Shri Anil Yashpal Khosla, Ahmedabad V. The Income tax Officer,Ward-7(2), Ahmedabad

ITA 2260/AHD/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8952 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PF JAIN
• Keywords: Period of limitation; Additional evidence; Corroborative evidences; Time period of passing order; Retraction; Reason to believe
• Section: 133(6); 131

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 2259/AHD/2012 / A.Y. 2009-10 SMT. GEETA ANIL KHOSLA, B-24, KONARK KARISHNA, NEAR RENUKA HALL, VASTRAPUR, AHMEDABAD PAN : AFYPK 5596 C VS THE INCOME-TAX OFFICER, WARD 7 (2), AHMEDABAD ./ ITA NO. 2260/AHD/2012 / A.Y. 2009-10 SHRI ANIL YASHPAL KHOSLA, B-24, KONARK KARISHNA, NEAR RENUKA HALL, VASTRAPUR, AHMEDABAD PAN : AFYPK 8876 P VS THE INCOME-TAX OFFICER, WARD 7 (2), AHMEDABAD / (APPELLANT) / (RESPONDENT) BY ASSESSEE : SHRI P.F. JAIN, AR BY REVENUE : SHRI JAMES KURIAN, SR DR / DATE OF HEARING : 07/03/2017 / DATE OF PRONOUNCEMENT: 17/03/2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THESE TWO ABOVE CAPTIONED APPEALS BY DIFFERENT ASSE SSEES ARE DIRECTED AGAINST THE RESPECTIVE ORDER OF THE LEARNE D COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMEDABAD OF EVEN DATE 24 .08.2012 PASSED FOR ASSESSMENT YEAR 2009-10. SINCE THE ISSUES INVOL VED IN BOTH THE APPEALS ARE IDENTICAL, THESE WERE HEARD TOGETHER AND ARE BE ING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 2 - ITA NO.2259/AHD/2012 ASSESSEE- SMT. GEETA ANIL KH OSLA 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER:- 1. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND O N FACTS IN UPHOLDING ADDITION OF RS.10,54,000/- IN RESPECT OF DEPOSIT MA DE IN ICICI BANK WITHOUT PROPERLY CONSIDERING AND APPRECIATING THE F ACTS AND EXPLANATION OF THE APPELLANT. 2. HE HAS ERRED IN LAW AND ON FACTS IN TREATING THE BUSINESS OF CLOTH AS AN AFTERTHOUGHT. 3. HE HAS ALSO ERRED IN LAW AND ON FACTS IN NOT C ONSIDERING THE AFFIDAVIT OF SHRI PIYUSH PATEL CONFIRMING THE SALES MADE TO T HE APPELLANT AND ALSO TERMING THE AFFIDAVIT AS SELF SERVING DOCUMENT. 4. HE HAS ALSO ERRED IN TREATING THE CASH DEPOSIT M ADE IN THE BANKS AS OUT OF UNDISCLOSED SOURCES. 5. ON THE FACTS THE CASH DEPOSITS IN THE BANKS MADE BY THE APPELLANT OUGHT TO HAVE BEEN HELD AS EXPLAINED AND THE ADDITI ON OF RS.10,54,000/- OUGHT NOT TO HAVE BEEN UPHELD. 3. BRIEFLY STATED, THE ASSESSEE FILED RETURN OF INC OME DECLARING TOTAL INCOME OF RS.3,81,652/- FOR THE RELEVANT ASSESSMENT YEAR 2009-10. THE INCOME WAS DECLARED UNDER THE HEAD SALARY, BUSINES S AND OTHER SOURCES FOR THE YEAR UNDER CONSIDERATION. THE CASE WAS SEL ECTED FOR SCRUTINY ASSESSMENT. IT WAS FOUND BY THE ASSESSING OFFICER THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS DEPOSITED CAS H OF RS.18,70,000/- IN AXIS BANK LTD, VASTRAPUR BRANCH, AHMEDABAD AND ALSO CASH OF RS.10,54,000/- IN ICICI BANK, VASTRAPUR BRANCH, AHM EDABAD. THE ASSESSEE WAS REQUIRED TO PROVE THE SOURCE OF CASH S O DEPOSITED ALONGWITH SUPPORTING EVIDENCES. THE ASSESSEE CAME OUT WITH A SUBMISSION BEFORE THE ASSESSING OFFICER THAT THE CASH WAS DEPOSITED AGAIN ST THE AMOUNT RECEIVED ON SALE OF GOODS (CLOTH ITEMS) IN THE TRADING BUSIN ESS. IT WAS CLAIMED THAT ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 3 - THE SALE PROCEEDS SO RECEIVED IN CASH IN THE COURSE OF TRADING ACTIVITY WAS DEPOSITED IN THE BANK ACCOUNT. IN SUPPORT THEREOF, THE ASSESSEE SUBMITTED SALES BOOK AND CONFIRMATION FROM PURPORTED BUYERS. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT THE DIFFERENT TRADING CO NCERNS TO WHOM THE SALES WERE ALLEGEDLY MADE WERE NOT FOUND TO BE TRACEABLE AT THE ADDRESS GIVEN BY THE ASSESSEE. THE ASSESSING OFFICER EMBARKED INT O DEEPEST SCRUTINY OF VERSION OF THE ASSESSEE. THE ASSESSING OFFICER PBSE RVED THAT ON VERIFICATION OF CONFIRMATIONS OF CORRESPONDING PURCHASE PARTIES AGAINST SALES ALLEGEDLY MADE, IT WAS SEEN THAT THOUGH THE ASSESSEE HAS CLAI MED TO HAVE PURCHASED GOODS FROM APRIL 2008 ONWARDS FROM ONE M/S. UTSAV C ORPORATION AS WELL AS FROM M/S. JAY AMBE SALES CORPORATION FOR RS.4,99 ,000/- AND RS.4,75,000/- RESPECTIVELY; A PALTRY PAYMENT OF RS. 15,000/- IN AGGREGATE HAS BEEN CLAIMED TO BE GIVEN TO THE SUPPLIERS AND T HAT TOO AFTER THE LAST DATE OF PURCHASE WHICH WAS ON 11.09.2008 IN BOTH TH E CASES. AS PER ASSESSING OFFICER, IT IS UNNATURAL THAT ANY SUPPLIE R OF GOODS WOULD CONTINUE TO SUPPLY GOODS WITHOUT RECEIPT OF ANY PAY MENT FOR SALES MADE TO ASSESSEE. THE ASSESSING OFFICER ISSUED NOTICE O N THE SUPPLIERS UNDER SECTION 133(6) FOR VERIFICATION OF FACTS ASSERTED B Y ASSESSEE ON THIS SCORE. IN RESPONSE TO NOTICE UNDER SECTION 133(6) ISSUED ON THESE TWO PARTIES, ONE OF THE PURPORTED SUPPLIER OF THE GOODS M/S. JAY AMBE S ALES CORPORATION DENIED HAVING MADE ANY SUPPLY TO THE ASSESSEE AS CL AIMED AND THEREFORE, HE EXPRESSED HIS INABILITY TO PRODUCE THE COPY OF A CCOUNT OF THE ASSESSEE OR HER HUSBAND IN HIS BOOKS OF ACCOUNT AS CALLED FOR. STATEMENT OF THE PROPRIETOR OF SUPPLIER OF M/S. JAY AMBE SALES CORPO RATION, SHRI PIYUSH PATEL, WAS RECORDED BY THE ASSESSING OFFICER FOR SU CH AVERMENTS. IN THE STATEMENT SO RECORDED, THE SUPPLIER REFUSED TO ACKN OWLEDGE THE BILLS PURPORTEDLY ISSUED BY THEM TO THE ASSESSEE AGAINST THE IMPUGNED PURCHASES. THE COPY OF THE AFORESAID STATEMENT OF SHRI PIYUSH PATEL WAS ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 4 - PROVIDED TO THE ASSESSEE IN THE COURSE OF ASSESSMEN T PROCEEDINGS. IN RESPECT OF OTHER PARTY NAMELY, M/S. UTSAV CORPORATI ON, NOTICE U/S 133(6) WAS NOT RESPONDED TO BY THE SUPPLIER. IT WAS ASSERT ED ON BEHALF OF THE ASSESSEE THAT BILLS AND CONFIRMATION OF ACCOUNTS FU RNISHED BY THE ASSESSEE AND HER HUSBAND ARE GENUINE AND PROPER. THE ASSESS EE FURTHER INSISTED THAT THE ASSESSING OFFICER MAY AGAIN ASK OR INVESTI GATE HIS BUSINESS RELATIONSHIP WITH THE IMPUGNED PARTIES, IF SO CONSI DERED EXPEDIENT. THE ASSESSING OFFICER, HOWEVER, OBSERVED THAT THE PURPO RTED PURCHASE MADE IN COURSE OF ALLEGED TRADING OF CLOTH MERCHANDISE C OULD NOT BE SUBSTANTIATED BY THE ASSESSEE AT ALL. THE ASSESSIN G OFFICER FURTHER OBSERVED THAT THE ASSESSEE HAS NOT REQUESTED FOR AN Y CROSS-EXAMINATION OF DEPONENT SHRI PIYUSH PATEL, PROPRIETOR OF M/S. JAY AMBE SALES CORPORATION, WHO GAVE INCRIMINATING STATEMENT AGAIN ST THE ASSESSEE. FURTHER, IN THE ABSENCE OF ANY REPLY FROM ANOTHER P ARTY NAMELY UTSAV CORPORATION IN RESPONSE TO NOTICE UNDER SECTION 133 (6), THE ASSESSING OFFICER HELD THAT THE ENTIRE GAMUT OF EXPLANATION G IVEN BY THE ASSESSEE TO SUPPORT THE SOURCE OF CASH DEPOSITS IS WITHOUT ANY FACTUAL BASIS. THE ASSESSING OFFICER ACCORDINGLY TREATED THE CASH DEPO SIT OF RS.10,54,000/- DEPOSITED IN ICICI BANK AS UNDISCLOSED INCOME OF TH E ASSESSEE. SIMILARLY, CASH DEPOSIT OF RS.18,70,000/- IN AXIS BANK WAS FOU ND ATTRIBUTABLE TO HUSBAND OF THE ASSESSEE AND WAS THUS ADDED AS UNDIS CLOSED INCOME IN THE HANDS OF SHRI ANIL KHOSLA, HUSBAND OF THE ASSESSEE, IN ITA NO.2260/AHD/2012. 4. AGGRIEVED BY THE IMPUGNED ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). BEFOR E THE CIT(A), THE ASSESSEE ONCE AGAIN INSISTED THAT THE CASH DEPOSITS IN QUESTION IS SOURCED OUT OF CASH RECEIPTS DERIVED FROM TRADING OF CLOTH ITEMS . IN SUPPORT OF ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 5 - SUCH ASSERTIONS, THE ASSESSEE RELIED UPON SALES & P URCHASE DETAILS AND CONFIRMATION OF THE CREDITORS NAMELY M/S. UTSAV COR PORATION AND M/S. JAY AMBE SALES CORPORATION ALONG WITH THEIR PAN NUM BERS. THE CIT(A) NOTED THAT THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT DATED 22.12.2011 OF SHRI PIYUSH PATEL, PROPRIETOR OF M/S.JAY AMBE SALE CORPO RATION, IN COMPLETE REVERSAL OF HIS EARLIER STAND TAKEN THE STATEMENT R ECORDED. THE AFORESAID AFFIDAVIT SEEKING TO RETRACT EARLIER VERSION IN ORA L STATEMENT BEFORE THE ASSESSING OFFICER WAS STATED TO BE FILED BEFORE THE ASSESSING OFFICER ON THE DAY NEXT TO THE DATE OF THE ASSESSMENT ORDER. THE CIT(A) RE-APPRECIATED THE ENTIRE FACTS AND CAME TO THE CONCLUSION THAT TH E ACTION OF THE ASSESSING OFFICER CANNOT BE FAULTED. THE CIT(A) OBSERVED THAT AFFIDAVIT OF SHRI PIYUSH PATEL FILED IN THE OFFICE OF THE ASSESSING O FFICER AFTER THE PASSING OF THE ASSESSMENT ORDER, WHEREIN HE SEEKS TO CONFIRM T HE SALES AS CLAIMED BY THE ASSESSEE IN REVERSAL OF HIS EARLIER ORAL STATEM ENT BEFORE THE ASSESSING OFFICER DOES NOT CARRY ANY WEIGHT. SUCH AFFIDAV IT WAS ALLEGED TO BE A SELF-SERVING DOCUMENT AS AN AFTERTHOUGHT. IT WAS, I N ESSENCE, OBSERVED THAT THE CASH DEPOSITS SO MADE BY THE ASSESSEE AND HER H USBAND ARE NOT SUPPORTABLE BY ANY INDEPENDENT TANGIBLE DOCUMENT. THE CIT(A) FURTHER NOTED THAT THE SO-CALLED TRADING BUSINESS OF THE AS SESSEE IS NOT EVIDENCED BY WAY OF ANY REGISTRATION WITH ANY AUTHORITY, I.E. , NEITHER WITH SALES TAX DEPARTMENT NOR WITH ANY OTHER AUTHORITY TO CORROBOR ATE THAT HIS CLAIM OF DOING TRADING BUSINESS WAS GENUINE AND NOT AN AFTER THOUGHT. THE CIT(A) ALSO NOTED THAT THE STATEMENT OF SHRI PIYUSH PATEL WOULD SHOW THAT HE WAS NOT AT ALL DEALING IN CLOTH BUT DEALING IN INDUSTRI AL GOODS AND HARDWARE ITEMS WHICH ARE NOT RELATED TO THE LINE OF BUSINESS CLAIMED BY THE ASSESSEE. IN SUBSTANCE, THE CIT(A) OBSERVED THAT THE ENTIRE M ODUS TO SUPPORT THE CASH DEPOSITS OUT OF NON-EXISTENT TRADING BUSINESS IS AN EYEWASH AND ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 6 - WITHOUT ANY DISCERNIBLE BASIS. THE CIT(A) ACCORDIN GLY UPHELD THE ACTION OF THE ASSESSING OFFICER AND DISMISSED THE APPEAL O F THE ASSESSEE. 5. AGGRIEVED THERETO, THE ASSESSEE IS IN APPEAL BEF ORE THE ITAT. 6. THE LD. AR FOR THE ASSESSEE, AT THE OUTSET, SUB MITTED THAT THE FACTS OF BOTH THE CASES IN APPEAL ARE ON IDENTICAL FOOTING. THE ASSESSEE HEREIN IS WIFE OF SHRI ANIL YASHPAL KHOSLA WHOSE APPEAL HAS A LSO BEEN COMBINED ALONG WITH THE PRESENT APPEAL OWING TO SIMILARITY I N FACTS. COMING TO THE FACTS OF THE PRESENT ASSESSEE, THE LD. AR SUBMITTED THAT CASH DEPOSIT OF RS.10,54,000/- IN QUESTION IS SOURCED OUT OF REALIZ ATION OF SALE PROCEEDS OF GOODS IN CASH AND THEREFORE, THE ACTION OF THE REVE NUE IN HOLDING THE CASH DEPOSITS AS UNEXPLAINED INCOME IS TOTALLY UNWARRANT ED. ADDRESSING THE CONCERN RAISED BY THE ASSESSING OFFICER ON BONA FID ES OF THE TRANSACTIONS AND CORRESPONDING PURCHASES OF THE GOODS SUPPLIED B Y UTSAV CORPORATION AND JAY AMBE SALES CORPORATION, IT WAS SUBMITTED TH AT PROPRIETOR OF JAY AMBE SALES CORPORATION HAS APPEARED BEFORE THE ASSE SSING OFFICER IN RESPONSE TO NOTICE UNDER SECTION 133(6). HOWEVER, THE STATEMENT WAS FORCEFULLY OBTAINED FROM THE SUPPLIER RUNNING ADVER SE TO THE ASSESSEE. THE STATEMENT GIVEN UNDER DURESS IS NOT A RELIABLE PIEC E OF EVIDENCE. TO SUPPORT HIS PLEA, THE LD. AR CLAIMED THAT THE SUPPL IER HAS GIVEN AFFIDAVIT IN RETRACTION OF THE ORAL STATEMENT GIVEN EARLIER BEFO RE THE ASSESSING OFFICER. THE AFFIDAVIT WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ON 23.12.2011. THE ASSESSMENT ORDER HAS HOWEVER BEEN PASSED BY THE ASSESSING OFFICER ON 22.12.2011. THE LD.AR FURTHER EXHORTED THAT THE LAST HEARING TOOK PLACE ON 19.12.2011, WHEREIN THE ASSES SEE FILED THE REPLY AS RECORDED IN THE ASSESSMENT ORDER. THERE WAS NO JUST IFICATION TO PASS THE ASSESSMENT ORDER IMMEDIATELY THEREAFTER ON 22.12.20 11 IN SUCH AN UNHOLY HASTE. AS REGARDS THE OTHER SUPPLIER M/S. UTSAV CO RPORATION, THE LD. AR ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 7 - SUBMITTED THAT NON-ATTENDANCE BY THE SUPPLIER IN RE SPONSE TO NOTICE UNDER SECTION 133(6) IS NOT FATAL TO THE CASE OF THE ASSE SSEE AND NO ADVERSE INFERENCE CAN BE DRAWN MERELY BECAUSE OF THE NON-AT TENDANCE OF THE PARTY. IN RESPONSE TO THE QUERY FROM THE BENCH ON PAYMENT ASPECT OF PURCHASES, THE LD. AR SUBMITTED THAT A TOTAL SUM OF RS.15,000/ - HAS BEEN PAID AGAINST THE PURCHASE OF RS.9,74,000/- AND BALANCE PAYMENT A GAINST THE PURCHASES REMAINED OUTSTANDING. THE LD. AR SUBMITTED THAT TH E ASSESSING OFFICER HAS ASSUMED THE TRANSACTIONS OF PURCHASE AND SALES TO BE NON-GENUINE WITHOUT MAKING PROPER INVESTIGATIONS OR FURTHER ENQ UIRY AS REQUESTED IN THE LETTER FILED DATED 19.12.2011. THE LD. AR VEHE MENTLY CONTENDED THAT AFFIDAVIT OF THE SUPPLIER IN NEGATION OF THE FACTS RECORDED IN THE STATEMENT BY THE ASSESSING OFFICER WERE CRUCIAL WHICH HAS NOT BEEN TAKEN INTO ACCOUNT. THE CROSS-EXAMINATION OF THE STATEMENT OF THE SUPPLIER WAS ALSO NOT GIVEN. THEREFORE, THE PRINCIPLES OF NATURAL JU STICE HAVE BEEN SERIOUSLY OFFENDED IN THE PRESENT CASE. TO SUPPORT ITS CASE, THE LD. AR RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF KALARA GLUE FACTORY, 167 ITR 498 (SC), FOR THE PROPOSITION THAT IN THE ABSENCE OF CROSS- EXAMINATION OF THE STATEMENT OF THE THIRD PARTY, TH E CONCLUSION REACHED BY THE ASSESSING OFFICER REQUIRES TO BE SET ASIDE. TH E LD. AR NEXT RELIED UPON THE DECISION OF THE MADHYA PRADESH HIGH COURT IN TH E CASE OF PRAKASHCHAND NAHTA, 301 ITR 134 (MP), FOR THE PROPO SITION THAT IF THE ASSESSING OFFICER NOT HAVING SUMMONED THE SUPPLIER UNDER SECTION 131 IN SPITE OF THE REQUEST OF THE ASSESSEE, THE EVIDENCE OF THE SUPPLIER COULD NOT HAVE BEEN USED AGAINST THE ASSESSEE. THE LD. AR TH US CONTENDED THAT THE ASSESSMENT ORDER IS VITIATED. THE LD. AR NEXT RELIE D UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TEKRAM, 93 DTR 350 (SC), TO SUBMIT THAT WHEN THE ADDITIONAL EVIDENCE IN THE FOR M OF AFFIDAVIT WAS FILED WHICH IS RELEVANT, THE ASSESSING OFFICER OUGHT TO H AVE LOOKED INTO THE ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 8 - SAME BEFORE COMING TO ANY CONCLUSION ON THE ISSUE. THE LD. AR ALSO RELIED UPON THE DECISION OF THE DELHI TRIBUNAL IN THE CASE OF CHEIL INDIA PVT LTD, 172 TTJ 302, WITH A PRAYER THAT THE MATTER MAY BE S ET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CONTENTS OF THE AF FIDAVIT. THE LD. AR NEXT RELIED UPON THE DECISION OF THE ITAT IN THE CASE OF ANAR A. SHAH IN ITA NO.672/AHD/2015, ORDER DATED 29.05.2015, FOR SETTIN G ASIDE THE ORDER OF THE ASSESSING OFFICER AS NO REASONABLE TIME WAS GRA NTED TO THE ASSESSEE TO CONFRONT THE STATEMENT OF ONE OF THE SUPPLIERS. TH E LD. AR ALSO PLACED RELIANCE UPON THE DECISION OF THE HONBLE GUJARAT H IGH COURT IN THE CASE OF ZENITH PROCESSING MILLS VS. CIT, 219 ITR 721 (GUJ.) , TO SUBMIT THAT SHOW- CAUSE NOTICE OUGHT TO HAVE BEEN ISSUED TO THE ASSES SEE BEFORE MAKING ADDITIONS. THE LD. AR ACCORDINGLY SUBMITTED THAT T HE ORDER OF THE ASSESSING OFFICER IS NOT SUSTAINABLE IN LAW AND DES ERVES TO BE SET ASIDE. 7. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS COME OUT WITH A CONCOCTED STORY TO EXPLAIN THE CASH DEPOSIT IN ICICI BANK. THE ASSESS EE COULD NOT EXPLAIN THE PURPORTED PURCHASES MADE AGAINST THE PURPORTED CASH SALE AND THEREFORE, THE ENTIRE SO CALLED SALES PURPORTEDLY MADE BY THE ASSESSEE IS NON-GENUINE AND CANNOT BE TAKEN AS SOURCE OF CASH DEPOSITS. THE LD. DR ACCORDINGLY SUBMITTED THAT NO INTERFERENCE WITH THE ORDER OF TH E CIT(A) IS CALLED FOR. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE MATERIAL RE FERRED TO IN THE COURSE OF HEARING AND THE CASE LAWS CITED. THE SHORT QUESTIO N THAT ARISES FOR DETERMINATION IN THE CASE IS WHETHER THE CASH DEPOS ITS OF RS.10,54,000/- DURING THE YEAR IN THE BANK ACCOUNT OF THE ASSESSEE IS FACTUALLY SUPPORTABLE OR NOT. ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 9 - 8.1 THE FACTS ARE FEW AND SIMPLE. THE ASSESSEE, IN THE INSTANT CASE, CLAIMS TO HAVE DONE TRADING IN CLOTH (SUIT) ITEMS A ND THE SALE PROCEEDS AMOUNTING TO RS.10,34,388/- MADE TO VARIOUS PARTIES HAVE BEEN PURPORTEDLY RECEIVED IN CASH BETWEEN 01.04.2008 TO 14.09.2008. THIS CASH IS STATED TO HAVE BEEN DEPOSITED IN THE BANK ACCOUN T. AS PER THE SO CALLED SALES REGISTER, THE ASSESSEE IS NOT SHOWING ANY SAL ES AFTER 14.09.2008. THE SALE PROCEEDS JUST ABOUT MEET THE CASH DEPOSIT REQU IREMENTS. LIKEWISE, THE ASSESSEE HAS ALSO CLAIMED TO HAVE PURCHASED GOODS W ORTH RS.9,74,000/- DURING THE AFORESAID PERIOD OF 01.04.2008 TO 11.09. 2008 TO EFFECT SALES. THUS, THE TRADING IS CLAIMED TO HAVE BEEN MADE FOR NEARLY SIX MONTHS DURING THE YEAR. NO DETAILS OF SUCH TRADING IN PAST OR FUTURE IS BORNE OUT FROM RECORDS. AS NOTED BY THE ASSESSING OFFICER, TH E PURPORTED SUPPLIERS OF THE AFORESAID PURCHASES NAMELY UTSAV CORPORATION AND JAY AMBE SALES CORPORATION HAVE NOT BEEN PAID ANY AMOUNT AGAINST T HE SAID PURCHASES AT ALL, EXCEPT A PALTRY AMOUNT OF RS.15,000/-. THE EN TIRE SO CALLED PURCHASES IS THUS OUTSTANDING, WHEREAS THE SALES HAVE BEEN CL AIMED TO BE REALIZED IN CASH AND DEPOSITED IN BANK. IT IS NOT KNOWN AS TO WHEN THE PURPORTED OUTSTANDING LIABILITY TOWARDS PURCHASES HAS BEEN DI SCHARGED AND WHAT IS THE MODE OF PAYMENT. THE ASSESSING OFFICER, HAVING NOTED THE INEXPLICABLE STORY MADE OUT BY THE ASSESSEE, ISSUED NOTICE TO THE SO CALLED SUPPLIERS. WHILE ONE OF THE PARTIES HAS NOT APPEAR ED BEFORE THE ASSESSING OFFICER AT ALL, THE OTHER PARTY HAS CATEGORICALLY D ENIED THE BILLS ALLEGEDLY ISSUED BY THEM. THUS, NO OUTSTANDING LIABILITY AGA INST THE ALLEGED PURCHASES CAN BE SAID TO BE SUBSISTING IN SO FAR AS THE PURPORTED SUPPLIER ATTENDED BEFORE THE ASSESSING OFFICER. 8.2 WE TAKE NOTE THAT AS PER THE SUBMISSIONS OF THE ASSESSEE BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS NEVER ASKED FOR CROSS-EXAMINATION OF ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 10 - THE STATEMENT OF SHRI PIYUSH PATEL - A COPY OF WHIC H WAS DULY PROVIDED TO THE ASSESSEE. THE ASSESSEE HAS MERELY REQUESTED THE ASSESSING OFFICER TO REINVESTIGATE THE BUSINESS RELATIONSHIP WITH THE SU PPLIER VIZ. JAY AMBE SALES CORPORATION IN THE MANNER HE DEEMS FIT. 8.3. THE AFFIDAVIT, WITH A VIEW TO RETRACT THE EARL IER ORAL STATEMENT, IS ADMITTEDLY FILED AFTER THE ASSESSMENT ORDER HAS BEE N PASSED. INTERESTINGLY, AS PER THE AFFIDAVIT, THE SUPPLIER ADMITTED THAT TH E SALES BILLS ISSUED ARE STATED TO BE BOGUS IN THE ORAL STATEMENT. THE SUPP LIER IN THE AFFIDAVIT HAS CLAIMED TO HAVE BEEN COERCED INTO GIVING SUCH STATE MENT AS HE WAS THREATENED THAT HIS CASE WILL BE REOPENED IF HE DOE S NOT GIVE SUCH STATEMENT. THE STATEMENT WAS ALLEGED TO BE RECORDED UNDER SUCH PRESSURE TACTICS. THE SUPPLIER ALSO CLAIMS TO HAVE REALIZED THE INCORRECTNESS AND ILLEGALITY OF THE STATEMENT ONLY AFTER THE STATEMEN T WAS GIVEN TO THE HUSBAND OF THE ASSESSEE SHRI ANIL YASHPAL KHOSLA. THE SUPPLIER THUS DENIED THE CONTENTS OF THE ORAL STATEMENT RECORDED EARLIER IN TOTO. HOWEVER, NOTABLY, THE SUPPLIER HAS NOT OFFERED HIMS ELF FOR ANY CROSS- EXAMINATION ON THE AFFIDAVIT RETRACTING THE EARLIER STATEMENT. 8.4. A CONSPECTUS OF THE ENTIRE FACTS AND CIRCUMSTA NCES GIVES US THE PERSPECTIVE THAT THE WHOLE EXPLANATION OF THE ASSES SEE TO SUPPORT THE CASH DEPOSITS IS INEXPLICABLE. AS CAN BE SEEN, THE BONA FIDES OF EXISTENCE OF TRADING BUSINESS IS AT THE CORE OF THE WHOLE EXPLAN ATION TOWARDS CASH DEPOSITS. THE ASSESSEE HAS NOT GIVEN ANY IOTA OF EV IDENCE TO PROVE THAT SHE WAS INDULGING IN TRADING OF CLOTH MATERIAL AS CLAIM ED, BY WAY OF ANY INDEPENDENT EVIDENCE. THE STORY MADE OUT BY THE ASS ESSEE THAT THE ENTIRE SALES CARRIED OUT IN CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNT TO JUSTIFY THE CASH DEPOSITS WHILE THE ENTIRE PURCHASE, EXCEPT A TRIVIAL AMOUNT OF RS.15,000/-, HAS REMAINED OUTSTANDING IS EX-FACIE HOLLOW AND SUPERFICIAL ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 11 - WITH A SOLE OBJECTIVE TO SOMEHOW JUSTIFY CASH DEPOS ITS. THE WHOLE STORY OF TRADING, WHERE SALE AMOUNTS RECEIVED AND DEPOSITED WHILE ENTIRE PURCHASE REMAINED OUTSTANDING, IS INHERENTLY IMPROBABLE AND UNPALATABLE. THE THEORY PROPOUNDED IS UNCHARACTERISTIC OF ANY BUSINE SS PRACTICES. THE ASSESSEE FAILED TO DISCHARGE ONUS OF PROVING IT EXC EPT BALD ASSERTIONS. THE EXPLANATION IS HIGHLY UNPALATABLE, PARTICULARLY ON THE BACKGROUND OF THE FACT THAT ONE OF THE SUPPLIERS SHUNNED THE STATUTOR Y NOTICE ISSUED UNDER SECTION 133(6) AND OTHER SUPPLIER DENIED THE TRANSA CTIONS OF PURPORTED SUPPLY. THERE IS NO MATERIAL ON RECORD WHATSOEVER TO ENDORSE THE EXPLANATION OFFERED BY THE ASSESSEE. THE ASSESSEE D ID NOT CHOOSE TO PLACE THE BANK STATEMENT SHOWING CASH DEPOSITS BEFORE US TO GET PERSPECTIVE ON FREQUENT OF DEPOSITS AND WITHDRAWALS ETC. NEITHER THE ASSESSEE HAS ASKED FOR CROSS-EXAMINATION OF THE STATEMENT RECORDED BY THE STATUTORY FUNCTIONARY NOR HAS THE SUPPLIER OFFERED HIMSELF FO R ANY CROSS-EXAMINATION IN THE SUBSEQUENT AFFIDAVIT. IN THE ABSENCE OF ANY OFFER FOR CROSS- EXAMINATION OR OTHER EXTERNAL EVIDENCE, THE CONTENT S OF AFFIDAVIT CANNOT BE ADMITTED IN EVIDENCE PER SE. THE RETRACTION OF THE EARLIER STATEMENT IN TOTAL REVERSAL OF THE EARLIER STAND IS WITHOUT ANY CORROB ORATION. IT IS NOT KNOWN AS TO HOW THE OUTSTANDING PAYMENTS OF ALLEGED PURCH ASES HAVE BEEN MADE LATER. THE TRADING IS CLAIMED TO HAVE BEEN MADE ON LY FOR THE PART OF THE PERIOD OSTENSIBLY TO GIVE LEGITIMACY TO THE CASH DE POSITS. THE TRADING HAS ABRUPTLY COME TO AN END IN THE MID OF THE YEAR WITH OUT ANY PERCEPTIBLE REASONS. THE ENTIRE NARRATIVE SMACKS OF OUTRIGHT DE CEPTION TO JUSTIFY THE DEPOSITS. 8.5. SIMILAR PATTERN OF TRANSACTIONS WAS FOUND IN T HE CASE OF THE HUSBAND OF THE ASSESSEE, WHERE ANOTHER CASH DEPOSIT OF RS.1 8,70,000/- WAS FOUND TO HAVE BEEN MADE. IN THAT CASE ALSO, WHILE THE SALES HAS BEEN CLAIMED TO BE ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 12 - REALIZED IN CASH AND DEPOSITED IN BANK, THE PAYMENT TOWARDS PURCHASES REMAINS OUTSTANDING, EXCEPT FOR A PALTRY AMOUNT OF RS.85,000/-. 8.6. IN THE BACKGROUND OF SORDID FACTS NOTED ABOVE, THE EXPLANATION OF THE ASSESSEE TOWARDS CASH DEPOSITS IS BALD AND WITH OUT ANY CORROBORATION. ON THE CONTRARY, ONE OF THE SUPPLIERS HAS COME FORW ARD AND GIVEN ORAL STATEMENT EXPLODING THE MYTH. THE LATER RETRACTION IS CLEARLY AN AFTERTHOUGHT. THE REASONS ASSIGNED FOR GIVING STAT EMENT AGAINST THE ASSESSEE AT THE FIRST INSTANCE BEFORE THE ASSESSING OFFICER THAT THE SUPPLIER WAS THREATENED THAT HIS CASE WILL BE REOPENED IS TO TALLY HAWKISH AND LACKLUSTER. WE ARE UNABLE TO VISUALIZE AS TO WHY TH E ASSESSING OFFICER HOLDING PUBLIC OFFICE WILL DO SO WHILE DISCHARGING QUASI-JUDICIAL FUNCTION. THE ALLEGATION OF THE SUPPLIER DOES NOT STAND TO RE ASON. THE SUPPLIER CONVENIENTLY SEEKS TO DUB HIMSELF AS SO NAVE AND G ULLIBLE AS IF SUCH PURPORTEDLY PERVERSE STATEMENT CAN BE RECORDED WITH OUT HIS CONSENT. THIS IS ARGUMENT OF DESPAIR IN THE ABSENCE OF ANY SUBSTA NTIVE CORROBORATION ON RECORD. IN SHORT, THE ASSESSEE HAS MISERABLY FAILED TO JUSTIFY THE FARFETCHED EXPLANATION OFFERED FOR SOURCE OF CASH DEPOSITS. 8.7 THE ASSESSEE HAS SOUGHT TO RELIED UPON SEVERAL DECISIONS WHICH WE HAVE GONE THROUGH AND FIND THEM OF NO ASSISTANCE TO THE ASSESSEE HAVING REGARD TO THE FACTS OF THE PRESENT CASE. THE DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF KALARA GLUE FACTORY (S UPRA) WHEREIN THE ISSUE WAS SET ASIDE ON THE GROUND THAT THE STATEMEN T OF THE DEPONENT THEREIN WAS NOT TESTED BY THE CROSS-EXAMINATION. H OWEVER, IN THE INSTANT CASE, THE CROSS-EXAMINATION WAS NOT DEMANDED AT ALL AND THEREFORE, THE ASSESSING OFFICER CANNOT BE FAULTED FOR USING THE S TATEMENT AGAINST THE ASSESSEE. THE ASSESSEE IS THUS PRECLUDED FROM TAKI NG THIS PLEA. WHEN SEEN IN PERSPECTIVE, THE BALD RETRACTION OF EARLIER ORAL STATEMENT HAS NO ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 13 - PROBATIVE VALUE AND IS THUS LIABLE TO BE REJECTED. THE DECISION IN THE CASE OF PRAKASHCHAND NAHTA (SUPRA), RELIED UPON BY THE A SSESSEE, IS ALSO OF NO CONSEQUENCE IN THE GIVEN FACTS. THE RETRACTION AFFI DAVIT IN THE INSTANT CASE HAS BEEN FILED WHICH IS TOTALLY CONTRARY TO THE EAR LIER STATEMENT. THE SUPPLIER HAS NOT GIVEN ANY CORROBORATION AS TO HOW HE HAS RECEIVED THE PAYMENT AND THE SOURCE OF THE MATERIAL SUPPLIED TO THE ASSESSEE ETC. THE CIRCUMSTANCES GIVEN BY THE SUPPLIER FOR ALLEGED COE RCION IS PRIMA-FACIE UNSUPPORTABLE. THE SUBSEQUENT INACTION FOR WRONGFUL STATEMENT IN EXERCISE OF COERCION OR DURESS AS ALLEGED ALSO EVOK ES REASON TO BELIEVE THAT THE CAUSE ASSIGNED FOR WRONGFUL STATEMENT IS A SHAM . AS NOTED, THE SUPPLIER IN ITS AFFIDAVIT HAS NOT OFFERED HIMSELF F OR ANY CROSS-EXAMINATION. THE CONTENTS OF THE AFFIDAVIT, THEREFORE, ARE MEANI NGLESS AND VALUELESS AND THUS ARE INADMISSIBLE AS EVIDENCE. IN THESE CIRCUM STANCES, IT WAS NOT, IN OUR HUMBLE OPINION, OBLIGATORY ON THE PART OF THE R EVENUE TO TAKE COGNIZANCE OF THE RETRACTION AFFIDAVIT. TO REITERA TE, THE RETRACTION IS CLEARLY AN AFTERTHOUGHT WITHOUT ANY PRAYER FOR CROSS-EXAMIN ATION. IN CONTRAST, IN PRAKASHCHAND NAHTAS CASE (SUPRA), THERE WAS A SPEC IFIC PRAYER FOR CROSS- EXAMINATION WHICH WAS NOT ASSAILED BY THE REVENUE A ND ACCORDINGLY, IT WAS HELD THAT THE ASSESSMENT ORDER IS VITIATED. AS NOTED, THE FACTS IN THE INSTANT CASE ARE TOTALLY DIFFERENT. 8.8. NOW, WE SHALL ADVERT TO THE DECISION OF THE HO NBLE SUPREME COURT IN TEKRAM (SUPRA) RELIED UPON. THE MATER WAS REMAN DED BACK IN THAT CASE FOR FRESH DISPOSAL AFTER FINDING THE MERIT IN THE F RESH DOCUMENTS FILED BY THE ASSESSEE IN THAT CASE. AS NOTED, WE FIND NO ME RIT IN THE RETRACTION OF THE SUPPLIER IN THE LIGHT OF CIRCUMSTANCES NARRATED HEREINABOVE. THE GENERIC REASONS ASSIGNED FOR EARLIER ORAL STATEMENT AGAINST THE ASSESSEE ON THREAT OF REOPENING IS ALSO WEIRD. THUS, THE AFORE SAID DECISION OF THE HONBLE SUPREME COURT IS ALSO NOT APPLICABLE IN THE CIRCUMSTANCES OF THE ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 14 - PRESENT CASE. SIMILARLY, THE DECISION OF THE CO-OR DINATE BENCH OF THE TRIBUNAL IN CHEIL INDIA PVT LTD (SUPRA) WAS DELIVER ED IN ITS OWN FACTS AND IS NOT FOUND TO BE IN PARITY WITH THE FACTS OF THE PRESENT CASE. LIKEWISE, WE FIND THAT THE ASSESSEE WAS DULY INFORMED OF THE PROPOSED ACTION BY ASSESSING OFFICER. THE ASSESSEE WAS GIVEN FULL OPPO RTUNITY BEFORE CIT(A) ALSO. THIS PLEA OF NON-ISSUANCE OF SHOW-CAUSE NOTIC E, IN THE LIGHT OF DECISION OF ZENITH PROCESSING (SUPRA), IS DEVOID OF ANY MERIT. 9. IN VIEW OF GROSS AND UNSUPPORTED PECULIAR EXPLAN ATION OF CASH DEPOSITS ARISING DUE TO NON-PAYMENT TOWARDS PURCHAS ES WHILE PURPORTED CASH RECEIVED AGAINST THE SALES MADE OVER A PERIOD HAVE BEEN DEPOSITED IN BANK, WE FIND THAT THE ASSESSEE HAS FAILED TO DISCH ARGE ANY ONUS WHICH CAST UPON IT FOR WHICH THE ASSESSING OFFICER CANNOT BE F AULTED. WE ALSO FIND THAT THE ASSESSEE HAS WRONGLY ATTEMPTED TO SHIFT TH E ONUS ON THE ASSESSING OFFICER FOR CROSS-EXAMINATION. SIMILARLY, WE ALSO NOTE THAT THE ASSESSMENT ORDER IN THE PRESENT CASE HAS BEEN PASSED AT THE FA G END OF THE LIMITATION PERIOD AFTER GIVING SUFFICIENT OPPORTUNITY TO THE A SSESSEE AND THEREFORE, THE CLAIM OF THE ASSESSEE THAT NO REASONABLE TIME WAS G RANTED IS DEVOID OF MERIT AND THUS THE RATIO OF THE TRIBUNAL DECISION I N THE CASE OF ANAR A SHAH (SUPRA) RELIED UPON IS ALSO OF NO CONSEQUENCE. RES ULTANTLY, WE DO NOT FIND ANY MERIT WHATSOEVER IN THE EXPLANATION OFFERED BY THE ASSESSEE TOWARDS CASH DEPOSITS. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO.2260/AHD/2012 ASSESSEE- SHRI ANIL YASHPAL KHOSLA 11. THE FACTS AND THE ISSUES IN THE INSTANT CASE AR E IDENTICAL TO THE FACTS AND ISSUES INVOLVED IN ITA NO.2259/AHD/2012. THERE FORE, ACCORDINGLY FOR PARITY OF REASONING, WE DO NOT FIND ANY MERIT I N THE APPEAL OF THE ASSESSEE. ITA NO. 2259 & 2260/AHD/2012 4 SMT GEETA ANIL KHOSLA & ANIL Y KHOSLA VS. ITO A.Y. 2009-10 - 15 - 12. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS A LSO DISMISSED. 13. IN THE COMBINED RESULT, THE APPEAL OF BOTH THE ASSESSEES STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 17 TH MARCH, 2017 AT AHMEDABAD SD/- SD/- (S.S. GODARA) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED 17/03/2017 *BT !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ' $ / CONCERNED CIT 4. $ ( ) / THE CIT(A) 5. ' **' , ' , / DR, ITAT, AHMEDABAD 6. / / GUARD FILE. / BY ORDER, TRUE COPY / (DY./ASSTT.REGISTRAR) ( ), / ITAT, AHMEDABAD