Shri Chandrashekhar M. Ashtekar, Pune V. ITO, Ward 3(2), Pune

ITA 1599/PUN/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7241 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 23-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Assessee Lawyers: NIKHIL PATHAK SHRI SUSHAS BORA
• Keywords: Deemed to accrue or arise in india; Additional evidence; Revised return
• Section: 143(3); 69; 92

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , ! ' # , % & BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1599/PUN/2013 ! ( ( / ASSESSMENT YEAR : 2009-10 SHRI CHANDRASHEKHAR M. ASHTEKAR 1206/28A, SHIVAJINAGAR, PUNE - 411016. PAN NO.AAPBA3061N. . / APPELLANT V/S INCOME TAX OFFICER, WARD 3(2), PUNE. . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / SHRI SUSHAS BORA / RESPONDENT BY : SHRI HITENDRA NINAWE. ) / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL OF THE ASSESSEE IS EMANATING OUT OF THE ORD ER OF COMMISSIONER OF INCOME TAX (A) II, PUNE DATED 15.02.201 3 FOR THE ASSESSMENT YEAR 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- / DATE OF HEARING :03.01.2017 / DATE OF PRONOUNCEMENT: 13 .01.2017 2 ITA NO.1599/PUN/2013 AY.NO.2009-10 2.1 ASSESSEE IS AN INDIVIDUAL STATED TO BE HAVING INCOME FR OM HOUSE PROPERTY, BUSINESS AND OTHER SOURCES. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2009-10 ON 14.09.2009 DECLARING TO TAL INCOME OF RS.21,43,910/-. THE CASE WAS SELECTED FOR SCRUTIN Y AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT V IDE ORDER DATED 28.12.2011 AND THE TOTAL INCOME WAS DETERMINED AT RS.68,44,411/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO VIDE ORDER DATED 15.02.2013 (IN APPEAL NO.PN/CIT(A)-II/ITO WD-3(2), PN/320/2011-12) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT (A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS : 1. THE LEARNED, CIT (APPEALS), PUNE HAS ERRED IN R EJECTING THY REQUEST OF THE APPELLANT FOR ADMISSION OF ADDITIONA L EVIDENCE UNDER RULE 46A ON THE GROUND THAT IT DOES NOT FULFI LL THE REQUIREMENT OF RULE 46A. 2. THE LEARNED CIT (APPEALS) OUGHT TO HAVE ADMITTED THE ADDITIONAL EVIDENCE UNDER RULE 46A WHEN HE HAS TECH NICALLY ADMITTED SUCH ADDITIONAL EVIDENCE BY COMMENTING ON THE MERITS THEREOF AND THE COMMENTS OF THE AO. 3. THE LEARNED CIT (APPEALS), PUNE HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ACTION OF THE AO OF MAKING AN A DDITION ON ACCOUNT OF CASH DEPOSITS IN THE BANK U/SEC. 69A AS UNEXPLAINED MONEY. 4. THE LEARNED CIT (APPEALS), PUNE HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FOLLOWING IMPORTANT F ACTORS: A. APPELLANT DOES NOT HOLD ANY ACCOUNT WITH BANK OF INDIA AND THE ACCOUNT IS HELD IN THE NAME OF HUF. B. THE AMOUNT DEPOSITED DOES NOT TAKE CHARACTER OF INCOME IN HANDS OF THE APPELLANT. C. APPELLANT HAS EXPLAINED THE SOURCE OF ALL FUNDS DEPOSITED AND ALSO SUBMITTED CONFIRMATIONS OF PARTI ES FROM WHOM THE AMOUNTS WERE RECEIVED, 5. THE APPELLANT MAY KINDLY BE PERMITTED TO ADD TO OR ALTER ANY OF GROUNDS OF APPEAL, IF DEEMED NECESSARY 3. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT HE DID N OT WISH TO PRESS GROUND NOS.1, 2 AND 4(A). HE FURTHER SUBM ITTED THAT 3 ITA NO.1599/PUN/2013 AY.NO.2009-10 GROUND NO.3 AND GROUND NO.4(B) AND (3C) ARE CONNECTED TO GROUND NO.3 AND THEREFORE CAN BE CONSIDERED TOGETHER. IN VIEW OF THE AFORESAID SUBMISSION, GROUND NOS.1, 2 AND 4(A) ARE DISMISSED AS NOT PRESSED. SINCE GROUND NO.4(B) AND (C) AND GROUND NO. 3 ARE INTER-CONNECTED, ALL THE GROUNDS ARE CONSIDERED TOGETHER. 4. ON THE BASIS OF AIR INFORMATION RECEIVED BY AO, IT WAS N OTICED BY HIM THAT ASSESSEE HAS DEPOSITED CASH IN SAVINGS BANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH THE BANK OF INDIA AND TH E TOTAL CASH DEPOSITS WERE RS.47,00,501/-. THE ASSESSEE WAS ASK ED TO EXPLAIN THE SOURCE. THE ASSESSEE INTER-ALIA SUBMITTED THAT THE BANK ACCOUNT THAT WAS OPENED BY HIM WAS WITH RESPECT TO TH E HUF AND APPEARED IN THE BOOKS OF ACCOUNTS OF HUF. IT WAS FURTHE R SUBMITTED THAT HIS FRIENDS AND CLOSE RELATIVES HAD DECIDED TO COLLECT MONTHLY AMOUNT FROM EACH PERSON IN THE GROUP AND THE ASSESSEE WAS APPOINTED AS CUSTODIAN AND ACCORDINGLY HE COLLECTED AMOU NTS FROM 24 PERSONS AND DEPOSITED THE SAME IN THE BANK ACCOUNT . FROM FEBRUARY, 2009 THE AMOUNT COLLECTED FROM EACH MEMBER WA S REPAID. THE ASSESSEE ALSO FURNISHED THE LIST OF DEPOSITORS. IT WAS ALSO SUBMITTED THAT THE ENTIRE TRANSACTION WAS IN CAPACITY OF HUF AND THE INTEREST INCOME WAS DISCLOSED IN THE REVISED RETURN O F HUF FOR A.Y. 2009-10 AND THEREFORE THE AMOUNT OF CASH DEPOSITS C ANNOT BE CONSIDERED AS INCOME OF THE ASSESSEE. THE SUBMISSION OF T HE ASSESSEE WAS NOT FOUND ACCEPTABLE TO THE AO INTER-ALIA FOR THE REASON THAT INITIALLY ASSESSEE HAD DENIED OF HAVING ANY BANK ACCO UNT WITH THE BANK OF INDIA BUT LATER ON HE ADMITTED OF HAVING ACC OUNT WITH BANK OF INDIA, LAKSHMI ROAD BRANCH, PUNE. ON PERUSING T HE INCOME-TAX RETURN OF HUF, AO NOTICED THAT FOR A.Y. 2007-08 4 ITA NO.1599/PUN/2013 AY.NO.2009-10 ASSESSEE HAD SHOWN INCOME OF RS.133/- BEING BANK INTERES T AND FOR A.Y. 2008-09, THE INTEREST WAS NIL. FOR A.Y. 2009-10 IN TH E ORIGINAL RETURN, THE INCOME OF HUF WAS SHOWN AS NIL BUT IN THE REV ISED RETURN FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS I.E., ON 23.12.2011, INCOME WAS SHOWN AS RS.1,50,002/- WHEREAS THE BANK INTEREST INCOME WAS AS RS.1,00,002/-. AO THEREFORE CONCLUD ED THAT THE REVISION OF RETURN OF INCOME OF HUF FOR A.Y. 2009-10, TO BE AFTER- THOUGHT. AO ALSO NOTED THAT THE CLAIM OF THE ASSESSEE OF HAVING COLLECTED THE AMOUNTS FROM 24 PERSONS INCLUDING FAMILY PER SONS AND REPAYMENT OF THE SAME DURING THE YEAR WAS ALSO NOT SUP PORTED BY ANY SUBSTANTIAL EVIDENCE. HE THEREFORE CONSIDERED THE CA SH DEPOSITS OF RS.47,00,501/- IN THE BANK ACCOUNT AS UNEXPLAINED AND M ADE ITS ADDITION U/S 69A OF THE ACT. AGGRIEVED BY THE ORDER O F AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO AFTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE, THE REMAND REPORT FROM AO A ND ASSESSEES SUBMISSION TO THE REMAND REPORT, UPHELD THE ORDER OF AO BY HOLDING AS UNDER : 4.2 THE SUBMISSION MADE BY THE APPELLANT HAS BEEN DULY CONSIDERED ALONG WITH ADDITIONAL EVIDENCE FILED U/R 46A, THE REMAND REPORT SENT BY THE ASSESSING OFFICER AND ALS O THE REJOINDER FILED BY THE APPELLANT. THE APPELLANT IS A PARTNER IN A FIRM UNDER THE NAME AND STYLE OF 'ASHTEKAR JEWELLER S' AND HAS INCOME FROM VARIOUS SOURCES WHICH INCLUDES SHARE OF PROFIT, INTEREST AND REMUNERATION FROM THE FIRM AND INTEREST FROM VARIOUS SOURCES AND ALSO RENTAL INCOME. THE AS SESSING OFFICER HAD THE SPECIFIC AIR INFORMATION/ITS DETAIL S OF THE CASH DEPOSITS IN THE SAVING BANK ACCOUNT OF BANK OF BARODA AMOUNTING TO RS. 47,00501/-. THE ASSESSMENT PROCEED INGS ACTUALLY STARTED FROM 12-10-2011 AND THE SAME WAS CONCLUDED ON 28-12-2011 WITH THE PASSING OF THE ORDER U/S 143(3).THE AUTHORIZED REPRESENTATIVES OF THE APPELL ANT ATTENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TI ME TILL THE PASSING OF THE ORDER BY THE ASSESSING OFFICER. IT I S SEEN THAT THE APPELLANT HAD INITIALLY DENIED TO HAVE HAD MADE ANY TRANSACTION WITH THE BANK OF INDIA AND FOR WHICH HE HAD ALSO FILED AN AFFIDAVIT WHEREIN HAD STATED (HAT HE WAS HAVING FIXED DEPOSIT WITH THE BANK OF INDIA, LAXMI ROAD BR ANCH, PUNE AND THE INFORMATION RECEIVED 'IN ITS DETAILS WERE I NCORRECT REGARDING THE TRANSACTION OF RS. 47,00,501/-. IT WAS ONLY AFTER THE ASSESSING OFFICER CARRIED OUT ENQUIRIES WITH TH E BANK 5 ITA NO.1599/PUN/2013 AY.NO.2009-10 WHICH REVEALED FURTHER BY LETTER DATED 09-12-2011 T HAT THE SAVING BANK ACCOUNT NO. 4381 AT THE SAID BANK CONTA INED THE CASH DEPOSITS OF RS. 47,00,501/-, THAT THE APPELLANT IN ITS SUBMISSION DATED 23-12-2011 BEFORE THE ASSESSING OF FICER CAME OUT WITH AN EXPLANATION THAT THE SAID BANK ACC OUNT WAS OPENED BY THE APPELLANT THOUGH THE DEPOSITS WERE CO NSIDERED IN THE BOOKS OF ACCOUNT OF THE HUF AND FOR WHICH AL SO FILED A REVISED RETURN OF INCOME ON 23-12-2011 WHEREIN THE ENTIRE INTEREST INCOME EARNED OF RS.1,00,002/- WAS DISCLOS ED ALONG WITH OTHER INCOME AT RS.1,50,002/- WAS DISCLOSED AS AGAINST NIL INCOME FILED IN THE ORIGINAL RETURN. THE DET AILS OBTAINED FROM THE BANK CLEARLY REVEALED THAT THE SAID BANK A CCOUNT STOOD IN THE NAME OF THE APPELLANT IN THE CAPACITY OF AN INDIVIDUAL AND NOT IN THE CAPACITY OF HUF. FURTHER THE APPELLANTS CONTENTION OF THE COLLECTION OF AMOUNTS FROM 24 PERSONS AND ITS REPAYMENT DURING THE SAME FINANCIAL YEAR WERE NOT SUPPORTED BY WAY OF ANY EVIDENCE EXCEPT FO R THE NAMES AND ADDRESSES AND PAN NOS. IS SOME CASES. TH E APPELLANT ON AN AVERAGE HAD TAKEN 2.20 LACS FROM EA CH PERSON. THE FACT BROUGHT ON RECORD BEFORE THE ASSES SING OFFICER CLEARLY SHOWS THE ACTION OF THE APPELLANT I N FILING THE REVISED RETURN TO BE AN AFTERTHOUGHT AS THE EVENT O F THE CASH DEPOSITS TOOK PLACE PRIMARILY DURING THE MONTH OF A PRIL TO JULY 2008 AND THE FILING OF THE REVISED RETURN WAS ONLY ON 23-12- 2011 WHEN THE ASSESSING OFFICER HAD ALREADY CONFRON TED THE APPELLANT WITH THE ENTIRE FACT GATHERED BY HIM. THE APPELLANT IN ITS HUF CAPACITY HAD BEEN SHOWING AND FILING 'NI L' INCOME AS WAS REVEALED IN VERIFICATION OF THE RETURN OF IN COME FOR A.YRS. 2007-08 TO 2010-11. THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT U/R 46A IN THE FORM OF LETTERS DATED 7-4-2008/9- 4-2008 ADDRESSED TO BANK OF INDIA, LAXMI ROAD BRANC H REQUESTING TO CHANGE OF PAN WAS NEITHER CLAIMED TO HAVE BEEN FILED BEFORE THE ASSESSING OFFICER NOR THE SAME WER E ACTUALLY FILED BEFORE THE ASSESSING OFFICER. THE APPELLANT H AS FILED THE ADDITIONAL EVIDENCES U/R 46A WHICH WERE ALSO SENT T O THE ASSESSING OFFICER. THE ASSESSING OFFICER IN ITS REP ORT DATED 27 -11-2012 HAS NOTED THAT THE APPELLANT WAS PROVIDED WITH AMPLE OPPORTUNITY TO EXPLAIN THE CASH DEPOSITS AND THAT THE PAN COULD NOT BE COLLECTED EVEN AFTER FOUR YEARS OF MAKING THE APPLICATION TO THE BANK AND HENCE THE EXPLANATION O F THE ASSESSEE APPEARS TO BE AN AFTERTHOUGHT. THE APPELLA NT IN THE REJOINDER TO THE REMAND REPORT HAS SUBMITTED THAT T HE OBSERVATION OF THE ASSESSING OFFICER OF THE APPELLA NT INTENTIONALLY AVOIDING TO STATE THE PAN WAS WRONGLY QUOTED IN THE HANK IN INDIVIDUAL CAPACITY AS AGAINST HUF PAN IS WITHOUT ANY BASIS. THE APPELLANT HAS THEREAFTER REI TERATED THE SUBMISSIONS MADE EARLIER BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS. 4.3 IT IS TRUE THAT AN APPELLATE AUTHORITY CAN RECEIVE ADDITIONAL EVIDENCE FROM EITHER SIDE FOR A FAIR DEC ISION ON ALL RELEVANT MATERIALS, BUT THE NORMAL EXPECTATION IS T HAT ALL THE EVIDENCES SHOULD BE AVAILABLE AT THE FIRST STAGE. I T IS FOR THIS REASON THAT CONDITIONS ARE PRESCRIBED FOR ADMISSION OF EVIDENCE IN APPEAL STAGE. RULE 46A LISTS THE CIRCUM STANCES WHERE EVIDENCE COULD NOT BE FILED BEFORE THE ASSESS ING OFFICER DUE TO NON AVAILABILITY OF SUFFICIENT OPPORTUNITY O R OTHERWISE PREVENTED BY SUFFICIENT CAUSE, SO THAT SUCH CAUSE M UST BE INDICATED WHILE FILING FRESH EVIDENCE. THE APPELLAN T, IT HAS ALREADY BEEN SEEN AND ALSO NOTICED HAD BEEN PROVIDED WITH A NUMBER OF OPPORTUNITIES BY THE ASSESSING OFFICER, AND EVEN AFTER ITS ATTENDANCE, T HE REQUISITE 6 ITA NO.1599/PUN/2013 AY.NO.2009-10 DETAILS AS SOUGHT FOR BY THE ASSESSING OFFICER COUL D NOT BE FURNISHED BY THE APPELLANT. THUS THE CONTENTION RAI SED BY THE APPELLANT THAT THE DETAIL COULD NOT BE FURNISHED DU E TO INADEQUATE TIME IS NOT CORRECT AND PROPER. THUS WHE RE ADDITIONAL EVIDENCE IS SOUGHT TO BE RELIED UPON, TH E ASSESSEE IS EXPECTED UNDER RULE 46A TO GIVE EXPLANATION AS T O WHY IT COULD NOT BE FILED BEFORE THE ASSESSING OFFICER AND IN THE PRESENT CASE A NUMBER OF OPPORTUNITIES WAS PROVIDED BY THE ASSESSING OFFICER TO THE APPELLANT TO PROVE THE CLA IM MADE THAT THE CASH DEPOSITS REPRESENTED COLLECTIONS FROM 24 PERSONS AND IN SUCH A SITUATION THE CREDIBILITY OF THE ADDI TIONAL EVIDENCE APPARENTLY COULD NOT BE BELIEVED AND BECOM ES DOUBTFUL. THE COMMISSIONER HAS POWER TO ADMIT ADDIT IONAL 'EVIDENCE SUBJECT TO THE REQUIREMENT OF RULE 46A WH ICH PERMITS ENTERTAINMENT OF ADDITIONAL EVIDENCE DURING HEARING OF APPEAL SUBJECT TO THE PROCEDURE PRESCRIBED THERE IN. THE' PRESENT CASE DOES NOT COME UNDER THE PURVIEW OF 46A (B) (C) OR (D) HENCE THE REQUEST FOR THE ADMISSION OF ADDITION AL EVIDENCE IS REJECTED AND CANNOT BE ENTERTAINED AT THIS STAGE . THE RELIANCE PLACED BY THE APPELLANT ON A FEW JUDICIAL DECISIONS ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE AS SUFFICIENT OPPORTUNITY WAS PROVIDED TO THE APPELLANT BY THE AS SESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AND, THER EFORE, THE APPELLANT WAS NOT PREVENTED BY SUFFICIENT CAUSE FRO M PRODUCING ANY SUCH EVIDENCE. THE APPELLANT HAD SUFF ICIENT TIME TO FURNISH THE DETAILS OF THE CLAIM MADE BUT S TILL THE SAME COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER. THE FACTS AS BROUGHT ON RECORD PRIMA FACIE INDICATE THAT THE ENTIRE EXERCISE OF MAKING THE CLAIM OF ADVANCES TO EXPLAIN THE CASH DEPOSITED IN THE BANK IS COLORABLE TRANSACTION WHIC H IS DIFFICULT TO BE BELIEVED. THE CONTENTION RAISED BY , THE APPELLANT IS NOT BACKED BY PROPER PROOF AND EVIDENCE SO AS TO JUSTIFY THE CLAIM OF EXPLAINING THE CASH DEPOSITS BY WAY OF ADV ANCES. THE RELIANCE PLACED BY THE APPELLANT ON THE JUDICIA L DECISIONS AS ABOVE IS OUT OF CONTEXT AND NOT APPLICABLE TO TH E FACTS OF THE PRESENT CASE. 4.4 THE APPELLANT'S CONTENTION THAT THE AO. ERRED IN MAKING THE ADDITION U/S 69A AS UNEXPLAINED MONEY DEPOSITED IN BANK, THEREFORE, THE ORDER WAS INCORRECT, INVALID A ND OUGHT TO BE DELETED. IN THIS REGARD IT IS RELEVANT TO INDICA TE THAT AS PER THE SPECIAL BENCH IN THE CASE OF MANOJ AGARWAL VS D CIT (2008) 117 T TJ 145, (DEL)(SB), ON THE BASIS OF THE JUDGEMENT OF THE SUPREME COURT IN THE CASE OF A GOVINDRAJULU MUDALIAR VS CIT (1958) 34 ITR 807 (SC) HELD. IT IS THE ONUS OF THE ASSESSEE TO EXPLAIN THE CASH RECEIVED BY HIM AND IF THERE IS NO EXPLANATION OR ACCEPTABLE EVIDENCE TO PROVE THE NATURE AND SOURCE OF THE RECEIPT, THE AMOUNT MAY BE ADDED AS T HE ASSESSEE'S INCOME ON GENERAL PRINCIPLES. THE SPECIA L BENCH HAD FURTHER HELD THAT IN THE ABSENCE OF ANY CLINCHI NG EVIDENCE TO SHOW THE NATURE AND SOURCE OF THE MONIES DEPOSIT ED INTO THE BANK ACCOUNT WHICH BELONG TO THE ASSESSEE, THE AO. WAS JUSTIFIED IN ADDING THE AMOUNT AS THE ASSESSEE'S UN EXPLAINED INCOME. IN THE CASE OF CIT VS K. CHINNATHAMHAN (200 7) 292 ITR 682 (SC), IT WAS HELD THAT IN THE ABSENCE OF ANY EVIDENCE FORTHCOMING AS TO THE SOURCE OF DEPOSITS, THE AO WA S JUSTIFIED IN MAKING ADDITION U/S 69A OF THE LT. ACT, 1961. 4.5 THE APPELLANT HAS ALSO NOT BEEN ABLE TO SUBMIT ANY EXPLANATION OR BRING ANY EVIDENCE OR MATERIAL ON RE CORD TO PROVE THAT THE CASH DEPOSITS ARE GENUINE EITHER AT THE STAGE OF ASSESSMENT OR DURING THE APPELLATE PROCEEDINGS. UND ER THE 7 ITA NO.1599/PUN/2013 AY.NO.2009-10 DEEMING PROVISIONS OF THE LT. ACT, 1961, THE POSITI ON IS THAT THE MERE EXISTENCE OF A CREDIT ENTRY IS SUFFICIENT TO ATTRACT THE PROVISIONS AND ONCE THE APPELLANT'S EXPLANATION IS NOT SATISFACTORY, THE CASH CREDITS ARE TO BE CHARGED TO TAX IN AN EXCEPTIONABLE MANNER. IT WAS SO HELD IN ONE OR THE MOST LANDMARK CASES OF THE HON'BLE SUPREME COURT OF SUMA TI DAYAL (1995) 214 ITR 801 (SC). FROM A PLAIN READING OF THE REQUISITE SECTIONS IT IS EVIDENT THAT WHEN THE ASSE SSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE C REDITS, ITS VALUE COULD BE DEEMED INCOME OF THE ASSESSEE. AN EXPLANATION OFFERED, IF NOT ACCEPTED IS NO EXPLANATION IN LAW AND NOT ONLY THIS THE LEGISLATURE WHILE ENACTING TH E DEEMING PROVISIONS OF THE I.T. ACT FALLING UNDER SECTIONS 6 8, 69 TO 690 OF THE -- I. T. ACT, 1961, HAS CLARIFIED THAT IN CASE THE EXPLANATION OFFERED IS NOT SATISFACTORY THE VALUE O F THE UNEXPLAINED DEPOSITS SHALL BE DEEMED TO BE THE INCO ME OF THE ASSESSEE, THERE CAN BE NO GENERAL PROPOSITION OF LA W APPLICABLE TO ALL CASES IRRESPECTIVE OF THE FACTS A ND CIRCUMSTANCES THEREOF. ONE THING WHICH CAN BE SAID WITHOUT MUCH HESITATION IS THAT THE BURDEN IS ALWAYS ON THE ASSESSEE, IF AN EXPLANATION IS ASKED FOR BY THE TAXING AUTHOR ITIES TO INDICATE THE SOURCE OF ACQUISITION OF A PARTICULAR ASSET ADMITTEDLY OWNED BY THE PERSON CONCERNED. THE BURDE N CAST UPON THE APPELLANT HAS NOT BEEN DISCHARGED EITHER A T THE STAGE OF ASSESSMENT OR DURING THE APPELLATE PROCEED INGS BY FURNISHING ANY ACCEPTABLE EXPLANATION. 4.6 FROM THE PLAIN READING OF SECTION 69A, IT IS EVID ENT THAT WHEN THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE N ATURE AND SOURCE OF ACQUISITION OF THE MONEY, BULLION, JE WELLERY OR OTHER VALUABLE ARTICLES IN VALUE WOULD BE DEEMED IN COME OF THE ASSESSEE, AN EXPLANATION OFFERED, IF NOT ACCEPT ED IS NO EXPLANATION IN LAW AND NOT ONLY THIS, THE LEGISLAT URE WHILE ENACTING SECTION 69A HAS CLARIFIED THAT IN CASE THE EXPLANATION OFFERED IS NOT SATISFACTORY THE VALUE OF THE VALUAB LE ARTICLES SHALL BE DEEMED TO BE THE INCOME OF THE ASSESSEE. 4.7 SECTION 110 OF THE EVIDENCE ACT IS MATERIAL IN THI S RESPECT WHICH STIPULATES THAT WHEN THE QUESTION IS WHETHER ANY PERSON IS OWNER OF ANYTHING OF WHICH HE IS SHOWN TO BE IN POSSESSION, THE ONUS OF PROVING THAT HE IS NOT THE OWNER, IS ON THE PERSON WHO AFFIRMS THAT HE IS NOT THE OWNER. IN OTHER WORDS, IT FOLLOWS FROM WELL SETTLED PRINCIPLE OF LA W THAT NORMALLY, UNLESS CONTRARY IS ESTABLISHED, TITLE ALW AYS FOLLOWS POSSESSION. CHUHARMAL VS CIT (1988) 172 ITR 250 (SC ). DOCUMENTARY EVIDENCE PLAYS AN IMPORTANT PART IN LAW . THE COURTS ATTACH GREAT VALUE FOR DOCUMENTARY EVIDENCE. THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PARAMJIT SINGH VS ITO (2010) 323 ITR 588 (P & H) POINTED OUT THAT ORAL EVIDENCE IS NOT CONCLUSIVE AS AGAINST DOCUMENTARY E VIDENCE UNDER SECTIONS 91 AND 92 OF THE INDIAN EVIDENCE ACT , 1872. 4.8 IN VIEW OF THE ABOVE FACTS, THE DISALLOWANCE MADE BY THE N.O. IS UPHELD AND THE GROUND OF APPEAL NO. 2 RAISE D BY THE APPELLANT IS LIABLE TO BE DISMISSED. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APP EAL BEFORE US. 8 ITA NO.1599/PUN/2013 AY.NO.2009-10 5. BEFORE US, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD. CIT(A). HE FURTHER SUBMITTED THAT THROUGH OVERSIG HT THE ACCOUNT WAS OPENED FOR HUF AND THE PAN NO. OF THE ASSE SSEE WAS SUBMITTED. IT WAS FURTHER SUBMITTED THAT THE ADDITION B E DELETED. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF AO AND LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO MAKING ADDITION OF CASH DEPOSITS IN BANK AS UNEXPLAINED MON EY U/S 69A OF THE ACT. WE FIND THAT LD. CIT(A) WHILE CONFIRMING THE ADDITION HAS NOTED THAT ASSESSEE HAS NOT PLACED ANY EV IDENCE OR PLACED ON RECORD ANY MATERIAL WHICH COULD SHOW THAT CASH DEPOSITS WERE GENUINE EITHER AT THE ASSESSMENT STAGE OR AT THE APPELLATE PROCEEDINGS. HE HAS FURTHER NOTED THAT ASSESSEE HAD IN ITIALLY DENIED TO HAVE MADE ANY TRANSACTION WITH BANK OF INDIA AND FOR WHICH HE ALSO FILED AN AFFIDAVIT, WHEREIN IT WAS INTER-ALIA STATED THAT INFORMATION RECEIVED IN ITS DEALS WERE INCORRECT. REGARDING THE TRANSACTIONS OF RS.47,00,501/-. LD. CIT(A) HAS FURTHER NOTE D THAT ONLY AFTER AO CARRIED OUT ENQUIRIES WITH THE BANK IT WAS REVEALED THAT THE SAVINGS BANK ACCOUNT NO.4381 CONTAINED CASH D EPOSITS OF RS.47,00,501/-. THEREAFTER, THE ASSESSEE CAME WITH AN EXP LANATION THAT THE BANK ACCOUNT THOUGH WAS OPENED BY HIM BUT WERE APPEARING IN THE BOOKS OF ACCOUNT OF HUF AND A REVISED R ETURN OF INCOME OF HUF WAS FILED ON 23.12.2011 WHEREIN THE INTEREST INCOME EARNED WAS DISCLOSED AS AGAINST THE NIL INCOME FILED IN THE ORIGINAL RETURN. LD. CIT(A) HAS ALSO NOTED THAT ASSESSEE HAS NO T PLACED ANY MATERIAL TO DEMONSTRATE THAT THE CASH TRANSACTIONS ARE JUSTIFIED AND TO BE THE ADVANCES. BEFORE US, ASSESSEE HAS NOT BROUG HT ANY 9 ITA NO.1599/PUN/2013 AY.NO.2009-10 MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT(A). IN VIEW OF THE TOTALITY OF THE AFORESAID FACTS, WE FIND NO REASON TO INT ERFERE WITH THE ORDER OF LD. CIT(A). THUS, THE GROUNDS OF THE ASSESSEE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED ON THE 13 TH DAY OF JANUARY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER % / ACCOUNTANT MEMBER PUNE; ! DATED : 13 TH JANUARY, 2017. YAMINI ) * +',- .-' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. THE CIT-(A)-II, PUNE THE CIT-II, PUNE. #$% & 1 &'(, * '(, / DR, ITAT, B PUNE; %+, - / GUARD FILE )! / BY ORDER, //// // TRUE COPY // T // // TRUE COPY // . /012 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.