Smt Kushalappa Savitri , Bangalore V. The Assistant Commissioner of Income Tax Circle-6(3)(1), Bangalore

ITA 2236/BANG/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4531 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-09-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 20-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KANNAN NARAYANAN JT BENGALURU
• Assessee Lawyers: H GURUSWAMY ITP
• Keywords: Source of fund; Reasonable cause; Condonation of delay; Capital Gains
• Section: 43; 13; 22; 68; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER IT A NO. 2236/ BANG/2018 ASSESSMENT YEAR : 2013 - 14 SMT. KUSHALAPPA SAVITRI, NO.121, 3 RD MAIN, 7 TH CROSS, RMV 2 ND STAGE, BANGALORE 560 094. PAN: BGIPS 7312G VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 6(3)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : S HRI H. GURUSWAMY, ITP RESPONDENT BY : SHRI KANNAN NARAYANAN, JT.CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 02 .0 9 .202 1 DATE OF PRONOUNCEMENT : 22 .0 9 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 21 .11.2017 OF THE CIT(APPEALS), BENGALURU-6, BENGALURU FOR THE ASSES SMENT YEAR 2013-14. 2. THERE IS A DELAY OF 88 DAYS IN FILING THIS APPEA L. THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY ALONG WI TH THE AFFIDAVIT. THE ASSESSEE HAS SUBMITTED THE REASONS FOR THE ABOVE DE LAY ARE THAT SHE RECEIVED THE APPELLATE ORDER DATED 21.11.2017 ON 24 .2.2018 AND AN APPLICATION U/S. 154 WAS FILED ON 19.3.2018 WHICH W AS DISPOSED OF ON 18.6.2018 AND SERVED ON HER ON 22.6.2018. THE APPL ICATION U/S. 154 WAS REJECTED BY THE CIT(APPEALS). THE ASSESSEE FILED A PPEAL BEFORE THE ITA NO.2236/BANG/2018 PAGE 2 OF 17 TRIBUNAL WITH A DELAY OF 88 DAYS AND THE DELAY WAS MAINLY ATTRIBUTABLE TO THE DISPOSAL OF THE APPLICATION U/S. 154 FILED BEFO RE THE CIT(APPEALS). THE DELAY WAS DUE TO BONAFIDE REASONS AND RELIANCE WAS PLACED ON THE JURISDICTIONAL HIGH COURT ORDER DATED 28.10.2011 IN THE CASE OF ISRO SATELLITE CENTRE IN ITA NO.532/2008 AND ORDER OF THIS TRIBUNAL DATED 7.8.2015 IN GLEN WILLIAMS V. ACIT IN ITA NO.1078/BANG/2014. THE LD. AR FOR THE ASSESSEE ACCORDINGLY PRAYED FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD ON THE CONDONATION OF DELAY IN FILING THE APPEAL BE FORE THE TRIBUNAL. IN OUR OPINION, THE ASSESSEE WAS PURSUING ALTERNATIVE REME DY BY WAY OF APPLICATION U/S. 154 OF THE ACT BEFORE THE CIT(APPE ALS). THE REASONS PUT FORTH BY THE ASSESSEE ARE CONSIDERED. WE ARE OF T HE VIEW THAT THERE WAS SUFFICIENT AND REASONABLE CAUSE FOR THE DELAY OF 88 DAYS IN FILING THE APPEAL. THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF COLLECTOR OF LAND ACQUISITION V. MST. KATIJI, 167 ITR 471 (SC) WHEREIN IT WAS HELD AS UNDER:- (1) ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. (2) REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS COND ONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DE CIDED ON MERITS AFTER HEARING THE PARTIES. (3)'EVERY DAYS DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY H OURS DELAY, EVERY SECONDS DELAY? THE DOCTRINE MUST BE A PPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO ITA NO.2236/BANG/2018 PAGE 3 OF 17 HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE O F A NON- DELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONE D DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK . (6) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPEC TED NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.' 4. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE APPEAL AND ADMIT THE APPEAL FOR ADJUDICATION. 5. THE ASSESSEE IS IN APPEAL BEFORE US WITH REGARD TO SUSTAINING ADDITION U/S. 68 OF THE ACT AS FOLLOWS:- ( I) UNEXPLAINED C ASH DEPOSIT 1,00,00,000 (II) ADVANCE RECEIVED RECEIVED FROM SHRI VENKATESH GOWDA. 75,00,000 (III) ADVANCE RE CEIVED FROM SHRI RAJANNA 50,00,000 (IV) CA SH DEPOSIT 28, 00,000 TOTAL 2,53,00,000 6. THE FACTS OF THE CASE ARE THAT THE ASSESSEE BEIN G AN INDIVIDUAL HAS E-FILED HER RETURN OF INCOME ON 05-08-2013 DECLARIN G INCOME OF RS. 23,47,900 FOR THE A.Y 2013-14. THE AO COMPLETED SC RUTINY ASSESSMENT ON 30.3.2016 DETERMINING TOTAL INCOME AT RS.2,76,47,90 0 AS AGAINST DECLARED INCOME OF RS.23,47,900 BY MAKING THE ADDITION OF RS .2,53,00,000 AS FOLLOWS:- 1 UNEXPLAINED DEPOSIT ON 13.7.2012 . 1,00,00,000 2 ADVANCE RECEIVED AGAINST SALE OF AGRICULTURAL LANDS BELONGING TO THE HUSBAND TO VENKATESH GOWDA. 75,00,000 3 ADVANCE RECEIVED AGAINST SALE OF AGRICULTURAL LANDS BELONGING TO THE HUSBAND TO RAJANNA 50,00,000 4 CA SH DEPOSIT 28, 00,000 TOTAL 2,53,00,000 ITA NO.2236/BANG/2018 PAGE 4 OF 17 7. ON APPEAL, THE CIT(APPEALS) CONFIRMED THE SAME. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. ADDITION OF RS.1,00,00,000 8. THE AO MADE AN ADDITION OF RS.1 CRORE OBSERVING THAT ASSESSEE HAS FAILED TO DISCHARGE THE ONUS OF PROVING THE CAS H CREDIT IN THE BANK ACCOUNT TO THE EXTENT AND MADE ADDITION U/S. 68 OF THE ACT. 9. BEFORE THE CIT(APPEALS), THE ASSESSEE THAT SHE H AS NOT MADE A DEPOSIT OF RS. 1,00,00,000 ON 13-07-2012 AS ALLEGED BY THE AO. THE AO HAS NOT MENTIONED THE NAME OF THE BANK, ITS BRANCH AND NAME OF THE ACCOUNT WHERE THE AMOUNT IS ALLEGED TO HAVE BEEN DE POSITED. THE ASSESSEE HAS MAINTAINED HER BANK ACCOUNT BEARING NO . 912010016161631 WITH AXIS BANK LTD., NO. 21, 80 FEE T ROAD, 4TH BLOCK, KORAMANGALA, BANGALORE - 560085. IN THE SAID BANK A CCOUNT NO ENTRY IS FOUND AS REGARDS ALLEGED CASH DEPOSIT OF RS. 1,00,0 0,000 ON 13-07-2012. 10. IT WAS FURTHER SUBMITTED THAT ASSESSEES HUSBAN D, SRI. JAGADISH, HAS MAINTAINED A JOINT BANK ACCOUNT ALONG WITH THE ASSE SSEE BEARING NO. 912010034699138 WITH AXIS BANK LTD. AND EVEN IN THE SAID JOINT ACCOUNT NO CASH DEPOSIT WAS FOUND ON 13-07-2012. ON THE CO NTRARY IN THE SAID JOINT ACCOUNT, A WITHDRAWAL ENTRY WAS FOUND ON 13-0 7-2012 AMOUNTING TO RS. 1,00,00,000. THEREFORE THE. AO HAS WITH A WRONG PERCEPTION STATE D THAT THE ASSESSEE HAS MADE A CASH DEPOSIT OF RS. 1,00,00,000 ON 13-07-2012 WITHOUT MENTIONING THE ACCOUNT NUMBER AND ALSO THE NAME OF THE BANK. IT IS FURTHER SUBMITTED THAT THAT EXCEPT ONE INDIVIDUA L ACCOUNT IN HER NAME AND A JOINT ACCOUNT WITH HER HUSBAND MENTIONED ABOVE, T HE ASSESSEE HAS NOT HELD ANY BANK ACCOUNT IN ANY OTHER BANKS. THEREFORE THE CASH DEPOSIT ASSUMED TO HAVE BEEN MADE ON 13-07-2012 AMOUNTING T O RS. 1 CRORE AS STATED BY THE AO IS FACTUALLY INCORRECT AND HENCE T HE ADDITION MADE BY THE ITA NO.2236/BANG/2018 PAGE 5 OF 17 AO U/S. 68 OF THE ACT IS NEITHER JUSTIFIABLE NOR SUSTAINABLE I N LAW AND LIABLE TO BE DELETED. THE CIT(APPEALS), HOWEVER, SUSTAINED THE ADDITION. 11. BEFORE US, THE LD. AR SUBMITTED THAT THE AO MAD E AN ADDITION OF RS.1 CRORE ON THE GROUND THAT ASSESSEE HAS DEPOSITE D A CHEQUE MARKED AS CHQ/3564/SAVITRI WHICH WAS LATER CONVERTED INTO A FIXED DEPOSIT. THE AO SOUGHT FOR EXPLANATION OF THE SOURCE OF DEPOSIT. THE ASSESSEE SUBMITTED THAT THE CHEQUE CHQ/3564/SAVITRI STATED T O BE DEPOSITED IS NOT A FACT AS PER THE BANK ACCOUNT SINCE THE ASSESSEE HAS NOT DEPOSITED ANY CHEQUE BEARING NO.3564 AMOUNTING TO RS.1 CRORE ON 1 3.7.2012. THE AO FURTHER HELD THAT ON 13.12.2012 THERE WAS A WITHDRA WAL OF RS.1 CRORE BY THE HUSBAND OF ASSESSEE, THE SOURCE AND THE MANNER AND NEED FOR THE SAID WITHDRAWAL WAS NOT ESTABLISHED AND NOT RECONCILED B Y THE ASSESSEE AND THEREFORE ADDITION WAS MADE TO THAT EXTENT AS UNEXP LAINED CASH CREDITS U/S. 68 OF THE ACT. 12. THE LD. AR SUBMITTED THAT THE AO HAS COMPLETELY MISTAKEN THE FACTS AND THE BANK ACCOUNT. IT IS EVIDENT FROM THE BANK ACCOUNT THAT THE ASSESSEE HAS ISSUED A CHEQUE NO.3564 DATED 13.7.201 2 TO HER HUSBAND, SHRI JAGADISH FOR A SUM OF RS.1 CRORE AND THE SAME WAS MISTAKEN BY THE AO AS A CHEQUE DEPOSITED ON 13.7.2012 WHICH IS NOT A FACT ON RECORD. THE AO HAS MISTAKEN THE WITHDRAWAL ENTRY BY CHEQUE NO.3 564 ON 13.7.2012 BY SHRI JAGADISH, HUSBAND OF THE ASSESSEE, AS DEPOSIT. THEREFORE THE ADDITION MADE OF RS. 1,00,00,000 BEING THE WITHDRAWAL BY THE HUSBAND OF THE ASSESSEE ON 13-07-2012 VIDE CHEQUE NO. 3564 REF ERRED IN THE ASSESSMENT ORDER, IS NOT JUSTIFIABLE IN LAW SINCE T HE WITHDRAWAL OF THE AMOUNT FROM THE BANK CANNOT BE CONSTRUED AS A DEPOS IT AS MISTAKEN BY THE AO. HENCE THE ADDITION OF RS. 1.00,00,000 BEING THE WITHDRAWAL CANNOT BE HELD AS INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. THE PROVISION OF SECTION 68 OF THE ACT IS NOT APPLICABLE TO THE ASSE SSEE SINCE SHE HAS NOT ITA NO.2236/BANG/2018 PAGE 6 OF 17 MAINTAINED ANY BOOKS OF ACCOUNT IN THE ABSENCE OF A NY BUSINESS. IT IS AN ADMITTED FACT ON RECORD THAT SHE HAS DECLARED A SUM OF RS. 23,47,900 CONSISTING OF HOUSE PROPERTY INCOME OF RS. 2,97,638, CAPITAL GAINS OF RS. 12,89,631 AND BANK INTEREST OF RS. 8,43,580 AS PER THE STATEMENT OF INCOME FILED. THE AO HAS ALSO DISCUSSED IN PARA 1 OF THE ASSESSMENT ORDER THAT THE DECLARED INCOME OF RS. 23,47,900 REPRESENTS INCOME FROM HOUSE PROPERTY, INCOME FROM CAPITAL GAINS AND INCOM E FROM OTHER SOURCES BEING THE BANK INTEREST. THE ADDITION MADE BY THE AO WAS ON A MISTAKEN FACT IN AS MUCH AS THE WITHDRAWAL OF RS. 1,00,00,000 ON 13-07- 2012 BY CHEQUE NO. 3564 BY THE HUSBAND OF THE APPEL LANT WAS HELD AS DEPOSIT. HENCE IT IS SUBMITTED THAT THE AMOUNT OF R S. 1,00,00,000 WITHDRAWN BY THE HUSBAND BY CHEQUE NO. 3564 ON 13-0 7-2012 AS EVIDENCED FROM THE BANK ACCOUNT CANNOT BE HELD AS D EPOSIT AND THE ADDITION MADE ON A MISTAKEN FACT IS NOT JUSTIFIABLE IN LAW AND THE SAME IS LIABLE TO BE DELETED. 13. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT IN TERMS OF APPLICABILITY OF SECTION 68 OF THE ACT IN THE INSTANT CASE, MEREL Y QUOTING OF A WRONG SECTION IN THE ASSESSMENT ORDER DOES NOT INVALIDATE THE ASSESSMENT. TO SUSTAIN THE ADDITION U/S. 68, THERE IS NO CONDITION MENTIONED IN SECTION 68 THAT THE ASSESSEE SHALL MAINTAIN THE BOOKS OF ACCOU NT. HE SUBMITTED THAT IF THE ARGUMENT OF THE LD. AR IS ACCEPTED, IT WOULD ME AN THAT THE CASH DEPOSITS IN THE BANK ACCOUNT IS ACTUALLY A SUM CRED ITED IN THE BOOKS OF THE BANK AND THAT THE BANK SHOULD OFFER EXPLANATION FOR THE SUMS SO CREDITED. IN SUCH A SITUATION, THE BANKS WOULD BE TAXED FOR U NEXPLAINED CASH CREDITS WHICH IS AN ABSURD CONSEQUENCE. THE LD. DR RELIED ON THE FOLLOWING DECISIONS:- - CIT V. BHAICHAND N. GANDHI [1983] 141 ITR 67 (BOM) - CIT V. ANAND RAM RAITANI [1997] 223 ITR 544 (GAUHAT I) ITA NO.2236/BANG/2018 PAGE 7 OF 17 - A. RAM MOHAN V. STATE IN CRL.R.C.NO.265 OF 2015 DAT ED 30.03.2015 - DR.K.M. MEHBOOB V. DCIT [2012] 26 TAXMANN.COM 54 (K ER.) 14. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE AO MADE THE ADDITION ON THE REASON THAT THE ASS ESSEE HAS DEPOSITED CHEQUE BEARING NO.3564 ON 13.7.2012. WE HAVE CAREF ULLY GONE THROUGH THIS ENTRY IN THE BANK STATEMENT ON THIS DATE, WHIC H SHOWS THE WITHDRAWAL OF RS.1 CRORE VIDE CHEQUE NO.3564 ON 13.7.2012. HOWEV ER, THE AO HAS MISTAKEN IT AS A DEPOSIT OF RS.1 CRORE. SECTION 68 CANNOT BE APPLIED FOR WITHDRAWAL MADE FROM THE BANK ACCOUNT. IT IS NOT A CASE OF UNEXPLAINED DEPOSIT SO AS TO SUSTAIN THE ADDITION U/S. 68 OF TH E ACT. ACCORDINGLY, THE ADDITION OF RS.1 CRORE IS DELETED. ADDITION OF RS.1,25,00,000 15. THE AO IN THE ASSESSMENT ORDER HAS MADE AN ADDI TION OF RS. 1,25,00,000 CONSISTING OF AN AMOUNT OF RS. 75,00,000 AND RS. 50,00,000 FORMING PART OF TOTAL ADDITION OF RS. 2,53,00,000. 16. BEFORE THE CIT(APPEALS) THE ASSESSEE HAS SUBMIT TED THAT HER HUSBAND, SRI. JAGADISH HAS BEEN OWNING AGRICULTURAL LANDS MEASURING 5 ACRES 4 GUNTAS AT MARAGONDANAHALLI VILLAGE SY. NO. 25/P1, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. SHRI J AGADISH HAS ENTERED INTO A SALE AGREEMENT DTD. 10-07-2012 WITH SRI. R. VENKA TESH GOWDA IN RESPECT OF THE AFORESAID LAND FOR A CONSIDERATION O F RS. 2,04,00,000 AGAINST WHICH AN ADVANCE OF SALE CONSIDERATION WAS RECEIVED AMOUNTING TO RS. 75,00,000 AND THE SAME AMOUNT WAS UTILISED FOR DEPOSITING INT O THE ASSESSEES BANK ACCOUNT. ITA NO.2236/BANG/2018 PAGE 8 OF 17 17. SIMILARLY THE SPOUSE OF THE ASSESSEE, SHRI JAGA DISH HAS BEEN OWNING AGRICULTURAL LANDS MEASURING 1 ACRE 38 GUNTA S IN SY. NO. 24, SITUATED AT MARAGONDANAHALLI VILLAGE, KUNDANA HOBLI , DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT AND HE ENTERED INTO A SALE AGREEMENT DATED 10.07.2012 WITH SRI. R. RAJANNA IN RESPECT OF THE A FORESAID LAND FOR A CONSIDERATION OF RS. 1,36,50,000 AGAINST WHICH AN ADVANCE OF SALE CONSIDERATION WAS RECEIVED AMOUNTING TO RS. 50,00,000 AND THE SAME AMOUNT WAS UTILISED FOR DEPOSITING INTO THE ASSESSE ES BANK ACCOUNT. 18. THUS THE AMOUNT OF ADVANCE RECEIVED FROM SRI. V ENKATA GOWDA AND SRI. RAJANNA AMOUNTING TO RS. 1,25,00,000 ( 75,00,000 + 50,00,000) BY VIRTUE OF SALE AGREEMENTS ACKNOWLEDGED BY THE SPOUS E OF THE APPELLANT WAS DEPOSITED INTO THE BANK OF THE ASSESSEE. THE RE LEVANT COPIES OF THE SALE AGREEMENTS WERE PRODUCED BEFORE THE AO IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. HOWEVER, THE AO HAS NOT APP RECIATED AND ACCEPTED THE SALE AGREEMENTS MAINLY ON THE GROUND T HAT THE CREDITWORTHINESS OF THE PURCHASERS SRI. VENKATA GOW DA AND SRI. RAJANNA WAS NOT ESTABLISHED. 19. IN THIS REGARD, IT WAS SUBMITTED THAT THE ASSES SEE HAS NOT RECEIVED THE AMOUNT DIRECTLY FROM THE INTENDING BUYERS SRI. VENKATA GOWDA AND SRI. RAJANNA, BUT THE AMOUNT WAS RECEIVED BY HER SPOUSE AND THE SAME WAS UTILISED FOR BANK DEPOSITS. THE AO HAS NOT CAUSED A NY ENQUIRES IN THIS REGARD TO EXAMINE THE SPOUSE OF THE ASSESSEE, AS TO WHETHER SUCH LANDS OWNED BY HIM WERE REALLY AGREED TO BE SOLD AND WHET HER THE ADVANCE OF RS. 1,25,00,000 WAS PAID BY THE INTENDING BUYER TO HIM. THE LD. AR SUBMITTED THAT THE SOURCE OF CASH DEPOSITS WAS FROM THE SPOUSE WHO RECEIVED AS ADVANCES IN TERMS OF THE SALE AGREEMENT S ENTERED INTO HIM WITH THE BUYERS OF THE LANDS. THEREFORE, THE AO WAS NOT JUSTIFIED IN EXPECTING THE ASSESSEE TO PROVE THE SOURCE OF SOURC E. ITA NO.2236/BANG/2018 PAGE 9 OF 17 20. IT WAS FURTHER SUBMITTED THAT THE AO HAS MAINLY RELIED UPON THE COPIES OF THE BANK ACCOUNT WHERE THE CASH CREDIT WA S FOUND AND AS PER THE SETTLED POSITION OF LAW, HE WAS NOT JUSTIFIED I N TREATING THE BANK DEPOSITS AS INCOME OF THE ASSESSEE U/S. 68, SINCE THE BANK D EPOSITS PER SE DO NOT CONSTITUTE INCOME CHARGEABLE TO TAX U/S. 68 OF THE ACT AND HENCE THE ADDITION SO MADE IS LIABLE TO BE DELETED. 21. THE LD. AR SUBMITTED THAT THE AO HAS MADE AN AD DITION OF RS.1,25,00,000 BEING THE AMOUNT OF ADVANCE RECEIVED BY THE HUSBAND OF ASSESSEE, SRI. VENKATESH GOWDA AND SRI RAJANNA AMOU NTING TO RS. 75,00,000 AND RS. 50,00,000 RESPECTIVELY AGAINST TH E SALE OF AGRICULTURAL LANDS. THE ASSESSEE SUBMITTED BEFORE THE AO, THE CO NFIRMATION LETTERS AND THE SALE AGREEMENT COPIES OF THE FOLLOWING PERS ONS:- I. SRI VENKATESH GOWDA RS.75,00,000 II. SRI RAJANNA RS.50,00,000 III. SRI N. GOPALAIAH RS.50,00,000 22. THE ASSESSEE SUBMITTED THAT THE AGRICULTURAL LA NDS OWNED BY HER HUSBAND SRI JAGADISH WERE AGREED TO BE SOLD IN FAVO UR OF THE AFORESAID THREE PURCHASERS WHO HAVE ADVANCED A SUM AS STATED ABOVE. THE AO HAS ACCEPTED THE ADVANCE OF SALE CONSIDERATION OF RS. 5 0,00,000 RELATING TO SRI. N. GOPALAIAH AND REJECTED THE CONFIRMATION LET TERS AND SALE AGREEMENTS RELATED TO SRI. VENKATESH GOWDA AND SRI. RAJANNA ON THE GROUND OF INADEQUATE CREDITWORTHINESS AS DISCUSSED IN PARA 6 OF THE ASSESSMENT ORDER. IN THIS REGARD, IT IS SUBMITTED T HAT THE AO WAS NOT JUSTIFIED TO HOLD THAT THE 'MERE SALE AGREEMENTS DO NOT THROW ANY LIGHT ON THEIR CREDITWORTHINESS' RELATING TO SRI. VENKATESH GOWDA AND SRI. RAJANNA, SINCE THE AO HAS NOT EXAMINED NEITHER THE HUSBAND O F THE APPELLANT NOR THE PURCHASERS SRI. VENKATESH GOWDA AND SRI. RAJANN A. THE AO WITHOUT EXAMINATION OF THE PURCHASERS AND THE APPELLANT'S H USBAND WHO HAS RECEIVED THE ADVANCE SALE CONSIDERATION WHICH WAS P AID TO THE ASSESSEE ITA NO.2236/BANG/2018 PAGE 10 OF 17 AND THE SAME WAS SERVED AS A PART OF CASH DEPOSIT. HE RELIED ON THE FOLLOWING JUDGMENTS:- CIT V. ORISSA CORPORATION PVT. LTD. (1986) 71 ITR 4 27 (SC) BALADIN RAM V. CIT (1969) 71 ITR 427 (SC) SMT. MANJUSHREE V. ITO IN ITA NO.374/BANG/2017 DATE D 28.4.2017. SUBBAIAH RAMANATHAN V. ITO IN ITA NO.2314/MDS/2013 DATED 19.6.2015 23. THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 24. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAS PRODUCED SALE AGREEMENT DATE 10.7. 2012 ENTERED INTO BY MR. T.C. JAGADISH GOWDA IN FAVOUR OF MR. R. VENK ATE GOWDA AND RECEIVED AN ADVANCE OF RS.75 LAKHS. COPY OF THIS S ALE AGREEMENT IS PLACED AT PAGES 39 TO 43 OF PB (KANNADA & ENGLISH VERSIONS ). COPY OF CONFIRMATION LETTER FROM MR. VENKATE GOWDA IS PLACE D AT PAGES 44 & 45 OF PB. THE ASSESSEE EXPLAINED THE SAME BEFORE THE LOW ER AUTHORITIES WHICH WAS REJECTED ON THE GROUND THAT VENKATE GOWDA IS AN AGRICULTURIST HAVING NO SOURCES OF INCOME, HE WAS NOT ASSESSED TO INCOME TAX AND DID NOT HAVE PAN. IN OTHER WORDS, THE AO DOUBTED THE CREDITWORT HINESS OF VENKATE GOWDA. IN OUR OPINION, THE PROVISIONS OF SECTION 6 8 OF THE ACT GIVES A STATUTORY RECOGNITION TO THE PRINCIPLE THAT CASH DE POSITS WHICH ARE NOT SATISFACTORILY EXPLAINED MAY BE ASSESSED AS INCOME OF THE ASSESSEE. THIS PROVISION EMPOWERS THE AO TO ASSESS INCOME REGARDIN G CASH CREDIT. IF THE AO IS SATISFIED WITH REGARD TO GENUINENESS, CREDIT WORTHINESS AND IDENTITY OF THE PARTIES, HE MAY NOT TREAT IT AS INCOME OF THE A SSESSEE. IN OTHER WORDS, HE HAS RIGHT TO TREAT IT AS INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. THE SATISFACTION OF THE AO IS THE BASIS FOR MAKING ADDITION U/S. 68 OF THE ACT. THE SATISFACTION MUST BE DERIVED FROM THE ITA NO.2236/BANG/2018 PAGE 11 OF 17 RELEVANT FACTS ON THE BASIS OF PROPER ENQUIRY. IT IS WELL SETTLED THAT THE ASSESSEE IS REQUIRED TO PRIMA FACIE PROVE THE TRANSACTION WHICH RESULTS IN CASH CREDIT IN HIS BOOKS OF ACCOUNT. SUCH PROOF IN CLUDES THE PROOF OF IDENTITY AND CAPACITY OF THE CREDITOR TO ADVANCE MO NEY AND GENUINENESS OF THE TRANSACTION. IN THIS LEGAL BACKGROUND, WHEN WE EXAMINE THE FACTS OF THIS ADDITION IN THE INSTANT CASE, WHETHER THE AO W AS RIGHT IN MAKING THE ADDITION TOWARDS ADVANCE RECEIVED FROM VENKATE GOWD A U/S. 68 OF THE ACT, IN OUR OPINION, THE ANSWER IS IN FAVOUR OF THE ASSE SSEE. THE ASSESSEE IN THE PRESENT CASE HAS FILED THE SALE AGREEMENT ENTER ED BY MR. JAGADISH GOWDA, HUSBAND OF THE ASSESSEE WITH MR. VENKATE GOW DA. ONCE THE ASSESSEE HAS FILED THESE AGREEMENTS, IT IS THE DUTY OF THE AO TO EXAMINE THE PURCHASER OF THE PROPERTY WHO PAID THE AMOUNT T O THE BUYER. THE ASSESSEE HAS PLACED THE NECESSARY AGREEMENT AND CON FIRMATION LETTER WHICH ARE NOT AT ALL VERIFIED BY THE AO. WITHOUT V ERIFICATION, HE HAS TAKEN THE DECISION AGAINST THE ASSESSEE WHICH IS IMPROPER . ON A PERUSAL OF THESE DETAILS, WE FIND THAT THIS AGREEMENT PUT FORT H BY THE ASSESSEE CANNOT BE REJECTED AS FALSE OR BOGUS. AS PER THE AGREEMEN T OF SALE, THE ASSESSEES HUSBAND, JAGADISH GOWDA HAS RECEIVED THE MONEY AND GIVEN THE SAME TO THE ASSESSEE. THIS GOES TO PROVE THE F ACT UNDOUBTEDLY THAT THE ASSESSEES HUSBAND RECEIVED THE MONEY FROM VENKATE GOWDA WHICH IS A GENUINE TRANSACTION AND IS SUPPORTED BY VALID EVIDE NCE. HAD IT BEEN A CASE OF THE AO THAT IDENTITY OF THE LENDER IS NOT K NOWN AND GENUINENESS AND CREDITWORTHINESS OF THE PURCHASER IS DOUBTFUL, HE SHOULD HAVE CONDUCTED FURTHER ENQUIRY, WHICH HE FAILED TO DO SO . THE AO HAS NOT DOUBTED THE IDENTITY OR GENUINENESS OF THE TRANSACT ION, BUT HIS FINDINGS ARE BASED ON SUSPICION AND SURMISES AND NOT ON ANY COGE NT EVIDENCE. MORE SO, HE WANTED THE ASSESSEE TO PROVE THE SOURCE OF S OURCE, WHICH IS NOT REQUIRED AND IT IS THE DUTY OF THE AO TO CONDUCT FU RTHER ENQUIRY IF HE FEELS SO. IN THIS CASE, THE AO HAS FAILED TO BRING ON RE CORD ANY EVIDENCE THAT THE TRANSACTION BETWEEN JAGADISH GOWDA AND VENKATE GOWD A IS A SHAM ITA NO.2236/BANG/2018 PAGE 12 OF 17 TRANSACTION OR THAT THE MONEY IS NOT RECEIVED IN TH E FORM OF ADVANCE. THE ADDITION MADE BY THE AO IS ON FLIMSY GROUNDS. THER EFORE, WE ARE OF THE CONSIDERED VIEW THAT ONCE THE INITIAL BURDEN CAST O N THE ASSESSEE HAS BEEN SATISFACTORILY PROVED WITH NECESSARY EVIDENCE, THEN THERE IS NO REASON FOR THE AO TO DOUBT THE GENUINENESS OF THE TRANSACTION BETWEEN THE PARTIES TO MAKE AN ADDITION U/S. 68 OF THE ACT. THEREFORE, WH EN THE ASSESSEE HAS DISCHARGED THE INITIAL BURDEN BY FILING THE NECESSA RY EVIDENCE TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTIES, THERE IS NO QUESTION OF MAKING ADDITION U/S. 68 OF THE ACT B Y THE AO ON THIS COUNT. 25. AS DISCUSSED ABOVE, IN THE CASE OF RAJANNA ALSO , THE ASSESSEE HAS FILED THE AGREEMENT ENTERED BY THE ASSESSEES HUSBA ND, MR. JAGADISH GOWDA IN FAVOUR OF MR. RAJANNA WHICH IS PLACED AT P AGES 31 TO 35 OF THE PB AND CONFIRMATION LETTER AND AFFIDAVIT AT PAGES 3 6 & 38 OF THE PB. THESE EVIDENCE SHOW THAT THE ASSESSEES HUSBAND, JAGADISH GOWDA HAS RECEIVED THE ADVANCE OF RS.50 LAKHS FROM MR. RAJANN A TOWARDS THE SALE OF LAND. THIS ADVANCE CANNOT BE CONSIDERED AS UNEXPLA INED CREDIT IN THE HANDS OF THE ASSESSEE. THE SOURCE IS EXPLAINED AS RECEIVED FROM ASSESSEES HUSBAND, WHICH IN TURN WAS RECEIVED FROM THE PURCHASER, VENKATE GOWDA. FURTHER THE CASE LAW RELIED ON BY T HE LD. AR IN THE CASE OF SUBBAIAH RAMANATHAN V. ITO, ITA NOS.2314 & 2315/MDS /2013 DATED 19.6.2015 SUPPORTS THE CASE OF THE ASSESSEE WHEREIN IT WAS HE LD AS UNDER:- 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL ON RECORD. ACCORDING TO SECTION 68 OF THE INCOME TA X ACT, THE ASSESSEES OUGHT TO HAVE PROVED NATURE AND SOURCE OF CREDITS APPEARING IN HIS/HER BOOKS OF ACCOUNTS. IN OTHER WO RDS, THE ASSESSEE HAS TO PROVE NOT ONLY IDENTITY OF THE CRED ITORS BUT ALSO TO PROVE THAT CREDITORS HAD THE REQUISITE CAPACITY TO ADVANCE THE LOAN AND ALSO PROVE THE GENUINENESS OF THE TRANSACTION. IN THE PRESENT CASE, ACCORDING TO THE LOWER AUTHORITIES THE ASSESS EE HAS NOT DISCHARGED THE BURDEN CAST UPON THEM, EVEN AFTER FI LING ITA NO.2236/BANG/2018 PAGE 13 OF 17 CONFIRMATION LETTER FROM THE CREDITOR AND ALSO SOUR CE OF CREDIT FROM WHERE LENDER HAS BORROWED MONEY. BUT NOW THE Q UESTION WHETHER SUCH ONUS HAS BEEN DULY DISCHARGED BY THE A SSESSEE OR AS HAS BEEN SHIFTED TO THE REVENUE CAN BE DETERMINED A FTER EVALUATION OF THE SURROUNDING CIRCUMSTANCES. THERE CANNOT BE ONE GENERAL OR UNIVERSAL PROPOSITION OF LAW WHICH COULD BE THE GUIDING HARDSTICK IN THE MATTER. IN THE PRESENT CAS E, THE ASSESSEES FILED CONFIRMATION LETTER FROM SHRI. R. BALASUBRAMA NIAN WHO HAD ADVANCED THE IMPUGNED MONEY TO THESE ASSESSEES. IT WAS ALSO STATED BY HIM IN HIS SWORN STATEMENT RECORDED BY TH E ASSESSING OFFICER THAT HE HAS ADVANCED MONEY TO THESE ASSESSE ES WHICH WAS BORROWED FROM M/S. MAHALAKSHMI ESTATES, REAL ESTATE CONSULTANTS AND FLAT PROMOTERS, NO.1, SRINIVASAPILL AI STREET, WEST MAMALAM, CHENNAI THROUGH DEMAND DRAFT AND THE SAME WAS PASSED ON TO THESE ASSESSEES AS LOAN. FURTHER, M/S. MAHALAKSHMI ESTATES ALSO CONFIRMED THAT THEY HAVE A DVANCED MONEY TO SHRI. R. BALASUBRAMANIAN WHOSE PAN NO. HAS ALSO BEEN GIVEN. INSPITE OF THIS, LOWER AUTHORITIES WERE NOT READY TO ACCEPT THE TRANSACTION AS GENUINE. THERE WAS A DOUB T IN THE MIND OF THE ASSESSING OFFICER REGARDING GENUINENESS OF T HE TRANSACTION. IN THE PRESENT CASE THERE IS POSITIVE EVIDENCE LIKE (1) EXISTENCE OF CREDITORS. (2) THEIR PAN NOS. (3) THE CONFIRMATION LETTER FROM THEM. THE CREDITORS GIVEN LOANS TO THE ASSESSEES THROUGH DEMAND DRAFT AND THE ASSESSEES FURNISHED THE DETAILS OF THE SAME ALONGWITH CONFIRMATION LETTER AND ALSO EXPLAINED MODE OF TRAN SACTION, WHICH IS THROUGH BANKING CHANNEL AND ALSO REPAID THE SAID LOAN THROUGH BANKING CHANNEL. CONSIDERING THESE FACTS, IN OUR OP INION THE ASSESSEE HEREIN HAD DISCHARGED THEIR ONUS PLACED ON THEM. THE FACT THAT CREDIT ENTRY SHOWN IN THE NAME OF A PERSO N OTHER THAN THE ACTUAL LENDER OF THE MONEY WOULD NOT BY ITSELF, BE RELEVANT WHERE COGENT EVIDENCE IS INDEPENDENTLY AVAILABLE. IN THE CASE OF CIT VS. ORISSA CORPORATION P. LTD 159 ITR 78 (SC) WHEREIN I T WAS HELD THAT THE ASSESSEE PRODUCED BEFORE THE ASSESSING OFF ICER LETTER OF CONFIRMATION BY CREDITORS, DISCHARGED ONUS AND PART ICULARS OF THE DIFFERENT CREDITORS WHOSE INCOME TAX FILES NOS WERE WITH THE DEPARTMENT. THE SUMMONS ISSUED TO THE CREDITORS BY THE ITA NO.2236/BANG/2018 PAGE 14 OF 17 ASSESSING OFFICER U/S.131 AT THE ADDRESSES GIVEN BY THE ASSESSEE WERE RETURNED UNSERVED WITH THE ENDORSEMENT LEFT . THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTH Y. THUS, THE SUPREME COURT AFFIRMED THE VIEW OF THE HIGH COURT A S WELL AS THE TRIBUNAL THAT THE ASSESSEE HAD DISCHARGED THE BURDE N LAY ON IT. IN OUR OPINION, ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND SUCH PERSON OWED THE CREDITS WHICH ARE FOUND IN THE BOOKS OF ACCOUNTS OF THE ASSESSEES, THE ONUS STAND DISCHARGE D AND THE ASSESSEE IS NOT FURTHER REQUIRED TO PROVE THE SOURC E OF INCOME FROM WHICH THE CREDITORS WOULD HAVE ACQUIRED THE MO NEY AND, THEREFORE, ADDITION U/S.68 CANNOT BE SUSTAINED IN T HE ABSENCE OF ANYTHING TO ESTABLISH THAT SOURCE OF CREDITORS DEPO SIT, FLEW FROM THE ASSESSEE ITSELF. IN OUR OPINION, CREDITOR HAVIN G APPEARED BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE SUM MONS ISSUED U/S.131 OF THE ACT BEFORE THE ASSESSING OFFICER AND CONFIRMED BY FILING OF CONFIRMATION LETTER, THE TRANSACTION CANN OT BE DOUBTED. THE ASSESSEE DISCHARGED ONUS PLACED UPON THEM BY ES TABLISHING THE IDENTITY OF THE CREDITOR, HIS CREDIT WORTHINESS , GENUINENESS OF THE TRANSACTION. BEING SO, IN OUR OPINION THE ADDIT ION MADE IN THIS CASE U/S.68 IS UNWARRANTED. THE SAME IS DELETED. 26. FURTHER, IN THE PRESENT CASE, THE EXPLANATION G IVEN BY THE ASSESSEE IS PRIMA FACIE REASONABLE WHICH CANNOT BE REJECTED BY THE AO WITHO UT ANY COGENT GROUND AND THE AO CANNOT ACT UNREASONABLY OR ARBITRARILY. THE ASSESSEE HAS DISCHARGED THE INITIAL BURDEN CAST ON HER BY SUBMITTING PRIMA FACIE REASONABLE EVIDENCE BY STATING THAT ASSESSEE RECEIV ED THE SAID AMOUNT FROM HER HUSBAND WHO IN TURN RECEIVED IT AS ADVANCE AMOUNT OF RS.75 LAKHS FROM VENKATE GOWDA AND RS.50 LAKHS FROM RAJANNA. OUT OF THIS, THE ASSESSEE RECEIVED RS.1.25 CRORES. THE AS SESSEE ALSO PLACED THE NECESSARY COPIES OF SALE AGREEMENTS ENTERED BY THE ASSESSEES SPOUSE, MR. JAGADISH AND FURNISHED CONFIRMATION LETTERS WHI CH WERE OUTRIGHTLY REJECTED BY THE AO. THE AO COULD REJECT THE SAME E ITHER ON INHERENT WEAKNESS IN THE EXPLANATION OR REBUT BY PUTTING TO THE ASSESSEE SOME INFORMATION OR EVIDENCE WHICH IS IN HIS POSSESSION. THE AO CANNOT BY MERELY REJECTING A REASONABLY GOOD EXPLANATION BY C ONVERTING IT AS NO ITA NO.2236/BANG/2018 PAGE 15 OF 17 PROOF. IN OUR OPINION, THE EXPLANATION OFFERED BY THE ASSESSEE WAS REASONABLE AND GENUINE EXPLANATION CANNOT BE REJECT ED BY THE AO WITHOUT ANY COGENT MATERIAL. 27. IN THE PRESENT CASE, THE AO WANTS THE ASSESSEE TO PROVE THE SOURCE OF SOURCE OF CREDITS WHICH IS NOT REQUIRED U/S. 68 IN THE CASE OF THESE KIND OF CREDITS. PRIMARILY THE ASSESSEE HAS ESTABLISHED TH E SOURCE OF CREDIT THAT SHE HAS RECEIVED IT FROM HER HUSBAND AND ALSO BROUG HT ON RECORD THAT ASSESSEES HUSBAND IS HAVING VAST AGRICULTURAL LAND S. THE OWNING OF AGRICULTURAL LANDS BY ASSESSEES SPOUSE IS NOT AT A LL DOUBTED BY THE AO. IT IS ALSO BROUGHT ON RECORD BY THE ASSESSEE THAT SHE IS ALSO OWNING AGRICULTURAL LAND AND ENTERED INTO SALE DEED IN FAVOUR OF M/S. D REAMZ INFRA INDIA PVT. LTD. ON 05.9.2012 IN RESPECT OF CONVERTED PROPERTY BEARING SURVEY NO.121/3 (OLD NO.121/1) MEASURING 1 ACRE 10 GUNTAS AT BOGANAHALI VILLAGE, VARTHUR HOBLI, BANGALORE EAST TALUK FOR A CONSIDERATION OF RS.3,20,00,000. THE GENUINENESS OF ASSESSEES SPOU SE ENTERED INTO SALE AGREEMENTS WITH VARIOUS PARTIES CANNOT BE DOUBTED W ITHOUT ANY MATERIAL IN HAND. 28. FURTHER PROVISION TO SECTION 68 INSERTED W.E.F. 1.4.2013 REQUIRES THE ASSESSEE TO PROVE THE SOURCE OF SOURCE. THIS PROVI SO SHALL APPLY TO FUNDS COLLECTED BY A CLOSELY HELD COMPANY FROM RESIDENT S HAREHOLDERS. HENCE THE SAME WILL NOT BE APPLICABLE TO THE ASSESSEE AS SHE IS AN INDIVIDUAL. 29. BEING SO, IN OUR OPINION, THE ASSESSEE DISCHARG ED THE BURDEN CAST UPON HER TO EXPLAIN THE IDENTITY OF PARTIES, CAPACI TY AND GENUINENESS OF THE TRANSACTION. ACCORDINGLY, THIS ADDITION IS DELETED . ITA NO.2236/BANG/2018 PAGE 16 OF 17 CASH DEPOSIT OF RS.28 LAKHS 30. THE AO OBSERVED THAT A SUM OF RS. 28,00,000 BEI NG CASH DEPOSITS REMAINED UNEXPLAINED AND UN-RECONCILED AND THEREFOR E CONSIDERED IT AS INCOME OF THE ASSESSEE. THE CIT(APPEALS) CONFIRMED THE SAME. 31. THE LD. AR CONTENDED THAT THE AO HAS STATED THA T A SUM OF RS. 28,00,000 REMAINED UNEXPLAINED AS UN-RECONCILED WITHOUT ANY B ASIS. THE AO HAS NOT MENTIONED AS TO HOW A SUM OF RS. 28,00,000 REMAINED UNEXPLAINED AND UN-RECONCILED. HE HAS NOT BROUGHT O N RECORD AS TO THE MATERIAL EVIDENCE WITH REFERENCE TO WHICH THE EXPLA NATION AND RECONCILIATION WAS SOUGHT FOR. WITHOUT DOING SO, HE CAME TO THE CONCLUSION ON ASSUMPTION THAT A SUM OF RS. 28,00,000 BEING THE ALLEGED CASH DEPOSITS REMAINED UNEXPLAINED AND UN-RECONCILED. THEREFORE T HE AO WAS NOT JUSTIFIED TO HOLD THAT THE SUM OF RS. 28,00,000 REPRESENTED INCOME OF THE ASSESSEE MERELY BY SAYING THAT IT REMAINED UNEXPLAINED AND UN- RECONCILED. IT WAS SUBMITTED THAT THE ASSESSEES S POUSE RECEIVED RS.50 LAKHS AS AN ADVANCE FROM N. GOPALAIAH THE INTENDING BUYER OF THE AGRICULTURAL LAND AND THIS FACT HAS BEEN ACCEPTED B Y THE AO. THE ASSESSEE UTILIZED AN AMOUNT OF RS.28 LAKHS OUT OF THIS ADVAN CE TO DEPOSIT INTO THE BANK ACCOUNT AND THE DEPOSIT OF RS.28 LAKHS REMAINS EXPLAINED AND NO ADDITION IS WARRANTED IN THIS REGARD. 32. THE LD. DR SUPPORTED THE ORDER OF THE REVENUE A UTHORITIES. 33. AFTER CONSIDERING THE RIVAL SUBMISSIONS, THE AS SESSEE HAS EXPLAINED THAT RS.28 LAKHS HAS BEEN DEPOSITED INTO THE BANK A CCOUNT OUT OF THE ADVANCE OF RS.50 LAKHS RECEIVED FROM N. GOPALAIAH. THE AO ACCEPTED THE ADVANCE OF RS.50 LAKHS RECEIVED FROM N. GOPALAIAH, BUT HE HAS DOUBTED THE DEPOSIT OF RS.28 LAKHS OUT OF ADVANCE OF RS.50 LAKHS INTO THE ASSESSEES BANK ACCOUNT. WE FIND THAT RS.50 LAKHS RECEIVED FROM N. ITA NO.2236/BANG/2018 PAGE 17 OF 17 GOPALAIAH AS ADVANCE BY ASSESSEES HUSBAND IS AVAIL ABLE TO THE ASSESSEE TO DEPOSIT RS.28 LAKHS IN THE BANK ACCOUNT. THE AO HAS NOT DOUBTED THE RECEIPT OF RS.50 LAKHS BY THE ASSESSEES SPOUSE FRO M N. GOPALAIAH. THE SOURCE IS EXPLAINED. HENCE, WE DELETE THIS ADDITIO N. 34. SINCE WE HAVE DELETED ALL THE ADDITIONS MADE U/ S. 68 OF THE ACT, WE REFRAIN FROM GOING INTO OTHER GROUNDS OF APPEAL ARG UED BY THE ASSESSEE WHICH ARE ONLY ACADEMIC IN NATURE. 35. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS AL LOWED. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF SEPTEMBER, 2021. SD/- SD/- ( GEO RGE GEORGE K. ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND SEPTEMBER, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.