Sh. Anil Kumar Maheshwari, Aligarh V. ITO, Aligarh

ITA 227/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0389 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-08-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 18-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Salary income
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.227/AGR/2009 ASST. YEAR: 2004-05 SHRI ANIL KUMAR MAHESHWARI, VS. INCOME-TAX OFFICE R, WARD (4), M/S. ANIL BRICK FIELD, ALIGARH. NAGLA TURAWALI JALALI, DISTT. ALIGARH. (PAN : ABIPM 2717 M). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 24.02.2009. AT THE OUTSET, THE LD. A.R. POINTED OUT THAT ALTHOU GH 15 GROUNDS OF APPEAL HAS BEEN TAKEN, BUT ONLY ISSUE INVOLVED IN ALL THESE GROUNDS RELATE TO THE ADDITION MADE AMOUNTING TO RS.1,79,878/- ON ACCOUNT OF UNEXPLAINED OPENING CAPITAL AND RS.3, 50,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDITS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A PARTNER IN THE BRICK KILN BUSINESS CARRIED ON BY M/S RAM GOPAL MAHESHWARI B.K.O. SINCE 1982-83 AND CONTINUED AS SUCH UPTO 31.03.1996, WHEN THE PARTNERSHIP FIRM WAS DISSOLVED AND BRICK KILN WAS RUN BY HIS FATHER SHRI RAM GOPAL MAHESHWARI AS PROPRIETOR. THE AMOUNT OF ASSESSEES CAPITAL REMAINED CREDITED IN THE 2 PARTNERSHIP FIRM. THE ASSESSEE JOINED THIS PARTNER SHIP FIRM AS AN EMPLOYEE AND GOT THE SALARY UPTO 30.09.2003. THE ASSESSEE ALSO GOT THE INTERES T FROM THE SAID PARTNERSHIP FIRM. THE SALARY AND INTEREST WAS ACCUMULATED FROM YEAR TO YEAR AND THE TOTAL ACCUMULATED BALANCE TILL 30.09.2003 WAS RS.1,79,878/- WHICH WAS RECEIVED BY THE ASSESSE E FROM THE SAID FIRM AND INVESTED IN THE BRICK KILN BUSINESS STARTED BY HIM FROM 01.10.2003 UNDER THE NAME AND STYLE OF M/S ANIL BRICK FIELD. WHEN THE A.O. ASKED ABOUT THE SOURCE OF INV ESTMENT, THE ASSESSEE EXPLAINED THE SOURCE BEING AMOUNT WITHDRAWN FROM THE SAID FIRM M/S. RAM GOPAL MAHESHWARI. THE A.O. WAS NOT SATISFIED AND, THEREFORE, MADE THE ADDITION OF RS.1 ,79,878/- AS UNEXPLAINED INVESTMENT. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT (A) ALSO CONFIRMED THE ORDER OF THE A.O. AS PER THE OBSERVATION GIVEN UNDER PARA NO.5 OF THE OR DER. 3. BEFORE US, THE LD. A.R. REITERATED THE SUBMISSIO NS MADE BEFORE THE AUTHORITIES BELOW AND VEHEMENTLY CONTENDED THAT THE SUM OF RS.1,79,878/- WHICH WAS INTRODUCED BY THE ASSESSEE AS CAPITAL IN THE BRICK KILN BUSINESS WAS DRAWN FROM M /S. RAM GOPAL MAHESHWARI BKO AND THIS FACT WAS DULY EXPLAINED BY HIM, EVEN IN THE STATEME NT RECORDED ON 29.08.2006. IT WAS POINTED OUT THAT HIS FATHER HAS EXPIRED AND, THEREFORE, THE ASSESSEE COULD NOT BE ABLE TO PRODUCE HIM. IT WAS POINTED OUT, THIS FACT IS ON RECORD THAT THE AS SESSEE WAS PARTNER IN THE ERSTWHILE FIRM M/S RAM GOPAL MAHESHWARI BKO AND WAS HAVING INCOME FROM FIRM. EVEN HE DERIVED SALARY AND INTEREST INCOME. THUS, IT CANNOT BE SAID THAT THE ASSESSEE WAS NOT COMPETENT TO EARN ANY INCOME. THE EXPLANATION OF THE ASSESSEE WAS BASED ON EVIDEN CE. NO CONTRARY EVIDENCE WAS BROUGHT ON RECORD BY THE DEPARTMENT BUT THEY SIMPLY REJECTED T HE EXPLANATION OF THE ASSESSEE. OUR ATTENTION WAS ALSO DRAWN TOWARDS THE STATEMENT OF ACCOUNTS OF THE ASSESSEE WITH M/S RAM GOPAL MAHESHWARI BKO AND ENCLOSED IN THE PAPER BOOK FROM THE F.Y. 1996-97 TILL 30.09.2003. 3 ATTENTION WAS ALSO DRAWN TOWARDS THE INCOME TAX RET URN FILED BY THE ASSESSEE FOR THE A.Y. 1996- 97 TILL 2003-04 TO PROVE THE FACT THAT THE ASSESSEE WAS DERIVING INTEREST AS WELL AS SALARY INCOME FROM THE SAID FIRM. COPY OF THE RETURN FILED IN TH E CASE OF M/S RAM GOPAL MAHESHWARI BKO FOR THE A.Y.2002-03 TILL A.Y. 2004-05 WAS ALSO BROUGHT TO OUR KNOWLEDGE BY REFERRING TO PAGE NOS. 34 TO 42 OF THE PAPER BOOK. IT WAS POINTED OUT, RE FERRING TO THE BALANCE SHEET AS ON 31.01.2003 OF THE FIRM RAM GOPAL MAHESHWARI BKO, THAT THERE WA S CASH IN HAND TO THE EXTENT OF RS.70,562/- AND THE CLOSING STOCK TO THE EXTENT OF RS.3,75,430/- WITH M/S. RAM GOPAL MAHESHWARI BKO. THE AMOUNT HAS BEEN PAID TO THE AS SESSEE BY THE SAID FIRM OUT OF CASH IN HAND AND OUT OF SELLING OF THE CLOSING STOCK. REFE RRING TO THE SAID BALANCE SHEET, IT WAS POINTED OUT THAT THERE WAS OPENING BALANCE ON THE RIGHT SID E RELATING TO THE ASSESSEE AMOUNTING TO RS.1,65,026/- WHICH WAS ACCUMULATED AS ON 30 TH SEPTEMBER, 2003 TO RS.1,79,878/- AS SALARY TO THE EXTENT OF RS.18,000/- WAS CREDITED AND INTEREST TO THE EXTENT OF RS.16,780/- WAS CREDITED. A WITHDRAWAL TO THE EXTENT OF RS.19,928/- WAS MADE BY THE ASSESSEE WHICH WAS DULY DEBITED. THUS, IT WAS CONTENDED THAT THE SOURCE OF RS.1,79,8 78/- WAS DULY EXPLAINED BY THE ASSESSEE. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE ORDER OF THE AUTHORITIES BELOW. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT THE ASSESSEE HAS SHOWN THE STARTING OF THE BUSINESS DURING THE YEAR IN PARTNER SHIP OF BRICK KILN BUSINESS. THE ASSESSEE HAS BROUGHT IN RS.1,79,878/- AS CAPITAL AS ON 1 ST OCTOBER, 2003. THE ASSESSEE HAS EXPLAINED THAT TH E SAID AMOUNT HAS BEEN WITHDRAWN BY THE ASSESSEE FROM THE FIRM M/S. RAM GOPAL MAHESHWARI BKO. THE ASSESSEE WAS ALSO PARTNER IN THE SAID FIR M TILL THE A.Y. 1996-97. SUBSEQUENTLY, THE FIRM WAS DISSOLVED AND THE ASSESSEE WAS PAID INTERE ST ON THE BALANCE OUTSTANDING CREDIT IN THE 4 BOOKS OF THE FIRM. THE RUNNING BUSINESS OF THE FIR M WAS TAKEN OVER BY THE FATHER OF THE ASSESSEE, PROPRIETOR OF RAM GOPAL MAHESHWARI BKO. THE ASSESS EE WAS EARNING SALARY AND INTEREST INCOME FROM THE F.Y. 1996-97 TILL 30.09.2003. THE ASSESSEE HAS SUBMITTED HIS INCOME TAX RETURNS, COPIES OF WHICH ARE PLACED IN THE PAPER BO OK. FROM THE INCOME TAX RETURNS, IT IS APPARENT THAT THE ASSESSEE HAS SHOWN SALARY INCOME AS WELL AS INTEREST INCOME IN ALL THESE YEARS FROM THE SAID FIRM. THE ASSESSEE HAS ALSO PLACED C OPY OF ACCOUNT WITH THE SAID FIRM AS ON 30.09.2003. THE ASSESSEE HAS SHOWN WITHDRAWAL OF R S.1,79,878/- FROM THE SAID FIRM OUT OF THE ACCUMULATE BALANCE. IN OUR OPINION, THE EXPLANATIO N SUBMITTED BY THE ASSESSEE IS A PLAUSIBLE ONE. ONCE THE ASSESSEE HAS SUBMITTED THE EXPLANATION ALO NG WITH THE EVIDENCES AND THE DOCUMENTS WHICH PROVE THAT THE ASSESSEE WAS DERIVING INCOME A ND WAS HAVING BALANCE WITH M/S. RAM GOPAL MAHESHWARI BKO, THE ONUS GETS SHIFTED ON THE DEPARTMENT TO PROVE THAT THE EXPLANATION SUBMITTED BY THE ASSESSEE IS NOT CORRECT AND FOR PR OVING THAT, IN OUR OPINION, THE REVENUE IS BOUND TO BRING THE NECESSARY EVIDENCE ON RECORD. W E HAVE GONE THROUGH THE RECORD AS PRODUCED BEFORE US AND WE DO NOT FIND ANY EVIDENCE TO THE CO NTRARY WHICH MAY PROVE THAT EXPLANATION SUBMITTED BY THE ASSESSEE IS NOT CORRECT. THE A.O. , IN OUR OPINION, HAS MERELY REJECTED THE EXPLANATION FOR THE SAKE OF REJECTING IT. NO DOUBT , THE ONUS IS ON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF THE INVESTMENT MADE BY HIM DUR ING THE YEAR TO THE SATISFACTION OF THE A.O. ONCE THE REVENUE PROVES THAT THE ASSESSEE HAS MADE THE INVESTMENT DURING THE YEAR, THE SATISFACTION OF THE A.O., IN OUR OPINION, SHOULD BE BASED ON THE EVIDENCE AND THE DOCUMENTS ON RECORD. THE SATISFACTION SHOULD HAVE BEEN ARRIVED AT BY THE A.O. WHAT A PERSON OF ORDINARY PRUDENCE WOULD HAVE TAKEN THE VIEW ON THE FACTS AND EVIDENCE PRODUCED BEFORE HIM. THE ASSESSEE HAS PRODUCED THE NECESSARY EVIDENCE BUT TH E EVIDENCE HAS BEEN REJECTED BY THE A.O. WITHOUT BRINGING ANY EVIDENCE TO THE CONTRARY ON RE CORD. HONBLE SUPREME COURT IN THE CASE OF 5 CIT VS. SMT. P.K. NOORJAHAN, 237 ITR 570 (SC) HAS L AID DOWN THAT THE A.O. IS NOT OBLIGED TO TREAT THE SOURCE OF INVESTMENT TO BE THE INCOME OF THE ASSESSEE IN EACH AND EVERY CASES. THE RELEVANT FINDING OF THE HONBLE SUPREME COURT WHICH LAID DOWN AS UNDER :- IN THE CORRESPONDING CLAUSE OF THE BILL WHICH WAS INTRODUCED IN PARLIAMENT, WHILE INSERTING SECTION 69 IN THE INCOM E TAX ACT, 1961, THE WORD SHALL HAD BEEN USED BUT DURING THE COURSE OF CONS IDERATION OF THE BILL AND ON THE RECOMMENDATION OF THE SELECT COMMITTEE, THE SAI D WORD WAS SUBSTITUTED BY THE WORD MAY. THIS CLEARLY INDICATES THAT THE INTENT ION OF PARLIAMENT IN ENACTING SECTION 69 WAS TO CONFER A DISCRETION ON THE INCOME -TAX OFFICER IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEE N SATISFACTORILY EXPLAINED BY THE ASSESSEE AS THE INCOME OF THE ASSESSEE AND THE INCOME-TAX OFFICER IS NOT OBLIGED TO TREAT SUCH SOURCE OF INVESTMENT AS INCOM E IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE NOT SATISFACTORY. THE QUESTION WHETHER THE SOURCE OF THE INVESTMENT SHOULD BE TREA TED AS INCOME OR NOT UNDER SECTION 69 HAS TO BE CONSIDERED IN THE LIGHT OF THE FACTS OF EACH CASE. IN OTHER WORDS, A DISCRETION HAS BEEN CONFERRED ON THE INCOM E-TAX OFFICER UNDER SECTION 69 OF THE ACT TO TREAT THE SOURCE OF INVESTMENT AS THE INCOME OF THE ASSESSEE IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND SA TISFACTORY AND THE SAID DISCRETION HAS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. 5. WE ARE OF THE VIEW THAT THE DECISION OF THE HON BLE SUPREME COURT CLEARLY BE APPLICABLE IN THE CASE OF THE ASSESSEE. EVEN IF THE EXPLANATI ON OF THE ASSESSEE WAS NOT TENABLE IN THE OPINION OF THE A.O., THE A.O. WAS NOT BOUND TO MAKE THE ADD ITION ON THE ASSESSEE IN THIS CASE AS HE DERIVED SUFFICIENT INCOME BY WAY OF INTEREST AND SA LARY FROM THE SAID FIRM. WE, ACCORDINGLY, DELETE THE ADDITION OF RS.1,79,878/-. 6. THE FACTS RELATING TO THE SECOND ADDITION OF RS .3,50,000/- ARE THAT THE A.O. NOTED THAT THE ASSESSEE HAS INTRODUCED RS.3,50,000/- IN ADDITION T O RS.1,79,878/- BEING THE INITIAL CAPITAL, ON DIFFERENT DATES, FROM 15.10.2003 TO 13.01.2004, IN THE BRICK KILN BUSINESS WHICH HE STARTED AS A PROPRIETOR. WHEN THE SOURCE OF THE SAID AMOUNT WAS ASKED, THE ASSESSEE POINTED OUT THAT THIS 6 AMOUNT HAS BEEN TRANSFERRED BY THE ASSESSEE FROM HU F ACCOUNT OF THE ASSESSEE. IT WAS POINTED OUT THAT THE HUF WAS ALSO CARRYING ON THE BRICK KIL N BUSINESS. THE BALANCE SHEET OF THE HUF WAS FILED AND IT WAS POINTED OUT THAT THE HUF IS BE ING ASSESSED TO INCOME TAX FROM THE A.Y. 1999-2000. THE A.O. WAS NOT SATISFIED WITH THE EXP LANATION OF THE ASSESSEE AND, THEREFORE, HE MADE THE ADDITION. 7. BEFORE US, THE LD. A.R. POINTED OUT THAT THE ASS ESSEE HAS WITHDRAWN AMOUNT OF RS.3,50,000/- FROM HIS HUF WHO WAS CARRYING ON THE BRICK KILN BUSINESS AND IN THIS REGARD CASH FLOW STATEMENT OF THE FIRM WAS ALSO FILED. ATTENTI ON WAS DRAWN TOWARDS THE BALANCE SHEET AND THE INCOME TAX RETURN FILED BY THE HUF FOR THE A.YS. 20 02-03 TO 2003-04 AVAILABLE AT PAGE NOS. 43 TO 48 OF THE PAPER BOOK. IT WAS POINTED OUT THAT AS ON 31.03.2002 THE HUF WAS HAVING CASH IN HAND AT RS.1,07,975/-. THE HUF HAS ALSO GIVEN THE ADVANCE TO VARIOUS PERSONS AMOUNTING TO RS.1,40,000/- AS ON 31.03.2003. THE CASH IN HAND W ITH THE HUF WAS RS.51,495/-. IT HAS ALSO GIVEN ADVANCES TO DIFFERENT PERSONS TO THE EXTENT O F RS.2,50,000/-. THE LIST OF THE PERSONS TO WHOM THE ADVANCES WERE MADE IS AVAILABLE AT PAGE NO .49 OF THE PAPER BOOK. 8. LD. D.R., ON THE OTHER HAND, DREW OUR ATTENTION TOWARDS THE ASSESSMENT ORDER PAGE NOS.5 & 6 AS WELL AS THE CASH FLOW STATEMENT DRAWN BY THE A.O. IT WAS POINTED OUT THAT AS PER THE BALANCE SHEET OF THE ASSESSEE AS ON 31.03.2002, THE ASSESSEE WAS HAVING CASH IN HAND AT RS.1,79,975/-. IF THE INCOME OF RS.72,520/- IS ADD ED AS SHOWN IN THE INCOME TAX RETURN PRIOR TO DEDUCTION, THE CASH AVAILABLE WITH THE ASSESSEE WIL L BE ONLY RS.1,80,495/- AND OUT OF THAT IF THE WITHDRAWAL HAS BEEN MADE ON 31.03.2003 AMOUNTING TO RS.19,000/- AND ALSO THE ADDITION IN ADVANCES AMOUNTING TO RS.1,10,000/- ARE DEDUCTED, T HE CASH AVAILABLE WITH THE ASSESSEE AS ON 7 31.03.2003 WILL BE ONLY RS.51,495/- AND IF THE INCO ME OF RS.73,500/- ARE ADDED, AND THE WITHDRAWAL OF RS.19,000/- AS SHOWN BY THE ASSESSEE ARE DEDUCTED, THE CASH AVAILABLE WITH THE ASSESSEE WILL BE ONLY RS.1,05,995/- AND EVEN IF IT IS PRESUMED THAT THE ASSESSEE HAS RECEIVED CASH BACK FROM ALL THE PARTIES, THE BALANCE AVAILABLE WI TH THE HUF WILL BE ONLY RS.3,55,995/-/-. THE A.O. ASKED THE ASSESSEE TO PRODUCE VARIOUS PARTIES AND EVEN SUMMONS WERE ISSUED TO PRODUCE BOOKS OF ACCOUNTS AND STATEMENT OF BANK ACCOUNT SO THAT THE FACT THAT THE ASSESSEE HAS RECEIVED THE ADVANCES BACK FROM ALL THE PARTIES CAN BE VERIF IED. THE ASSESSEE DID NOT PRODUCE THE BOOKS OF ACCOUNTS AND POINTED OUT THAT NO BANK ACCOUNT IS MA INTAINED IN THE NAME OF ANIL KUMAR MAHESHWARI, HUF. IN THIS REGARD, ATTENTION WAS DRA WN TOWARDS THE RELEVANT STATEMENT OF THE ASSESSEE RECORDED ON 06.12.2006. THUS, IT WAS CONT ENDED THAT THE A.O. WAS CORRECT IN LAW IN MAKING ADDITION OF RS.3,50,000/- AS THE ASSESSEE FA ILED TO DISCHARGE THE ONUS CASTED ON HIM. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD. WE HAVE GONE THROUGH THE ORDERS OF THE TAX AUTHORIT IES BELOW. WE NOTED THAT IN THIS CASE, THE ASSESSEE HAS SHOWN THE CONTRIBUTION BY WAY OF CAPIT AL IN HIS PROPRIETORSHIP FIRM ANIL BRICKS MILLS AMOUNTING TORS.3,50,000/- DURING THE YEAR UND ER CONSIDERATION FROM 15.10.2003 TILL 13.01.2004. THE DETAILS ARE AVAILABLE AT PAGE NOS. 1 & 2 OF THE ASSESSMENT ORDER. THE SOURCE OF THE SAID DEPOSIT WAS EXPLAINED BY THE ASSESSEE THAT THE ASSESSEE HAS WITHDRAWN THE AMOUNT FROM ANIL KUMAR MAHESHWARI, HUF. THE ASSESSEE CLAIMED T HAT THE HUF WAS CARRYING ON THE BRICK KILN BUSINESS FROM 1999-2000. WE NOTED THAT THE AS SESSEE HUF HAS FILED THE RETURNS FROM A.YS. 2002-03 TO 2003-04, COPIES OF WHICH ARE AVAILABLE I N THE PAPER BOOK. THE BALANCE SHEET OF THE ASSESSEE HUF WAS ALSO FILED AS ON 31.03.2002 AND TH E MAJOR CLAIM OF THE ASSESSEE IS THAT THE SUM OF RS.3,50,000/- HAS COME FROM THE ASSESSEES HUF. THE ASSESSEES HUF WAS HAVING THE 8 ADVANCES MADE TO DIFFERENT PERSONS AS ON 31.03.2003 AMOUNTING TO RS.2,50,000/- AND CASH IN HAND AMOUNTING TO RS.51,495/- DURING THE YEAR ENDED ON 31.03.2004. THE ASSESSEE HUF HAS ALSO EARNED INCOME TO THE EXTENT OF RS.73,500/-. WITHDR AWAL OF RS.15,000/- WAS MADE. THUS, THE ASSESSEE HUF WAS HAVING THE LIQUID FUND TO THE EXTE NT OF RS.3,55,995/- AND OUT OF WHICH RS.3,50,000 WAS ADVANCED BY THE HUF TO THE ASSESSE E. IN OUR OPINION, ONUS IS ON THE ASSESSEE TO PROVE THE SOURCE OF THE INVESTMENT. THE A.O. HA S ASKED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS OF ANIL KUMAR MAHESHWARI, HUF WHICH WERE N OT PRODUCED BY THE ASSESSEE BUT THE ASSESSEE STATED THAT THE ASSESSEE HAS NOT KEPT ANY BOOK. EVEN THE ASSESSEE DID NOT PRODUCE THE COPY OF STATEMENT OF BANK ACCOUNT. THE A.O. ASKED THE ASSESSEE TO PRODUCE ALL THE PARTIES. SOME OF THE PARTIES TO WHOM THE ASSESSEE HUF HAS ADVANCE D MONEY AND THESE PARTIES RETURNED THE MONEY BUT THE ASSESSEE DID NOT PRODUCE ANY OF THE P ARTY. WE HAVE ALSO PERUSED THE LIST WHICH IS AVAILABLE AT PAGE NO.59 OF THE PAPER BOOK. WE NOTE D FROM THE LIST THAT THE ASSESSEE HAS ONLY GIVEN THE NAMES OF THE PARTIES AND THE NAMES OF THE PLACES TO WHICH THE PARTIES BELONGED. THE ADDRESS GIVEN BY THE ASSESSEE IS NOT COMPLETE. UND ER THESE FACTS, IN OUR OPINION, THE EXPLANATION SUBMITTED BY THE ASSESSEE IS NOT PLAUSIBLE ONE. WE ALSO FIND FORCE IN THE SUBMISSION OF THE LD. D.R. THAT IN A RUNNING BUSINESS NOBODY WILL BELIEVE THAT THE ASSESSEE HAS LIQUIDATED ALL THE ADVANCES. WE ARE OF THE VIEW UNDER THE FACTS AND C IRCUMSTANCES THAT EVEN IF THE PLEA OF THE ASSESSEE IS ACCEPTED, THE ASSESSEE WOULD HAVE RECEI VED BACK ONLY PART OF THE ADVANCES. THE HUF WOULD HAVE NOT ALSO GIVEN ALL THE CASH IN HAND TO T HE ASSESSEE SO THAT THERE REMAINS NO CASH IN HAND TO CARRY ON THE BOSSINESS OF THE ASSESSEE. WE ARE, THEREFORE, OF THE OPINION UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THAT AT THE MOST THE ASSESSEE COULD HAVE TAKEN A SUM OF RS.1,75,000/- FROM THE HUF I.E. RS.1,25,000/- RETUR N OF THE ADVANCE AND RS.50,000/- OUT OF THE INCOME GENERATED DURING THE YEAR. 9 ITA NO.227/AGR/2009 WE, ACCORDINGLY, DELETE THE ADDITION OF RS.1,75,000 /- AND SUSTAIN THE ADDITION TO THE EXTENT OF RS.1,75,000/-. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 17.09.2010). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 17 TH SEPTEMBER, 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY