Mr.V.Narasimhan, Bhadravathi V. Income-Tax Officer, Shimoga

ITA 2312/BANG/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4202 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-02-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 27-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TSHERING ONGDA
• Assessee Lawyers: V NARENDRA SHARMA
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO . 2312 /BANG/201 6 ASSESSMENT YEAR : 20 05 - 06 SHRI V. NARASIMHAN, BUILDING #2, M M COMPOUND, TARIKERE ROAD, BHADRAVATHI. PAN: ABXPN4132G VS. THE INCOME-TAX OFFICER, WARD 3, SHIMOGA. APPELLANT RESPONDENT APPELLANT BY : SHRI V. NARENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI TSHERING ONGDA, JCIT (DR) DATE OF HEARING : 0 4 .0 2 .2019 DATE OF PRONOUNCEMENT : 08 . 0 2 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT (A), DAVANGERE DATED 30.06.2016 FOR ASSESSM ENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN SUSTAININ G THE ADDITION OF RS.3,77,500/- AS AGAINST ADDITION MADE OF RS.15,10, 000/- AS UNEXPLAINED CASH DEPOSIT UNDER THE HEAD SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APP ELLANT'S CASE. 3. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S.234-A AND 234B OF THE ACT, WHICH UNDER THE FACT S AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND THE LEVY DESERVES TO BE CANCELLED. 4. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLA NT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO OR DER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. ITA NO. 2312/BANG/2016 PAGE 2 OF 4 3. THIS APPEAL IS FILED LATE BY ASSESSEE AND THE DE LAY IS OF 95 DAYS. THE ASSESSEE HAS MADE AN APPLICATION FOR CONDONATION OF THIS DELAY ALONG WITH AN AFFIDAVIT OF THE ASSESSEE AND ALSO AN AFFIDAVIT OF THE CHARTERED ACCOUNTANT WHO WAS HANDLING THE TAX MATTERS OF THE ASSESSEE. IT IS STATED BY THE ASSESSEE THAT ON RECEIPT OF THE ORDER OF CIT (A), HE HAD PLACED THE SAME IN THE HANDS OF HIS AR SHRI JADED SIDDAPPA, CH ARTERED ACCOUNTANT, SEEKING FURTHER ADVICE IN THE MATTER BUT BECAUSE OF HIS PRE-OCCUPATION IN HIS PROFESSION IN THE MONTHS OF JULY TO SEPTEMBER, HE H AD OMITTED TO IMMEDIATELY ADVISE THE ASSESSEE ON THE FURTHER COUR SE OF ACTION IN THE MATTER AND THEREAFTER, THE ASSESSEE APPROACHED HIM IN DECEMBER 2016 AND AT THAT POINT OF TIME, IT WAS ADVISED BY HIM FOR FI LING THE SECOND APPEAL AFTER ENGAGING A COUNSEL AT BANGALORE. HE FURTHER STATED IN THE AFFIDAVIT OF THE ASSESSEE THAT AFTER THIS, THE ASSESSEE APPROACHED M /S. VENKATESAN & CO., CHARTERED ACCOUNTANTS, BANGALORE WHO PREPARED THE A PPEAL FOR FILING BEFORE THE TRIBUNAL AND THIS DELAY IS 95 DAYS IN FILING TH E APPEAL BEFORE THE TRIBUNAL WAS BECAUSE OF THESE REASONS. IN SUPPORT OF THIS, THE ASSESSEE HAS ALSO SUBMITTED AN AFFIDAVIT OF THE CONCERNED CHARTERED A CCOUNTANT SHRI JADED SIDDAPPA. CONSIDERING THESE FACTS, THE DELAY IN FI LING THE APPEAL IS CONDONED. 4. REGARDING THE MERIT OF THE APPEAL, THE LD. AR OF ASSESSEE REITERATED THE SAME CONTENTIONS WHICH WERE RAISED BY ASSESSEE BEFO RE CIT (A). THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THE ISSUE IN DISPUTE IS DECIDED BY CIT (A) AS PER PARA 3 OF HIS ORDER AND T HE RELEVANT PART OF THIS PARA FROM THE ORDER OF CIT (A) IS REPRODUCED HEREIN BELOW FOR READY REFERENCE. 3. IN THIS REGARD, THE ASSESSEE'S AR HAS SUBMITTED THAT, THE A/C WHEREIN CASH OF RS.15,10,000/- IS DEPOSITED IS HELD WITH CANARA BANK, SESHADRIPURAM BRANCH, BHADRAVATHI. ACCORDING TO THE ASSESSEE, THE DEPOSITS AND WITHDRAWALS ARE REFLECTED IN THE REGUL AR BOOKS MAINTAINED BY THE ASSESSEE FOR THE BUSINESS. THE AS SESSEE IS MAINTAINING REGULAR BOOKS OF A/CS FOR HIS CONTRACT BUSINESS WHICH ARE AUDITED U/S 44AB OF THE ACT. ON A PERUSAL OF THE EN TRIES IN THE PASS BOOKS, I FIND THE CASH BALANCE APPEARING AS ON 31/0 3/2005 OF RS.2,05,377/- MATCHES WITH THE BALANCE SHOWN IN THE AUDITED BALANCE SHEET. EXAMINATION OF THE ACCOUNT REVEALS THAT, CON TRACT RECEIPTS ARE DEPOSITED INTO THIS A/C AND FDS AMOUNTING TO RS.19, 23,324/- ARE ITA NO. 2312/BANG/2016 PAGE 3 OF 4 DEBITED TO THIS A/C FOR BANK GUARANTEE PURPOSE. IT IS ALSO REVEALED THAT EMD REFUNDS WHICH ARE APPEARING IN THE RETURNS ARE CREDITED TO THIS A/C. THE ORIGINAL BANK PASS BOOKS OF CANARA BANK, S ESHADRIPURAM BRANCH IS SUBMITTED TO ME FOR PERUSAL. THE CLOSING BALANCE OF RS.129/- AS ON 31/03/2004 MATCHES WITH THE CLOSING BANK BALA NCE INDICATED IN THE BALANCE SHEET. SAME WAY, THE CLOSING CASH BALAN CE APPEARING IN THE SAID BANK A/C OF RS.2,05,777/- ALSO APPEARS IN THE BALANCE SHEET FOR THE YEAR ENDING 31/03/2005. WHEN THE AR WAS REQ UESTED TO PRODUCE THE BOOKS FOR VERIFICATION, HE STATED THAT THE BOOKS ARE NOT TRACEABLE, DUE TO LAPSE OF NEARLY A DECADE. THE AR HAS HOWEVER FURNISHED A FUND FLOW STATEMENT, WHEREIN ALL THE TR ANSACTIONS INCLUDING THE CASH DEPOSITS IN QUESTION ARE REFLECTED. THE FU ND FLOW STATEMENT REVEALS THAT THE ASSESSE HAS DRAWN A TOTAL SUM OF R S.11,32,500/- DURING THE YEAR BY WAY OF CASH AND ACCORDING TO THE ASSESSE THIS IS THE AMOUNT WHICH HAS BEEN DEPOSITED IN TO THIS ACCOUNT BY WAY OF CASH. I FIND, AFTER ANALYSING CASH FLOW STATEMENT THAT, CAS H DEPOSITS TO THE EXTENT OF RS.11,32,500/- CAN REASONABLY BE CONSIDER ED AS SOURCE FOR THE CASH DEPOSIT OF RS.15,10,000/-. THE BALANCE AMO UNT OF RS.3,77,500/- IS TO BE CONSIDERED AS UNEXPLAINED CA SH DEPOSIT. ADDITION TO THIS EXTENT IS CONFIRMED. THE APPELLANT THUS GETS A RELIEF OF RS.11,32,500/- (OUT OF RS. 15,10,000/-). 6. FROM THE ABOVE PARA REPRODUCED FROM THE ORDER OF CIT(A), IT IS SEEN THAT AS PER THE FUND FLOW STATEMENT SUBMITTED BY ASSESSEE B EFORE CIT(A), IT WAS NOTED BY CIT(A) THAT ASSESSEE HAS DRAWN FROM BANK A TOTAL SUM OF RS. 11,32,500/- DURING THE YEAR BY WAY OF CASH AND LD. CIT(A) HAS GRANTED THE BENEFIT TO THIS EXTENT AND ADDITION OF ONLY BALANCE AMOUNT OF RS. 3,77,500/- WAS CONFIRMED OUT OF TOTAL CASH DEPOSIT OF RS. 15.1 0 LAKHS. THE SAME CASH FLOW STATEMENT SUBMITTED BY ASSESSEE BEFORE CIT(A) IS AVAILABLE ON PAGE NO. 11 OF THE PAPER BOOK FILED BEFORE THE TRIBUNAL AND AS PER THE SAME, IT IS SEEN THAT THE SELF WITHDRAWALS IS ONLY RS. 11,32,50 0/- WHEREAS THE CASH DEPOSIT IN BANK IS RS. 15.10 LAKHS. CONSIDERING AL L THESE FACTS, I FIND NO REASON TO INTERFERE IN THE ORDER OF CIT(A) ON THIS ISSUE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 08 TH FEBRUARY, 2019. /MS/ ITA NO. 2312/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.