Dinesh Roy, Kolkata V. I.T.O, Wd -51(4), Kolkata, Kolkata

ITA 2440/KOL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1637 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 09-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANIBRATA DUTTA DDL

Judgement Text

ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI J.S UDHAKAR REDDY, AM ] ITA NO.2440/KOL/2013 ASSESSMENT YEAR : 2008-09 DINESH ROY -VERSUS- I.T.O. WARD-51 (4), KOLKATA KOLKATA (PAN: AKBPR 6916 R) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI RAVI TULSIYAN, FCA FOR THE RESPONDENT: SHRI BANIBRATA DUTTA, DDL. CIT DATE OF HEARING : 17.08.2017. DATE OF PRONOUNCEMENT : 23.08.2017. ORDER PER N.V.VASUDEVAN, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 29.07.2013 OF CIT(A)-XXXII, KOLKATA RELATING TO A.Y.2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN HIS APPEAL :- 1) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ID.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.20,57,000/- ON ACCOUN T OF 'UNEXPLAINED CASH DEPOSITS' WITHOUT CONSIDERING THE FACTS OF THE CASE IN PROPER PERSPECTIVE. 2) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.20,57,000/- WITHOUT A CCEPTING THE GROUNDS OF REALITY AND THE FACTS ND CIRCUMSTANCES OF THE CASE WHATSOEVER. 3) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ID. CIT(A) ERRED IN NOT ACCEPTING THE SUBMISSIONS OF THE APPELLANT DISC LAIMING THE OWNERSHIP OF THE CASH DEPOSITED IN THE BANK ACCOUNT AS WAS HELD BY T HE APPELLANT JOINTLY WITH TWO OTHERS, IN SPITE OF THE FACTS THAT THE OTHER JOINT HOLDERS OF THE BANK ACCOUNT MADE DEPOSITIONS BEFORE THE ID. A.O. ALONG WITH THE SHOP /STALL OWNERS STATING THE FACTS OF THE CASE. 4) THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.20,57,000/- SUSTAINED BY THE ID.CIT(A) WAS ARBITRARY, UNJUST, U NLAWFUL AND ERRONEOUS. 5) THAT THE ORDER PASSED BY THE ID.CIT(A) WAS BAD I N LAW AND CONTRARY TO THE FACTS AND RECORDS. ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 2 6) THAT THE ASSESSEE CRAVES TO URGE SUCH OTHER GROU ND OR GROUNDS BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. THE ASSESSEE HAS ALSO FILED AN APPLICATION FOR A DMITTING THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL :- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. T HE LD. CFT(A) ERRED IN UPHOLDING THE LD. AOS ADDITION OF RS.20, 57,000/- TO THE APPELLANT'S TOTAL INCOME. BEING THE SUM DEPOSITED BY AN OVERRIDING OB LIGAT ION IN I HE APPELLANT 'S BANK ACCOUNT NO. 0250 1010033657 IN AXIS BANK LTD.. SALT LAKE BRANCH, KOLKATA JOINTLY HELD WITH TWO OTHERS. ' 4. THE ADDITIONAL GROUNDS OF APPEAL IS PURELY A LEG AL ISSUE AND CAN BE DECIDED ON THE BASIS OF MATERIAL ALREADY AVAILABLE ON RECORD. IN T HE LIGHT OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD 229 ITR 383 (SC), WE ARE OF THE VIEW THAT THE ADDITIONAL GROUND IS REQUIRED TO BE A DMITTED AND ADJUDICATED FOR PROPER DETERMINATION OF THE TAX LIABILITY OF THE ASSESSEE. WE ADMIT THE ADDITIONAL GROUND FOR ADJUDICATION. 5.THE FACTS AND CIRCUMSTANCES UNDER WHICH THE PRESE NT APPEAL ARISES FOR CONSIDERATION ARE AS FOLLOWS :- THE ASSESSEE IS AN INDIVIDUAL AND CARRIES ON THE BUSINESS AS KEROSENE STOVE AND GAS OVEN REPAIRER. HE WORKS FROM AN OPEN STALL WITHOUT SHADE AT BD MARKET, SALT LAKE, KOLKATA. HIS ONLY SOURCE OF INCOME IS FROM HIS DAIL Y COLLECTION OF SERVICE CHARGES FROM REPAIRING KEROSENE STOVES AND GAS OVENS. 6. THE ASSESSEE CARRYING ON BUSINESS FROM BD MARKE T, SALT LAKE IS ALSO A MEMBER OF THE BD MARKET TRADERS' ASSOCIATION WHICH IS KNOWN A S THE 'BD MARKET BABOSAYEE SAMITI' . DURING THE YEAR 2007, THE BIDHANNAGAR MUNICIPALIT Y DECIDED TO DEMOLISH THE EXISTING OLD BD MARKET BUILDING AT SALT LAKE FROM W HERE THE ASSESSEE AND SEVERAL OTHER SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS WER E CARRYING ON THEIR BUSINESS. THE BIDHANNAGAR MUNICIPALITY DECIDED THAT AFTER DEMOLIS HING THE EXISTING BUILDING, THEY WOULD RECONSTRUCT A GROUND + NINE-STOREY BUILDING I N PLACE OF THE OLD EXISTING BUILDING AND ASSURED ALL THE SHOPKEEPERS/STALL OWNE RS/CHATAL OCCUPANTS OF THE BD MARKET THAT THEY WOULD BE PROVIDED WITH A COVERED S HOP IN THE PROPOSED MARKET BUILDING FROM WHERE THEY COULD CARRY ON THEIR BUSIN ESS. FOR THIS, EACH OF THE ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 3 SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD MAR KET, SALT LAKE WERE TOLD TO PAY BY WAY OF ADVANCE, 30% OF THE COST PRICE OF THE SHO PS, TO THE BIDHANNAGAR MUNICIPALITY, AFTER THE RECONSTRUCTION OF THE BD MA RKET BUILDING. 7. SINCE ALL THE SHOPKEEPERS/STALL OWNERS/CHATAL O CCUPANTS OF BD MARKET, SALT LAKE ARE SMALL TRADERS WITH LIMITED MEANS AND EARNINGS, THEY UNANIMOUSLY DECIDED AT THE GENERAL BODY MEETING OF THE 'BD MARKET BABOSAYEE SA MITI' HELD ON 21.02.2007 THAT THEY WOULD NOT BE ABLE TO PAY BY WAY OF ADVANCE 30% OF THE COST PRICE OF THE SPACE/SHOP TO BE ALLOTTED TO THEM IN THE RECONSTRUC TED BUILDING AT ONE GO AND THEREFORE THEY DECIDED THAT EACH ONE OF THEM WOULD PAY AND KE EP DEPOSITING CERTAIN SUMS OF MONEY AS PER THEIR CAPACITY WITH THE SAMITY, EITHER ON DAILY BASIS OR MONTHLY BASIS. 8. HOWEVER SINCE THESES DEPOSITS MADE BY EACH OF T HE SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD MARKET, SALT LAKE WOULD NOT BE THE SAMITI'S MONEY, IT WAS DECIDED BY ALL THE SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANT S UNANIMOUSLY AT THE GENERAL BODY MEETING OF THE 'BD MARKET BABOSAYEE SAMITI' HELD ON 21.02.2007 THAT SHRI GOUR NANDA SAHA, SHRI SHAMBHU DAS AND SHRI DINESH ROY (T HE ASSESSEET), ALSO CARRYING ON BUSINESS FROM THE EXISTING BD MARKET PREMISES WOULD BE ENTRUSTED WITH THE RESPONSIBILITY TO COLLECT THESE DEPOSITS FROM THE S HOP KEEPERS/STALL OWNERS/CHATAL OCCUPANTS AND KEEP THEM IN A SEPARATE BANK ACCOUNT OPENED FOR THIS PURPOSE, ON BEHALF OF THE SHOPKEEPERS/STALL OWNERS OF THE 'SAMI TI', SO THAT ON REQUIREMENT BY THE DEPOSITORS IT COULD BE WITHDRAWN AND RETURNED TO TH EM OR ELSE WOULD BE PAID TO THE BIDHANNAGAR MUNICIPALITY ON COMPLETION OF CONSTRUCT ION OF THE NEW MARKET BUILDING. 9. FURTHER IT WAS ALSO DECIDED AT THE MEETING ON21 .02.2007 THAT WHATEVER SUMS OF MONEY WOULD BE DEPOSITED IN THE SAID BANK ACCOUNT T O BE OPENED FOR THIS PURPOSE BY SHRI GOUR NANDA SAHA, SHRI SHAMBHU DAS AND SHRI DIN ESH ROY, THEY WOULD BE BOUND TO INFORM ABOUT THE DETAILS OF THE DEPOSITS AND WIT HDRAWALS MADE IN/FROM THE BANK ACCOUNT TO THE MEMBERS OF THE SAMITI AT THE END OF EACH MONTH. THUS ON THE BASIS OF THE ABOVE DECISIONS TAKEN BY THE MEMBERS OF THE 'BD MARKET BABOSAYEE SAMITI' ON 21.02.2007, A RESOLUTION WAS PASSED IN THIS REGARD ON 21.02.2007. COPY OF THE RESOLUTION PASSED AT THE GENERAL BODY MEETING OF TH E 'BD MARKET BABOSAYEE SAMITI' ON21.02.2007 (RECORDED IN BENGALI LANGUAGE) IS ENCL OSED AT PAGES 23 TO 27 OF THE ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 4 PAPER BOOK AND TRANSLATION OF THE SAME IN ENGLISH I S ENCLOSED AT PAGES 27 A TO 27B OF THE PAPER BOOK. 10. IT WAS ALSO DECIDED AT THE MEETING OF 'BD MARK ET BABOSAYEE SAMITI' ON 21.02.2007 THAT UNTIL THE PROPOSED BD MARKET WAS RE CONSTRUCTED AFTER DEMOLITION OF THE EXISTING BUILDING, ALL THE SHOP KEEPERS/STALL O WNERS/CHATAL OCCUPANTS WOULD BE TEMPORARILY SHIFTED TO THE ADJACENT BD PARK FOR CON TINUING THEIR BUSINESS. AFTER RECONSTRUCTION OF THE PROPOSED BD MARKET BUILDING, ALL THE SHOP KEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF THE BD MARKET WOULD BE P ROVIDED THEIR OWN SPACES/SHOPS AT THE NEW MARKET BUILDING SUBJECT TO PAYMENT OF 30 % OF THE COST PRICE OF THE SHOPS BY WAY OF ADVANCE BY THEM. 11. IT IS THE PLEA OF THE ASSESSEE THAT THE RESOLU TION PASSED BY THE MEMBERS OF THE 'BD MARKET BABOSAYEE SAMITI' ON 21.02.2007 CREATED A CHARGE OR AN OVERRIDING OBLIGATION ON THE AASSESSEE (ALONG WITH TWO OTHERS) TO COLLECT MONEY FROM THE MEMBERS OF THE SAMITI WHO WERE ALSO SHOPKEEPERS AT THE BD MARKET, DEPOSIT THE SAME IN A BANK ACCOUNT OPENED IN HIS NAME AND THE TWO OT HERS FOR THIS PURPOSE, WHICH COULD EITHER BE WITHDRAWN BY THEM ON REQUIREMENT OF THE R ESPECTIVE OWNERS OF THE DEPOSITS OR PAID TO THE BIDHANNAGAR MUNICIPALITY BY WAY OF A DVANCE, FOR PROVIDING THEM THEIR SHOPS AT THE RECONSTRUCTED BD MARKET BUILDING. BY V IRTUE OF THIS OVERRIDING OBLIGATION, THE AMOUNT DEPOSITED IN THE BANK ACCOUN T HELD BY THE ASSESSEE JOINTLY WITH TWO OTHERS, WOULD BE DIVERTED AT SOURCE, AND NEVER REACH THE ASSESSEE. THE ASSESSEE THUS NEVER HAD ANY RIGHT OR OWNERSHIP OVER THE AMOU NT DEPOSITED IN THE SAID ACCOUNT OPENED IN HIS NAME ALONG WITH TWO OTHERS. 12. PURSUANT TO THE ABOVE RESOLUTION PASSED, THE A SSESSEE ALONG WITH SHRI GOUR NANDA SAHA AND SHRI SHAMBHU DAS THUS OPENED A SAVINGS BANK ACCOUNT IN THE NEARBY BRANCH OF AXIS BANK AT SALT LAKE VIDE ACCOUNT NO. 02501010033657 ON 11.09.2007 (EVIDENCING THE SAME COPY OF BANK STATEM ENT IS ENCLOSED AT PAGES 29 TO 30 OF THE PAPER BOOK) AND BEGAN COLLECTING MONEY FROM THE SHOPKEEPERS'/STALL OWNERS' AND DEPOSITING THE SAME IN THE BANK ACCOUNT OPENED FOR THIS PURPOSE AS PER THE RESOLUTION DATED 21.02.2007. SHRI GOUR NANDA SAHA W AS THE FIRST HOLDER OF THE BANK ACCOUNT WHEREAS THE ASSESSEE AND SHRI SHAMBHU DAS W ERE THE OTHER TWO JOINT HOLDERS. ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 5 HOWEVER SINCE SHRI GOUR NANDA SAHA AND SHRI SAMBHU DAS HAD NOT PROVIDED THEIR PAN TO THE BANK, THE ASSESSEE IN ORDER TO AVOID COM PLICATIONS IN OPENING THE ACCOUNT PROVIDED HIS PAN TO THE BANK THOUGH HE WAS NOT THE FIRST HOLDER OF THE ACCOUNT. 13. THE ASSESEE FILED HIS RETURN OF INCOME FOR A .Y.2008-09 ON 19.06.2008 DECLARING THE TOTAL INCOME AT RS,.1,13,950/-. THE ASSESSEES CASE WAS PICKED UP FOR COMPULSORY SCRUTINY FOR THE REASON THAT THE AIR INFORMATION RE FLECTED THE CASH DEPOSIT OF RS.20,57,000/- AT AXIS BANK LTD. SALT LAKE BRANCH ON 31.03.2008. THE AO ADDED A SUM OF RS.20,57,000/- AS UNEXPLAINED INCOME OF THE ASSESSEE. THE ASSESSEE, IT APPEARS THAT HAD NOT FILED ANY EXPLANATION BEFORE THE AO. 14. BEFORE CIT(A) THE ASSESSEE POINTED OUT THAT ALL THE FACTS REGARDING THE DEPOSIT OF RS.20,57,000/- BEING AXIS BANK ACCOUNT WHICH WE HAV E ALREADY NARRATED IN THE EARLIER PARAGRAPHS OF THIS ORDER. THE ASSESSEE IN SUPPORT O F HIS CLAIM THAT HE WAS NOT THE OWNER OF THE SUM DEPOSITED IN THE AXIS BANK ACCOUNT FILED AN AFFIDAVIT DULY SWORN IN BY THE ASSESSEE AND TWO OTHER SHOPKEEPERS SHRI GOUR NANDA SAHA AND SHRI SAMBU DAS BEFORE CIT(A). THIS IS ALSO AVAILABLE IN THE ASSESS EES PAPER BOOK. AS WE HAVE ALREADY SEEN THAT THE BANK ACCOUNT WITH THE AXIS BANK WAS N OT IN THE SOLE NAME OF THE ASSESSEE AND IT WAS IN THE JOINT NAME OF THE ASSESSEE NAMELY SHRI GOUR NANDA SAHA AND SHRI SAMBU DAS. IN FACT THE ASSESSEE WAS NOT EVEN THE F IRST HOLDER BUT HE IS THE SECOND JOINT HOLDER WITH THE AXIS BANK. IN THE ASSESSMENT OF SHRI S.DAS FOR A.Y.2008-09 THE FACT THAT RS.20,75,000/- WAS DEPOSITED IN THE BANK ACCOUNT IN CASH WAS REFERRED TO BY THE AO BUT HE HAS NOT MADE ANY ADDITION IN THE HAND S OF SHRI DAS. ORDER OF ASSESSMENTS ARE PLACED AT PAGES 322 AND 323 OF THE ASSESSEES PAPER BOOK. 15. THE PAPER BOOK ALSO CONTAINS THE EVIDENCE W ITH REGARD TO HOW ULTIMATELY THE NEW MARKET SHOP COULD NOT BE CONSTRUCTED. THE FACTS WITH REGARD TO WHY ULTIMATELY THE NEW MARKET COULD NOT BE CONSTRUCTED WERE THAT SHOPK EEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD '/ MARKET, SALT LAKE WERE SHIFTED T O THE ADJACENT BD PARK IN THE MEANWHILE FOR CONTINUING THEIR BUSINESS. HOWEVER TH E LOCAL RESIDENTS OF BD BLOCK, SALT LAKE OBJECTED TO A PART OF THE BD PARK BEING U SED BY THE SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD MARKET, SALT LAKE FOR CARRYING ON THEIR BUSINESS TILL RECONSTRUCTION OF THE NEW BD MARKET BUILDING SINCE THE PARK WAS USED BY THE LOCAL ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 6 RESIDENTS FOR THE RECREATION OF THEMSELVES AND THEI R CHILDREN AND FOR CONDUCTING THE FESTIVAL OF DURGA PUJA. THEY ALSO OBJECTED TO THE C ONSTRUCTION OF THE PROPOSED BD MARKET BUILDING BEING A HIGHRISE (GROUND + 9 FLOORS ) IN THE LOCALITY, WHICH THEY FEARED WOULD DAMAGE THE SURROUNDING BUILDINGS AND PUT PRES SURE ON THE DRAINAGE SYSTEM AND WATER SUPPLIES IN THE AREA. THEREFORE THEY FILED A WRIT PETITION VIDE W.P. 19268 (W) OF 2008 BEFORE THE HON'BLE CALCUTTA HIGH COURT OBJECTING TO THE CONSTRUCTION OF THE NEW BM MARKET BUILDING AND USAGE OF THE BD PARK FOR TEMPORARILY ACCOMMODATING THE SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD MARKET BY THE BIDHANNAGAR MUNICIPALITY. (EVIDENCING THE SAME, COPY OF THE SUP PLEMENTARY AFFIDAVIT FILED BY THE BIDHANNAGAR MUNICIPALITY BEFORE THE HON'BLE CALCUTT A HIGH COURT IS ENCLOSED AT PAGES 36 TO 48 OF THE PAPER BOOK). AS A RESULT OF THE AB OVE HINDRANCES, THE BIDHANNAGAR MUNICIPALITY HAD STALLED THE CONSTRUCTION OF THE NE W BD MARKET BUILDING DURING 2008. THE SAME WAS ALSO REPORTED IN THE NEWSPAPER 'THE TE LEGRAPH' (COPY OF THE NEWSPAPER EXTRACT REPORTING THE SAME IS ENCLOSED AT PAGE 49 O F THE PAPER BOOK). CONSEQUENT TO THE ABOVE, THE ASSESSEE ALONG WITH SHRI GOUR NANDA SAHA AND SHRI SHAMBHU DAS WITHDREW THE DEPOSITS MADE BY THEM ON BEHALF OF THE SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD MARKET IN THE SAVINGS BANK ACCOUNT NO. 02501010033657 IN AXIS BANK, SALT LAKE AND RETURNED THE MONEY TO THEIR RES PECTIVE OWNERS AND CLOSED THE ACCOUNT ON 12.06.2008. EVIDENCING THE SAME, COPIES OF AFFIDAVITS OF THE SHOPKEEPERS/STALL OWNERS/CHATAL OCCUPANTS OF BD MAR KET ARE ENCLOSED AT PAGES 50 TO 321 OF THE PAPER BOOK WHEREIN THEY HAVE CLEARLY REI TERATED THE ABOVE FACTS REGARDING PAYMENT OF MONEY TO THE ASSESSEE, SHRI GOUR NANDA S AHA AND SHRI SHAMBHU DAS FOR DEPOSITING IT IN A JOINT ACCOUNT OPENED BY THEM FOR THIS PURPOSE, PURSUANT TO A RESOLUTION PASSED BY THE 'BD MARKET BABOSAYEE SAMIT I'. THEY ALSO STATED IN THEIR RESPECTIVE AFFIDAVITS THAT THEIR DEPOSITS WERE BEIN G MADE FOR PAYMENT OF THEIR ADVANCE TO THE BIDHANNAGAR MUNICIPALITY FOR ALLOTTING THEM INDIVIDUAL SHOPS IN THE NEW MARKET BUILDING TO BE CONSTRUCTED AND THAT SINCE THE PROPO SED PLAN DID NOT MATERIALIZE DUE TO ONGOING LITIGATION, THEIR MONEY WAS RETURNED TO EAC H ONE OF THEM BY THE ASSESSEE AND THE TWO OTHER HOLDERS OF THE AXIS BANK ACCOUNT. ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 7 16. IT IS NOT IN DISPUTE THAT ALL THE DOCUMENTS WERE FORWARDED BY CIT(A) TO THE AO. IN THE REMAND REPORT DATED 30.07.2012 WHICH WAS OBT AINED FROM THE AO, THERE IS NOTHING ADVERSE IN THE REMAND REPORT OF THE AO. IN THIS STATE OF AFFAIRS THE CIT(A) HAD TO CONSIDER THE QUESTION WHETHER THE ADDITION MADE BY THE AO CAN BE SUSTAINED. THE CIT(A) DID NOT DEAL WITH THE AFFIDAVIT GIVEN BY VAR IOUS SHOP KEEPERS OWING THE AMOUNTS DEPOSITED IN THE AXIS BANK ACCOUNT. HE WENT ON TO HOLD THAT THE AFFIDAVIT WAS NOT AN EVIDENCE PER SE AND THAT THE ASSESSEE COULD FILE AFFIDAVIT IN PROOF OF FACTS ONLY WHEN HE IS CALLED UPON TO DO SO. THE REASONS FOR SU STAINING THE ADDITION MADE BY THE AO, IN OUR VIEW, ARE UNSUSTAINABLE. FOR EXAMPLE, T HE CIT(A) HAS OBSERVED THAT THOUGH THE BANK ACCOUNTS ARE IN THE JOINT NAMES, IT WAS ONLY THE ASSESSEE WHO HAD A PAN AND THEREFORE HE WAS IN A PRE-DOMINANT POSITION . HE ALSO HELD THAT IT WAS ONLY THE ASSESSEE WHO WAS ENTITLED TO ALL THE SUMS DEPOS ITED IN THE BANK ACCOUNT AND IN COMING TO THIS CONCLUSION HE HAS NOT BROUGHT OUT AN Y MATERIAL ON RECORD. 17. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESS EE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 18. WE HAVE HEARD THE RIVAL SUBMISSION. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE FACTS ELABORATED IN THE EARLIER PART OF THIS OR DER AND DREW OUR ATTENTION TO VARIOUS DOCUMENTS FILED IN THE PAPER BOOK. THE LD. DR RELIE D ON THE ORDER OF CIT(A). 19. WE ARE OF THE VIEW THAT THE ADDITIONS SUSTAINE D BY CIT(A) IS WITHOUT ANY BASIS AND DESERVES TO BE DELETED. FIRSTLY THE BANK ACCOUN T IN QUESTION WAS NOT IN THE SOLE NAME OF THE ASSESSEE. THERE IS NO PRESUMPTION IN LA W THAT MONEY DEPOSITED IN THE JOINT ACCOUNT BELONGS TO ONLY ONE OF THE JOINT ACCOUNT HO LDERS. IN FACT THE POSITION IS THAT ALL THE THREE PERSONS (JOINT ACCOUNT HOLDERS) SHOULD BE PRESUMED TO BE ENTITLED TO THE MONEY LYING IN THE JOINT ACCOUNT, UNLESS THE JOINT HOLDERS PLEAD TO THE CONTRARY. AS FAR AS THE PRESENT CASE IS CONCERNED THE ADDITION IN QU ESTION, IF AT ALL HAS TO BE MADE U/S 69A OF THE ACT. THE ASSESSEE IN SUCH A SITUATION H AS TO EXPLAIN THE NATURE AND SOURCE OF THE MONEY FOUND DEPOSITED IN THE BANK ACCOUNT. T HE ASSESSEE IN THE PRESENT CASE HAS OFFERED AN EXPLANATION. THIS EXPLANATION IN OU R VIEW IS FOUND TO BE SATISFACTORY. IN SUCH CIRCUMSTANCES THERE IS NO REASON AS TO WHY ADDITION MADE BY THE AO SHOULD BE SUSTAINED. IT IS CLEAR FROM THE MATERIAL ON RECORD THAT NEITHER THE ASSESSEE NOR THE OTHER ITA NO.2440/KOL/2013 DINESH ROY A.Y.2008-09 8 JOINT ACCOUNT HOLDERS HAD ANY RIGHT OVER THE SUM OF RS.20,57,000/- THAT WAS DEPOSITED IN THE SAID ACCOUNT. IN THE GIVEN FACTS AND CIRCUMS TANCES WE ARE OF THE VIEW THAT THE ADDITIONS SUSTAINED BY CIT(A) DESERVES TO BE DELETE D. 20. IN THE RESULT THE APPEAL BY THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE COURT ON 23.08.2017. SD/- SD/- [J.SUDHAKAR REDDY] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23.08.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI DINESH ROY, AD-117/3, SAMAR DEY SRANI, BARWA RITALA, KRISHNAPUR, KOLKATA- 7000102. 2. I.T.O., WARD-51(4), KOLKATA. 3. CIT(A)-XXXII, KOLKATA. 4. C.I.T.-XVII, KOLK ATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES