ACIT 25(2), MUMBAI V. SURAJ G. KANAL, MUMBAI

ITA 1891/MUM/2013

• Counselvise Citation: 189119914 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 04-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: ANIL THAKRAR
• Keywords: Unexplained cash credit
• Section: 68; 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI R. C. SHARMA, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 ACIT CIRCLE-25(2), C-11, PRATYAKSHAKAR BHAVAN, R. NO. 108, BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400 051 .(APPELLANT) VS. SHRI SURAJ GOPALDAS KANAL, 201, SHOBANA APARTMENT, CHANDAVARKAR LANE, BORIVALI (W) MUMBAI 400 092 PAN:AAGPK 8201 K (RESPONDENT) APPELLANT BY : SHRI NEIL PHILIP RESPONDENT BY : SHRI ANIL THAKRA R DATE OF HEARING : 04.06.2015 DATE OF PRONOUNCEMENT : 10.06.2015 O R D E R PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDE R OF THE CIT(A)-35, MUMBAI DATED 18.12.2012 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE I.T. ACT. ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 2 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL:- I) ON THE FACT AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION RS.4,57,009/- ON ACCOUNT OF CASH DEPOSIT IN BANK WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE WAS ABLE TO SUBSTANTIATE THE CLAIM FULLY THAT THE CASH DEPOS IT WAS ON ACCOUNT OF SHARE TRANSACTION. II) ON THE FACT AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) ERRED IN RESTRICTING THE ADDITION TO RS.38,0 00/- OUT OF RS.10,56,000/- MADE ON ACCOUNT OF CASH DEPOSIT IN T HE BANK A/C. WITHOUT APPRECIATING THE FACT THAT ASSESSEE FAILED TO PROVE ANY NEXUS AND SEQUENCE OF CASH DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNT. 3. THE ISSUE IN GROUND OF APPEAL NO. 1 RAISED BY TH E REVENUE IS AGAINST THE DELETION OF ADDITION OF RS.4,57,009/- MADE ON ACCOU NT OF CASH DEPOSIT IN THE BANK. THE REVENUE IS ALSO IN APPEAL VIDE GROUND OF APPEAL NO. 2 AGAINST THE ORDER OF THE CIT(A) IN RESTRICTING THE ADDITION TO RS.38,000/- OUT OF RS.10,56,000/- MADE BY AO ON ACCOUNT OF CASH DEPOSI T IN THE BANK ACCOUNT. THE PLEA OF THE REVENUE WAS THAT WHERE THE ASSESSEE HAD FAILED TO SUBSTANTIATE ITS CLAIM FULLY, THERE WAS NO MERIT IN THE AFORESAID DE LETION. 4. BRIEFLY IN THE FACTS OF THE PRESENT CASE THE ASS ESSEE WAS A PROFESSOR BY PROFESSION AND WAS RUNNING COACHING CLASSES. THE CA SE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE AO NOTED THAT AS PER THE AIR INFORMATION, CASH HAD BEEN DEPOSITED IN SAVING ACCOUNT WITH AXIS BANK LTD ., BORIVALI BRANCH. THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS OF THE BAN K ACCOUNT MAINTAINED BY HIM. IN REPLY THE DETAILS WERE FILED, HOWEVER, IN THE AF ORESAID DETAILS THE ASSESSEE HAD NOT REFLECTED SAVING BANK ACCOUNT MAINTAINED WITH A XIS BANK LTD. THE ASSESSEE IN THE FIRST INSTANCE SUBMITTED THAT HE WAS NOT MAI NTAINING ANY SAVING ACCOUNT WITH AXIS BANK JOINTLY AT BORIVALI (WEST) BRANCH. IT WAS ALSO SUBMITTED BY THE ASSESSEE THAT AMOUNT OF RS.10,47,000/- DOES NOT PER TAIN TO HIM. THE AO THEREAFTER ISSUED NOTICE U/S 133(6) OF THE ACT TO T HE BANK AND RECEIVED THE COPY OF THE STATEMENT ALONG WITH THE COPY OF ACCOUNT OPE NING FORM. ON THE PERUSAL OF THE DETAILS IT WAS NOTED BY THE AO THAT THE SAID BA NK ACCOUNT WAS IN THE NAME OF ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 3 THE ASSESSEE AND HIS WIFE ANITA S. KANAL. THE TOTAL DEPOSITS IN THE SAID BANK ACCOUNT WERE RS.25,55,723/- INCLUDING CASH AND CHEQ UE. ANOTHER SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AS TO WHY THE ENT IRE DEPOSITS SHOULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE AC T. IN RESPONSE TO THE SAID SHOW CAUSE NOTICE THE ASSESSSEE DID NOT FURNISH ANY DETA ILS/EXPLANATION BEFORE THE AO. THEREFORE, THE AO ADDED THE TOTAL DEPOSIT IN THE BA NK ACCOUNT AMOUNTING TO RS.25,55,723/- TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 5. IN APPEAL BEFORE THE CIT(A) THE ASSESSEE FURNIS HED WRITTEN SUBMISSIONS WHICH IN TURN WERE FORWARDED TO THE AO TO FURNISH R EMAND REPORT. THE EXPLANATION OF THE ASSESSEE BEFORE THE CIT(A) WAS T HAT NO TIME WAS GIVEN BY THE AO TO COLLECT INFORMATION AND BEFORE THE SAME C OULD BE GATHERED AND SUBMITTED, THE AO HAD PASSED THE ORDER U/S 143(3) O F THE ACT ON 06.12.2010. 6. WITH REGARD TO THE CASH DEPOSITS IN THE JOINT BA NK ACCOUNT, THE ASSESSEE FURNISHED CERTAIN EXPLANATION. THE CIT(A) ACCEPTED THE DETAILS FILED BY THE ASSESSEE AND FORWARDED THE SAME TO THE AO WHO IN TU RN FURNISHED THE REMAND REPORT, WHICH IS REPRODUCED UNDER PARA 5 AT PAGES 4 TO 8 OF THE APPELLATE ORDER. IN REPLY THE ASSESSEE FURNISHED EXPLANATION WHICH I S REPRODUCED UNDER PARA 6 AT PAGES 9 TO 13 OF THE APPELLATE ORDER. THE CIT(A) TH EREAFTER UPHELD THE ADDITION ON ACCOUNT OF ADMISSION FEE RECEIVED TO RS.2,75,190 /-, SECURITY DEPOSIT AGAINST RENTING OF PROPERTY OF RS.5,04,800/- . AGAINST WHIC H THE LD. A.R. FOR THE ASSESSEE HAS NOT POINTED OUT THAT ANY APPEAL HAS BE EN FILED. THE NEXT ADDITION MADE IN THE HANDS OF THE ASSESSEE WAS ON ACCOUNT OF CASH DEPOSIT OF RS.10,56,000/-. THE ASSESSEE EXPLAINED THAT SUM OF RS.6,50,000/- WAS DEPOSITED OUT OF THE CASH WITHDRAWALS MADE FROM THE SAID BAN K ACCOUNT ITSELF HOWEVER, THE SAID PLEA OF THE ASSESSEE WAS NOT ACCEPTED BY T HE AO BECAUSE OF TIME GAP BETWEEN THE DATE OF WITHDRAWALS OF CASH AND DATE OF DEPOSIT OF CASH. THE CIT(A) REJECTING THE CONTENTION OF THE AO OBSERVED THAT WHERE THE AO HAD NOT ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 4 BEEN ABLE TO DISPROVE THE BASIC CONTENTION OF THE A SSESSEE AMOUNT THE ADDITION OF RS.6,50,000/- IS DELETED. WITH REGARD TO THE ADDITI ON OF DEPOSIT OF RS.4,06,000/-, THE CIT(A) NOTED THAT THE ASSESSEE HAS BEEN ABLE T O EXPLAIN THE SOURCE OF RS.3,68,000/- WHICH IN TURN WAS CASH WITHDRAWN FROM ACCOUNT ON EARLIER DATE. THE CIT(A) THUS RESTRICTED THE ADDITION TO RS.38,00 0/- AND DELETED THE ADDITION OF RS.3,68,000/-. ANOTHER ADDITION MADE ON ACCOUNT OF THE AMOUNT RECEIVED FROM SALE OF SHARES OF RS.4,57,009/- WAS DELETED BY THE CIT(A) SINCE THE MONEY BELONGED TO THE WIFE OF THE ASSESSEE, WHO WAS JOINT ACCOUNT HOLDER WITH THE ASSESSEE. CERTAIN OTHER ADDITIONS WERE DELETED BY T HE CIT(A) OF RS.1,79,000/- AND RS.75,000/- AGAINST WHICH THE REVENUE IS NOT IN APPEAL. THE REVENUE IS ONLY IN APPEAL AGAINST THE DELETION OF ADDITION OF RS.4,57,009/- AND RS.10,56,000/-. 7. SHRI NEIL PHILIP APPEARED ON BEHALF OF THE REVEN UE AND SHRI ANIL THAKRAR APPEARED ON BEHALF OF THE ASSESSEE AND PUT FORWARD THEIR CONTENTIONS. 8. WE HAVE HEARD RIVAL CONTENTION AND PERUSED THE R ECORD. THE ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE WHILE PASSIN G THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT, SINCE THE ASSESSEE FAILED TO FURNISH THE EXPLANATION BEFORE THE AO VIS--VIS THE DEPOSIT IN THE SAVING ACCOUNT WITH AXIS BANK LTD.. THE AO HAD RECEIVED AIR INFORMATION UNDE R WHICH IT WAS POINTED OUT THAT THERE WAS CASH DEPOSIT IN THE SAVING ACCOU NT WITH AXIS BANK LTD. THE ASSESSEE IN THE FIRST ROUND OF SUBMISSIONS STATED T HAT HE WAS NOT HOLDING ANY BANK ACCOUNT WITH AXIS BANK LTD. JOINTLY OR OTHERWI SE. HOWEVER, THE AO SOUGHT INFORMATION FROM THE BANK UNDER SECTION 133( 6) OF THE ACT UNDER WHICH IT WAS REPORTED THAT THE ASSESSEE ALONG WITH HIS WI FE WAS OPERATING THE SAID BANK ACCOUNT. THE AO ISSUED SHOW CAUSE NOTICE TO THE ASS ESSEE, WHICH WAS NOT COMPLIED WITH AND CONSEQUENTLY THE TOTAL DEPOSITS IN THE SAID BANK ACCOUNT I.E. CHEQUE ENTRIES AND CASH DEPOSITS WERE TREATED AS UN EXPLAINED CASH CREDIT UNDER ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 5 SECTION 68 OF THE ACT AND ADDITIONS TO THE EXTENT O F RS.25,55,723/- WAS MADE IN THE HANDS OF THE ASSESSEE. 9. BEFORE THE CIT(A) THE ASSESSEE FURNISHED DETAILS AND IT WAS POINTED OUT THAT CERTAIN CREDITS IN THE SAID BANK ACCOUNT IN CA SH WAS ON ACCOUNT OF CASH WITHDRAWALS MADE ON THE EARLIER DATES, WHICH WERE R EDEPOSITED IN THE BANK ACCOUNT. THE ASSESSEE FURTHER FURNISHED INFORMATION IN RESPECT OF THE OTHER CREDITS IN THE BANK ACCOUNT. THE CIT(A) FORWARDED S AID INFORMATION TO THE AO WHO SUBMITTED THE REMAND REPORT. THE AO THOUGH OBJE CTED TO THE ADMISSION OF THE SAID EXPLANATION BUT ALSO FURNISHED THE REMAND REPORT IN RESPECT OF THE VARIOUS DEPOSITS. THE TWO ADDITIONS MADE IN THE HAN DS OF THE ASSESSEE, WHICH HAVE BEEN DELETED AND CHALLENGED BY THE REVENUE IN THE PRESENT APPEAL ARE TOTALING RS.4,57,009/- AND RS.10,56,000/-. THE REMA ND REPORT IS REPRODUCED BY THE CIT(A) IN THE APPELLATE ORDER AND IN RESPECT OF THE AMOUNT OF RS.4,57,009/-, THE AO IN THE REMAND PROCEEDINGS REPORTED AS UNDER: - AMOUNT BELONGS TO ANITA KANAL OF THE AMOUNT OF RS. 4,57,009/-: THE ASSESSEE HAS STATED THAT THE SAID AMOUNT BELONGS TO HIS WIFE, MS ANITA KANAL WHICH WERE CERTAIN RECEIPTS FROM SHARE BROKER TOWARDS SALE OF SHARES OWNED BY HER THAT WERE DEPOSITED IN THE SAID JOINT A/C. BUT AS PER THE RECORDS, DURING THE ASSESSMENT PROCEEDINGS COPY OF ITR OF ANITA KANAL WAS SUBMITTED ALONG WITH BANK STATEMENT OF SB A/C MAINTAINED WITH THE ZOROASTRAIN CO-OP BANK, BORIVALI BRANCH D ECLARING TOTAL INCOME OF RS.5,28,866/-, AND NO DETAILS AS REGARD T O THIS CONTENTION WAS SUBMITTED DURING ASSESSMENT PROCEEDINGS IN-SPITE OF SHOWCAUSE ISSUED TO THE ASSESSEE. FURTHER IF THE SAID AMOUNT WAS REC EIVED AS PROCEEDS FROM SALE OF SHARERS. THE SAME OUGHT TO HAVE BEEN S HOWN AS INCOME IN THE RELEVANT ASSESSMENT YEAR. THE STATEMENT OF TOTA L INCOME OF MS ANITA KANAL DOES NOT REFLECT THIS DEPOSIT AS INCOME UNDER ANY HEAD. 10. FURTHER IN RESPECT OF THE CASH DEPOSIT OF RS.10 ,56,000/- THE EXPLANATION OF THE ASSESSEE WAS THAT THE AMOUNTS WERE WITHDRAWN ON EARLIER DATES AND WERE DEPOSITED IN THE BANK ACCOUNT ON LATTER DATES. THE AO IN THE REMAND REPORT OBSERVED AS UNDER:- III) CASH DEPOSIT OF RS. 10,56,000/- THE ASSESSEE H AS STATED THAT IN THE SAID ACCOUNT SOME AMOUNT OF CASH WITHDRAWN FROM BAN K WAS RE- DEPOSITED (RS.4,06,000/-). THIS CONTENTION OF THE A SSESSEE IS NOT AT ALL ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 6 TENABLE , AS FROM THE BANK A/C DETAILS IT IS CLEARL Y EVIDENT THAT THERE WAS UNACCOUNTED DEPOSIT OF CASH AND SUBSEQUENT WITHDRAW AL IN CASH. THERE IS CASH WITHDRAWAL OF RS.3,68,000/- AFTER GOOD AMOU NT OF TIME HAD LAPSED AFTER THE LAST CASH DEPOSIT IN THE SAID ACCO UNT . THUS IT CLEARLY SHOWS THAT THERE WAS NOT ENOUGH CASH IN HAND TO JUS TIFY A CIRCULAR TRANSACTION OF THE SAME MONEY. FURTHER, THE ASSESEE HAS STATED THAT AN AMOUNT OF RS.6,50,000/- WAS RECEIVED FROM MRS. LATA SONI AS AN ADVANCE PAYMENT AGAINST SALE OF PROPERTY. THE ALLEG ED AMOUNT IS SAID TO HAVE BEEN WITHDRAWN BY MRS. LATA SONI FROM HER BANK ACCOUNT ON 07/07/2007 AND THE SAME WAS DEPOSITED BY THE ASSESS EE IN HIS BANK A/C ON 10/01/2008. THERE IS NO SUBSTANCE IN THIS ARGUME NT. THERE IS NO CONNECTION BETWEEN THE TWO EVENTS. ALSO, THERE IS S UBSTANTIAL GAP BETWEEN THE TWO TRANSACTIONS TO JUSTIFY ANY CONNECT ION. THE ASSESSEE HAS SUBMITTED ONE LETTER DATED 13/08/2012 FROM MRS. LAT A SONI, WHERE SHE HAS MENTIONED THAT SHE HAD WITHDRAWN CASH OF RS.15, 00,000/- AND OUT OF WHICH SHE HAS PAID RS.6,50,000/- TO THE ASSESSEE AN D THE SAID AMOUNT WAS REPAID BACK IN CASH IN TWO INSTALLMENTS OF RS.6 ,00,000/- AND RS.50,000/- RESPECTIVELY. THIS ARGUMENT IS NOT ACCE PTABLE. THE ASSESSEE HAS FAILED TO PROVE WITH ANY EVIDENCE TO SHOW THAT THERE WAS SUCH AN AGREEMENT FOR SALE OF HOUSE PROPERTY BETWEEN THE AL LEGED PARTIES AND ANY CONNECTION AND SEQUENCE OF CASH TRANSACT ION. T HERE IS CLEARLY ABSENCE OF ANY PROPER EVIDENCE TO JUSTIFY THE TRANS ACTION APART FROM THE DESIGNED STATEMENT MADE BY THE RESPECTIVE PARTIES. THE ASSESSEE HAS FAILED TO PROVE THE SOURCE OF THE CASH DEPOSIT AND ANY PROOF TO JUSTIFY THAT SAME MONEY WAS ROTATED. 11. THE MAIN ALLEGATION OF THE AO IN REJECTING THE EXPLANATION OF THE ASSESSEE WAS THE TIME GAP BETWEEN THE WITHDRAWALS MADE IN TH E BANK ACCOUNT AND IN THE DEPOSIT OF THE CASH IN THE SAID BANK ACCOUNT. THE A SSESSEE IN REJOINDER SUBMITTED FURTHER EXPLANATION BEFORE THE CIT(A) IN RESPECT OF BOTH THE ADDITIONS WHICH READ AS UNDER:- I. RS.4,57,009/- AMOUNT BELONGING TO MRS. ANITA KAN AL: I HAVE ALREADY SUBMITTED THAT I AM HOLDING THE BANK ACCOUNT OF AXI S BANK JOINTLY WITH MY WIFE MRS. ANITA KANAL AND ACCORDINGLY THERE WERE CERTAIN RECEIPTS FROM SHARE BROKER TOWARDS SALE OF SHARES OWNED BY M Y WIFE AND THE SALE PROCEEDS WERE DEPOSITED IN THE SAID JOINT ACCOUNT A ND THERE WERE OTHER DEPOSITS ALSO. THE BREAK UP SAID AMOUNT IS AS UNDER :- PARTICULARS AMOUNT (RS.) RECEIVED TOWARDS SALE PROCEEDS OF SHARES BELONGING TO 2,04,947.88 ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 7 MRS. ANITA KANAL FROM HER BROKER M/S. NAVRATAN CAPI TAL & SECURITIES PVT. LTD. RECEIVED ON MATURITY OF FIXED DEPOSITS TAKEN FROM T HE SAID BANK ACCOUNT ON 28.11.2007 50,000.00 RECEIVED ON MATURITY OF OTHER FIXED DEPOSITS 2,00,0 00.00 INTEREST RECEIVED ON THE SAID FIXED DEPOSITS 2,061. 00 TOTAL 4,57,009.00 ALSO DURING THE YEAR VARIOUS PAYMENTS TOTALING TO R S.5,92,670/- WERE MADE ON BEHALF OF ANITAL KANAL FOR INVESTMENTS IN I PO AND TO THE SHARE BROKER ETC, MRS. ANITA KANAL HAD INCURRED A LOSS OF RS.98,552/- IN THE SHARE TRANSACTIONS WITH M/.S NAVRATAN CAPITAL & SEC URITIES PVT. LTD. AND THE DETAILS OF THE SAME ARE ANNEXED IN ANEXURE 1. I HAVE ALREADY SUBMITTED THE LEDGER ACCOUNT OF MRS. ANITA KANAL IN THE BOOKS OF M/S. NAVRATAN CAPITAL & SECURITIES PVT. LTD. AND ALL THE ENTRIES IN THE SAID LEDGER ARE VERIFIABLE WITH THE DETAILS GIVEN I THE ANNEXURE1. THE OTHER DEPOSITS ARE MATURITY PROCEEDS OF FDRS AND OUT OF W HICH FDR OF RS.50,000/- WAS TAKEN FROM THE SAID BANK ACCOUNT ON 28.11.2007. A STATEMENT CONFIRMING ACCOUNT AS MATURITY OF FDR IS ENCLOSED AND MARKED AS ANNEXURE 2. SINCE ALL THESE CREDITS ARE NOT UNEXPLAINED CREDITS THE ADDITION MADE ON THIS ACCOUNT SHOULD BE DELETED. II. DEPOSIT OF RS. 10,56,000/- : AS REGARDS CASH DE POSIT OF RS.L0,56,000/- IT IS SUBMITTED THAT DURING THE YEAR THE I HAD WITH DRAWN CASH OF RS.10,07,953/- FROM AXIS BANK AND THERE WAS A CASH DEPOSIT OF RS.10,56,000/- IN THE SAID ACCOUNT. SOME AMOUNT OF CASH WITHDRAWN FROM BANK WAS RE-DEPOSITED AND AN AMOUNT OF RS. 6,5 0,000/- WAS RECEIVED BY ME FROM MRS. LATA SONI AS AN ADVANCE PA YMENT AGAINST SALE OF PROPERTY BELONGING TO ME. THE SAID AMOUNT WAS WI THDRAWN BY MRS. LATA SONI FROM HER BANK ACCOUNT ON 7.7.2007 AND WAS GIVEN TO ME ON 9.1.2008 AS AN ADVANCE AGAINST SALE OF PROPERTY. I HAD DEPOSITED THE SAID CASH IN MY ACCOUNT WITH AXIS BANK ON 10.1.2008 . HOWEVER THE TRANSACTION BETWEEN US DID NOT MATERIALIZED AND MRS . LATA SONI INSISTED FOR REFUND OF THE SAID AMOUNT IN CASH . ACCORDINGLY I WITHDREW A SUM OF RS. 6 LACS FROM MY BANK ACCOUNT ON 30.1.2008 AND BA LANCE RS. 50,000/- CASH AS PAID ON 23.2.2008. THE SAID ENTRIES ARE REF LECTED IN THE BANK STATEMENT OF AXIS BANK. THE COPY OF PASSBOOK OF MRS . LATA SONI AND BANK STATEMENT OF MY AXIS BANK ACCOUNT ARE ALREADY SUBMITTED BY ME. DURING THE COURSE OF REMAND PROCEEDINGS MRS. LATA S ONI HAD PERSONALLY APPEARED BEFORE THE ASSESSING OFFICER AN D HAD ALSO FILED A CONFIRMATION LETTER THAT SHE HAD PAID AN ADVANCE TO ME AND THE SAME HAVE BEEN RETURNED BACK TO HER. HOWEVER THE LEARNED AO DID NO APPRECIATE THE FACTS OF THE CASE AND CONCLUDED THAT I HAVE FAILED TO ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 8 SUBSTANTIATE THE SOURCE OF CASH ONLY ON THE GROUND THAT THERE WAS A TIME LAG BEEN THE WITHDRAWALS OF CASH BY LATA SONI AND P AYMENT OF SAME BY HER TO ME. IT IS SUBMITTED THAT THE SOURCE OF CASH HAS BEEN EXPLAINED BY ME AND MRS. LATA SON ALSO PERSONALLY APPEARED AND F ILED HER CONFIRMATION. THE LEARNED AO DOES NOT HAVE ANY CONT RARY MATERIAL TO THE SAID FACTS AND ONLY ON THE BASIS OF PRESUMPTION NO ADDITION CAN BE MADE. HENCE IT IS SUBMITTED THAT THIS IS ALSO NO AN UNEXPLAINED CREDIT AND HE ADDITION SHOULD BE DELETED. AS REGARDS A BALANCE SUM OF RS.4,06,000/- IT IS SUB MITTED THAT THE SAID DEPOSIT WAS PARTLY OUT OF CASH IN MY HAND AND PARTL Y OUT OF CASH WITHDRAWN FROM THE BANK. THE SUMMARY OF CASH WITHDR AWN FROM BANK AND DEPOSITED IN BANK HAS BEEN GIVEN IN ANNEXURE 3 . 12. IN VIEW OF THE ABOVE SAID EXPLANATION OF THE A SSESSEE THE ADDITION OF RS.4,57,009/- HAS BEEN DELETED IN THE HANDS OF THE ASSESSEE AND ADDITION OF RS.10,56,000/- HAS BEEN SCALED DOWN TO ADDITION OF RS.38,000/- ONLY. THE RELEVANT FINDING OF THE CIT(A) ARE AS UNDER:- 7.2 AMOUNT RECEIVED FROM SALE OF SHARES- RS.4,57,0 09/- IN THIS CASE, MRS. ANITA KANAL IS HOLDING JOINT ACC OUNT WITH THE APPELLANT. SHE IS THE WIFE OF THE APPELLANT. SINCE THE APPELLANT HAS EXPLAINED THAT THE MONEY BELONGED TO THE TRANSACTIO NS DO NE BY HIS WIFE, THE RELEVANT AMOUNT CANNOT BE CONSIDERED IN THE HAN DS OF THE APPELLANT. ACCORDINGLY, THIS AMOUNT IS DELETED. 7.3 CASH DEPOSIT OF RS.10,56,000/- AN AMOUNT OF RS.6,50,000/- IS STATED TO BE TAKEN F ROM MRS. LATA SONI THROUGH BANKING CHANNEL WHERE DATE OF TRANSACTIONS IS ALSO MENTIONED IN THE REMAND REPORT THE ONLY REASON GIVEN BY THE A .O. IS THAT THERE WAS CONSIDERABLE TIME GAP BETWEEN WITHDRAWALS AND D EPOSITS AND FOR THAT REASON ONLY THE APPELLANTS PLEAS HAS BEEN REJ ECTED BY AO. IN HIS REGARD IT MAY BE STATED THAT IT IS THE DISCRETION O F THE APPELLANT TO DECIDE AS TO WHEN TO DEPOSIT MONEY IN THE BANK ACCOUNT, AN D UPTO WHAT TIME HE WILL KEEP IT IN THE FORM OF CASH AND AT WHAT POINT OF TIME HE WILL DEPOSIT BACK INTO THE BANK ACCOUNT. THIS ALL DEPENDS UPON T HE BUSINESS NEEDS OF THE APPELLANT. THE A.O. CANNOT SIT IN THE CHAIR OF BUSINESSMAN AND DECIDE THE TIMING. THE A.O. HAS NOT BEEN ABLE TO DI SPROVE THE BASIC CONTENTION OF THE APPELLANT UNDER THE CIRCUMSTANCES , AFTER CONSIDERING THE REBUTTAL SUBMISSION BY THE APPELLANT ON THE RE MAND REPORT OF THE AO, THE ADDITION OF RS.6,50,000/- IS DELETED. AS REGARDS RS.4,06,000/-, THE APPELLANT HAS BEEN AB LE TO EXPLAIN THE SOURCE OF RS.3,68,000/- WHEREAS THE A.O. HAS ONLY H ARPED ON THE GROUND THAT THIS AMOUNT WAS REDEPOSITED AFTER A LAPSE OF C ERTAIN TIME BUT HAS NOT BEEN ABLE TO CONTRADICT THE BASIC CONTENTION OF THE APPELLANT. ITA NO. 1891/MUM/2013 ASSESSMENT YEAR: 2008-09 9 THEREFORE, THE ADDITION OF RS.4,06,000/- IS RESTRIC TED TO RS.38,000/- (4,06,000-RS.3,68,000) AND THE BALANCE OF RS.3,68,0 00/- IS DELETED. AS REGARDS THE AMOUNT BELONGING TO LATA SONI, THE A O IS DIRECTED TO SEND THE INFORMATION TO THE AO OF LATA SONI TO EXAM INE THE SOURCE OF THE AMOUNT IN HER HAND. 13. THE LD. D.R. FOR THE REVENUE HAS FAILED TO CONT ROVERT THE FINDING OF THE CIT(A). IN VIEW OF THE ABOVE SAID FACTS AND CIRCUMS TANCES AND THE EXPLANATION FURNISHED BY THE ASSESSEE, WE FIND NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE. UPHOLDING THE ORDER OF THE CIT(A) WE D ISMISS THE GROUNDS OF APPEAL NO. 1 AND 2 RAISED BY THE REVENUE. 14. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JUNE, 2015. SD/- SD/- (R. C. SHARMA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATED: 10.06.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.