The ADIT(Intl. Taxn), Ahmedabad V. Shri Akshay Rajnikant Patel, Anand

ITA 1708/AHD/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2704 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N SOPARKAR; CRO
• Assessee Lawyers: LALIT P JAIN
• Keywords: Unexplained cash credit; Sale consideration of property below Jantri Value; Capital asset; Gift
• Section: 143(3); 50C; 56

Judgement Text

ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD BENCH D, AHMEDABAD [CORAM: JUSTICE P P BHATT, PRESIDENT, AND PRAMOD KU MAR, VICE PRESIDENT] ITA NO. 1708/AHD/2013 AND CO NO. 196/AHD/2013 ASSESSMENT YEAR: 2009-10 THE ASSISTANT DIRECTOR OF INCOME-TAX ........ ..... APPELLANT (INTERNATIONAL TAXATION) AHMEDABAD VS AKSHAY RAJNIKANT PATEL .............. RESPONDENT 1, BHARAT TYRES, SARDARGANJ, & CROSS-OBJECTOR ANAND 388 001 [PAN : ADUPP 6968 M] APPEARANCES BY LALIT P JAIN, FOR THE ASSESSEE S N SOPARKAR & PARIN SHAH, FOR THE RESPONDENT & CROSS-OBJECTOR DATE OF CONCLUDING THE HEARING : 03.12.2018 DATE OF PRONOUNCEMENT : 26.02.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. THIS APPEAL, AS ALSO RELATED CROSS-OBJECTION, AR E DIRECTED AGAINST THE ORDER DATED 26 TH MARCH 2013 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX A CT, 1961 FOR THE ASSESSMENT YEAR 2009-10. 2. IN GROUND NO.1, THE APPELLANT HAS RAISED THE FOL LOWING GRIEVANCE:- 1. THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FAC T THAT SALE OF THE PROPERTY WAS MADE BY THE ASSESSEE AT RS.74,86,800/- ON THE BASIS OF REGISTERED SALE DEED BUT THE SALE PRICE WAS TAKE N AT RS.25 LAKH ON THE BASIS OF NOTARIZED SALE AGREEMENT FOR THE PU RPOSE OF CALCULATING STCG. 3. BRIEFLY STATED, THE RELEVANT MATERIAL FACTS ARE AS FOLLOWS. THE ASSESSEE BEFORE US IS A NON RESIDENT. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS OFFERED TO TAX SHORT TERM CAPITAL GAIN OF RS.94,325/-. WHEN HE PROBED THE MATTER FURTHER, ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 2 OF 9 IT WAS FOUND THAT THE ASSESSEE HAD PURCHASED, ALONG WITH BHARAT TYRES GUJARAT PVT LTD AND K.C. PATEL, A PIECE OF LAND ADM EASURING 18,717 SQ. MTRS. FOR RS.72,17,025/-. THIS PURCHASE WAS EFFECTED ON 26 TH MARCH 2008. THE ASSESSEE THUS BECAME 1/3 RD OWNER FOR THE SAID LAND FOR A CONSIDERATION OF RS.24,05,675/-. A LITTLE LATER, ON 24 TH JUNE 2008, THE ASSESSEE ENTERED INTO AGREEMENT TO SELL HIS SHARE, I.E. 6,305 SQ. MTRS. F OR A CONSIDERATION OF RS.25,00,000/- TO KALPESH B. VERMA AND K.C. PATEL. THIS AGREEMENT WAS ENTERED INTO A STAMP PAPER OF RS.100/- AND THE CONS IDERATION OF RS.25,00,000/- WAS RECEIVED THROUGH ACCOUNT PAYEE C HEQUES. THE ASSESSEE ALSO GAVE POSSESSION OF HIS LAND TO K.B. VERMA. FI NALLY, HOWEVER, THIS LAND WAS SOLD BY K.B. VERMA TO BHARAT TYRES GUJARAT PVT LTD BUT AS THE ASSESSEE CONTINUED TO HAVE HIS NAME IN THE LAND RECORDS, THE SALE DEED WAS ENTERED INTO BY THE ASSESSEE, THROUGH KB VERMA HIS POWER OF ATTORNEY HOLDER, AND SALE PROCEEDS OF RS.74,86,800/- WAS RECEIVED. AS BE NEFICIAL OWNER, SHRI K B VERMA OFFERED THE SHORT TERM CAPITAL GAIN TO TAX IN HIS OWN HANDS. THE ASSESSING OFFICER, HOWEVER, PROCEEDED TO TAKE ENTIR E SALE CONSIDERATION OF RS.74,86,000/- AS SALE CONSIDERATION IN THE HANDS O F THE ASSESSEE AND RECOMPUTED THE CAPITAL GAINS ACCORDINGLY. AGGRIEVE D, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO REVERSED THE ACTION OF THE ASSESSING OFFICER AND OBSERVED AS FOLLOWS:- 6.3 I HAVE GONE THROUGH THE FACTS OF THE CASE, THE ASSESSMENT ORDER, THE TWO SUBMISSIONS MADE BY THE APPELLANT AND THE C ASE LAW. IT IS OBSERVED THAT THE ACQUISITION OF ONE THIRD SHARE IN THE IMPUGNED PROPERTY BY THE APPELLANT ACCORDING TO AGREEMENT DA TED 26/03/2008 FROM MRS. SMITA JAYANT PANDYA AND OTHERS FOR A TOTA L CONSIDERATION OF RS.72,17,025/-; IS NOT DISPUTED. THE COST OF THE APPELLANT'S UNDIVIDED SHARE IN THE AFORESAID PROPERTY COMES TO RS.24,05,675/-. SUBSEQUENTLY THE APPELLANT IS CLAIMED TO HAVE DECIDED TO WITHDRAW FROM THE JOINT OWNERSHIP A ND CLAIM TO HAVE AGREED TO TRANSFER HIS UNDIVIDED INTEREST (EQUIVALE NT OF 6305 SQ MTRS) IN THE AFORESAID PROPERTY IN FAVOUR OF MR K B VERMA. T HE SAME WAS CLAIMED SETTLED FOR A CONSIDERATION OF RS.25,00,000 /-. IN THIS RESPECT, TO PROVE ITS CASE , AGREEMENT TO SALE (BANAKHAT) DATED 24/06/2008 DULY NOTARIZED AND REGISTERED BEFORE NOTARY PUBLIC SHRI KALPESH H. SHAH ON 24/06/2008, WAS SUBMITTED BEFORE THE AO. AS PER THI S WRITTEN AGREEMENT, W.E.F 24/06/2008, SHRI K.B. VERMA ACQUIR ED BENEFICIAL OWNERSHIP OF UNDIVIDED SHARE (EQUIVALENT TO 6305 SQ MTRS ) IN THE LAND. I AGREE WITH THE APPELLANT, THAT NOTHING HAS BEEN B ROUGHT ON RECORD TO PROVE THIS DULY NOTARIZED AGREEMENT TO SALE (BANAKH AT) DATED 24/06/2008 WAS NOT GENUINE. AS PER THE AGREEMENT TH E POSSESSION OF THE LAND HAS BEEN TRANSFERRED ON THE SAME DATE. THE REFORE, THE TRANSFER OF THE PROPERTY BY ALLOWING OF THE POSSESSION OF AN Y IMMOVABLE ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 3 OF 9 PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANC E OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT, 1882 WAS LEGALLY COMPLETE ON THIS DATE AS PER THE TRANSF ER OF PROPERTY ACT . I ALSO AGREE THAT THE PROVISION OF SECTION 50C AS P REVAILING AT THAT TIME WAS APPLICABLE ONLY TO THE TRANSACTIONS IN WHICH TH E 'VALUE ADOPTED OR ASSESSED' BY STAMP DUTY AUTHORITY OF THE STATE GOVE RNMENT WAS ACTUALLY THERE AND IT DID NOT COVER THE TRANSACTION S WHICH ARE NOT REGISTERED I.E. WHERE THE STAMP DUTY VALUE IS 'ASSE SSABLE'. THE PROVISIONS OF SECTION 50C OF THE ACT HAS BEEN AMEND ED BY THE FINANCE (NO.2.) ACT, 2009 W.E.F. 1ST OCTOBER 2009 TO COVER SUCH CASES. THEREFORE, THE PROVISIONS OF SECTION 50C WOULD ALSO BE NOT APPLICABLE. NO UNDER HAND DEALING OR PAYMENT BEYOND THE CONSIDE RATION SHOWN HAS BEEN PROVED. THE SUBSEQUENT REGISTERED SALE AGR EEMENT ALSO IS IN CONFORMITY WITH THE TRANSACTION CLAIMED IN BETWEEN. I HAVE ALSO NOTED THE FACT THAT THE PERIOD BETWEEN THE AGREEMENT TO P URCHASE BY THE APPELLANT AND SUBSEQUENT AGREEMENT TO TRANSFER THE RIGHT TO THE PROPERTY; IS VERY SMALL. IN THE ENTIRETY OF FACTS, THE ADDITION MADE BY THE AO IGNORING THE NOTARISED AGREEMENT AND TRANSFER OF LAND IN BETWEEN CANNOT BE SUSTAINED; WHICH IS AGAINST THE RATIO OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF K. P. VARGHESE VS ITO (SUPRA). THE ADDITION IN THE SHORT TERM CAPITAL GAINS IS THE REFORE, DIRECTED TO BE DELETED. 4. THE ASSESSING OFFICER IS AGGRIEVED OF THE RELIE F SO GRANTED BY THE CIT(A) AND IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 6. WE HAVE NOTED THAT THE GENUINENESS OF THE AGREEM ENT DATED 24 TH JUNE 2008 IS NOT IN DISPUTE AND YET THE ASSESSING OFFICE R HAS PROCEEDED TO ADOPT RS.74,86,000/- AS SALES CONSIDERATION IN THE HANDS OF THE ASSESSEE, AS AGAINST RS.25,00,000/- ACTUALLY RECEIVED BY THE ASS ESSEE PARTICULARLY WHEN THE SHORT TERM CAPITAL GAINS IN THE HAND OF KB VERM A, BEING DIFFERENCE BETWEEN RS.74,86,000/- AND RS.25,00,000/-, HAS ALRE ADY BEEN BROUGHT TO TAX IN THE HANDS OF KB VERMA. CLEARLY, THE STAND OF TH E ASSESSING OFFICER RESULTS IN DOUBLE TAXATION OF THE SAME CAPITAL GAINS IN TWO DIFFERENT HANDS. THAT APPROACH CANNOT BE SUSTAINED IN LAW. IN ANY CASE, THE MONEY ACTUALLY RECEIVED BY THE ASSESSEE, ON HIS OWN ACCOUNT, WAS O NLY RS.25,00,000/-. ONCE IT IS NOT IN DISPUTE THAT ACTUAL AMOUNT REACHI NG THE ASSESSEE WAS ONLY RS.25,00,000/-, THERE CANNOT BE ANY GOOD REASON TO BRING TO TAX RS.74,86,000/- IN HIS HANDS. IN VIEW OF THESE DISC USSIONS, AS ALSO BEARING IN ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 4 OF 9 MIND ENTIRETY OF THE CASE, WE APPROVE WELL REASONED CONCLUSIONS ARRIVED AT BY THE LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 7. GROUND NO.1 IS THUS DISMISSED. 8. IN GROUND NO.2, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE:- 2. THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.6,14,000/- AS UNEXPLAINED CASH CREDITS ON PRESUMPTIONS AND WITHOU T ANY SUBSTANTIVE EVIDENCE. 9. AS FAR AS THE ABOVE GRIEVANCE OF THE ASSESSING O FFICER IS CONCERNED, IT IS SUFFICIENT TO TAKE NOTE OF ONLY A FEW FACTS. DU RING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT THE ASSESSEE HAS SHOWN CAPITAL ACCRETION OF RS.50,26,600/- WHICH INCLUDED RS.24,88,000/- SAID TO BE RECEIVED FROM RAJ ORGANIC FARM AND GIFTS OF RS.1,72,000/- FROM DR PATEL AND OF RS.1,14,000/- FROM OTHERS. NOT SATISF IED WITH THE EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER ADDED THE ENTIR E AMOUNT AS UNEXPLAINED CREDITS. IN APPEAL, HOWEVER, LEARNED CIT(A) ACCEPTE D THE EXPLANATION TO THE EXTENT OF RS.6,14,000/-. THE REASONING WHICH PREVA ILED WITH THE CIT(A) IN ACCEPTING THE ABOVE EXPLANATION IS AS FOLLOWS:- HOWEVER, I OBSERVE THAT THE AGRICULTURAL LAND OF S HRI AKSHAY PATEL, THE APPELLANT AND HIS WIFE IS 7.3 ACRES WHICH HAS BEEN PURCHASED IN THE PERIOD JUNE, 2005 TO OCTOBER, 2006. EVEN TAKING A L ENIENT VIEW, THE TOTAL ACCUMULATED MONEY (THE INCOME FROM THE FIRST ONE OR TWO YEARS IS NOT BELIEVED TO BE ACCUMULATED) IN FORM OF AGRICULT URAL INCOME ; WITH THE APPELLANT HIMSELF BEING A NRI CANNOT BE HELD RE ASONABLY TO BE MORE THAN RS.5 LAC. THEREFORE, I UPHOLD AN ADDITION OF RS.19,88,000/- AS UNEXPLAINED ACCRETION TO CAPITAL ACCOUNT/UNEXPLA INED DEPOSITS IN THE BANK ACCOUNTS REJECTING THE EXPLANATION TO THE EXTE NT AS DECIDED. (ILL) AS FAR AS THE AMOUNT CREDITED IN THE NAME OF SHRI DINESH R. PATEL (FATHER IN LAW) OF RS.1,72,000/-, FROM DHARMENDRA P ATEL (BROTHER) OF RS.1,06,908/- AND FROM LALITABEN PATEL (MOTHER) OF RS.7,092/-, THE APPELLANT HAS SUBMITTED THAT THEY ALL ARE DIRECT RE LATIVES OF THE APPELLANT AND THE AMOUNTS RECEIVED IS TREATED AS GI FT WHICH IS NOT TAXABLE U/S 56 OF THE ACT. THE APPELLANT HAS ALSO S UBMITTED THAT THE AMOUNT RECEIVED, LOOKING TO THE STATUS OF THE FAMIL Y, CUSTOM OF THE CASTE (PATEL FAMILY), ETC. IS VERY REASONABLE. I HAVE GONE THROUGH THE FACTS. SHRI DHARMENDRA PATE L IS REAL BROTHER, HAS GOT 4.8 ACRES OF AGRICULTURAL LAND AND THE CONF IRMATION FROM HIM HAS BEEN FILED; AND LOOKING TO THE AMOUNT OF GIFT CLAIM ED I DON'T SEE ANY REASON TO DISBELIEVE IT. THE EXPLANATION IS ACCEPTE D. SIMILARLY, THE GIFT ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 5 OF 9 CLAIMED FROM MOTHER IS ALSO ACCEPTED LOOKING TO THE SMALL AMOUNT OF RS.7,092/- AND THE RELATIONSHIP. AS FAR AS CLAIMED GIFT FROM FATHER IN LAW SHRI DINE SHBHAI PATEL IS CONCERNED; I FIND THAT NO CONFIRMATION WAS FILED DU RING THE ASSESSMENT PROCEEDINGS; GIFTS WERE CLAIMED NOT ON ANY OCCASION BUT ON DIFFERENT DATES WITHOUT ANY REASON. NO IMMEDIATE SOURCE IS CL AIMED EXCEPT CLAIMING THAT IT IS FROM ACCUMULATED AGRICULTURAL I NCOME. I FIND THAT THE FATHER IN LAW HAS ONLY A VERY MEAGER LAND I.E. 0.7 ACRE FROM WHICH IT WOULD BE EVEN DIFFICULT TO GET ANY INCOME BECAUSE V ERY SMALL LAND HOLDINGS ARE DIFFICULT TO MANAGE AND HAVE SUBSTANTI AL FIXED EXPENSES AS A PERCENTAGE. THE EXPLANATION OF THIS GIFT IS NOT A CCEPTED AND THE CORRESPONDING ADDITION IS CONFIRMED. 10. AGGRIEVED BY THE RELIEF SO GRANTED BY THE CIT(A ), THE ASSESSING OFFICER IS IN APPEAL BEFORE US. 11 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 12. WE HAVE NOTED THAT THE ASSESSEE HAD AGRICULTURA L LAND OF 7.3 ACRES AND THAT THE ASSESSEE WAS AN NRI. IN THESE CIRCUMSTANCE S, WE SEE NO INFIRMITY IN THE CIT(A)S ACCEPTING AVAILABILITY OF RS.5,00,000/ - AS CASH IN HANDS OF THE ASSESSEE AS EXPLAINED. IN ANY CASE, NO SPECIFIC DE FECTS ARE POINTED OUT IN THE ACTION OF THE CIT(A). AS REGARDS THE GIFTS OF RS.1,06,908/- FROM BROTHER AND OF RS.7,092/- FROM MOTHER, WE FIND THAT LOOKING TO THE MEANS OF THE BROTHER AND SMALLNESS OF THE AMOUNT RECEIVED FROM M OTHER, THERE IS NO PERVERSITY IN LEARNED CIT(A)S ACCEPTING THE EXPLAN ATION TO THAT EXTENT. LEARNED DEPARTMENTAL REPRESENTATIVES BLAND RELIANC E ON THE STAND OF THE ASSESSING OFFICER IS NOT OF ANY AVAIL. IN VIEW OF THESE DISCUSSIONS, AND BEARING IN MIND ENTIRETY OF THE CASE, WE ARE INCLIN ED TO APPROVE THE ORDER OF THE CIT(A) ON THIS POINT AS WELL. WE DECLINE TO INT ERFERE. 13. GROUND NO.2 IS THUS DISMISSED. 14. IN GROUND NO.3, THE ASSESSING OFFICER HAS RAISE D THE FOLLOWING GRIEVANCE:- 3. THE CIT(A) HAS ERRED IN DELETING HE ADDITION OF RS.6,71,063/- BEING CASH DEPOSITED IN BANK ON PRESUMPTIONS AND WITHOUT ANY SUBSTANTIVE EVIDENCE. 15. SO FAR AS THIS GRIEVANCE OF THE ASSESSING OFFIC ER IS CONCERNED, THE RELEVANT MATERIAL FACTS ARE AS FOLLOWS. DURING THE COURSE OF THE ASSESSMENT ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 6 OF 9 PROCEEDINGS, THE ASSESSING OFFICER MADE ADDITION OF RS.44,23,500/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK AC COUNT. WHEN THE MATTER WAS CARRIED IN APPEAL BEFORE THE CIT(A), THE CIT(A) MAINLY ACCEPTED THE EXPLANATION TO THE EXTENT OF RS.1,00,000/- AS OPENI NG CASH BALANCE, RS.1,72,000/- WHICH HAS BEEN BROUGHT TO TAX BY REJE CTING THE EXPLANATION OF GIFT ANYWAY, RS.7,092/- IN MOTHERS ACCOUNT AS GIFT ACCEPTED TO BE GENUINE, RS.2,00,000/- AS REDEPOSITS OUT OF EARLIER WITHDRAW ALS FROM BANK AND RS.1,06,908/-, RS. 98,000/- AS REDEPOSITS OUT OF WI THDRAWALS IN BANK ACCOUNT. WHILE DOING SO THE CIT(A) HAS OBSERVED AS FOLLOWS:- 8.2 I HAVE GONE THROUGH THE FACTS ON THE ISSUE, TH E ASSESSMENT ORDER AND THE SUBMISSIONS. THE EXPLANATIONS FOR THE DEPOSITS OF C ASH, MY OBSERVATIONS AND DECISIONS ARE AS UNDER: (I) THE FIRST SOURCE CLAIMED IS THE OPENING CASH IN HAND OF RS.2,98,253/-. THE APPELLANT IS HAVING BANK ACCOUNTS AND WAS DOING NUM EROUS TRANSACTIONS. SUCH HIGH CASH IN HAND IS NOT ACCEPTED TO BE REASON ABLE WITHOUT THE APPELLANT DISCLOSING THE IMMEDIATE SOURCE. LOOKING TO THE ENT IRETY OF FACTS AND CIRCUMSTANCES, THE STATUS OF THE APPELLANT ETC., I ACCEPT THE CASH IN HAND AT THE BEGINNING OF THE YEAR OF RS.1,00,000/- AND THE REMAINING AMOUNT BEING CLAIMED TO BE THE SOURCE OF CASH DEPOSITS IN BANK I S NOT ACCEPTED. THE ADDITION OF RS.1,98,253/- IS SUSTAINED REJECTING TH E EXPLANATION, TO THE EXTENT AS DISCUSSED ABOVE. (II) THE OTHER SOURCE OF CASH DEPOSIT CLAIMED IS RS .24,88,000/- WHICH IS CLAIMED TO REPRESENT ACCUMULATED AGRICULTURAL INCOM E FROM 'RAJ ORGANIC FARM'. THE SAME EXPLANATION WAS GIVEN FOR EXPLAININ G THE ACCRETION TO CAPITAL. IN PARA.7.2 (11) OF THIS ORDER, I HAVE DECIDED THE ISSUE; WHERE I HAVE SUBSTANTIALLY REJECTED THE EXPLANATION OF THE APPEL LANT. HOWEVER, THE SAME BEING AGAIN ADDED AS UNEXPLAINED SOURCE OF CASH DEPOSIT, ACTUALLY RESULTS IN A DOUBLE ADDITION AS C LAIMED BY THE APPELLANT. THE ADDITION IS THEREFORE, NOT JUSTIFIED ONCE IT HAS BE EN CONSIDERED FOR MAKING THE ADDITION AS DISCUSSED AND DECIDED EARLIER. THIS DOU BLE ADDITION IS THEREFORE, DIRECTED TO BE DELETED. (ILL) THE OTHER SOURCES OF CASH WHICH HAVE BEEN REJ ECTED ARE : FROM DHARMENDRA. R PATEL RS. 5,05,092/- GIFT FROM DINESH PATEL RS. 1,72,000/- FROM LALITABEN PATEL RS. 5,30,092/- AS FAR AS GIFT CLAIMED FROM SHRI DINESH PATEL IS CO NCERNED, IT IS ALSO A DOUBLE ADDITION. THAT ADDITION HAS BEEN CONFIRMED WHILE DI SCUSSING AND DECIDING THE ADDITIONS BASED ON ACCRETION TO CAPITAL. THE DOUBLE ADDITION OF RS.1,72,000/- IS THEREFORE, DIRECTED TO BE DELETED. AS FAR AS SHRI DHARMENDRA R. PATEL IS CONCERNED, OU T OF| RS.5,05,092/-, RS.1,06,908/- ALSO ADDED AS UNEXPLAINED ADDITION TO CAPITAL CLAIMED AS GIFT ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 7 OF 9 HAS ALREADY BEEN ACCEPTED IN PARA.7.2 OF THIS ORDER . THEREFORE, THIS ADDITION BEING DOUBLE AND ON THE SAME GROUND HERE, IS ALSO T O BE DELETED. THE REMAINING RS.398184/- (5 , 5,092 MINUS 1,06,908) IS IN FACT CLAIMED RE- DEPOSITED OUT OF THE WITHDRAWALS FROM JOINT BANK AC COUNTS IN CASH BY SHRI DHARMENDRA R. PATEL. ALTHOUGH, CERTAIN AMOUNTS MAY BE RE-DEPOSITED; IT CANNOT BE THE CASE THAT THE PERSON ALWAYS WITHDRAWS MONEY AND RE-DEPOSITS IT WITHOUT ANY USE/EXPENDITURE WHATSOEVER. THE EXPL ANATION IS ACCEPTED TO THE EXTENT OF RS.2 LAC AND THE REMAINING AMOUNT IS TREA TED AS UNSATISFACTORY EXPLANATION TO THE SOURCE OF DEPOSIT OF CASH. THERE FORE, THE ADDITION OF RS.1,98,184/- IS CONFIRMED. SIMILAR IS THE CASE AS FAR AS SMT LALITABEN PATEL ( MOTHER) IS CONCERNED, OUT OF RS.5,30,092/-, RS.7,092/- ALSO ADDED AS UNEXPLAINED ADDITION TO CAPITAL CLAIMED AS GIFT HAS ALREADY BEEN ACCEPTED IN PARA.7 .2 OF THIS ORDER. THEREFORE, THIS ADDITION BEING DOUBLE AND ON THE SAME GROUND H ERE, IS ALSO TO BE DELETED. THE REMAINING RS.5,23,000/- (5,30,092, MINUS 7,092) IS IN FACT CLAIMED RE- DEPOSITED OUT OF THE WITHDRAWALS FROM JOINT BANK AC COUNTS IN CASH BY SMT. LALITABEN PATEL. ALTHOUGH, CERTAIN AMOUNTS MAY BE R E-DEPOSITED; IT CANNOT BE THE CASE THAT THE PERSON ALWAYS WITHDRAWS MONEY AND RE-DEPOSITS IT WITHOUT ANY USE / EXPENDITURE WHATSOEVER. THE EXPLANATION I S ACCEPTED TO THE EXTENT OF RS.2 LAC AND THE REMAINING AMOUNT IS TREATED AS UNSATISFACTORY EXPLANATION TO THE SOURCE OF DEPOSIT OF CASH. THEREFORE, THE AD DITION OF RS.3,23,000/- IS CONFIRMED. TO SUM UP, FURTHER ADDITION OF RS. 5,21,184/-(RS.1, 98,184/- + RS.3,23,000/-) IS CONFIRMED (BESIDES THE ADDITION CONFIRMED FOR UNEXP LAINED ACCRETION IN CAPITAL IN PARA.7) ON THIS ACCOUNT. (IV) WITH REGARD TO THE AMOUNT OF RS.4,45,000 CLAIM ED RECEIVED FROM SHRI ATUSH PATEL, THE APPELLANT HAS ACCEPTED ITS INABILI TY TO SUBMIT NECESSARY CONFIRMATION WITH REGARD TO THE SAID TRANSACTION. T HE APPELLANT HAD ALREADY ACCEPTED AND NOT PRESSED THE ADDITION BASED ON THE GIFTS CLAIMED FROM THIS PERSON AS DISCUSSED IN PARA.7 OF THIS ORDER. THIS A DDITIONAL AMOUNT THOUGH NOT CLAIMED AS GIFT IS ALSO UNEXPLAINED AND THE ADDITIO N IS CONFIRMED. (V) ANOTHER EXPLANATION GIVEN WAS CASH WITHDRAWN FR OM BANK OF RS. 1,98,000/- BEING CLAIMED USED FOR DEPOSITS IN OTHER BANK ACCOUNTS. THE APPELLANT HAS SUBMITTED THAT THE AO HAS NOT ESTABLI SHED THAT THIS CASH HAS BEEN USED FOR OTHER PURPOSE. I DO NOT ACCEPT THE EXPLANATION OF THE APPELLANT FU LLY. HE IS AN NRI WHO COMES TO INDIA FOR SHORT PERIODS. HE HAS NOT ESTABLISHED/ EVEN CLAIMED HAVING BROUGHT ANY CASH BEING BROUGHT FROM ABROAD. HE REQUIRES MON EY TO BE SPENT IN THE COUNTRY AND LOOKING TO THE FACT THAT HE HAD PURCHAS ED LANDS IN 2005 AND 2006 AND AGAIN IN 2008 AND ALSO DEALS IN SHARES; I CANNO T AGREE THAT HE REDEPOSITS THE MONEY WITHOUT ANY EXPENDITURE. THE REDEPOSIT IS ACCEPTED TO THE EXTENT OF RS.98,000/- AFTER TREATING RS.1,00,000/- BEING SPEN T (BESIDES THE EXPENSES ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 8 OF 9 PAID DIRECTLY FROM THE BANK). THEREFORE, THE ADDITI ON IS CONFIRMED TO THE EXTENT OF RS.1,00,000/- REJECTING THE EXPLANATION TO THIS EXTENT. (VI) AS FAR AS THE REMAINING SOURCE CLAIMED AS REFU ND OF ADVANCE OF RS.9,000/- FROM EMPLOYEE SHRI BHARAT MISTRY IS CONC ERNED; I DO NOT FIND THE EXPLANATION UNREASONABLE LOOKING TO THE AMOUNT AND THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE. THE EXPLANATION IS ACCEP TED. TO SUM UP, BESIDES THE DOUBLE ADDITIONS WHERE THE A DDITIONS HAVE ALREADY BEEN CONFIRMED OR DECIDED WHILE DECIDING THE ISSUE OF UNEXPLAINED ACCRETION TO CAPITAL ACCOUNT; THE ADDITIONS REQUIRED FOR UNEX PLAINED CASH DEPOSITS IN BANK ACCOUNT ARE CONFIRMED TO THE EXTENT OF RS.12,6 4,437/- (RS.1,98,253/- PLUS RS.5,21,184/- PLUS RS.4,45,000/- PLUS RS.1,00, 000/-). THE GROUND IS DECIDED ACCORDINGLY. 16. AGGRIEVED BY THE RELIEF SO GRANTED BY THE CIT(A ), THE ASSESSING OFFICER IS IN APPEAL BEFORE US. 17. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 18. AS LEARNED CIT(A) RIGHTLY OBSERVES, THE RELIEF GRANTED ABOVE PERTAINS MAINLY TO THE DOUBLE ADDITION WHICH HAVE BEEN CONFI RMED WHILE DEALING WITH CAPITAL ACCRETION AND THE AVAILABILITY OF FUNDS AS REDEPOSITS. THE REASONING ADOPTED BY THE CIT(A) IS THUS BASED ON MATERIAL ON RECORD AND RATHER UNDISPUTED FACTUAL ASPECTS. HAVING PERUSED THE MAT ERIAL ON RECORD, WE SEE NO NEED TO INTERFERE IN THE MATTER NOR, IN ANY EVEN T, ANY SPECIFIC INFIRMITIES WERE POINTED OUT BY THE LEARNED DEPARTMENTAL REPRES ENTATIVE. IN VIEW OF THESE DISCUSSIONS AND BEARING IN MIND ENTIRETY OF T HE CASE, WE APPROVE THE CONCLUSIONS ARRIVED ON THIS POINT AS WELL, AND DECL INE TO INTERFERE IN THE MATTER. 19. GROUND NO.3 IS THUS DISMISSED. 20. THE CROSS-OBJECTION FILED BY THE ASSESSEE WAS N OT PRESSED. 21. IN THE RESULT, THE APPEAL AS ALSO THE CROSS-OBJ ECTION ARE DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 26 TH DAY OF FEBRUARY, 2019. SD/- SD/- JUSTICE P P BHATT PRAMOD KU MAR (PRESIDENT) (VICE PRESIDENT) AHMEDABAD, DATED THE 26 TH DAY OF FEBRUARY, 2019 *BT ITA NO. 1708/AHD/2013 & CO NO. 196/AHD/2013 ADIT (INT. TAXN) VS. AKSHAY RAJNIKANT PATEL ASSESSMENT YEAR: 2009-10 PAGE 9 OF 9 COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ETC TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ..ORDER PREPARED AS PER 11 P AGES MANUSCRIPTS OF HONBLE VP, WHICH ARE ATTACHED HEREWITH APPEAL FILE.......26.02.2019..... ... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ... 26.02.2019........ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 26.02.2019... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 26.02.2019 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .... 26.02.2019.. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......