ACCOUNT OF THE ASSESSEE WITH STATE BANK OF INDIA, PANCHAVATI BRANCH, THE ASSESSEE MADE VARIOUS SUBMISSIONS BEFORE CIT(A). ACCORDING TO HIM, RS.17,56,000/- OF CASH DEPOSIT OUT OF TOTAL DEPOSITS OF RS.69,84,423/- HAS A SOURCE IN THE AGRICULTURAL INCOME QUA SALE OF GRAPES GROWN IN 10 ACRE 11 R OWNED BY THE 5 ITA NO.1552/PUN/2015 A.Y.2011-12 HUF. FURTHER, RS.24,27,000/-, BEING CASH DEPOSIT, HAS THE SOURCES OUT OF CASH WITHDRAWALS FROM THE SAME BANK ACCOUNT DURING THE PERIOD OF JUNE, 2010 TO SEPTEMBER, 2010. FINALLY, THE BALANCE SUM OF RS.23,34,000/- HAS THE SOURCE OF LOAN REPAYMENTS FROM THE DEBTORS TO THE HUF. THE DEPOSIT OF RS.4,00,000/- IS DEPOSITED ON THE REVERSAL ENTRY LINKED TO THE DISHONORED CHEQUE ISSUED IN THE PAST. THEREFORE, RS.17,56,000/- + RS.24,27,000/- + RS. 23,34,000/- + RS. 4,00,000/- CONSISTS OF THE ADDITION OF RS.69,84,423/-. ASSESSEE FURNISHED CERTAIN AFFIDAVITS FROM THE HUF MEMBERS AS WELL AS THE OTHERS INVOLVED IN THE TRANSACTIONS IN SUPPORT OF THE SAID EXPLANATION. THE CIT(A) OBTAINED THE REMAND REPORT OF THE ASSESSING OFFICER. THE CIT(A) EXAMINED EACH OF THE ABOVE EXPLANATION OF THE ASSESSEE, THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE, THE REMAND REPORT DATED 28.08.2015 FROM THE ASSESSING OFFICER AND EVENTUALLY, HELD THAT THE ASSESSEE HAS NO SUSTAINABLE REASON TO FURNISH ADDITION EVIDENCES FOR THE FIRST TIME BEFORE THE FIRST APPELLATE AUTHORITY. ACCORDINGLY, HE DID NOT ADMIT THE SAID ADDITION EVIDENCES FURNISHED BY ASSESSEE. FURTHER, ON SOURCES OF CASH DEPOSITS IN BANK ACCOUNT, THE CIT(A) REJECTED THE ASSESSEES EXPLANATION THAT REVOLVES AROUND THE AGRICULTURAL INCOME OUT OF LANDS OWNED BY HUF FOR THE SUM OF RS.17,56,000/- DEPOSITED IN THE BANK ACCOUNT STATING THAT IT IS THE CASE OF AN AFTER-THOUGHT. SIMILARLY, ON THE LINKING OF CASH WITHDRAWALS TO THE CASH DEPOSITS, THE CIT(A) DISMISSED THE SAME TOO. BARRING THE SUM OF DEPOSIT RS.4,00,000/-, WHICH IS FACTUALLY THE ENTRY OF REVERSAL OF DISHONORED CHEQUE, THE CIT(A) CONFIRMED THE BALANCE AMOUNT OF RS.65,84,423/-. THE CONTENTS OF PARA 5.3 OF APPELLATE ORDER ARE RELEVANT IN THIS REGARD AND THE SAME ARE REPRODUCED HEREIN BELOW: 5.3 I HAVE CONSIDERED THE FACTS OF THE CASE, AND THE RIVAL CONTENTIONS. IT IS A FACT THAT THE BANK ACCOUNT WAS NOT DISCLOSED IN THE RETURN OF INCOME FILED. THERE IS NO FORCE IN THE ARGUMENT OF THE APPELLANT THAT THIS BANK ACCOUNT WAS IN THE NAME OF HUF . THIS BANK ACCOUNT CAME INTO LIGHT ONLY BECAUSE OF AIR INFORMATION RECEIVED BY 6 ITA NO.1552/PUN/2015 A.Y.2011-12 THE ASSESSING OFFICER. THE COPY OF THE BANK ACCOUNT FILED DEPICTS THAT THE BANK ACCOUNT WAS IN THE NAME OF APPELLANT AND THE APPELLANT WAS OPERATING THE BANK ACCOUNT . THERE IS NOT AN EVIDENCE ON RECORD TO DEMONSTRATE THAT THE DEPOSITS IN ACCOUNT ARE OUT OF AGRICULTURAL INCOME. THE APPELLANT'S ACCOUNTS ARE AUDITED AS HIS TURNOVER IS MORE THAN 60 LACS. THEREFORE NOT DISCLOSING THIS ACCOUNT IS NOT IN CONFORMITY WITH LAW. FURTHER THE APPELLANT IS SUPPOSED TO EXPLAIN ALL THE DEPOSITS IN HIS ACCOUNT AT THE TIME OF TAX AUDIT. SIMPLY BY SAYING THAT THE CASH DEPOSIT IS OUT OF WITHDRAWAL RECEIPT OF AGRICULTURE SALES, LOAN REPAYMENT DOES NOT EXPLAIN THE SAME. IF ASSESSEE HAS ADVANCED MONEY IN EARLIER YEARS THEN HE HAS TO EXPLAIN THROUGH HIS ACCOUNTS TO SHOW THAT THE MONEY HE HAS ADVANCED OUT OF HIS KNOWN SOURCE OF INCOME. I HAVE PERUSED THE COPY OF ACCOUNTS FILED. I AGREE WITH THE AO THAT NONE OF THE DEPOSITS AND WITHDRAWALS ARE CORRELATED. EVEN THE DEPOSITS OF SALE PROCEEDS OF AGRICULTURE ARE NOT SUBSTANTIATED BY COGENT DOCUMENTARY EVIDENCE . IN MY OPINION THEY ARE ALL AN AFTERTHOUGHT . THE ONLY TRANSACTION IN MY OPINION STANDS EXPLAINED ON PERUSAL OF ACCOUNTS IS CHEQUES REVERSAL OF RS.4 LACS. THEREFORE, ASSESSEE CAN GET RELIEF OF RS.4 LACS OUT OF THE CASH DEPOSIT OF RS.69,84,423/-.FURTHER, THE APPELLANT HIMSELF ATTENDED AT THE TIME OF APPELLATE PROCEEDINGS. THEREFORE, I FAIL TO UNDERSTAND THAT HOW HE WAS UNABLE TO EXPLAIN THE CASH DEPOSIT. THE DEPOSIT OF CASH IN THE BANK IS A QUESTION OF FACT. TO EXPLAIN THE SAME DOES NOT REQUIRE ANY LEGAL KNOWLEDGE. THE ARGUMENT THAT HIS TAX CONSULTANT DID NOT ADVISE HIM PROPERLY LACKS CREDIBILITY. FROM THE ASSESSMENT ORDER, IT IS OBSERVED THAT THE APPELLANT'S ACCOUNT IS SUBJECT TO TAX AUDIT. THEREFORE, THE ACCOUNTS SHOULD REFLECT IF HE HAS ADVANCED HIS MONEY YEARS TO THESE PARTIES. WHICH IS NOT DONE AND THEREFORE, THE ARGUMENT THAT THE CASH DEPOSIT HAS BEEN MADE OUT OF REFUND OF EARLIER ADVANCE CANNOT BE ACCEPTED . THE BALANCE CASH DEPOSIT OF RS.65,84,423/- IS RIGHTLY ADDED UNDER SECTION 69 OF THE ACT. FROM THE ABOVE, IT IS EVIDENT THAT, IN THE ABSENCE OF SPECIFIC INFORMATION AND THE EVIDENCE IN SUPPORT OF CLAIM OF AGRICULTURAL ACTIVITIES, FAILURE TO DISCLOSE THE DETAILS OF SAID SB ACCOUNT WITH STATE BANK OF INDIA IN THE RETURN/AUDIT REPORT, CONSIDERING THE GENERALITY OF THE EXPLANATION ON THE SOURCES OF THE DEPOSITS, ETC. THE EXPLANATION OF THE ASSESSEE WAS REJECTED BY THE CIT(A) AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. THE CIT(A) HELD THAT THE SAID SB ACCOUNT BELONGS TO THE ASSESSEE AND THE SAME IS NOT DISCLOSED TO THE REVENUE. 5.1 FURTHER, REBUTTING TO THE ASSESSEES ADDITIONAL EVIDENCE WHICH CONSISTS OF AFFIDAVITS OF THE LAND OWNERS GIVING AFOREMENTIONED AGRICULTURAL INCOME DETAILS ON THE SALE OF GRAPES, FILING OF THE COPIES OF BILLS OF SALE OF GRAPES, THE SAME WERE NOT ADMITTED BY THE CIT(A) AS PER DISCUSSION GIVEN IN 7 ITA NO.1552/PUN/2015 A.Y.2011-12 PARA 4.4 OF THE APPELLATE ORDER. RELEVANT LINES OF THE SAID PARA ARE EXTRACTED AS UNDER: . FROM THE ORDER OF THE AO IT IS APPARENT THAT THE APPELLANT HAD HIMSELF A HENDED AT THE TIME OF ASSESSMENT PROCEEDING ACCOMPANIED WITH HIS TAX CONSULTANT AMIDST AO. THE ISSUE IN CONSIDERATION THAT NEEDED TO BE EXPLAINED WAS CASH DEPOSIT IN HIS BANK ACCOUNT. FROM THE FACE OF IT IS CLEAR THAT IT WAS NOT A COMPLICATED ISSUE CAMOUFLAGED IN QUAGMIRE OF LEGAL WRANGLES. THE FACT WAS THAT THE CASH WAS DEPOSITED IN HIS ACCOUNT AND HE SIMPLY HAD TO EXPLAIN FROM WHERE THE CASH WAS DEPOSITED OR FROM WHOM HE HAD RECEIVED THE MONEY. AMIDST AO HE STATED THAT THE CASH DEPOSITED WAS HIS AGRICULTURE INCOME. HE FILED 7/12 EXTRACTS OF AGRICULTURE LAND OF HIS FATHER . THE SUBMISSION BEFORE ME THAT HIS TAX CONSULTANT DID NOT GUIDE HIM PROPERLY IS NOT BACKED BY ANY COGENT OR CREDIBLE EVIDENCE. I FAIL TO UNDERSTAND THAT WHAT GUIDANCE IS REQUIRED TO EXPLAIN ONE'S OWN BANK ACCOUNT. IT IS AN ESTABLISHED FACT THAT THE ACCOUNT BELONGED TO THE ASSESSEE AND IS OPERATED BY THE ASSESSEE. THEREFORE, THE ARGUMENT THAT THE TAX CONSULTANT DID NOT ADVISE HIM PROPERLY FALLS LIKE A PACK OF CARDS. THE BENEFIT UNDER RULE 46A IS NOT AVAILABLE TO THE PERSON WHO IS NEGLIGENT, NON-COOPERATIVE AND RECALCITRANT . IN THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT NO FURTHER CHANCE OR OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE APPELLANT TO COVER UP ITS OWN LAPSES. 5.2 THUS, THE CIT(A) RELIED ON VARIOUS DECISIONS AND ALSO ON VARIOUS PROVISIONS OF GENERAL CLAUSES ACT, STAMP ACT, OATHS ACT, 1969, EVIDENCE ACT, 1872 AND CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER AFTER REJECTING THE AFFIDAVITS FILED BY THE ASSESSEE IN SUPPORT OF THE CLAIMS OF THE ASSESSEE. 5.3 REGARDING CASH DEPOSITS IN THE MONTH OF JANUARY TO MARCH, 2011 IN THE SAVINGS BANK ACCOUNT WITH STATE BANK OF INDIA, THE EXPLANATION OF THE ASSESSEE REVOLVES AROUND HIS PROPOSAL TO PURCHASE AGRICULTURAL LAND IN THE FIRST HALF OF THE YEAR. FOR THIS PURPOSE, THE CASH WAS WITHDRAWN BY THE ASSESSEE AND MADE PAYMENT IN CASH FOR BUYING THE SAME. HOWEVER, THE SAID TRANSACTIONS, SINCE ABORTED THE ASSESSEE RECEIVED BACK THE SAID ADVANCES WHICH ARE DEPOSITED IN THE LAST QUARTER OF THE YEAR. THE AFFIDAVIT OF THE PROSPECTIVE BUYERS WERE FILED BY ASSESSEE BEFORE THE FIRST APPELLATE 8 ITA NO.1552/PUN/2015 A.Y.2011-12 AUTHORITY AND HOWEVER, THE SAME WERE NOT ADMITTED BY THE CIT(A) UNDER RULE 46A OF THE I.T. RULES, 1962. 5.4 REGARDING OTHER DEPOSITS LINKED TO THE REFUNDS OF LOANS BY WAY OF CHEQUE AMOUNT CONSISTING SUM OF RS.23,34,000/-, CIT(A) CONSIDERED RECEIPTS OF CHEQUE IN PARA 6 OF ITS ORDER AND DISMISSED THE EXPLANATION OF THE ASSESSEE. THE EXPLANATION REVOLVES AROUND REFUND OF EARLIER ADVANCES OR LOANS. EVENTUALLY, CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. AGGRIEVED WITH THE ORDER OF CIT(A), ASSESSEE RAISED THE GROUNDS AS EXTRACTED ABOVE. BEFORE THE TRIBUNAL 7. BEFORE US, LD. COUNSEL FOR THE ASSESSEE EXPLAINED THE ABOVE FACTS OF THE CASE AND SUBMITTED THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.65,84,423/- U/S.69 OF THE ACT. HE ALSO SUBMITTED THAT CIT(A) ERRED IN NOT ADMITTING ADDITIONAL EVIDENCES I.E. THE AFFIDAVIT OF THE LAND OWNERS OF HUF, COPIES OF BILLS RELATING TO SALE OF GRAPES, AFFIDAVIT OF THE PROPOSED BUYERS OF LANDS ETC. AS PER LD. AR, THE DEPOSITS OF THE CHEQUE RECEIVED BY ASSESSEE INTO THE SB A/C ARE BASICALLY THE REFUND OF THE ADVANCES GIVEN TO THE PAST. REGARDING CASH DEPOSITS, THE AGRICULTURAL INCOME EARNED ON SALE OF GRAPES AND ALSO THE CASH WITHDRAWALS, EXPLAIN THE CASH DEPOSITED IN THE BANK. FURTHER, ASSESSEE SUBMITTED THAT THE SAID ADDITION OF RS.65,84,423/- CONSISTS OF (I) CASH DEPOSIT OF RS.24,42,000/-, (II) AGRICULTURAL INCOME OF RS.18,41,000/- AND (III) CHEQUE DEPOSITS OF RS.22,34,000/-. LD. COUNSEL FOR THE ASSESSEE CLAIMS THAT THE EXPLANATION OF THE ASSESSEE, THE ADDITIONAL EVIDENCES FURNISHED BY ASSESSEE ETC. SHOULD HAVE BEEN ACCEPTED BY THE CIT(A) DURING THE PROCEEDINGS BEFORE HIM. IN THIS 9 ITA NO.1552/PUN/2015 A.Y.2011-12 REGARD, LD. AR FOR THE ASSESSEE FILED WRITTEN SUBMISSION GIVING A CHART SHOWING THE SOURCES OF THE CASH, EXPLANATION, ETC. ATTENDING TO EACH OF THE THREE SEGMENTS OF ADDITION, LD. COUNSEL MADE VARIOUS ARGUMENTS AND THE SAME ARE SUMMARIZED AS FOLLOWS : A. ADDTION OF RS. 24,42,000/- OF CASH DEPOSIT SOURCE IS THE CASH WITHDRAWALS IN EARLIER MONTHS :- THE ASSESSEE EXPLAINED THAT THE SAID BANK ACCOUNT WITH STATE BANK OF INDIA SHOWS CASH WITHDRAWALS OF RS.24,42,000/- DURING THE MONTH OF JUNE, 2010 TO SEPTEMBER, 2010. ACCORDING TO ASSESSEE, THE SAME WAS WITHDRAWN FOR BUYING LANDS FROM MR. SAHEBRAO SATHE. SINCE THE TRANSACTION COULD NOT FRUCTIFY, THE SAID CASH WERE REFUNDED IN CASH BY SRI SATHE AND THE SAME CONSTITUTES THE SOURCE FOR CASH DEPOSITS OF RS.24,42,000/- IN THE MONTH OF JANUARY, FEBRUARY AND MARCH, 2011. THE SAID FACT WAS CONFIRMED BY MR. SATHE IN HIS AFFIDAVIT FILED BEFORE THE CIT(A) AS WELL AS IN HIS STATEMENT ON OATH RECORDED BY THE AO ON 11.08.2015 U/S.131 OF THE ACT IN THE REMAND PROCEEDINGS. THE RELEVANT STATEMENTS ARE PLACED AT PAGES 26 TO 28C OF THE PAPER BOOK. MR. SATHE CONFIRMED THE ABOVE EXPLANATION OF THE ASSESSEE. HOWEVER, THE AVAILABILITY OF CASH OF RS.24,50,000/- BY JUNE 2010 IN THE SAID SAVINGS BANK ACCOUNT WITH THE STATE BANK OF INDIA WAS NOT EXPLAINED IN THE NOTE FILED BY THE ASSESSEE. B. THE ADDITION OF RS.22,34,000/- DEPOSITS BY WAY OF CHEQUE :- THIS AMOUNT REFERS TO THE SUM OF DEPOSITS BY WAY OF CHEQUE IN THE SB A/C WITH STATE BANK OF INDIA. MR. PANDHARINATH HENGADE, TWO OTHERS GAVE CHEQUES TO THE ASSESSEE AND THEY WERE DEPOSITED IN THE SAID ACCOUNT. AS PER THE ASSESSEE, SHRI HENGADE ISSUED CHEQUE WORTH OF RS.15,34,000/- TO 10 ITA NO.1552/PUN/2015 A.Y.2011-12 THE ASSESSEE WHICH ARE BASICALLY THE REFUND OF THE AMOUNT ADVANCED TO HIM BY ASSESSEE IN EARLIER OCCASIONS. THE REFUNDS OF ADVANCES TAKEN IN THE PAST, IN TWO INSTALLMENTS I.E. RS.9,34,000/- VIDE CHEQUE NO.093618 AND RS.6,00,000/- VIDE CHEQUE NO.093616 DATED 21.01.2011. CONTENTS OF PARA 15 OF THE PAPER BOOK, BEING STATEMENT OF ACCOUNT OF THE ASSESSEE WITH STATE BANK OF INDIA, ARE RELEVANT. FURTHER, ON THIS ISSUE, ASSESSEE SUBMITTED THAT EARLIER, THE ASSESSEE GAVE RS.13 LAKHS BY WAY OF CHEQUE TO MR. HENGADE. GIVING BREAK OF RS.13 LAKHS, ASSESSEE EXPLAINED A SUMS OF RS.7 LAKHS AND RS.6 LAKHS, CONSISTING RS.13 LAKHS, WERE ISSUED THROUGH CHEQUE ON 22.07.2010 (REFER PAGE 14 OF THE PAPER BOOK). REFERRING TO THE BALANCE (22,34,000 15,34,000 OUT OF THE SAID OF RS.22,34,000/-, LD. AR SUBMITTED THAT THE SAME WERE GIVEN BY THE ASSESSEE IN EARLIER YEARS. THE ASSESSEE RECEIVED THE SAME TOO IN THIS YEAR. RELYING ON THE AFFIDAVIT OF SHRI HENGADE, LD. COUNSEL SUBMITTED THAT ENTIRE DEPOSIT BY WAY OF CHEQUES CONSTITUTES ACCOUNTED TRANSACTION AND THE SOURCES OF DEPOSITS THIS ACCOUNT IS AGRICULTURAL ACTIVITIES AND THE SAME CONSTITUTES EXEMPT INCOME. HOWEVER, NO SPECIFIC EXPLANATION IS GIVEN ABOUT THE BALANCE CHEQUE DEPOSIT OF RS.22,34,000/- - RS.15,34,000/- =RS.7,00,000/-. IN SUPPORT OF HIS SUBMISSION, THE ASSESSEE FURNISHED FOLLOWING WRITTEN ARGUMENTS. 1. THE ASSESSEE EXPLAINED THAT HE HAD ADVANCED AN AMOUNT OF RS.2,00,000/- TO HIS CLOSE RELATIVE NAMED SHRI DEORAM PARVAT SATHE IN THE EARLIER YEAR. IT WAS STATED THAT THE SAID AMOUNT WAS REFUNDED BY MR. D.P SATHE THROUGH BANK CHEQUE NO.405681 OF RS.1,00,000/- DATED 18.08.2010 AND CHEQUE NO.321770 OF RS.1,00,000/-DATED 11/01/2011 WHICH WERE CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE (REFER PAGE 14 OF THE PAPER BOOK). 2. THE SAID FACTS ARE ALSO CONFIRMED BY MR. D.P SATHE IN HIS AFFIDAVIT FILED BEFORE THE CIT(A) AS WELL AS IN HIS STATEMENT ON OATH RECORDED BY THE A.O. IN THE REMAND PROCEEDINGS. FURTHER, THE REASONS FOR WHICH THE AMOUNT WAS ADVANCED BY THE ASSESSEE WAS ALSO CLARIFIED BY MR. D.P SATHE ON BEING QUESTIONED BY AO IN THE STATEMENT RECORDED ON OATH. THE SAID CLAIM HAS NOT BEEN CONTROVERTED BY THE AO. ( REFER PAGES 44 TO 48 OF PAPER BOOK) THE ASSESSEE EXPLAINED THAT HE HAD ADVANCED AN AMOUNT OF RS.5,00,000/- TO ONE MR. NIVRUTTI KAKAD IN THE EARLIER YEARS. IT WAS 11 ITA NO.1552/PUN/2015 A.Y.2011-12 EXPLAINED THAT THE SAID AMOUNT WAS REFUNDED BY MR. KAKAD THROUGH CHEQUE NO. 764047 DATED 18.10.2010 OF RS.5,00,000/- WHICH WAS CREDITED TO THE BANK ACCOUNT OF THE APPELLANT. THE ASSESSEE SUBMITS THAT THE SAID PERSON IS AN AGRICULTURIST WHO IS AFRAID OF INCOME TAX PROCEEDINGS AND HENCE, HIS AFFIDAVIT CONFIRMING ABOVE FACTS COULD NOT BE FILED. HOWEVER, IT IS A FACT ON RECORD THAT THE AMOUNT OF RS.5 LAKHS HAS BEEN RECEIVED FROM HIM THROUGH BANK CHEQUE NO.764047 OF AXIS BANK WHICH HAS BEEN CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE. IT IS THE CLAIM OF THE ASSESSEE THAT THE SB ACCOUNT WITH THE STATE BANK OF INDIA WAS NOT REFLECTED IN THE FINANCIAL STATEMENT OF THE ASSESSEE AS IT IS MEANT FOR AGRICULTURAL ACTIVITIES RELATED TRANSACTION ONLY. IN CONNECTION WITH OTHER DEPOSITS AROUND RS.2 LAKHS, IT WAS ADVANCED TO HIS BROTHER THROUGH CHEQUE AND ANOTHER SUM OF RS.5 LAKHS WAS ADVANCED TO ONE MR. NIVRUTTI KAKAD. THE ASSESSEE SUBMITTED THAT THE SAID AMOUNT WAS REFUNDED BY MR. KAKAD THROUGH CHEQUE NO.764047 DATED 18.10.2010 WHICH WAS CREDITED TO THE BANK OF THE ASSESSEE. C. THE ADDITION OF RS.18,41,000/- ON ACCOUNT OF AGRICULTURAL INCOME DEPOSITED IN THE SB A/C WITH STATE BANK OF INDIA :- THE BACK GROUND FACTS OF THE AGRICULTURAL ACTIVITIES INCLUDE THAT THE ASSESSEE CAME FROM AN AGRICULTURAL BACK GROUND. HIS JOINT FAMILY CONSISTS OF THE FATHER OF THE ASSESSEE, HIS THREE BROTHERS AND THEIR WIVES. HIS JOINT FAMILY OWNS A LAND HOLDING OF 10 ACRE 11R. THE SAID LAND IS USED FOR GROWING THE GRAPES CROPS. THE 7/12 EXTRACT OF THE SAID LANDS WERE SUPPLIED TO THE CIT(A). THE 7/12 EXTRACT PLACED AT PAGE 18 TO 21 CONTAINS THE NAMES OF SRI SAKHARAM NAMDEV MATE FATHER OF THE ASSESSEE AND DADA NAMDEV MATE. REFERRING TO THE DETAILS OF THE SB A/C WITH STATE BANK OF INDIA, LD. AR SUBMITTED THAT THE OPENING OF THE BANK ACCOUNT IS DONE IN THE NAME OF ASSESSEE AND THE SAME WAS DONE SO BY ASSESSEE FOR REASONS OF CONVINCING BANKING STATUTE. 12 ITA NO.1552/PUN/2015 A.Y.2011-12 8. PER CONTRA , LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF ASSESSING OFFICER AND CIT(A) AND CLAIMED THAT THE SPEAKING ORDERS OF ASSESSING OFFICER/CIT(A) ARE SELF-EXPLANATORY. LD. DR PRAYED FOR DISMISSING THE ARGUMENTS/ EVIDENCE FURNISHED BY ASSESSEE IN VIOLATION OF RULE 46 OF THE I.T. RULES. FURTHER, LD. DR ARGUED THAT THE SB A/C WITH STATE BANK OF INDIA CONSTITUTES A CONCEALED BANK ACCOUNT OF THE ASSESSEE AND CONSEQUENTLY THE DEPOSITS IN THE SAID ACCOUNT CONSTITUTE AN ADDITIONAL INCOME OF THE ASSESSEE AND NOT OF THAT OF THE HUF. DECISION OF THE TRIBUNAL 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUES AUTHORITY ON ONE SIDE AND THE WRITTEN SUBMISSIONS FILED BY THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER. WE HAVE ALSO PERUSED THE PAPER BOOK FILED BY THE ASSESSEE. AS STATED IN THE PRECEDING PARAGRAPHS OF THIS ORDER, THE AIR INFORMATION ON THE EXISTENCE OF SB A/C BEARING A/C NO.10934421026 WITH STATE BANK OF INDIA IN THE NAME OF THE ASSESSEE, WHERE HUGE CASH DEPOSITS WERE DEPOSITED, IS THE GENESIS FOR SCRUTINY OF THE RETURN OF THE ASSESSEE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER CONDUCTED ENQUIRIES INVOKING THE PROVISIONS OF SECTION 133(6) OF THE ACT ON THE BANK AND EVENTUALLY MADE ADDITION OF RS.69,84,223/-IN THE ASSESSMENT. THIS AMOUNT IS A TOTAL AMOUNT OF THE CASH DEPOSITS, CHEQUE DEPOSITS AND THE AGRICULTURAL INCOME DEPOSITS ETC. IN THE ASSESSMENT, THE ASSESSEE ARGUED THAT THE SAID SB A/C WITH STATE BANK OF INDIA BELONGS TO THE JOINT FAMILY MEMBERS AND IT DOES NOT BELONG TO HIM. THE SAME IS MAINTAINED FOR RECORDING THE TRANSACTIONS RELATING AGRICULTURAL LINKED INCOME AND EXPENDITURE, APPLICATION OF SUCH AGRICULTURAL INCOME BY INVESTMENT ETC.. HOWEVER, THE ENQUIRIES OF THE ASSESSING OFFICER DID NOT 13 ITA NO.1552/PUN/2015 A.Y.2011-12 RESULT IN ANY WAY THE ACCOUNT BELONGS TO ANY PERSON OTHER THAN THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER AND THE CIT(A) DID NOT ACCEPT THE SAID EXPLANATION OF THE ASSESSEE FOR THE REASON THAT THE BANK ACCOUNT STANDS IN THE NAME OF THE ASSESSEE AND ITS OPERATIONS ARE DONE BY THE ASSESSEE. THERE IS NO DIRECT EVIDENCE TO DEMONSTRATE THAT THE ACCOUNT IS MEANT FOR THE AGRICULTURAL ACTIVITIES OF THE JOINT FAMILY/HUF. THE APPLICATION OF FUNDS IN THE ACCOUNT BY WAY OF PROPOSED INVESTMENTS IN THE AGRICULTURAL ASSETS OUT OF THE AMOUNTS DEPOSITED IN THIS ACCOUNT WAS ALSO DONE BY THE ASSESSEE. FURTHER, THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE DID NOT DISCLOSE THIS ACCOUNT AND AMOUNTS DEPOSITED THEREIN IN THE FINANCIAL STATEMENTS/BOOKS OF ACCOUNT OF THE ASSESSEE. IN-FACT, THIS AMOUNT IS ALSO NOT DISCLOSED BY ANY MEMBERS OF THE JOINT FAMILY IN THEIR SAVINGS BANK ACCOUNTS. 10. IN THE LIGHT OF THE SAID FACTS, ARGUMENT OF THE PORTION IN DISPUTE, WE NEED TO DECIDE THE FOLLOWING ISSUE, NAMELY, (I) OWNERSHIP OF THE SB ACCOUNT WITH STATE BANK OF INDIA; (II) OWNERSHIP OF THE AGRICULTURAL NATURE OF TRANSACTIONS AND (III) THE SOURCES OF THE DEPOSITS IN THE BANK ACCOUNT . WE SHALL NOW TAKE UP EACH OF THESE ISSUES IN THE FOLLOWING PARAGRAPHS OF THE ORDER. 11. ON THE ISSUE OF THE OWNERSHIP OF THE SAVINGS BANK ACCOUNT WITH STATE BANK OF INDIA, WE FIND THE ISSUE WAS DELIBERATED BY THE REVENUE AUTHORITIES IN THEIR RESPECTIVE ORDERS. ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 133(6) OF THE ACT AND ANALYSED THE DETAILS OF THE SAID BANK ACCOUNT. THE ASSESSING OFFICER IS NOT SATISFIED WITH THE ASSESSEES EXPLANATION THAT THE SAID BANK ACCOUNT AND THE TRANSACTIONS OF THE SAID BANK ACCOUNT BELONGS TO THE JOINT FAMILY MEMBERS AND RELATES TO THE AGRICULTURAL 14 ITA NO.1552/PUN/2015 A.Y.2011-12 TRANSACTIONS. HOWEVER, THE UNDISPUTED FACTS INCLUDE THAT THE BANK ACCOUNT AND CHEQUE BOOKS ETC. STAND IN THE NAME OF THE ASSESSEE AND IN HIS PERSONAL CAPACITY AND NOT IN THE STATUS OF KARTA OF THE AGRICULTURAL JOINT FAMILY. THE ACCOUNT NOT ONLY STAND IN THE NAME OF THE ASSESSEE, BUT ALSO THE CHEQUES ARE SIGNED AND ISSUED BY THE ASSESSEE ONLY. THERE IS NO WHISPER ABOUT THE JOINT OWNERSHIP OF THIS ACCOUNT ON PAPER BUT FOR THE ARGUMENTS MADE BY THE ASSESSEE BEFORE BOTH THE CIT(A) AND US. THE AFFIDAVITS FILED SUBSEQUENTLY BY THE JOINT FAMILY MEMBERS OF ASSESSEE STAND DISMISSED BY THE CIT(A)/ASSESSING OFFICER AS SELF-SERVING DOCUMENTS AND ALSO ON A PRODUCT OF AN AFTERTHOUGHT. WE FIND NO REASON TO INTERFERE WITH THE SAID FINDING OF THE I.T. AUTHORITIES. NO THIRD PARTY EVIDENCE WAS FURNISHED EVEN BEFORE US TO DEMONSTRATE THAT THE SAID ACCOUNT WAS MAINTAINED BY THE ASSESSEE EXCLUSIVELY FOR PURPOSE OF AGRICULTURAL ACTIVITIES OF THE JOINT FAMILY ONLY. 12. FURTHER, ANALYSIS OF THESE ACCOUNTS FOR THE YEAR UNDER CONSIDERATION, WE FIND THAT THE ASSESSEE ISSUED CHEQUE WORTH RS.22.34 LAKHS AND DEPOSITED CASH WORTH OF RS.24.42 LAKHS. OUT OF THIS RS.46,76,000/- ONLY, A SUM OF RS.18,44,000/- EXPLAINED TO BE FROM THE AGRICULTURAL ACTIVITIES. REGARDING THE BALANCE, THE ONLY EXPLANATION OF THE ASSESSEE IS THAT THE REFUNDS BY WAY OF CHEQUES ARE RECEIVED OUT OF ADVANCES GIVEN TO OTHERS IN THE PAST. NO DETAILS WHATSOEVER ABOUT THE DATES OF GIVING ADVANCES IN THE EARLIER YEAR(S) AND THE SOURCES THEREOF, WERE NOT EXPLAINED. THEREFORE, IT REMAINS STILL A MYSTERY AS TO THE SOURCES OF THE ADVANCES GIVEN TO OTHERS AS WELL AS THE OWNERSHIP OF THE SAID BANK ACCOUNT WITH STATE BANK OF INDIA. NORMALLY, WHERE THE JOINT ACCOUNT ARE MAINTAINED, THE NAME OF THE KARTA APPEARS FIRST AND HE IS THE SIGNATORY TO THE CHEQUES AND FOR ALL THE BANKING CORRESPONDENCE PERTAINING TO THAT ACCOUNT. ADMITTEDLY, THE IMPUGNED 15 ITA NO.1552/PUN/2015 A.Y.2011-12 ACCOUNT IS IN THE NAME OF THE ASSESSEE AND MAINTAINED BY HIM IN ALL THE RECORDS OF THE BANK. THE HUF/JOINT FAMILY DOES NOT APPEAR ANYWHERE IN THE RECORDS OF THE BANK. 13. ON THE ONUS POINT OF VIEW, IN THE FACTUAL MATRIX NARRATED ABOVE, WE FIND THE ASSESSEE IS REQUIRED TO DISCHARGE THE ONUS ON THE OWNERSHIP OF BANK ACCOUNT AND THE TRANSACTIONS THEREIN AS THEY ARE CLAIMED TO BE BELONGING TO EXEMPT AGRICULTURAL INCOME OF THE JOINT FAMILY. ALL THESE ABOVE CONCLUSIONS GO AGAINST THE ASSESSEE SO FAR AS OWNERSHIP OF ACCOUNT IS CONCERNED. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE AUTHORITIES BELOW HAVE RIGHTLY HELD THE SAID SB ACCOUNT AS BELONGS TO THE ASSESSEE. WE ACCORDINGLY DISMISS THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE IN THIS REGARD AND UPHOLD THE DECISIONS OF THE ASSESSING OFFICER AND CIT(A). ACCORDINGLY, RELEVANT GROUND/ARGUMENTS OF THE ASSESSEE ARE DISMISSED. 14. NOW, HAVING HELD THIS ACCOUNT AS BELONGED TO THE ASSESSEE, WE SHALL TAKE UP THE MERITS OF THE ADDITIONS ON ACCOUNT OF THE SOURCES OF THE CASH DEPOSITS, ON ACCOUNT OF CHEQUE DEPOSITS AND ALSO ON ACCOUNT OF AGRICULTURAL INCOME AS SOURCE OF THE DEPOSITS. RS.69.84 LAKHS IS THE ADDITION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) GRANTED RELIEF TO THE EXTENT OF RS.4 LAKHS LEAVING THE BALANCE ADDITION OF RS.65.84 LAKHS FOR ADJUDICATION BEFORE US. 15. THE ASSESSEE EXPLAINED THAT RS.24.42 LAKHS IS NOTHING BUT CASH WITHDRAWN IN THE EARLIER MONTHS IN THE SAME ACCOUNT AND HENCE, THE ASSESSEE IS ENTITLED FOR TELESCOPIC BENEFIT. FURTHER, RS.22.34 LAKHS BEING THE CHEQUE DEPOSITS AS SOURCES IN EARLIER YEARS ADVANCED BY MR. PANDHARINATH HENGADE (RS.15.34 LAKHS), MR. NIVRUTTI KAKAD (RS.5 LAKHS) AND MR. DEORAM 16 ITA NO.1552/PUN/2015 A.Y.2011-12 PARVAT SATHE (RS.2 LAKHS) AND THESE AMOUNTS WERE RECEIVED BY THE ASSESSEE FROM THEM DURING THE MONTH OF JULY, 2010 TO OCTOBER, 2010 AND IN JANUARY, 2011. THESE AMOUNTS CONSTITUTING ADVANCES WERE GIVEN BY THE ASSESSEE TO THREE OF PAYEES IN EARLIER PERIODS AND THE DETAILS OF WHICH ARE NOT AVAILABLE ON RECORD. THERE IS NO DISCUSSION ABOUT THE SOURCE OF THESE ADVANCES GIVEN BY THE ASSESSEE. FINALLY, THE BALANCE AMOUNT OF RS.18.41 LAKHS OF THE SAID SUM OF RS.65.84 LAKHS CONSTITUTES AGRICULTURAL INCOME OF THE JOINT FAMILY, WHICH OWNS ABOUT 10 ACRES OF AGRICULTURAL LAND. 16. COMING TO THE MERITS ABOUT THE SAID EXPLANATION OF THE ASSESSEE ON THE SOURCE OF DEPOSITS OF RS.65.84 LAKHS IN PRINCIPLE, WE ARE OF THE OPINION THAT THE ASSESSING OFFICER IS NOT CORRECT IN DISMISSING ALL THE ARGUMENTS OF THE ASSESSEE. 17. REGARDING THE EXPLANATION OF THE ASSESSEE QUA THE DEPOSITS OF RS.18.41 LAKHS ON ACCOUNT OF AGRICULTURAL INCOME, WE FIND THE ASSESSING OFFICER SHOULD BE DIRECTED TO APPORTION THE ENTITLED SHARE OF AGRICULTURAL INCOME ATTRIBUTABLE TO THE SHARE OF THE ASSESSEE OUT OF THE JOINT FAMILY PROPERTY AND GIVE CREDIT TO EXPLAIN THE SOURCE OF THE DEPOSITS. TO THAT EXTENT ASSESSEE IS ENTITLED TO RELIEF. 18. REGARDING THE TELESCOPIC BENEFIT QUA THE CASH WITHDRAWAL FROM THE SAID ACCOUNT, WE FIND THE ASSESSING OFFICER IS NOT IN POSSESSION OF ANY INCRIMINATING MATERIAL TO DEMONSTRATE THAT THE SAID WITHDRAWALS ARE UTILIZED ELSEWHERE THE ASSESSEE. HENCE, THE ASSESSEE IS ENTITLED TO TELESCOPIC BENEFIT TO EXPLAIN THE SOURCE OF THE CASH DEPOSITS AGAINST THE CASH WITHDRAWALS DURING THE CURRENT PREVIOUS YEAR. TO THAT EXTENT, THE ASSESSEE GETS RELIEF. 17 ITA NO.1552/PUN/2015 A.Y.2011-12 ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO REDUCE THE ADDITION AFTER HEARING THE ASSESSEE. 19. FINALLY, COMING TO THE ASSESSEES EXPLANATION ON THE REFUNDS OF ADVANCES AMOUNTING TO RS.22.34 LAKHS, WE FIND DIFFICULTY IN ADJUDICATING THE SAID ISSUE FOR PAUCITY OF FACT RELATING TO THE DATES OF ADVANCES GIVEN BY THE ASSESSEE TO MR. PANDHARINATH HENGADE (RS.15.34 LAKHS), MR. NIVRUTTI KAKAD (RS.5 LAKHS) AND MR. DEORAM PARVAT SATHE (RS.2 LAKHS). THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THIS ISSUE AFRESH AFTER PROCURING THE RELEVANT FACTS SUCH AS THE DATES OF PAYMENT OF ADVANCES BY THE ASSESSEE, THE YEARS OF PAYMENT, THE MODE OF PAYMENTS, THE SOURCES OF PAYMENTS OF THE ADVANCES ETC. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SAID PRINCIPLES OF NATURAL JUSTICE. 20. ACCORDINGLY, THE GROUNDS NO.1 AND 4 ARE PARTLY ALLOWED, GROUND NO.2 IS DISMISSED, GROUND NO.3 IS ALLOWED AND GROUND NO.5 IS ALLOWED FOR STATISTICAL PURPOSES. 21. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISPOSED OFF IN THE AFORESAID MANNER. ORDER PRONOUNCED ON 21 ST DAY OF JANUARY, 2019. SD/- SD/- ( / SUSHMA CHOWLA ) ( . / D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 21 ST JANUARY, 2019. SB/ SUJEET 18 ITA NO.1552/PUN/2015 A.Y.2011-12 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL)-1, NASHIK. 4. THE PR. CIT-1, NASHIK. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, /PRIVATE SECRETARY , / ITAT, PUNE.