Sandeep Kondiba Lokhande., Pune V. ITO, Pune

ITA 2503/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79817 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: HETAL GALA; SANJAY AMATE
• Keywords: Unexplained investment
• Section: 44AD; 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.2503/PN/2012 (ASSESSMENT YEAR : 2009-10) SANDEEP KONDIBA LOKHANDE, BANER GAON, NEAR BHAIRAVNATH MANDIR, LOKHANDE CHAWL, TAL. HAVELI, PUNE 411 045. PAN : ABJPL5633J . APPELLANT VS. INCOME TAX OFFICER, WARD 4(4), PUNE. . RESPONDENT ASSESSEE BY : MS. HETAL GALA & MR. SANJAY AMATE DEPARTMENT BY : MR. P. L. PATHADE DATE OF HEARING : 29-04-2014 DATE OF PRONOUNCEMENT : 30-04-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE D ATED 09.08.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.12.2011 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL THE ONLY ISSUE RAISED BY THE ASSE SSEE IS WITH REGARD TO AN ADDITION OF RS.17,67,700/- MADE BY THE ASSESSING OF FICER BY INVOKING SECTION 69 OF THE ACT REPRESENTING UNEXPLAINED DEPOSITS OF CASH FOUND TO HAVE BEEN MADE IN THE BANK ACCOUNT OF THE ASSESSEE. 3. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HA S NOTICED THAT IN SPITE OF SUFFICIENT OPPORTUNITIES ASSESSEE FAILED TO EXPL AIN THE SOURCE OF SUCH DEPOSITS AND ACCORDINGLY HE MADE AN ADDITION OF RS. 17,67,700/- U/S 69 OF THE ITA NO.2503/PN/2012 A.Y. 2009-10 ACT ON ACCOUNT OF UNEXPLAINED INVESTMENTS REPRESENT ED BY THE CASH DEPOSITS IN THE BANK ACCOUNT. IN APPEAL BEFORE THE CIT(A), ASSESSEE CONTENDED THAT THE CASH DEPOSITS IN THE BANK ACCOUNT WERE MERELY R E-DEPOSITS OF MONEY WHICH WAS WITHDRAWN EARLIER ON SEVERAL OCCASIONS AN D IT WAS FURTHER EXPLAINED THAT THE AFORESAID ACTIVITY WAS UNDERTAKEN TO SHOW BANKING TRANSACTIONS SO AS TO AVAIL FUTURE LOANS FROM THE LOAN. THE SAID EXPL ANATION OF THE ASSESSEE DID NOT FIND FAVAOUR WITH THE CIT(A), WHO HAS REJECTED THE SAME BY MAKING THE FOLLOWING DISCUSSION :- 3.6 SO FAR AS THE CASH DEPOSIT OF RS.17,67,700/- IN THE ICICI BANK, AUNDH BRANCH, PUNE IS CONCERNED, IT IS SEEN THAT TH E APPELLANT HAS NOT BEEN ABLE TO FURNISH ANY DETAILS WITH RESPECT TO THE SOU RCES OF THE DEPOSIT NOR ANY EXPLANATION WHICH COULD BE BELIEVED AND ACCEPTED EI THER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE STAG E. THE APPELLANT'S EXPLANATION THAT THE MONEY WAS WITHDRAWN AND RE-DEP OSITED IN THE BANK TO AVAIL FUTURE LOANS IS NOT UNDERSTANDABLE AND ALSO D OES NOT APPEAL TO REASON. THE SOURCE OF CASH DEPOSITED IN THE BANK HAS ALSO N OT BEEN BROUGHT ON RECORD. THERE ARE SEVERAL OTHER ENTRIES BOTH DEBIT AND CREDIT IN THE BANK STATEMENT WHICH HAS NOT BEEN EXPLAINED BY THE APPEL LANT AND NOT TAKEN INTO ACCOUNT WHILE PREPARING THE DETAILS WHICH HAVE BEEN FURNISHED DURING THE APPELLATE PROCEEDINGS. DURING THE ASSESSMENT PROCEE DINGS IT IS SEEN THAT THE APPELLANT HAD NOT BEEN ABLE TO FURNISH ANY EXPLANAT ION WHATSOEVER, REGARDING THE SOURCES OF THE CASH DEPOSITED IN THE BANK ACCOU NT. THE APPELLANT HAS ALSO NOT BEEN ABLE TO EXPLAIN THE PURPOSE AND THE REASON OF WITHDRAWALS IN SMALL AMOUNT SUCH AS RS.1000/- AND RS. 2000/- BY WAY OF A TM AND AGAIN RE- DEPOSITING THE SAME. THE BANK SLIPS OR THE ATM RECE IPTS HAVE ALSO NOT BEEN FURNISHED SO AS TO JUSTIFY THE CLAIM. 4. EVEN BEFORE US A SIMILAR SUBMISSION HAS BEEN RAI SED BY THE LEARNED COUNSEL FOR THE ASSESSEE. IT IS CONTENDED THAT CAS H WAS WITHDRAWN FROM ATM AND RE-DEPOSITED IN THE SAME BANK ON SEVERAL OCCASI ONS WITH A VIEW TO UNDERTAKE CERTAIN MINIMUM NUMBER OF TRANSACTIONS SO AS TO AVAIL THE FACILITY OF BANKING LOANS IN FUTURE. 5. WE ARE UNABLE TO APPRECIATE THE AFORESAID PLEA O F THE ASSESSEE HAVING REGARD TO THE AFORESAID FINDINGS OF THE CIT(A). IN ANY CASE, THERE IS NOTHING BROUGHT ON RECORD TO SUBSTANTIATE THE PROPOSITION S OUGHT TO BE ADVANCED ON BEHALF OF THE ASSESSEE. THERE IS NO MATERIAL TO IN DICATE THAT IN FUTURE ASSESSEE AVAILED OF ANY LOAN FACILITY FROM THE BANK . MOREOVER, AT PAGE 20 OF ITA NO.2503/PN/2012 A.Y. 2009-10 THE PAPER BOOK IS PLACED IN A MONTH-WISE DETAIL OF CASH DEPOSITED AND CASH WITHDRAWN FROM THE BANK, WHICH SHOWS THAT IN EACH O F THE MONTHS THE AMOUNTS WITHDRAWN ARE MUCH LESSER THAN THE CASH DEPOSITED. CONSIDERING THAT NO SPECIFIC EXPLANATION HAS BEEN FURNISHED WITH REGARD TO THE DEPOSITS, WE HEREBY AFFIRM THE ORDER OF THE CIT(A) ON THIS ASPECT AND A SSESSEE FAILS. 6. APART FROM THE AFORESAID, MUCH HAS BEEN ARGUED B Y THE LEARNED REPRESENTATIVE FOR THE ASSESSEE TO SAY THAT SECTION 69 OF THE ACT COULD NOT BE INVOKED IN THE PRESENT CASE BECAUSE ASSESSEE WAS NO T MAINTAINING BOOKS OF ACCOUNT. THE PLEA THAT HAS BEEN RAISED IS THE SECT ION 69 OF THE ACT IS APPLICABLE IN SITUATIONS WHERE ASSESSEE WAS MAINTAI NING BOOKS OF ACCOUNT AND CERTAIN INVESTMENTS ARE IDENTIFIED, WHICH ARE NOT R ECORDED IN THE BOOKS OF ACCOUNT. THE AFORESAID PLEA IS BASED ON AN ASSERTI ON THAT ASSESSEE HAD FILED HIS RETURN OF INCOME BY DECLARING INCOME ON A PRESU MPTIVE BASIS IN TERMS OF SECTION 44AD OF THE ACT. ACCORDING TO THE LEARNED REPRESENTATIVE WHERE THE INCOME IS DECLARED ON A PRESUMPTIVE BASIS IN TERMS OF SECTION 44AD OF THE ACT THERE WAS NO OBLIGATION ON THE PART OF THE ASSESSEE TO MAINTAIN THE BOOKS OF ACCOUNT. IN SUPPORT, RELIANCE HAS BEEN PLACED ON C ERTAIN JUDICIAL PRONOUNCEMENTS, NAMELY, THE HONBLE BOMBAY HIGH COU RT IN THE CASE OF CIT VS. BHAICHAND N. GANDHI, (1982) 11 TAXMANN.COM 59 ( BOM) AS ALSO THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. NITIN SONI, (2012) 21 TAXMANN.COM 447 (ALL.) AND THE DECISION OF THE LUCK NOW BENCH OF THE TRIBUNAL IN CASE OF ITO VS. KAMAL KUMAR MISHRA, (2013) 33 TA XMANN.COM 610 (LUCKNOW TRIB.). 7. ON THIS ASPECT, WE FIND THAT A SIMILAR PLEA WAS RAISED BEFORE THE CIT(A) BY ADVERTING TO SECTION 44AF OF THE ACT. THE SAID PLEA ALSO DID NOT FIND FAVOUR WITH THE CIT(A) AND THE RELEVANT DISCUSSION OF THE CIT(A) IS AS UNDER :- 4. IN GROUND NO. 4, THE APPELLANT HAS CONTESTED THA T THE ASSESSEE HAD FILED THE RETURN U/S 44AF AND WHICH HAS NOT BEE N CONSIDERED BY THE ASSESSING OFFICER. HOWEVER, ON GOING THROUGH THE AS SESSMENT ORDER NO SUCH ITA NO.2503/PN/2012 A.Y. 2009-10 DETAILS OF THE RETURN HAVING BEEN FILED U/S 44AF IS INDICATED. THE APPELLANT HAS, HOWEVER, CONTENDED THAT AS PER THE SAID SECTIO N THE ASSESSEE IS NOT REQUIRED TO MAINTAIN THE BOOKS OF ACCOUNT AND ONLY A SUM EQUAL TO 8% OF THE TOTAL TURNOVER IS TO BE OFFERED FOR TAX. THE APPELL ANT HAS ALSO PLACED RELIANCE ON THE DECISION OF THE ALLAHABAD HIGH COURT (2002) 207 TAXMAN 332 (ALL) IN THIS REGARD. HOWEVER, IT IS NOTICED THAT THE APPELL ANT HAS NOT FURNISHED ANY SUCH MATERIAL DURING THE APPELLATE PROCEEDINGS TO I NDICATE THAT THE RETURN OF INCOME WAS FILED U/S 44AF WHICH COULD JUSTIFY THE C LAIM NOW MADE BY THE APPELLANT. DURING THE ASSESSMENT PROCEEDINGS, THE A PPELLANT HAD ATTENDED IN PERSON BEFORE THE ASSESSING OFFICER, HOWEVER, IT IS NOTICED THAT NO SUCH CLAIM WAS MADE. IN THE CIRCUMSTANCES AND ON THE BASIS OF THE MATERIAL ON RECORD, THE CONTENTION RAISED BY THE APPELLANT IS NOT TENAB LE AND CANNOT BE ACCEPTED. 8. THE CIT(A) HAS REJECTED THE PLEA ON THE GROUND T HAT THERE WAS NO MATERIAL TO SHOW THAT ASSESSEE HAS FILED HIS RETURN OF INCOME DECLARING INCOME ON A PRESUMPTIVE BASIS U/S 44AF OF THE ACT. BEFORE US, THE PLEA RAISED IS ON THE BASIS OF SECTION 44AD OF THE ACT, SO HOWEVER, I T IS QUITE CLEAR THAT THERE IS NO MATERIAL TO SUPPORT THE ASSERTIONS THAT THE RETU RN OF INCOME WAS FILED DECLARING INCOME ON A PRESUMPTIVE BASIS. BE THAT A S IT MAY, IN THE PAPER BOOK FILED BEFORE US THERE IS NOTHING TO SUGGEST TH AT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING INCOME ON A PRESUMPTIVE BASIS. EVEN THE COPY OF THE RETURN OF INCOME HAS NOT BEEN BROUGHT OUT BY TH E ASSESSEE TO SUPPORT HIS PLEA. THUS, IN THE ABSENCE OF ANY MATERIAL WE ARE UNABLE TO APPRECIATE THE SAID PLEA OF THE ASSESSEE AND FOR THE REASONS TAKEN BY THE CIT(A), WHICH CONTINUE TO HOLD THE FIELD BEFORE US ALSO, THE SAID PLEA IS DISMISSED AS MISCONCEIVED. THUS, ON THIS PLEA ALSO ASSESSEE FAI LS. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED : 30 TH APRIL, 2014. SUJEET ITA NO.2503/PN/2012 A.Y. 2009-10 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE