Sh. Leela Dhari Sachdeva, Panchkula V. ITO, Panchkula

ITA 28/CHANDI/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5485 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA; AMITOZ SINGH
• Keywords: Gift; Business income; Income from undisclosed sources; Corroborative evidences; Onus to prove
• Section: 142(1); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI D.K.SRIVASTAVA, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 28/CHD/2011 ASSESSMENT YEAR: 2006-07 SH.LEELA DHARI SACHDEVA, VS. THE INCOME-TAX OFFIC ER, #512, SECTOR-10, WARD 1, PANCHKULA. PANCHKULA. PAN NO. APQPS5301B (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI RAKESH GUPTA & AMITOZ SINGH RESPONDENT BY: SMT.SARITA KUMARI ORDER PER SUSHMA CHOWLA, JM THE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A), PANCHKULA DATED 20.10.2010 RELATING TO ASSESSMENT Y EAR 2006-07 AGAINST THE ORDER PASSED UNDER SECTION 143(3)OF THE I.T. AC T, 1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 2. THAT THE LD. CIT(A) IS WRONG IN CONFIRMING ADD ITION OF RS.36,17,500/- ON ACCOUNT OF UNEXPLAINED DEPOSIT IN HIS BANK ACCOUNT BY STATING THAT THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF DEPOSIT IN HIS BOOKS OF ACCOUNT BY IGNORING THAT THE ASSESSEE HAVE DULY ACCOUNTED FOR THESE DEPOSITS IN THE BALANCE SHEET AND P &L A/C AND FURTHER THE ASSESSEE HAS GIVEN FULL BIFURCATION OF AMOUNT RECEIVED IN BANK ACCOUNT DURING HEARING WITH SOURCE AND EXPLANATION. 2.1 WITHOUT PREJUDICE TO ABOVE, ALTERNATIVELY, THE LD. CIT(A) IS WRONG IN CONFIRMING ADDITION OF 2 RS.12,02,500/- OUT OF THE TOTAL ADDITION OF RS.36,17,500/- AS THE SAME HAVE BEEN DULY ACCOUNTED FOR AS RECEIPTS IN THE PROFIT & LOSS ACCOUNT AND THE INCOME OF RS.1,38,430/- ON ACCOUNT OF SUCH RECEIPTS AFTER CLAIMING THE EXPENDITURE HAV E BEEN DULY ACCEPTED BY THE LD. AO. 3. THE ISSUE RAISED IN THE PRESENT APPEAL IS IN CON NECTION WITH THE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS. THERE WAS A SPEC IFIC INFORMATION IN THE CASE OF THE ASSESSEE REGARDING CASH DEPOSITS OF RS.31,62,500/- IN THE BANK ACCOUNT. IN REPLY TO THE QUERIES RAISED BY TH E A.O. IN THIS REGARD, DESPITE SEVERAL OPPORTUNITIES AFFORDED TO THE ASSES SEE THERE WAS NO COMPLIANCE BY THE ASSESSEE ON VARIOUS DATES AND ON SOME DATES ADJOURNMENT APPLICATIONS WERE FILED. THE A.O. ACCO RDINGLY ISSUED NOTICE UNDER SECTION 144 OF THE INCOME-TAX ACT ACCOMPANIED WITH NOTICE UNDER SECTION 142(1) OF THE ACT. THE A.O. OBSERVED THAT AS PER THE AIR INFORMATION THERE WERE CASH DEPOSITS OF RS.31,62,50 0/- IN THE BANK ACCOUNT MAINTAINED WITH INDUSIND BANK LTD. BY THE A SSESSEE. A COPY OF THE BANK ACCOUNT WAS OBTAINED BY THE A.O. SHOW CAU SE NOTICE ISSUED BY THE A.O. REMAINED UN-COMPLIED WITH. THE A.O. NOTED THE ASSESSEE TO HAVE FURNISHED RETURN OF INCOME ON ACCOUNT OF PROPE RTY CONSULTANCY BUSINESS AND OTHER SOURCES. IN THE AFORESAID BANK ACCOUNT, THE TOTAL CASH DEPOSITS AGGREGATING TO RS.36,17,500/- WERE TREATED AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES BY THE A.O. 4. BEFORE THE CIT(A), THE ASSESSEE FURNISHED WRITTE N SUBMISSIONS WHICH ARE INCORPORATED AT PAGES 2 TO 4 OF THE APPEL LATE ORDER. THE 3 CONTENTION OF THE ASSESSEE WAS THAT THERE WAS NO MA LAFIDE INTENTION ON THE PART OF THE ASSESSEE FOR NON-COOPERATION WITH T HE DEPARTMENT. FURTHER IT WAS SUBMITTED THAT THE ASSESSEE WAS IN T HE BUSINESS OF PROPERTY CONSULTANCY AND WAS INVOLVED IN SALE/PURCH ASE OF PROPERTY ON MARGIN FOR WHICH CASH WAS ALWAYS REQUIRED. THE SOU RCE OF CASH DEPOSITS AS PER THE ASSESSEE SHOULD NOT BE DISPUTED AS THE A SSESSEE HAD SOLD A BUILT-UP SCF FOR SALE CONSIDERATION OF RS.36 LACS A ND THE AMOUNT WAS RECEIVED THROUGH CROSS CHEQUES IN HIS BANK ACCOUNT, WHICH IN TURN WERE WITHDRAWN AND REDEPOSITED IN LINE WITH THE NEEDS OF HIS BUSINESS. IT WAS ALSO POINTED OUT THAT THE TRANSACTIONS REGARDING IS SUE OF CHEQUE TO OTHER PARTIES WAS CARRIED OUT FROM THE BANK ACCOUNT OF TH E ASSESSEE, IN WHICH ALL THE DEALERS COLLECTIVELY DEPOSITED THE CASH AND THEREAFTER CHEQUES WERE ISSUED TO THE RELEVANT PARTIES. THE ASSESSEE TABULATED THE INSTANCES OF SUCH TRANSACTIONS, WHICH ARE REPRODUCED AT PAGES 3 & 4 OF THE APPELLATE ORDER. IT WAS FURTHER POINTED OUT THAT T HOUGH THERE WERE CASH DEPOSITS OF RS.31,62,500/- DURING THE YEAR, THERE W ERE CASH WITHDRAWALS OF RS.38,92,200/- IN THE RELEVANT ASSESSMENT YEAR. THE CIT(A) CALLED FOR REMAND REPORT AND IN REPLY VIDE REPORT DATED 4.2.20 10, THE AVERMENTS OF THE A.O. WERE THAT THE CONTENTION OF THE ASSESSE E FOR HAVING SOLD BUILT-UP SCF IN PANCHKULA COULD NOT BE VERIFIED IN THE ABSENCE OF COOPERATION FROM THE ASSESSEE. FURTHER IT WAS POIN TED OUT BY THE A.O. THAT THE ASSESSEE CLAIMED TO HAVE SOLD PROPERTIES F OR RS.36,02,000/-, WHEREAS THE PROPERTIES PURCHASED BY HIM WERE FOR RS .33,17,812/-. THE A.O. NOTED THE ASSESSEE NOT TO HAVE SHOWN ANY INCOM E FROM CAPITAL GAIN ON THE SALE OF THREE PROPERTIES. THE ASSESSEE HAD SHOWN CONTRACT RECEIPTS OF COMMISSION AND OTHER RECEIPTS OF RS.16,38,835/- AND CLAIMED DEDUCTION OF RS.16,02,832/- WHICH AS PER THE A.O. C OULD NOT BE VERIFIED BECAUSE OF NON-COOPERATION OF THE ASSESSEE. THE CI T(A) VIDE LETTER DATED 21.7.2010 DIRECTED THE A.O. TO GIVE ANOTHER O PPORTUNITY TO THE 4 ASSESSEE AND RESUBMIT THE REMAND REPORT. THE ASSES SEE MEANWHILE FILED REJOINDER TO THE REMAND REPORT OF THE A.O. WHICH IS REPRODUCED IN PARA 6 AT PAGES 5 TO 8 OF THE APPELLATE ORDER WHEREIN EX PLANATION WAS GIVEN IN RESPECT OF THE RECEIPTS FROM SALE OF THREE PROPERTI ES INCLUDING HIS INCOME FROM COMMISSION AND OTHER SOURCES. IT WAS ALSO CLA IMED BY THE ASSESSEE THAT HE HAD RECEIVED RS.24,15,000/- AS ADVANCE AGAI NST SOME OF THE PROPERTIES. THE ASSESSEE FURTHER TABULATED THE DET AILS OF WITHDRAWALS OF RS.91.31 LACS FROM THE BANK ACCOUNT DURING THE RELE VANT YEAR. ANOTHER REPLY WAS FURNISHED BY THE ASSESSEE WHICH IS INCORP ORATED IN PARA 6.1 AT PAGES 9 TO 13 OF THE APPELLATE ORDER IN WHICH THE A SSESSEE EXPLAINED THE DETAILS OF SOURCES OF CASH DEPOSITS IN THE BANK ACC OUNT ON DIFFERENT DATES IN A TABULATED FORM, WHICH ARE REPRODUCED BY THE CI T(A). THE A.O. IN THE REMAND REPORT DATED 13.9.2010 REPORTED THAT THE ASSESSEE VIDE ORDER-SHEET ENTRY DATED 12.8.2010 WAS ASKED TO EXPL AIN WHETHER THE AMOUNT RECEIVED IN ADVANCE FROM THREE PERSONS WERE IN THE SHAPE OF GIFT OR LOAN AND THE ASSESSEE WAS ALSO DIRECTED TO PRODU CE THE SAID PERSONS. THE ASSESSEE WAS ALSO ASKED TO FURNISH THE EVIDENCE OF COMMISSION, CONTRACT AND TOKEN MONEY SHOWN ON VARIOUS DATES WIT H SUFFICIENT DOCUMENTARY EVIDENCE. THE ASSESSEE WAS ASKED TO EX PLAIN FROM WHOM COMMISSION WAS RECEIVED AND AGAINST WHICH PROPERTY . THE ASSESSEE WAS DIRECTED TO PRODUCE THE COMPLETE BOOKS OF ACCOUNT A ND SUPPORTING VOUCHERS. THE A.O. FURTHER REPORTS THAT THE LEARNE D COUNSEL FOR THE ASSESSEE ATTENDED ON 19.8.2010, BUT NEITHER THE THR EE PERSONS WERE PRODUCED, NOR ANY REPLY OR CLARIFICATION WAS FILED. THE BOOKS OR SUPPORTING VOUCHERS WERE NOT PRODUCED IN SUPPORT OF CLAIM OF COMMISSION, CONTRACT AND TOKEN MONEY. THE CASE WAS FINALLY ADJOURNED TO 25.8.2010 ALLOWING ANOTHER OPPORTUNITY TO THE AS SESSEE FOR PRODUCTION OF COMPLETE BOOKS OF ACCOUNT AND SUPPORTING VOUCHER S ALONGWITH PRODUCTION OF THREE PERSONS TO ESTABLISH THE GENUIN ENESS OF THE 5 TRANSACTIONS. ON 25.8.2010 THE LEARNED COUNSEL FOR THE ASSESSEE ATTENDED AND STATED THAT HE COULD NOT PRODUCE THE THREE PERS ONS FOR STATEMENT AND NO BOOKS OF ACCOUNT AND SUPPORTING VOUCHERS WERE AV AILABLE TO SUBSTANTIATE HIS CLAIM. THE SAID REMAND REPORT IS INCORPORATED IN PARA 6.2 AT PAGES 13 & 14 OF THE APPELLATE ORDER. THE C IT(A) FORWARDED THE SAID REMAND REPORT TO THE ASSESSEE ON 17.9.2010 FOR COMMENTS. THE ASSESSEE, HOWEVER, DID NOT FILE ANY WRITTEN COMMENT S AND THE CASE WAS PLEADED DURING THE COURSE OF HEARING ON 19.10.2010. 5. THE CIT(A) UPHELD THE ORDER OF THE A.O. IN FRAMI NG THE ASSESSMENT UNDER SECTION 144 OF THE INCOME-TAX ACT. IN RESPEC T OF THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE WITH INDUSIND BANK LTD., THE CIT(A) NOTED THAT THE ASSESSEE ADMITTED TO THE NON-COMPLIANCE ON HIS PART BEFORE T HE A.O. AND FURNISHED BREAK-UP OF VARIOUS RECEIPTS, WHICH WERE SENT TO TH E A.O. FOR COMMENTS AS THE SAME WERE NOT FILED BEFORE THE A.O. THE CIT (A) FURTHER OBSERVED THAT THE A.O. IN THE REMAND REPORT (REPRODUCED IN T HE PRECEDING PARTS OF THE CIT(A) ORDER), HAVE STATED THAT THE ASSESSEE FA ILED TO PRODUCE THE PERSONS FROM WHOM THE PAYMENTS AMOUNTING TO RS.22.9 0 LACS WAS STATED TO HAVE BEEN RECEIVED. THE ASSESSEE ALSO FAILED TO PRODUCE THE EVIDENCE WITH REGARD TO COMMISSION/CONTRACT AND TOKEN MONEY RECEIPTS. THE CIT(A) FURTHER NOTED THAT THE ASSESSEE HAD FAILED T O FILE ANY WRITTEN REPLY TO THE REMAND REPORT OF THE A.O. DATED 13.9.2 010 DESPITE OPPORTUNITY ALLOWED TO THE ASSESSEE. VIDE ORDER-SH EET ENTRY DATED 19.10.2010, THE LEARNED COUNSEL FOR THE ASSESSEE ST ATED THAT THE ASSESSEE WAS NOT IN A POSITION TO PRODUCE THE CONCERNED PERS ONS FROM WHOM THE DEPOSITS HAVE BEEN RECEIVED, NOR ANY CLARIFICATION WAS FILED. THE ASSESSEE FURTHER STATED THAT HE DOES NOT HAVE ANY S UPPORTING DOCUMENTS WITH REGARD TO THE INCOME RECEIVED BY WAY OF COMMIS SION, CONTRACT AND 6 TOKEN MONEY. THE ASSESSEE WAS ALSO ALLOWED AN OPPO RTUNITY TO RELATE THE COMMISSION, CONTRACT AND TOKEN MONEY RECEIPTS WITH THE AMOUNT DECLARED IN THE PROFIT & LOSS ACCOUNT. HOWEVER, THE ASSESSE E EXPRESSED HIS INABILITY TO DO THE SAME. THE CIT(A) THUS HELD THA T A COMPUTER GENERATED CASH BOOKS AND LEDGERS HAD NO RELEVANCE I N THE ABSENCE OF SUPPORTING VOUCHERS. THE ASSESSEES CONTENTION WIT H REGARD TO THE RECEIPT OF RS.5 LACS BY WAY OF CHEQUE FROM SALE OF PROPERTIES BEING NON- VERIFIABLE WAS ALSO REJECTED. THE ADDITION OF RS.3 6,17,500/- WAS CONFIRMED BY THE CIT(A). 6. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID ADDITION OF RS.36,17,500/-. THE ALTERNATE PLEA RAISED BY THE A SSESSEE THAT THERE IS NO MERIT IN CONFIRMING THE ADDITION OF RS.12,02,500/- OUT OF TOTAL ADDITION OF RS.36,17,500/- AS THE SAME HAS BEEN DULY ACCOUNT ED FOR AS RECEIPTS IN THE PROFIT & LOSS ACCOUNT AND INCOME OF RS.1,38,430 /- ON ACCOUNT OF SUCH RECEIPTS AFTER CLAIMING EXPENDITURE HAS BEEN A CCEPTED BY THE AUTHORITIES BELOW. THE LEARNED A.R. FOR THE ASSESS EE STATED THAT THE ASSESSEE WAS ENGAGED IN THE PROPERTY CONSULTANCY BU SINESS AND THE CASH DEPOSITS IN THE BANK ACCOUNT WERE ON ACCOUNT OF THE SAID BUSINESS CARRIED ON BY THE ASSESSEE AND ADVANCES RECEIVED FROM PARTI ES WHO WERE NOT PRODUCED. THE LEARNED A.R. FURTHER PLACED RELIANCE ON THE VARIOUS WRITTEN SUBMISSIONS FURNISHED BEFORE THE CIT(A). IT WAS ALSO POINTED OUT THAT THE A.O. HAD WRONGLY CONSIDERED THE DEPOSI TS OF RS.36,17,500/- AS INCOME FROM UNDISCLOSED SOURCES ALTHOUGH THERE W AS DEPOSIT OF RS.5 LACS BY CHEQUE ON 27.2.2005. FURTHER SUBMISSIONS W ERE MADE IN RESPECT OF THE BUSINESS INCOME SHOWN BY THE ASSESSEE. 7. THE LEARNED D.R. FOR THE REVENUE STRESSED THAT I N THE ABSENCE OF ANY CONFIRMATION FILED BY THE ASSESSEE, THE GENUINE NESS OF THE 7 TRANSACTION COULD NOT BE ESTABLISHED AND HENCE THE A.O. WAS NOT BARRED BY THE AIR INFORMATION. FURTHER IT WAS POINTED OUT THAT THE CIT(A) AT PAGE 16 OF HIS ORDER HAD CLEARLY STATED THAT THE RE CEIPT OF RS.5 LACS REMAINED UNVERIFIED. RELIANCE WAS PLACED ON THE RA TIO LAID DOWN BY THE HON'BLE SUPREME COURT IN SUMATI DAYAL VS. CIT 214 I TR 801 (SC) THAT THE BURDEN OF PROOF WAS UPON THE ASSESSEE TO PROVE ITS TRANSACTIONS. 8. WE HAVE HEARD RIVAL CONTENTION AND PERUSED THE R ECORD. IN THE FACTS OF THE CASE BEFORE US, THE INFORMATION WAS RE CEIVED IN RESPECT OF CASH DEPOSITS IN HIS BANK ACCOUNT. THE ASSESSEE WA S CONFRONTED BY THE A.O. TO EXPLAIN THE NATURE OF THE CASH DEPOSITS WIT H EVIDENCE. HOWEVER, NO EXPLANATION WAS FILED BY THE ASSESSEE BEFORE THE A.O. DURING THE APPELLATE PROCEEDINGS THE WHOLE CASE OF THE ASSESSE E WAS THAT IT WAS ENGAGED IN THE BUSINESS OF PROPERTY CONSULTATION AN D ALSO SALE AND PURCHASE OF PROPERTIES. THE ASSESSEE CLAIMS TO HAV E SOLD THREE PROPERTIES AGAINST WHICH IT HAD RECEIVED THE CONSID ERATION/ADVANCES. THE ASSESSEE ALSO CLAIMS TO HAVE RECEIVED ADVANCES FROM THREE SPECIFIED PARTIES. THE SECOND PLEA OF THE ASSESSEE IN RESPE CT OF THE DEPOSITS IN THE BANK ACCOUNT WAS THE RECEIPTS FROM HIS BUSINESS , INCOME FROM WHICH WAS SHOWN BY THE ASSESSEE AND THE RECEIPTS LESS THE EXPENDITURE WERE DECLARED AS INCOME FOR THE YEAR UNDER CONSIDERATION . THE CIT(A) HAD DIRECTED THE A.O. TO VERIFY THE STAND OF THE ASSESS EE BOTH IN RESPECT OF HIS BUSINESS RECEIPTS AND THE ADVANCES RECEIVED FRO M THREE PERSONS. THE ASSESSEE CLAIMS TO HAVE FURNISHED THE COPY OF THEIR INCOME-TAX RETURNS AND BANK STATEMENTS ALONGWITH THEIR INCOME-TAX PART ICULARS. HOWEVER, THE A.O. REQUISITIONED THE ASSESSEE TO PRODUCE THE SAID PARTIES, WHICH THE ASSESSEE WAS UNABLE TO PRODUCE. THE ASSESSEE WAS A LSO ASKED TO EXPLAIN THE NATURE OF THE AMOUNTS, RECEIVED FROM THE AFORES AID PARTIES, WHICH THE ASSESSEE WAS UNABLE TO JUSTIFIABLY EXPLAIN. THE AS SESSEE ALSO FAILED TO 8 FURNISH THE EVIDENCE OF COMMISSION, CONTRACT AND TO KEN MONEY SHOWN TO HAVE BEEN RECEIVED ON VARIOUS DATES. THE ASSESSEE WAS DIRECTED TO PRODUCE THE COMPLETE BOOKS OF ACCOUNT ALONGWITH SUP PORTING VOUCHERS WHICH THE ASSESSEE FAILED TO PRODUCE EVEN DURING TH E REMAND PROCEEDINGS BEFORE THE A.O. THE ASSESSEE HAD PRODUCED THE COMP UTERIZED CASH BOOK AND LEDGER FOR THE RELEVANT YEAR WITHOUT ANY SUPPOR TING VOUCHERS AND IN THE ABSENCE OF THE SAME, THE PLEA OF THE ASSESSEE T HAT PART OF THE DEPOSITS IN THE BANK ACCOUNT WERE ON ACCOUNT OF THE RECEIPTS FROM HIS BUSINESS OF PROPERTY CONSULTATION COULD NOT BE ESTABLISHED/PROV ED. IN THE ABSENCE OF THE SAME THE WHOLE DEPOSITS IN THE BANK ACCOUNT TOT ALING RS.36,17,500/- WERE TREATED AS INCOME FROM UNDISCLOSED SOURCES. 9. THE REQUIREMENTS OF SECTION 68 OF THE ACT ARE TH AT WHERE ANY SUM IS FOUND TO BE CREDITED TO THE BOOKS OF AN ASSESSEE MAINTAINED IN THE RELEVANT YEAR AND WHERE THE ASSESSEE OFFERS NO EXPL ANATION ABOUT THE NATURE AND SOURCE OF THE SAME, OR WHERE AS PER THE A.O. THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFACTORY, THEN T HE SAME SO CREDITED CAN BE CHARGED TO TAX AS INCOME OF THE ASSESSEE FOR THA T PREVIOUS YEAR. THE BURDEN IS UPON THE ASSESSEE TO PROVE WITH SATISFACT ORY EVIDENCE THE NATURE OF THE DEPOSITS CREDITED IN HIS BOOKS OF ACC OUNT. THE EXPRESSION BOOKS OF ACCOUNT INCLUDES THE ENTRIES IN THE BANK OF THE ASSESSEE, WHICH IN TURN ARE INCORPORATED IN THE BOOKS OF ACCO UNT MAINTAINED BY THE ASSESSEE. WHERE THE ASSESSEE FAILS TO OFFER AN EXP LANATION OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFAC TORILY PROVED, THEN SUCH INCOME IS TO BE INCLUDED IN THE HANDS IF THE A SSESSEE UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME-TAX ACT. 10. THE HON'BLE SUPREME COURT IN SUMATI DAYAL (SUPR A) HAD HELD AS UNDER : 9 IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TAXED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TAXING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF P ROVING THAT IT IS NOT TAXABLE BECAUSE IT FALLS WITHIN THE EXEMPTION PROVIDED BY THE ACT LIES UPON THE ASSESSEE. BUT IN VIEW OF SECTION 68 OF THE INCOME-TAX ACT, 1961, WHERE ANY S UM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR IT MAY BE CHARGED TO INCOME-TAX AS TH E INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE NATUR E AND SOURCE THEREOF IS, IN THE OPINION OF THE A.O., NOT SATISFACTORY. IN SUCH A CASE THERE IS, PRIMA FACIE , EVIDENCE AGAINST THE ASSESSEE, VIZ., THE RECEIPT OF MONEY, AND IF HE FAILS TO REBUT THE SAID EVIDENCE, IT CAN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE. WHILE CONSIDERING THE EXPLANATION OF THE AS SESSEE, THE DEPARTMENT CANNOT, HOWEVER, ACT UNREASONABLY. 11. IN THE FACTS OF THE PRESENT CASE BEFORE US THE ASSESSEE HAD MADE CASH DEPOSITS OF DIFFERENT AMOUNTS DURING THE FINAN CIAL YEAR 2006-07 TOTALING RS.31,62,500/- IN THE SAVING ACCOUNT MAINT AIN ED WITH INDUSIND BANK LTD. FURTHER THERE WAS A DEPOSIT OF RS.5 LACS BY CHEQUE IN THE AFORESAID ACCOUNT. THE ASSESSEE CLAIMS THAT OUT O F THE TOTAL CASH DEPOSITS OF RS.31,62,500/-, A SUM OF RS.24,15,000/- PERTAINED TO THE ADVANCES RECEIVED AGAINST SOME OF THE PROPERTIES. THE SAID AMOUNTS ARE CLAIMED TO HAVE BEEN RECEIVED FROM THREE PERSONS, S HRI RAJESH KUMAR, SMT.GURNAM KAUR AND SHRI AJAY KUMAR. THE ASSESSEE FILED PAN NUMBERS OF THE SAID PARTIES ALONGWITH COPIES OF THE IR INCOME-TAX RETURNS, BEFORE THE CIT(A), AS REPRODUCED BY THE CIT(A) AT P AGES 9 & 13 OF THE APPELLATE ORDER. THE SAID REJOINDER OF THE ASSESSE E WAS FORWARDED TO THE A.O. AND THE COUNSEL WAS ASKED TO FURNISH EVIDENCE IN RESPECT OF THE 10 NATURE OF THE PAYMENT RECEIVED FROM THE THREE PERSO NS AND ALSO PRODUCE THE SAID PERSONS TO RECORD THEIR STATEMENTS. THE ASSESSEE FAILED TO FILE ANY REPLY TO THE SAID QUERIES RAISED BY THE A.O., N OR ANY CONFIRMATION OR CLARIFICATION WAS FILED BY THE ASSESSEE IN RESPECT OF THE ALLEGED ADVANCES RECEIVED FROM THE SAID THREE PERSONS. FURTHER CLAI M OF THE ASSESSEE WAS THAT THE BALANCE DEPOSIT IN CASH TOTALING RS.7,47,5 00/- WAS ON ACCOUNT OF COMMISSION, CONTRACT AND TOKEN MONEY RECEIVED BY TH E ASSESSEE, WHICH HAVE BEEN ACCOUNTED FOR IN ITS PROFIT & LOSS ACCOUN T. HOWEVER, THE ASSESSEE FAILED TO PRODUCE ANY SUPPORTING VOUCHERS TO ESTABLISH ITS CASE. 12. IN THE FACTS OF THE PRESENT CASE THE ONUS CAST UPON THE ASSESSEE HAS NOT BEEN DISCHARGED. THE ASSESSEE EXCEPT FOR FILIN G THE EXPLANATION HAS FAILED TO FURNISH ON RECORD ANY EVIDENCE TO ESTABLI SH ITS CLAIM VIS--VIS THE DEPOSITS IN THE BANK ACCOUNT. NO EVIDENCE WAS FURNISHED BEFORE THE A.O. IN THE ASSESSMENT PROCEEDINGS. THE ASSESSEE F URNISHED EXPLANATION BEFORE THE CIT(A), WHICH WAS NOT BACKED BY ANY SUPP ORTING EVIDENCE. THE CIT(A) CALLED FOR REMAND REPORT AND ALSO DIRECT ED THE A.O. TO REEXAMINE THE DETAILS FILED BY THE ASSESSEE. EVEN IN THE REMAND PROCEEDINGS THE ASSESSEE FAILED TO FILE RELEVANT EV IDENCE. IN THE ABSENCE OF ANY EVIDENCE BEING FURNISHED IN RESPECT OF THE N ATURE AND SOURCE OF THE DEPOSITS IN THE BANK ACCOUNT, WE ARE IN AGREEME NT WITH THE ORDERS OF THE AUTHORITIES BELOW THAT THE SAID DEPOSITS IN THE BANK ACCOUNT ARE TO BE INCLUDED AS INCOME OF THE ASSESSEE FOR THE RELEVANT YEAR. FURTHER WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE THAT IN A DDITION TO THE CASH DEPOSITS THERE WAS DEPOSITS BY CHEQUE WHICH COULD N OT BE ADDED AS INCOME OF THE ASSESSEE. THE ASSESSEE HAS FAILED TO ESTABLISH THE NATURE OF THE SAID CHEQUE ENTRY AND ONCE THE CASE IS SELEC TED FOR SCRUTINY, THE POWER OF THE A.O. IS WIDE ENOUGH TO TAKE INTO CONSI DERATION ALL THE 11 ASPECTS CONNECTED WITH THE ASSESSMENT OF THE PARTIC ULAR YEAR AND CANNOT BE RESTRAINED TO ONLY THE INFORMATION RECEIVED IN R ESPECT OF THE ASSESSEE. 13. THE ALTERNATE PLEA OF THE ASSESSEE THAT ONCE TH E INCOME FROM COMMISSION HAS BEEN ACCEPTED IN ITS HANDS, THE RECE IPTS IN CONNECTION WITH THE SAID COMMISSION INCOME ARE TO BE EXCLUDED FROM THE BANK DEPOSITS CONSIDERED FOR ADDITION ON ACCOUNT OF INCO ME FROM UNDISCLOSED SOURCES. REGARDING THE SAID PLEA OF THE ASSESSEE WE HAVE ALREADY BROUGHT OUT IN PARAS ABOVE THAT THE ASSESSEE HAS FA ILED TO PRODUCE ANY SUPPORTING EVIDENCE IN RESPECT OF ITS CLAIM AND IN THE ABSENCE OF THE SAME, WE FIND NO MERIT IN THE ALTERNATE PLEA RAISED BY THE ASSESSEE AND HENCE, THE SAME IS DISMISSED. GROUND NOS. 2 & 3 R AISED BY THE ASSESSEE ARE DISMISSED. 14. GROUND NO.1 BEING GENERAL IN NATURE IS DISMISSE D. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF APRIL, 2011. SD/- SD/- (D.K.SRIVASTAVA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 8 TH APRIL, 2011 RATI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH